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978 F.2d 721
Warrenv.Mosley***
NO. 92-6251
United States Court of Appeals,Eleventh Circuit.
Oct 26, 1992
1
Appeal From: S.D.Ala.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
**
Local Rule 36 case
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525 So.2d 901 (1987)
Carla D. MARTIN, Appellant,
v.
STATE of Florida, Appellee.
No. 87-519.
District Court of Appeal of Florida, Fifth District.
December 3, 1987.
On Motion for Rehearing June 2, 1988.
James B. Gibson, Public Defender, and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Kevin Kitpatrick Carson, Asst. Atty. Gen., Daytona Beach, for appellee.
On Motion for Rehearing En Banc June 2, 1988.
COWART, Judge.
By motion, the appellant claimed before the trial court that while she was given proper credit for time served as to one of her convictions, such credit should have been applied equally as to each of her concurrent sentences. See § 921.161(1), Fla. Stat.; Daniels v. State, 491 So.2d 543 (Fla. 1986); Williams v. State, 507 So.2d 745 (Fla. 5th DCA 1987); Thomas v. State, 503 So.2d 450 (Fla. 5th DCA 1987); West v. State, 497 So.2d 1347 (Fla. 5th DCA 1986). The trial court summarily denied relief to the appellant without an evidentiary hearing.
The determination of the proper amount of credit for time served pursuant to section 921.161(1), as explained in Meintzer v. State, 399 So.2d 133 (Fla. 5th DCA 1981), is a question of fact and normally can only be determined after an evidentiary hearing. Accordingly, we reverse and remand for the trial court to either (1) enter another order which shows by attached portions of the court files and record that appellant received proper credit for all time served before sentencing and is entitled to no relief or (2) conduct an evidentiary hearing to determine the questions of fact necessary to determine the jail time credit to which appellant is entitled under the statute. See Fla.R.Crim.P. 3.850.
REVERSED AND REMANDED.
DAUKSCH and ORFINGER, JJ., concur.
ON MOTION FOR REHEARING EN BANC
COBB, Judge.
For purposes of clarification, we have reconsidered this case en banc and, to the extent of any inconsistency with the following opinion, we recede from any language *902 in Deel v. State, 508 So.2d 527 (Fla. 5th DCA 1987), and Meintzer v. State, 399 So.2d 133 (Fla. 5th DCA 1981), which suggests that Florida Rule of Criminal Procedure 3.850 is the exclusive remedy for the trial court's failure to properly credit a defendant with presentence jail time.
The appellant, Carla D. Martin, sought relief before the trial court by filing a "Motion to Correct Sentence," setting out the legal argument that she received only 39 days' credit on her initial charge of grand theft, even though she actually was incarcerated for 101 days altogether between arrest and plea on that charge. The written motion did not identify any particular rule of criminal procedure as its basis. It was summarily denied without evidentiary hearing by the trial court and Martin has filed a plenary appeal from that order.
If the issue of credit time should (not merely could) have been raised via a 3.850 motion, as we said in Deel and Meintzer, then the trial court was absolutely correct in its summary denial because the motion below failed to comply with the requirements of that rule. See Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981). The motion failed to state whether an appeal or other post-conviction remedies had been undertaken, Evans v. State, 388 So.2d 1366 (Fla. 5th DCA 1980); Saxon v. State, 384 So.2d 35 (Fla. 5th DCA 1980), and it was not under oath. See Gorham v. State, 494 So.2d 211 (Fla. 1986); Scott v. State, 464 So.2d 1171 (Fla. 1985). However, as we see it, Martin's unsworn motion, signed by her trial counsel, was properly filed pursuant to Florida Rule of Criminal Procedure 3.800(a), which does not contain the procedural requirements of Rule 3.850.[1]
Clearly implicit in the Florida Supreme Court's opinion in Daniels v. State, 491 So.2d 543 (Fla. 1986), is the determination that, as a result of the 1973 legislative amendment of section 921.161(4), Florida Statutes (1973), a sentence is illegal if it fails to allow a defendant credit on all concurrent sentences for all of the time spent in the county jail before sentencing. Consequently, the matter is one which may be raised at any time pursuant to Florida Rule of Criminal Procedure 3.800(a).
Accordingly, we grant rehearing, vacate our prior opinion issued in this case, and recede en banc from our language in Deel and Meintzer suggesting that a 3.850 motion is the only proper vehicle for challenging an illegal sentence.[2] The trial court's order denying Martin's motion to correct sentence is reversed and remanded for further proceedings: i.e., a correction of sentence if there is no factual dispute raised by the motion, or an evidentiary hearing if there is.
REVERSED and REMANDED.
SHARP, C.J., and DAUKSCH, ORFINGER and DANIEL, JJ., concur.
COWART, J., dissents with opinion.
COWART, Judge, dissenting.
I dissent from this opinion on rehearing en banc because (1) it is unnecessary and is dicta and (2) the dicta does not express the better view of the issue it addresses.
First, there is no language in Deel or Meintzer to the effect that the "only" or "exclusive" way to obtain jail time credit under section 921.161(1), Florida Statutes, is by use of a motion under Rule 3.850. The issue in Meintzer and the 17 cases following it[1] involved only the question of *903 whether failure to receive statutory jail time credit can be initially raised on direct appeal or whether the issue should be raised by post conviction motion under Rule 3.850. Jail time credit requires the resolution of certain fact issues not usually[2] raised and resolved by the trial court at sentencing. Meintzer explains that because of the necessity to resolve the usual questions of fact, jail time credit cannot normally be effectively raised on direct appeal and should be initiated by use of Rule 3.850, which was a remedy advocated by the State in those cases. Nothing in Meintzer or Deel or the original opinion in this case, Martin v. State, 525 So.2d 901 (Fla. 5th DCA 1987), attempts to designate an exclusive rule remedy by which to obtain jail time credit.
Secondly, the opinion on rehearing en banc changes nothing in the result or holding in the panel opinion in the case, Martin v. State, 525 So.2d 901 (Fla. 5th DCA 1987).
Thirdly, Daniels v. State, 491 So.2d 543 (Fla. 1986) (which disapproved of Green v. State, 450 So.2d 1275 (Fla. 5th DCA 1984)) holds that a defendant is entitled to jail time credit against all concurrent sentences; that decision neither expressly nor by implication holds that, to receive jail time credit against a sentence, that sentence must be held or considered to be "an illegal sentence" within the meaning of that term as contained in Florida Rule of Criminal Procedure 3.800(a) or in Florida Rule of Appellate Procedure 9.140(b)(1)(D). That question was not presented or argued by either party to this appeal and is unnecessary to the disposition in this case. Furthermore, it is itself an unnecessarily restrictive view. As the dissent in Green, 450 So.2d at 1277 n. 1, explained: "A defendant is entitled to both a legal sentence and a credit for jail time credit under § 921.161(1), Fla. Stat." Section 921.161(1), Florida Statutes bestows a substantive right to jail time credit which statutory right cannot be restricted or limited by restrictions and limitations contained in any court-made rule-based remedy. Any motion or petition presenting the essential facts showing the pleader is entitled to statutory jail time credit and requesting or demanding that credit or right is sufficient. All references to particular court rule remedies and all restrictions and limitations on such rule remedies can be, and should be, disregarded as unnecessary and surplusage.
NOTES
[1] Rule 3.800(a) provides:
(a) A court may at any time correct an illegal sentence imposed by it or an incorrect calculation made by it in a sentencing guidelines scoresheet.
[2] There are three ways to challenge an illegal sentence: by direct appeal as provided by Florida Rule of Appellate Procedure 9.140(b)(1)(D); by Rule 3.800(a); and, if a prisoner in custody, by Rule 3.850.
[1] Harrison v. Wainwright, 408 So.2d 800 (Fla. 5th DCA), rev. denied, 419 So.2d 1201 (Fla. 1982); Dowda v. State, 417 So.2d 1147 (Fla. 5th DCA 1982); Jablonskis v. State, 422 So.2d 356 (Fla. 5th DCA 1982); Waite v. State, 423 So.2d 529 (Fla. 5th DCA 1982); Delgado v. State, 423 So.2d 603 (Fla. 3d DCA 1982); Lamar v. State, 443 So.2d 414 (Fla. 4th DCA 1984); Hampton v. State, 446 So.2d 1171 (Fla. 5th DCA 1984); Scott v. State, 447 So.2d 1002 (Fla. 5th DCA 1984); Jensen v. State, 449 So.2d 969 (Fla. 5th DCA 1984); Spurlock v. State, 449 So.2d 973 (Fla. 5th DCA 1984), rev. denied, 466 So.2d 212 (Fla. 1985); Whitchard v. State, 459 So.2d 439 (Fla. 3d DCA 1984); Kirkman v. Wainwright, 465 So.2d 1262 (Fla. 5th DCA 1985); Frizzell v. State, 473 So.2d 290 (Fla. 2d DCA 1985); Pendergrass v. State, 487 So.2d 35 (Fla. 4th DCA 1986); Everett v. State, 492 So.2d 861 (Fla. 5th DCA 1986); Deel v. State, 508 So.2d 527 (Fla. 5th DCA 1987); Martin v. State, 525 So.2d 901 (Fla. 5th DCA 1987).
[2] Sometimes the facts necessary to establish the defendant's right to jail time credit have been established, such as by stipulation, prior to direct appeal of the sentence, in which event review of denial of jail time credit can be had on direct appeal. See, e.g., Griner v. State, 523 So.2d 789 (Fla. 5th DCA 1988); Carroll v. State, 523 So.2d 787 (Fla. 5th DCA 1988).
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553 F.2d 93
Antco Shipping Company, Limited, In the Matter of the Application of
No. 76-7363
United States Court of Appeals, Second Circuit
2/16/77
1
S.D.N.Y.
2
AFFIRMED*
*
Oral Opinion delivered in open court in the belief that no jurisprudential purpose would be served by a written opinion. An oral opinion or a summary order is not citable as precedent. Local Rule Sec. 0.23
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434 So.2d 24 (1983)
Nelson FERNANDER, Appellant,
v.
The STATE of Florida, Appellee.
No. 82-2080.
District Court of Appeal of Florida, Third District.
July 5, 1983.
*25 Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
PER CURIAM.
The trial court revoked the defendant's probation finding that the defendant (a) failed to submit certain monthly reports, (b) failed to secure gainful employment, (c) was in arrears in cost of supervision payments, and (d) committed a burglary of an unoccupied dwelling. We reverse the order revoking probation upon a holding that (1) because no evidence whatsoever was adduced at the revocation hearing to support the three technical violations, the court's findings in respect to these violations must be stricken, see Delgado v. State, 423 So.2d 603 (Fla. 3d DCA 1982), and (2) while there was evidence presented tending to show that some unidentified and undescribed person had attempted to gain entry into the building in question, the defendant's presence half a block away from the building in early morning hours some fifteen to thirty minutes after the burglary and his attempted flight from a police officer who accosted him raise, at most, a mere suspicion that the defendant was involved in criminal activity and are insufficient to prove by the greater weight of the evidence that the defendant committed the burglary charged. See Miller v. State, 420 So.2d 631 (Fla. 2d DCA 1982), and cases cited. See also A.Y.G. v. State, 414 So.2d 1158 (Fla. 3d DCA 1982); J.L.B. v. State, 396 So.2d 761 (Fla. 3d DCA 1981); J.O. v. State, 384 So.2d 966 (Fla. 3d DCA 1980); J.H. v. State, 370 So.2d 1219 (Fla. 3d DCA 1979); Morgan v. State, 355 So.2d 149 (Fla. 1st DCA 1978).
Reversed.
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46 So.3d 1004 (2010)
JOHNSON
v.
STATE.
No. 1D10-4480.
District Court of Appeal of Florida, First District.
October 13, 2010.
DECISION WITHOUT PUBLISHED OPINION
Affirmed.
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863 P.2d 838 (1993)
Evie LINSTAD, Appellant,
v.
SITKA SCHOOL DISTRICT, Appellee.
No. S-4958.
Supreme Court of Alaska.
November 26, 1993.
Chrystal Sommers Brand, Baxter, Bruce, Brand & Rodriguez, Juneau, for appellant.
Robert P. Blasco, Robertson, Monagle & Eastaugh, P.C., Juneau, for appellee.
*839 Before MOORE, C.J., and RABINOWITZ, BURKE, MATTHEWS and COMPTON, JJ.
OPINION
COMPTON, Justice.
After an independent review of the record, the superior court upheld the decision of the Sitka School District not to retain Evie Linstad for the 1990-91 school year. Linstad, a tenured teacher, challenges several of the superior court's procedural rulings and its final decision. We reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Sitka School District (District) employed Evie Linstad as a special education teacher from 1977-1990. Yearly evaluations of Linstad's teaching performance were generally positive, but they indicated longstanding problems regarding her ability to maintain an effective working relationship with fellow teachers and, to a lesser degree, her ability to develop clear and effective lesson plans.
In 1986 Terry Coon became the principal of Linstad's school and her supervisor. Linstad received very poor evaluations from Coon.[1] In 1989 Coon recommended that Linstad not be retained for the 1989-90 school year. Nonetheless, the Sitka School District Board of Education (Board) did not accept this recommendation and Linstad returned for the 1989-90 school year.
During the 1989-90 school year Linstad's relationship with Coon became highly adversarial.[2] In December 1989, pursuant to the Negotiated Agreement between the District and its teachers, Coon and District Superintendent Art Woodhouse notified Linstad that her "teaching performance [wa]s so deficient that it may affect [he]r continued employment" with the District. The notice directed Linstad to discuss with her superiors "remedial action to correct this deficiency." In February 1990 Coon gave Linstad another very poor evaluation and recommended that she not be retained for the following school year.
The District accepted Coon's recommendation and gave Linstad notice that she would not be retained for the 1990-91 school year. Pursuant to statute, the notice specified the grounds of nonretention as "incompetency" and "substantial noncompliance" with state law and school policies. See AS 14.20.175 (a tenured teacher is subject to nonretention only for incompetency, immorality, substantial noncompliance with school law, or a necessary reduction of staff). The notice also contained a bill of particulars as required by AS 14.20.180(a).[3]
The Board held a three-day nonretention hearing for Linstad in April 1990. In May 1990 the Board decided by unanimous vote not to retain Linstad due to demonstrated incompetence in the performance of her duties and substantial failure to comply with statutes, regulations and District policies. After this decision, Linstad sought judicial review in the superior court pursuant to AS 14.20.205, which provides in part that "[i]f a school board reaches a decision unfavorable to a teacher, the teacher is entitled to a de novo trial in the superior court."
After a pretrial hearing in December 1990, Superior Court Judge Larry Zervos asked the parties to decide whether they wished to proceed with the matter as an appeal or as a de novo trial. Judge Zervos ruled that if the matter was to proceed as a de novo trial, "the school district [would] not [be] bound by the bill of particulars *840 that had been filed during the non-retention hearing." The court stated:
The ruling to allow the district to deviate from the bill of particulars was premised on the fact that a trial de novo should provide a forum for a full and final inquiry into all the issues raised. Because of the limited time and procedure provided by the nonretention hearing process, some issues, on both sides, may not have been adequately developed. Since the statute authorizes a new trial, it is the court's interpretation that the procedures followed in this case should be the same procedures as in any other civil case.
Linstad argued that the ruling denied her fair notice and allowed the District to avoid its statutorily mandated duty to give her a "complete bill of particulars." AS 14.20.180(a). In response, the court noted that "[a]dequate discovery procedures and the rules of evidence should protect Ms. Linstad from the problems raised in her objection." While preserving her objection to these rulings, Linstad chose to have an independent review of the record, rather than a de novo trial.
In December 1991 the court upheld the Board's nonretention decision. The court explicitly stated that it had "independently reviewed the record before the school board to determine whether the decision to nonretain Linstad was supported by a preponderance of the evidence."[4] The court concluded in the affirmative and this appeal followed. AS 22.05.010(a); Alaska R.App.P. 202(a).
II. DISCUSSION
Alaska Statute 14.20.180 describes the administrative procedure that is utilized when a tenured teacher has been given a notice of nonretention. AS 14.20.180; Corso v. Comm'n of Educ., 563 P.2d 246, 247 n. 8 (Alaska 1977). Pursuant to this statute, a school board must provide a tenured teacher with (1) "a statement of cause and a complete bill of particulars" of the charges for nonretention, and (2) a hearing. AS 14.20.180(a)-(b). If the Board reaches a decision unfavorable to a tenured teacher, the statutory framework provides the teacher an additional protection the right to a de novo trial in the superior court. AS 14.20.205.
Linstad argues that the superior court erred in its interpretation and application of section 205. Citing the explicit statutory guarantee of de novo review, Linstad argues that the trial court erred in forcing her to elect between a de novo trial and a review of the Board record. Linstad further argues that the court erred in holding that the Board could deviate from the original bill of particulars if Linstad chose to have a de novo trial. In essence, Linstad argues that the bill of particulars requirement binds the District not only before the Board, but also before the superior court if the teacher exercises her right to a de novo trial under AS 14.20.205.[5]
We agree that the superior court erred in making Linstad choose between a de novo trial and a review of the record. The statute provides tenured teachers the *841 right to a de novo trial, and makes no mention of other available levels of review. AS 14.20.205. Further, we have previously held that the de novo requirement of AS 14.20.205 is not satisfied by "a de novo review on the evidence presented in the administrative hearing." Asevedo v. Anchorage Sch. Dist., 843 P.2d 1209 (Alaska 1992). The superior court thus erred in forcing Linstad to choose between a de novo trial and a review of the record.[6]
We must now determine the scope of the de novo trial to which Linstad was entitled. In Asevedo, we discussed the de novo trial under AS 14.20.205: "[T]he most common meaning of the term de novo trial is a proceeding where there is both a new evidentiary hearing and original fact finding. It is our view that the legislature contemplated such a proceeding in enacting AS 14.20.205." Id. Asevedo did not address, however, whether the Board could deviate from the original bill of particulars during the trial before the superior court. Accordingly, this question is one of first impression for this court.[7]
Pursuant to section 205, the superior court reviews the Board's nonretention decision de novo, i.e., "as if the proceeding had been originally brought in the reviewing court." 2 Am.Jur. Administrative Law 2d § 698, at 597 (1962). Consistent with Asevedo, this means that new evidence may be presented and that the superior court must engage in original fact finding. Asevedo, 843 P.2d at 1209. It does not mean, however, that the school district can change the allegations which form the basis for its nonretention decision. The bill of particulars requirement under section 180 prevents a district from changing tactics or bolstering its case during the middle of the administrative process. So too should it protect the teacher who chooses to have the Board's decision reviewed de novo in the superior court.
We therefore hold that the bill of particulars provision of section 180 operates as a limitation on the scope of the de novo trial guaranteed by section 205.[8] Although section 205 was enacted for the benefit and protection of tenured teachers, the superior court's interpretation of AS 14.20.205 could actually work to a teacher's detriment. The court's ruling would provide a district with a fresh opportunity to bolster its nonretention decision, and would make it likely that a teacher would have to spend more time, effort and money to meet any additional charges. Since the superior court essentially supplants the Board and redecides the case, it makes sense to apply the bill of particulars limitation to the de novo trial in the superior court. Furthermore, this decision is supported by the policies underlying both the statutory framework generally, and the teacher's right to de novo review specifically.
We have previously noted the importance of both the tenured teacher's interest in a *842 nonretention decision, and the mandatory right to de novo review of that decision:
The decision not to retain a tenured teacher may have an enormous impact on that teacher's career. This consideration must have weighed heavily in the minds of the legislature when they granted the unusual right to trial de novo. There is no question that a judicial body, often further removed from the political pressures involved in a teacher nonretention dispute, will provide a more objective perspective of the proceedings.
Jerrel v. Kenai Peninsula Borough Sch. Dist., 567 P.2d 760, 766 (Alaska 1977).[9] Because sections 180 and 205 were enacted for the benefit and protection of tenured teachers, we interpret these sections to give effect to this goal.
III. CONCLUSION
We hold that the superior court erred in making Linstad choose between a de novo trial and review of the record. Further, we conclude that the court erred in ruling that the Board could deviate from the original bill of particulars if Linstad chose de novo trial. Accordingly, we REVERSE and REMAND for further proceedings consistent with this opinion.
BURKE, J., dissents in part.
BURKE, Justice, dissenting in part.
I respectfully dissent from that part of today's decision limiting the school district, in a de novo trial under AS 14.20.205, to the nonretention grounds detailed in the bill of particulars included in the notice of nonretention given to Linstad pursuant to AS 14.20.180.
The Alaska Legislature clearly intended to guarantee fair treatment for tenured teachers threatened with nonretention.[1] The majority, bent on providing maximum protection to such teachers, construes the right to a de novo trial provided in AS 14.20.205 as including the right to a trial limited in scope to the grounds for nonretention described in the bill of particulars mandated by AS 14.20.180. Neither of the two sections, nor the Alaska Rules of Civil Procedure,[2] imposes such a limitation. Section 14.20.205 is totally silent on the issue. Although section 14.20.180 requires a "complete bill of particulars" in the notice of nonretention given to a tenured teacher, it does not purport to apply that requirement, nor any other, to proceedings held in the superior court.[3] The Alaska Rules of *843 Civil Procedure govern such proceedings. See supra note 3.
The majority treats Linstad's career interests as paramount. Her interests, however, while undoubtedly important and worthy of protection, are certainly no more important than the public's interest in identifying and eliminating incompetent teachers, and the children's "right" to receive a quality education in a conducive environment.[4]
As long as a teacher is given adequate notice of all charges to be considered in his or her de novo trial, and a fair opportunity to defend against those charges, no sound policy reason exists to prevent a school district from using the available evidence bearing upon the teacher's fitness to maintain his or her teaching position, regardless of whether the notice of nonretention included such evidence.[5]
NOTES
[1] Coon included with the evaluation forms detailed critiques of Linstad's performance. He cited problems with punctuality and classroom discipline, as well as continued problems with lesson planning and working relationships.
[2] The record contains numerous interoffice memoranda displaying a breakdown of communication and a complete lack of mutual respect or professional esteem between Linstad and Coon.
[3] The statute provides that "[a]n employer shall include in a notification of ... nonretention or dismissal of a tenured teacher, a statement of cause and a complete bill of particulars." AS 14.20.180(a) (emphasis added).
[4] Because Linstad elected to have an independent review of the record, the court limited the scope of its review to those allegations included in the bill of particulars. However, noting that Linstad herself had introduced evidence dealing with events occurring before the 1989-90 school year, the court did not limit its review to that year alone. Instead, it examined "all evidence presented to the board at the hearing that relates to the allegations raised in the `Bill of Particulars.'"
Linstad claims that the trial court erred in giving her an "intermediate level" of review. If the election itself was proper, the court did not err in giving Linstad the precise level of review which she requested in her notice of election, an "independent review of the evidence before the school board." The court conducted original fact finding based on the administrative record. See Asevedo v. Anchorage Sch. Dist., 843 P.2d 1209 (Alaska 1992) (describing this type of review as a de novo trial "in part").
[5] The District does not squarely address Linstad's argument, but instead argues that the court allowed the District to go beyond the bill of particulars because Linstad had raised new allegations in her wrongful termination action. The District claims that the court simply "reminded Linstad about how a jury trial works when a party files a civil complaint and what rules apply." The District mischaracterizes the court's ruling.
[6] Linstad originally requested a de novo trial in accordance with her statutory right. Despite this request, however, the superior court gave Linstad a choice between a de novo trial and an appeal on the record. Further, the court made clear that the Board would be allowed to deviate from the bill of particulars if Linstad chose a de novo trial. In so doing, the superior court failed to follow the dictates of AS 14.20.205, and improperly influenced Linstad to forego the right to a de novo trial guaranteed by AS 14.20.205. We do not suggest, however, that an independent review of the record would be inappropriate where a new evidentiary hearing is not sought.
[7] Because questions of law and statutory construction are presented here, this court will apply its independent judgment to resolve the issue. Forest v. Safeway Stores, Inc., 830 P.2d 778, 780 n. 3 (Alaska 1992).
[8] This limitation does not undermine the de novo nature of the trial court's review. "A trial or hearing `de novo' means trying the matter anew the same as if it had not been heard before and as if no decision had been previously rendered." 2 Am.Jur.2d Administrative Law § 698, at 597 (1962). While a de novo trial may be different in many respects from the original administrative hearing, the essential aspect of such a trial is the authority of the reviewing court to exercise its independent judgment. In other words, the reviewing court must be authorized to make an entirely independent determination, unencumbered by any presumptions regarding the administrative decision. Id. at 598. Our decision today protects this essential element.
[9] In Matanuska-Susitna Borough v. Lum, 538 P.2d 994 (Alaska 1975), we also noted several policy reasons underlying the mandatory right to a de novo trial. For example, we stated that "[i]t is well known that the composition of many school boards is not such as to endow them with fact-finding expertise in matters of teacher nonretention." Id. at 1001. We also noted that the teacher is faced with the loss of a very important right the teacher's source of income. Id.
[1] AS 14.20.175 provides the only grounds for which a tenured teacher is subject to nonretention. AS 14.20.180 requires a school district to include "a statement of cause and a complete bill of particulars" in any notice of nonretention given to a tenured teacher, and affords the teacher the right to an administrative hearing before the school board. If the school board reaches an unfavorable decision, the teacher, upon request, is entitled to a de novo trial in the superior court. See AS 14.20.205.
[2] The limitation also appears to conflict with the fact that a de novo trial is, by definition, "[a] trial ... in which the whole case is gone into as if no trial whatever had been had in the court below." Black's Law Dictionary (6th ed. 1986); see also Yepes-Prado v. U.S. Immigration & Naturalization Serv., ___ F.2d ___ 1993 WL 394469, at [*]2 n. 5 (9th Cir. Oct. 8, 1993).
[3] The state's legislative power undoubtedly includes the power to enact rules governing school district practices and procedures in teacher nonretention cases. See Alaska Const. art. II, § 1. Thus, the legislature is free to impose procedural requirements such as those contained in AS 14.20.180 upon school districts and teachers. Linstad's de novo trial, however, will be held in the superior court. Section 14.20.180 does not even pretend to regulate practice and procedure in the superior court, and if it did, the statute would be invalid. Only this court, the supreme court, has the power to "make and promulgate rules governing practice and procedure in civil and criminal cases in [the] courts." Alaska Const. art. IV, § 15. Thus, the Alaska Civil Rules govern all proceedings in the superior court. The legislature, while it has the power to change such rules "by two-thirds vote of the members elected to each house," has no power to make them. Id.; Channel Flying, Inc. v. Bernhardt, 451 P.2d 570 (Alaska 1969). (Note: No such change has been made in any of the Civil Rules applicable to this proceeding.)
[4] I do not intend to pass judgment upon Linstad's performance as a teacher, nor upon the question of whether she is entitled to maintain her teaching position. My remarks are directed only toward that portion of today's decision limiting the scope of the de novo trial required by AS 14.20.205.
[5] The majority suggests that the school district could "disadvantage" the teacher by bolstering its nonretention decision with new evidence. This seems generally unlikely, since the teacher is the only party that can request a de novo trial. AS 14.20.205. Op. at 841. If the district loses at the school board hearing, there is no de novo trial. Thus, the district has an interest in putting forward all of its evidence during the administrative hearing. The district had no incentive to withhold relevant evidence until the de novo trial. At any rate, in light of the important policy reasons discussed above, I see no good reason to restrict the evidence that the district can present at a de novo trial to the matters contained in the bill of particulars.
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 21 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
SAMUEL CLAY WILHOIT,
Petitioner - Appellant,
v. No. 01-6294
(D.C. No. 00-CIV-1947-A)
H. N. SCOTT, Warden, (W.D. Okla.)
Respondent - Appellee.
ORDER AND JUDGMENT *
Before EBEL, KELLY, and LUCERO, Circuit Judges. **
Petitioner-Appellant Samuel Clay Wilhoit, an inmate appearing pro se,
seeks a certificate of appealability (“COA”) allowing him to appeal the district
court’s order denying his petition for a writ of habeas corpus, 28 U.S.C. § 2254.
Because Petitioner has failed to make a “substantial showing of the denial of a
constitutional right” as required by 28 U.S.C. § 2253(c)(2), we deny his request
*
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(G). The cause is therefore ordered submitted without oral argument.
and dismiss the appeal.
Petitioner was convicted after a jury trial of one count of possession of a
firearm after former conviction of a felony, one count of eluding a police officer,
one count of reckless driving, and two counts of failure to stop at a stop sign.
The court sentenced Petitioner to thirty-five years on the possession of a firearm
count, to be served consecutively with the remaining counts. In his petition,
Petitioner seeks relief only on the possession of a firearm conviction. Petitioner
sought a direct appeal of his conviction to the Oklahoma Court of Criminal
Appeals (“OCCA”) which affirmed the conviction in a summary opinion.
Petitioner did not seek post-conviction relief in Oklahoma, however, the State
concedes that he has exhausted his state court remedies. R. Doc. 7 at 2.
In his original petition before the United States District Court, Petitioner
raised three grounds for relief: (1) the OCCA violated his due process and equal
protection rights with its summary opinion that failed to address whether the
statute under which he was charged, Okla. Stat. tit. 21, § 1283(A), applied to his
conduct; (2) the evidence was insufficient to prove he was guilty under §
1283(A); and (3) the state trial court allowed the State to present irrelevant and
prejudicial evidence. After referral of the matter from the district court and
receipt of the State’s response, the magistrate judge issued a thorough Report and
Recommendation, recommending dismissal of the petition. R. Doc. 12. After
-2-
Petitioner filed an objection to the magistrate’s Report and Recommendation and
the State filed a response, the district court adopted the Report and
Recommendation and denied the petition. R. Doc. 16.
In this appeal, Petitioner raises two issues: (1) that in light of his asserted
“actual and factual innocence” of the firearm possession statute, both the
Oklahoma trial court and the OCCA should have ensured jurisdiction over his
case; and (2) that the federal district court failed to address his “actual and factual
innocence claim.” Aplt. Br. at 16. Petitioner’s first issue is at bottom an attack
on the state courts’ construction of the firearm possession statute, a construction
to which we are bound in habeas review. See Dennis v. Poppel, 222 F.3d 1245,
1257 (10th Cir. 2000) (citing Missouri v. Hunter, 459 U.S. 359, 368 (1983)). As
to Petitioner’s second contention, we agree with the magistrate’s Report and
Recommendation concluding that the State presented sufficient circumstantial
evidence to support his conviction and that the OCCA’s resolution of this issue is
not contrary to or an unreasonable application of federal law. 28 U.S.C. §
2254(d)(1); R. Doc. 12 at 5–7.
We have carefully reviewed Petitioner’s request for a COA, his appellate
brief, the magistrate judge’s recommendation, and the appellate record, and
conclude that he has failed to demonstrate that the issues raised are debatable
among jurists, that a court could resolve the issues differently, or that the
-3-
questions presented deserve further proceedings. See Slack v. McDaniel, 529
U.S. 473, 483–84 (2000). As such, Petitioner has failed to make the “substantial
showing of the denial of a constitutional right” required for a COA. 28 U.S.C. §
2253(c)(2).
Accordingly, for substantially the reasons set forth by the magistrate judge,
we DENY Petitioner’s request for a COA and IFP and DISMISS his appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-4-
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723 F.2d 746
115 L.R.R.M. (BNA) 2468, 99 Lab.Cas. P 10,714
NATIONAL LABOR RELATIONS BOARD, Petitioner,andHospital Service Employees Union Local 399, ServiceEmployees International Union, AFL-CIO, Intervenor,v.REALTY MAINTENANCE, INC., d/b/a National Cleaning Company, Respondent.
No. 83-7195.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Oct. 3, 1983.Decided Jan. 13, 1984.
Joseph Oertel, Helen L. Morgan, Washington, D.C., for petitioner.
Henry Silberberg, Los Angeles, Cal., Robert M. Sprague, San Francisco, Cal., for respondent.
Howard Z. Rosen, Los Angeles, Cal., for intervenor.
On Petition for Enforcement of an Order of the National Labor relations board.
Before KENNEDY, SKOPIL, and PREGERSON, Circuit Judges.
PER CURIAM:
1
The National Labor Relations Board petitions for enforcement of its order, 265 N.L.R.B. No. 173 (Dec. 16, 1982), requiring employer Realty Maintenance, Inc. to provide Local 399 of the Hospital Service Employees Union with certain information regarding the employer's business relationships with two other firms. Because substantial evidence supports the Board's findings, we enforce the order.
2
National Labor Relations Act Sec. 8(a)(5), 29 U.S.C. Sec. 158(a)(5) (1976), requires the employer to supply the union with information relevant to the union's collective bargaining duties. Detroit Edison Co. v. NLRB, 440 U.S. 301, 303, 99 S.Ct. 1123, 1125, 59 L.Ed.2d 333 (1979); NLRB v. Acme Industrial Co., 385 U.S. 432, 435-36, 87 S.Ct. 565, 567-68, 17 L.Ed.2d 495 (1967); NLRB v. Truitt Manufacturing Co., 351 U.S. 149, 152-53, 76 S.Ct. 753, 755-56, 100 L.Ed. 1027 (1956); NLRB v. Leland Stanford, Jr. University, 715 F.2d 473, 474-75 (9th Cir.1983). Relevant information includes information requested for the purpose of policing the collective bargaining agreement and processing grievances. Acme Industrial Co., 385 U.S. at 435-38, 87 S.Ct. at 567-69; NLRB v. Associated General Contractors, 633 F.2d 766, 770 (9th Cir.1980), cert. denied, 452 U.S. 915, 101 S.Ct. 3049, 69 L.Ed.2d 418 (1981).
3
Between 1976 and 1979, five to six employees complained to the union's vice president that they were receiving lower wages than the collective bargaining agreement established. In some cases, they produced paycheck stubs bearing the names of firms called Maintenance Development Ecology or General Building Services, rather than the name Realty Maintenance, their purported employer.1
4
Some of these employees also complained that they had been unable to collect the health and welfare benefits that the contract provided. When the employees checked with the union's health and welfare office, they discovered that the employer was not paying into those funds on their behalf.
5
In response to these complaints, the union invoked the grievance procedure. The union's vice president sent two letters, both dated October 19, 1979, asking the employer to provide extensive information about its business relationships with Maintenance Development and General Building.2
6
To determine whether the information that the union seeks is relevant, we apply a liberal "discovery-type standard." Acme Industrial Co., 385 U.S. at 437, 87 S.Ct. at 568. "[T]he information [need only] be directly related to the union's function as a bargaining representative and ... appear reasonably necessary for the performance of that function." San Diego Newspaper Guild v. NLRB, 548 F.2d 863, 867 n. 7 (9th Cir.1977) (citations omitted). Moreover, we hold the union to a slightly greater "initial, but not overwhelming, demonstration" when it seeks information meeting these standards, but pertaining to matters beyond the more traditional request for data about employees in the bargaining unit. Id. at 869; cf. Stanford University, 715 F.2d at 474-75 (enforcing order to provide union with information about employees outside the bargaining unit).
7
We think that the union needed the requested information to perform an essential collective bargaining function. The union had reason to suspect that the employer was attempting to circumvent the collective bargaining contract by secretly cutting wages and diverting work to other, possibly related, firms. Without further data, however, it could not successfully act on these suspicions. See, e.g., Press Democrat Publishing Co. v. NLRB, 629 F.2d 1320, 1325 (9th Cir.1980).
8
The Board's order is ENFORCED.
1
Realty Maintenance, which does business as National Cleaning Company, provides janitorial services to non-retail businesses. It has maintained a collective bargaining relationship with the union since 1968
2
The union requested the company to furnish information including (a) the names of former and present company officials who had held or were holding managerial or supervisory positions with, or financial or ownership interests in, Maintenance Development and General Building; (b) the names of each supervisory or managerial employee of Maintenance Development and General Building; (c) the position that a particular individual held in Realty Maintenance, Maintenance Development, and General Building; (d) the types of equipment or supplies that the company had been or was currently providing to Maintenance Development and General Building; and (e) the locations of jobsites that Maintenance Development and General Building were now servicing
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272 Pa. Superior Ct. 622 (1979)
422 A.2d 699
Michael
v.
The Aetna Cas. & Surety Co., Appellant.
Superior Court of Pennsylvania.
Submitted December 6, 1978.
August 24, 1979.
Robert A. Rosin, for appellant.
Bernard M. Gross, for appellee.
Before VAN der VOORT, WIEAND and LIPEZ, JJ.
Order affirmed.
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720 F.2d 680
Taylorv.Bridge Builders, Inc.
81-5885
UNITED STATES COURT OF APPEALS Sixth Circuit
9/19/83
1
W.D.Tenn.
AFFIRMED
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33 Wn. App. 791 (1983)
658 P.2d 1250
THE STATE OF WASHINGTON, Respondent,
v.
DAVID D. SMITH, ET AL, Appellants.
No. 10806-9-I.
The Court of Appeals of Washington, Division One.
January 31, 1983.
Julie Kesler of Washington Appellate Defender Association, for appellants.
*793 Norm Maleng, Prosecuting Attorney, and Timothy X. Sullivan, Deputy, for respondent.
SWANSON, J.
David D. Smith and his brother Kurt P. Smith pleaded guilty to second degree burglary in the Juvenile Division of King County Superior Court. They appeal alleging (1) the court erred in imposing restitution on the appellants for $30,370 and (2) the restitution provisions of the Juvenile Justice Act of 1977 are unconstitutionally vague. We affirm.
In February 1981, appellants and four other juveniles broke into the basement of Donald Cameron. During six separate entries the boys took gold and silver coins from Cameron's collection, several weapons, ammunition, and model airplane kits. After the juveniles pleaded guilty, the court held a hearing in accordance with the juvenile justice act to determine the amount of restitution. At the hearing, the prosecutor presented the testimony of Cameron and Cameron's brother estimating the loss at over $30,000. Based on the testimony of the juveniles, the defense attorneys estimated the loss at approximately $14,000. The judge believed the victim's figure of $30,370 as the amount of the loss. He found all the juveniles jointly and severally responsible and required those offenders under 16 years old to pay $25 per month and over 16 to pay $50 per month until they reached 21. The amount was subject to modification every 6 months at a hearing considering the amount the boys earned.
The restitution provisions of the Juvenile Justice Act of 1977 provide:
(1) In its dispositional order, the court shall require the respondent to make restitution to any persons who have suffered loss or damage as a result of the offense committed by the respondent. The payment of restitution shall be in addition to any punishment which is imposed pursuant to the other provisions of this chapter. The court may determine the amount, terms, and conditions of the restitution. If the respondent participated in the crime with another person or other persons, all such *794 participants shall be jointly and severally responsible for the payment of restitution. The court may not require the respondent to pay full or partial restitution if the respondent reasonably satisfies the court that he or she does not have the means to make full or partial restitution and could not reasonably acquire the means to pay such restitution. In cases where an offender has been committed to the department for a period of confinement exceeding fifteen weeks, restitution may be waived.
(2) A respondent under obligation to pay restitution may petition the court for modification of the restitution order.
RCW 13.40.190. RCW 13.40.020(17) defines restitution:
"Restitution" means financial reimbursement by the offender to the victim, and shall be limited to easily ascertainable damages for injury to or loss of property, actual expenses incurred for medical treatment for physical injury to persons, and lost wages resulting from physical injury. Restitution shall not include reimbursement for damages for mental anguish, pain and suffering, or other intangible losses. Nothing in this chapter shall limit or replace civil remedies or defenses available to the victim or offender;
Appellants allege the trial judge exceeded his statutory authority by improperly determining the amount of the victim's loss. In particular, the appellants first claim restitution involves sentence enhancement and thus requires proof of the amount lost beyond a reasonable doubt under the due process clause. Secondly, they argue restitution involves a sentence outside the standard disposition range established pursuant to the act, and therefore, a clear and convincing standard is required under section .230 of the act. Thirdly, appellants contend the loss here was not "easily ascertainable" within the meaning of the statute. We are not persuaded by appellants' arguments. The hearing judge properly determined the amount of loss.
[1] We conclude that a determination of the amount of a victim's loss for the purpose of establishing restitution under the juvenile justice act does not involve sentence enhancement, and therefore, there is no need under the due *795 process clause for proof of the amount lost beyond a reasonable doubt. The due process clause requires proof of every element of a crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 25 L.Ed.2d 368, 90 S.Ct. 1068 (1970). Facts that enhance a defendant's penalty must be proved beyond a reasonable doubt. State v. Tongate, 93 Wn.2d 751, 754, 613 P.2d 121 (1980). The requirement of proof beyond a reasonable doubt serves to protect the accused from an unjust loss of liberty or stigmatization by conviction. Winship, at 363. The reasonable doubt standard also promotes respect and confidence in the criminal law by reinforcing the community perception that only the truly guilty are convicted. Winship, at 364. Some of these reasons apply where a court determination may result in an increased prison term. But they do not apply where the court is determining the amount of restitution under the juvenile justice act. Under the act, by the time the court decides how much the offenders should pay the victim, there is no need for a stringent requirement to protect against loss of liberty, stigmatization, or loss of public confidence in the law because the offender has already been adjudicated guilty. The reasons for the reasonable doubt safeguard do not apply in this context.
Court decisions support this determination. Washington cases holding that facts enhancing a penalty must be proved beyond a reasonable doubt involve enhanced prison sentences. See, e.g., Tongate, at 754; State v. Nass, 76 Wn.2d 368, 456 P.2d 347 (1969). Washington courts have recognized that trial judges have considerable discretion in determining the amount of restitution in nonjuvenile cases. E.g., State v. Gunderson, 74 Wn.2d 226, 230, 444 P.2d 156 (1968); State v. Rogers, 30 Wn. App. 653, 657-58, 638 P.2d 89 (1981). Moreover, a review of cases in other jurisdictions involving specifically a question about the basis for fixing the amount of restitution does not suggest courts require proof of loss beyond a reasonable doubt under the due process clause. See Annot., 79 A.L.R.3d 976 (1977). Consequently, we hold there is no requirement to prove the *796 amount of a victim's loss beyond a reasonable doubt for the purpose of determining the amount of restitution under the juvenile justice act.
The appellants also contend clear and convincing proof of loss is required under RCW 13.40.230[1] because the restitution sentence is outside the standard disposition range promulgated by the Secretary of Social and Health Services pursuant to section.030 of the act.
The clear and convincing standard of RCW 13.40.230 does not apply. The standard sentencing range for the appellants' offense does not refer to restitution. The sentencing range standards do not even involve restitution. See RCW 13.40.030 and Department of Social and Health Services juvenile sentencing guidelines. Subsection .230(2) addresses the situation where a court sentences a juvenile to detention or community service outside the established standards. Restitution is recognized as a separate sentencing alternative, independent of the standard range. Because it is not outside the standard range within the meaning of RCW 13.40.230, the statute does not require proof of loss by clear and convincing evidence.
The appellants next contend the amount lost here was not "easily ascertainable" as RCW 13.40.020(17) requires. In essence, the appellants argue that because at the hearing they disputed the amount stolen, the loss was not easily ascertainable and restitution could not be imposed for an amount greater than the undisputed loss. We are unpersuaded. We conclude that proof of loss for imposing restitution under the juvenile justice act requires a standard similar to that required to prove damages in a tort context, *797 evidence sufficient to afford a reasonable basis for estimating the loss, e.g., Haner v. Quincy Farm Chems., Inc., 29 Wn. App. 93, 98, 627 P.2d 571 (1981). We base this conclusion on a number of considerations.
First, the appellants' interpretation of the "easily ascertainable damages" language of RCW 13.40.020(17), limiting restitution to the amount the offenders claim they took, would greatly weaken the effectiveness of the restitution provisions. As the appellants point out, there was evidence presented by the juveniles here that only about $14,000 was taken. If RCW 13.40.020(17) is construed to allow testimony of the offenders to limit restitution, the restitution requirement could become nearly meaningless by, in effect, letting offenders decide the amount of restitution.
Additionally, requiring evidence sufficient to afford a reasonable basis for the loss is consistent with the language of the act and purposes underlying the restitution provisions. The act grants the hearing judge the right to determine the "amount, terms, and conditions of the restitution." RCW 13.40.150(3)(f),.190(1). RCW 13.40.020(17) defines restitution, and contrary to appellants' position, the easily ascertainable language of that subsection serves to limit the type of damages that may be included in a restitution order, not establish the proof burden for determining the amount of loss. The language emphasizes that only tangible damages such as those "for injury to or loss of property" are allowed, as opposed to intangibles such as pain and suffering. This interpretation of the function of the easily ascertainable damages language conforms with interpretation of similar language involving this issue in other jurisdictions. See Annot., 79 A.L.R.3d 976 (1977).
Not only the act's language but the purposes for imposing restitution on juveniles supports the sufficient evidence to afford a reasonable basis for the loss standard. The purposes of the act's restitution provisions are to reimburse the victim for his loss and to hold the juvenile accountable for his conduct. See RCW 13.40.010, .190. This standard achieves *798 those objectives. It allows the trier of fact at the hearing to evaluate the evidence and determine the amount of loss. Once it has been determined that the juvenile is guilty, this standard best allows the court to hold the juvenile accountable and repay the victim. Accordingly, consistent with the act's language and purposes underlying the restitution provisions, and to ensure those provisions are potent, we decide that to prove the amount of loss for imposing restitution under the juvenile justice act there must be evidence sufficient to afford a reasonable basis for the loss.
The court in this case properly determined the amount of loss. The testimony of Cameron and his brother that the value of the lost property was over $30,000 was sufficient to afford a reasonable basis for the amount of loss.
The appellants next contend the trial court exceeded its statutory authority by failing to take into account their ability to pay as required by RCW 13.40.190.
[2] We conclude the court properly considered the appellants' ability to pay in establishing the amount of restitution as required by the act. The court set "as a goal" that those boys under 16 pay $25 per month and those 16 or older pay $50 per month. The court stated this should be looked at as a goal and not a requirement and could be altered depending on the offenders' incomes. Although formally requiring restitution of over $30,000, the court recognized the juveniles probably would never pay that amount. We are convinced that in setting the actual amount to be paid the court looked at the boys' ability to pay. Moreover, the statute grants the court discretion in imposing restitution even if the juvenile shows an inability to pay.
Appellants also claim the trial court abused its discretion by imposing restitution in the amount of $30,370. The court did not abuse its discretion.
The sentencing of criminals is subject to the exercise of sound judicial discretion which will not be set aside absent an abuse. An abuse of discretion occurs only when the decision or order of the court is "`manifestly unreasonable, *799 or exercised on untenable grounds, or for untenable reasons'". It exists "only where it can be said no reasonable man would take the view adopted by the trial court."
(Citations omitted.) State v. Cunningham, 96 Wn.2d 31, 34, 633 P.2d 886 (1981).
In light of the basic policies underlying the juvenile justice act, the imposition of restitution here was not "manifestly unreasonable." The act explicitly provides that the Legislature intended that "youth ... be held accountable for their offenses..." RCW 13.40.010. "To effectuate these policies, it shall be the purpose of this chapter to: ... Provide for restitution to victims of crime". RCW 13.40.010(2)(h). The imposition of restitution of $30,370 at the rate of $25 per month for David Smith and $50 per month for Kurt Smith does not show an abuse of discretion.
Lastly, appellants challenge the act's restitution provisions as unconstitutionally vague. We disagree. The provisions are constitutional.
[3, 4] We first conclude that the provisions are not subject to a vagueness challenge. The Washington Supreme Court has recognized that the juvenile disposition standards are subject to a vagueness challenge. State v. Rhodes, 92 Wn.2d 755, 759, 600 P.2d 1264 (1979). In Rhodes, at page 759, the court stated:
Although most vagueness challenges are directed at statutes which prohibit particular conduct without defining that conduct, defendant's constitutionally protected liberty interest created by the juvenile disposition standards is also subject to the void-for-vagueness test.
The restitution provisions of the juvenile justice act, however, are not within the disposition standards of the act, do not affect offenders' liberty interest, and do not prohibit particular conduct. We do not consider the vagueness challenge appropriate here.
[5, 6] Furthermore, even assuming the restitution provisions are subject to the void-for-vagueness test, the provisions satisfy that test. A statute is unconstitutionally *800 vague if it fails to provide explicit standards to prevent arbitrary and discriminatory enforcement. Rhodes, at 758. The challenging party has the burden of proving the statute is unconstitutionally vague. Rhodes, at 759. The Smiths fail to meet that burden here.
Many of the act's sections serve to prevent arbitrary and discriminating enforcement of the restitution provisions. RCW 13.40.190 limits the persons to whom restitution may be paid. RCW 13.40.020(17) limits restitution to tangible damages. RCW 13.40.150 requires that a hearing be held to determine the amount of restitution. Finally, RCW 13.40.010 sets forth the legislative intent of the act, providing the court with additional guidance. See Rhodes, at 759. The restitution provisions are not unconstitutionally vague.
The judgment is affirmed.
WILLIAMS and CORBETT, JJ., concur.
Reconsideration denied March 4, 1983.
Review denied by Supreme Court May 10, 1983.
NOTES
[1] RCW 13.40.230(2) provides:
"To uphold a disposition outside the standard range, or which imposes confinement for a minor or first offender, the court of appeals must find (a) that the reasons supplied by the disposition judge are supported by the record which was before the judge and that those reasons clearly and convincingly support the conclusion that a disposition within the range, or nonconfinement for a minor or first offender, would constitute a manifest injustice, and (b) that the sentence imposed was neither clearly excessive nor clearly too lenient."
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76 F.Supp.2d 1213 (1999)
Warnell AUSTIN, Plaintiff,
v.
Mike HAAKER, et al., Defendants.
No. CIV. A. 98-2283-GTV.
United States District Court, D. Kansas.
November 24, 1999.
*1214 *1215 Bobbie R. Bailey, Nanci L. Moorhead, Kansas City, MO, for Warnell Austin, plaintiffs.
David B. Kesler, J.Y. Elliott, III, Miller & Martin LLP, Chatanooga, TN, Eric W. Smith, Spencer, Fane, Britt & Browne, Kansas City, MO, for Mike Durrell, Johnston Coca-Cola Bottling Group, Inc., defendants.
MEMORANDUM AND ORDER
VanBEBBER, Chief Judge.
Plaintiff Warnell Austin brings this action against defendant Johnston Coca-Cola Bottling Group, Inc. alleging racial discrimination and retaliation in violation of 42 U.S.C. § 1981 ("§ 1981") and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and unlawful interference in violation of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. ("the FMLA"). Plaintiff contends that defendant subjected him to a series of adverse employment actions, beginning with a suspension in September 1997 and culminating in the termination of his employment the following June, because he is African-American and in retaliation for exercising his rights under Title VII, § 1981, and the FMLA. The case is before the court on defendant's motion for summary judgment (Doc. 17). For the reasons set forth below, the motion is granted with respect to plaintiff's Title VII and § 1981 discrimination claims, denied with respect to plaintiff's Title VII and § 1981 retaliation claims, and granted in part and denied in part with respect to plaintiff's FMLA interference claims.
I. Factual Background
The following facts are either uncontroverted or are based on evidence submitted in summary judgment papers and viewed in a light most favorable to plaintiff. Immaterial facts and facts not properly supported by the record are omitted.
Plaintiff began employment with defendant in April 1993 as a seasonal employee at the position of pallet sorter, and became a full-time employee at that position on June 19, 1995.
Under defendant's Attendance Policy, the employee is issued points for various attendance-related missteps. As points accumulate, the employee is disciplined accordingly. The employee may also be disciplined for violating defendant's Rules of Conduct; one such Rule prohibits excessive absenteeism. Defendant's short term disability ("STD") policy, called the Sick Pay/STD Program, provides up to 14 weeks of STD leave at 75% benefits for employees who have exercised all of their sick days.
Between June 1996 and December 1997, defendant disciplined plaintiff under its Rules of Conduct with verbal or written *1216 warnings on six occasions, either for excessive absenteeism or for missing mandatory overtime days.
On September 9, 1996, plaintiff missed work due to illness. Defendant issued a verbal warning for excessive absenteeism under its Rules of Conduct. Later that month, plaintiff was absent on FMLA leave for one week in order to care for his ill mother. On October 1, 1996, upon plaintiff's return from FMLA leave, defendant suspended him for five days pursuant to its Attendance Policy.
In April 1997, plaintiff took FMLA leave for several days due to complications resulting from a gastric ulcer; he took FMLA leave again from May 12 through July 21 due to a severe back injury. That November, plaintiff missed a mandatory overtime Sunday and defendant issued a verbal warning.
On December 7, 1997, plaintiff missed another mandatory overtime Sunday. Defendant issued plaintiff a written warning for failure to observe work schedules, and a suspension for excessive absenteeism. This absence was the third occasion on which plaintiff had missed a mandatory overtime Sunday, and the second occasion within the previous twelve months. Plaintiff alleges that three similarly situated Caucasian employees missed two or more such mandatory overtime days without being suspended.[1]
Later that month, plaintiff was granted FMLA leave for the third time that year because of his gastric ulcer. Plaintiff was away from work from December 26, 1997 until January 8, 1998. That January, plaintiff contacted and met with an attorney. In February 1998, plaintiff was afflicted again with complications from his gastric ulcer. Plaintiff was away on STD leave from February 9, 1998 to February 20, 1998. During that time, plaintiff's mother died and he missed another week on funeral leave and vacation.
Plaintiff asserts that, while he was away on STD leave or in the weeks immediately prior, defendant became aware of his participation in meetings with an attorney about litigation against Coca-Cola. In mid-February 1998, a deponent in an unrelated lawsuit testified that plaintiff was planning to file a complaint with the Equal Employment Opportunity Commission ("EEOC") and that plaintiff had been present at meetings with an attorney. On March 2, 1998, plaintiff filed a complaint with the EEOC.
On March 3, 1998, plaintiff's first day back at work after his STD leave, plaintiff's supervisors met with plaintiff and gave him a letter entitled "Last Chance Agreement." In this letter, defendant informed plaintiff that he had no remaining sick days or FMLA leave available, and that "if [he was] absent, tardy or [left] early in the next twelve (12) months it would result in [his] termination." The agreement also suspended defendant's Attendance Policy, noting that plaintiff was "exempt from the present point system." During this meeting, plaintiff's supervisors asked him whether he had a tape recorder on his person. Plaintiff contends that this query was a reference to events in the unrelated lawsuit pending at that time in which plaintiff's name had been mentioned.
On June 12, 1998, plaintiff called in sick. On the following Monday, June 15, 1998, defendant terminated plaintiff's employment *1217 for violating the Last Chance Agreement. Ten days later, plaintiff filed a complaint with this court.
II. Analysis
A. Summary Judgment Standards
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. 2505.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. See Anderson, 477 U.S. at 256, 106 S.Ct. 2505. "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. See id. The court must consider the record in the light most favorable to the nonmoving party. See Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir.1984).
B. Title VII and § 1981
1. Discrimination Claims
Plaintiff claims that a number of adverse employment actions to which he was subjected were the result of defendant's race-based discrimination in violation of Title VII and § 1981. After examining the facts and evidence in the light most favorable to plaintiff, the court finds only one incident which suggests discrimination either directly or indirectly: plaintiff asserts that defendant suspended him in December 1997 for missing mandatory overtime days, even though three similarly situated Caucasian employees also missed mandatory overtime days but were not suspended.
In order to present a prima facie case of racial discrimination in violation of Title VII and § 1981,[2] plaintiff must show that he is a member of a protected class, that he suffered an adverse employment action, and that similarly situated employees were treated differently. Trujillo v. University of Colo. Health Sciences Ctr., 157 F.3d 1211, 1215 (10th Cir.1998). Once plaintiff establishes a prima facie case, the court applies the McDonnell Douglas[3] burden-shifting framework under which the court analyzes whether defendant has produced a legitimate, nondiscriminatory reason for the adverse employment action, and whether plaintiff has demonstrated that the employer's legitimate, nondiscriminatory reason is pretextual. See id.; Colter v. Dobski & Assocs., Inc., 35 F.Supp.2d 824 (D.Kan.1999).
Plaintiff is an African-American and so satisfies the first requirement of a *1218 prima facie case. His December 1997 suspension constitutes an adverse employment action and satisfies the second. See Jeffries v. State of Kan., 147 F.3d 1220, 1232 (10th Cir.1998) (noting that Tenth Circuit courts define "adverse employment action" liberally, and make such determinations on a case-by-case basis). Plaintiff has supplied so little information about the three allegedly similarly situated employees, however, that he fails to satisfy the third. For the same reason, he cannot show that defendant's legitimate, nondiscriminatory reason for its action excessive absenteeism is pretextual.
The Tenth Circuit has defined "similarly situated employees" as "those who deal with the same supervisor and are subject to the same standards governing performance evaluation and discipline," Aramburu v. Boeing Co., 112 F.3d 1398, 1404 (10th Cir.1997) (quoting Wilson v. Utica Park Clinic, Inc., 76 F.3d 394, 1996 WL 50462 (10th Cir. Feb.7, 1996) (unpublished disposition) (further citation omitted)); Sims v. Halliburton Co., 185 F.3d 875, 1999 WL 495629 (10th Cir. July 14, 1999) (unpublished disposition). Courts should also evaluate whether employees are similarly situated by examining the "work history and company policies applicable to the plaintiff and the intended comparable employees." Aramburu, 112 F.3d at 1404.
Plaintiff fails to provide "specific facts" as required by Fed.R.Civ.P. 56 when he states no more than that he "work[ed] with" the employees and that they missed the same or more mandatory overtime days as he did without being suspended. Even if the court assumes that every employee at defendant's facility was subject to defendant's disciplinary policies, the court is still unable to evaluate whether these employees worked under or were disciplined by the same supervisors as plaintiff.
Furthermore, the court is unable to determine whether the employees have similar attendance records or work histories an especially important inquiry because defendant's Rules of Conduct state that disciplinary decisions are at defendant's discretion and that "compounding circumstances" like excessive absenteeism may affect disciplinary decisions. Critically, plaintiff's December 1997 suspension was for "excessive absenteeism," but he was issued only a written warning for missing the mandatory overtime day. In defendant's written record of the suspension, the supervisor made the following notes:
Warnell Austin is being given a three-day suspension for excessive absenteeism, and also for showing a pattern in his absenteeism on calling in sick on the first day of the work week. Warnell's absenteeism has not improved since being given disciplinary action for excessive absenteeism on [several prior occasions].
Even though his absenteeism was clearly a factor in his suspension, plaintiff has made no allegation whatsoever about the allegedly similarly situated employees' attendance records. In sum, plaintiff has not presented enough factual evidence either to state a prima facie case or to demonstrate pretext. See David v. City and County of Denver, 101 F.3d 1344, 1359-60 (10th Cir.1996) (citing Equal Employment Opportunity Comm'n v. Flasher, 986 F.2d 1312, 1320 (10th Cir.1992), for the proposition that differences in treatment occur for so many reasons that even an irrational decision does not compel an inference of illegal discriminatory intent). The court grants defendant's motion for summary judgment with respect to plaintiff's Title VII and § 1981 discrimination claims.
2. Retaliation Claims
Plaintiff alleges that a number of defendant's employment decisions and disciplinary actions were in retaliation for his activities in opposition to racial discrimination, in violation of Title VII and § 1981.[4]*1219 Of these allegations, only one survives. Plaintiff claims that defendant issued a Last Chance Agreement and subsequently terminated him in response to his having filed a claim with the EEOC and having met with an attorney. To establish a prima facie case of retaliation, plaintiff must demonstrate that he engaged in a protected activity, that he suffered an adverse employment action, and that a causal connection exists between the protected activity and the employment action. See Sauers v. Salt Lake County, 1 F.3d 1122, 1128 (10th Cir.1993). The court then evaluates plaintiff's claims according to the McDonnell Douglas burden-shifting analysis. See McGarry v. Board of County Comm'rs of the County of Pitkin, 175 F.3d 1193, 1201 (10th Cir.1999); Sauers, 1 F.3d at 1128.
Plaintiff's participation in meetings with an attorney and his filing of a complaint with the EEOC constitute protected activities. The March 3, 1998 Last Chance Agreement also constitutes an adverse employment action. By suspending its regular Attendance Policy, defendant altered plaintiff's terms and conditions of employment. Plaintiff asserts that the temporal proximity between his protected activities and the Last Chance Agreement suggests a causal connection. The court agrees.
Plaintiff has presented evidence suggesting that defendant became aware in February 1998 that he had consulted an attorney and was planning legal action. In unrelated litigation to which defendant was a party, one Dennis Brown testified in a deposition on February 13, 1998, that plaintiff had attended meetings with an attorney about litigation against defendant and that plaintiff was planning to file a complaint with the EEOC. The Brown deposition occurred while plaintiff was away on STD leave; the very day he returned, defendant issued him the Last Chance Agreement. The temporal proximity of these events strongly suggests a causal connection. See Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997) (holding that one and one-half months between protected activity and adverse action is sufficient temporal proximity to support retaliatory motive); Ramirez v. Oklahoma Dept. of Mental Health, 41 F.3d 584, 596 (10th Cir.1994) (same). Also, plaintiff testified that during the March 3, 1998 meeting in which defendant issued its Last Chance Agreement, his supervisors asked him whether he was carrying a tape recorder. Plaintiff asserts that this query was a reference to events in the litigation in which plaintiff had been mentioned. A trier of fact could reasonably find a causal connection between plaintiff's protected activity and defendant's issuance of the Last Chance Agreement.
Defendant has presented a legitimate, nondiscriminatory reason excessive absenteeism for issuing the Last Chance Agreement. Plaintiff counters that the reason is unworthy of belief when he asserts that, at the time of the Last Chance Agreement, he "had not violated any of the defendant's written or verbal attendance rules or Company Rules since ... December 1997." Moreover, temporal proximity also "may throw doubt on defendant's ... justification." Vigil v. Colorado Dept. of Higher Educ., 185 F.3d 876, No. 98-1174, 1999 WL 407479, at *4 (10th Cir. June 21, 1999) (unpublished disposition) (citing Conner, 121 F.3d at 1398). A trier of fact could reasonably find defendant's justification to be pretextual. The court denies summary judgment with respect to plaintiff's Title VII and § 1981 claims for retaliation.
C. FMLA
1. Plaintiff's Termination
Plaintiff asserts that defendant, by terminating plaintiff for excessive absenteeism, unlawfully interfered with his rights under § 2615(a)(1) of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. by denying him FMLA leave. The court disagrees. Plaintiff has not demonstrated that he gave defendant notice that he wished to exercise his FMLA rights with respect to his June 12, 1998 absence. *1220 Nor has he demonstrated that he was entitled to FMLA leave for that absence.
The FMLA provides eligible employees up to 12 weeks of leave during any 12-month period so that they may care for a relative, welcome a new child, or "because of a serious health condition that makes the employee unable to perform the functions of [his or her] position." 29 U.S.C. § 2612(a)(1). The FMLA also makes it unlawful for employers to "interfere with, restrain, or deny the exercise of" such rights, or to "discharge or in any other manner discriminate against" individuals who oppose any such unlawful practices. 29 U.S.C. § 2615(a)-(b).
Regulations promulgated by the Department of Labor require that, when the employee intends to take FMLA leave for a condition that is not foreseeable, the employee shall provide notice "as soon as practicable" to the employer generally "within no more than one or two working days of learning of the need for leave." 29 C.F.R. § 825.303(a). See generally The Family and Medical Leave Act of 1993, 29 C.F.R. § 825.100 et seq. (1995). Regulations governing foreseeable leave provide that
[a]n employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed.
29 C.F.R. § 825.302(c). Although the court presumes that plaintiff's June 12, 1998 absence was unforeseeable, and thus governed by a different regulation, § 825.302(c) does provide guidance as to what actions might qualify as notice.
While plaintiff was not required to mention the FMLA by name, he should have provided "at least verbal notice sufficient to make the employer aware that the employee need[ed] FMLA-qualifying leave." Id. Had he notified defendant that he had been suffering from a serious health condition, he might have met the requirement. However, plaintiff gave defendant no reason whatsoever to suspect that his absence on June 12, 1998 was any different from the many occasions over the preceding three years when he had called in sick. Plaintiff said only that he was ill and could not make it into work.
Plaintiff asserts that he did not mention FMLA leave during the termination meeting[5] because he had been misled by the March 3, 1998 Last Chance Agreement into believing that he was no longer entitled to FMLA leave. The agreement is irrelevant, however, to the court's notice inquiry, because plaintiff needed only to mention that he was suffering from a serious health condition, thereby thrusting the burden onto defendant to "inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and obtain the necessary details of the leave to be taken." 29 C.F.R. § 825.302(b). Plaintiff did not do so.
Even if plaintiff had satisfied the FMLA's notice requirement, he has not demonstrated that he was entitled to FMLA leave at that time. The FMLA entitlement applies only in certain limited circumstances: because of the birth of a child, the placement of a child with the employee for foster care or adoption, in order to care for a relative, or because of a serious health condition. 29 U.S.C. § 2612(a)(1). Plaintiff argues that he qualified for FMLA leave on June 12, 1998 because of a serious health condition.
*1221 The regulations define "serious health condition" as "an illness, injury, impairment, or physical or mental condition that involves ... continuing treatment by a health care provider," including "[a] period of incapacity (i.e., inability to work) ... due to a chronic serious health condition." 29 C.F.R. § 825.114(a)(2)(iii). The regulations define "chronic serious health condition" as one that "requires periodic visits for treatment by a health care provider," "continues over an extended period of time," and "may cause episodic rather than a continuing period of incapacity." § 825.114(a)(2)(iii)(A)-(C).
Plaintiff bears the burden of establishing that he is entitled to FMLA leave. See Olsen v. Ohio Edison Co., 979 F.Supp. 1159, 1164 (N.D.Ohio 1997). Although plaintiff alleges that on June 12, 1998, he was "sick with the same gastric disorder that [he] had taken time off for and been hospitalized for in the past," he has produced no evidence to support that allegation. Several courts have held that an employee must present specific evidence that he or she suffers from a serious health condition, and cannot rely on his own assessment of his health. See, e.g., Joslin v. Rockwell Intern. Corp., 8 F.Supp.2d 1158, 1161 (N.D.Iowa 1998); Olsen, 979 F.Supp. at 1166 (holding that, under the FMLA, an employee must demonstrate that "`a health provider' made a professional assessment of his [or her] condition and determined, based on that assessment, that an extended absence from work was necessary"); Brannon v. OshKosh B'Gosh, Inc., 897 F.Supp. 1028, 1037 (M.D.Tenn.1995) (holding that an employee's own testimony is legally insufficient to demonstrate a serious health condition). See also Martyszenko v. Safeway, Inc., 120 F.3d 120, 123 (8th Cir.1997) (noting that, "uniformly, courts applying the FMLA expressly or impliedly have required a showing of incapacity"). The court agrees. The FMLA "was `not intended to cover short-term conditions for which treatment and recovery are brief.'" S.Rep. No. 103-3, at 28 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 30 (quoted in Martyszenko, 120 F.3d at 122). As the court in Olsen aptly remarks, "Obviously, Congress did not intend for an employee to stand on his or her FMLA rights whenever a need for aspirin or cold tablets arose." 979 F.Supp. at 1163.
In order for plaintiff to demonstrate that he was entitled to FMLA leave for a chronic serious health condition, he must produce specific evidence showing that he was unable to work on that day; that his ailment on that day was due to an ongoing condition that requires periodic treatment by a doctor; and that his ailment was one that continued over an extended period of time. 29 C.F.R. § 825.114(a)(2)(iii)(A)-(C). He has not done so.
The court grants defendant's motion for summary judgment with respect to the portion of plaintiff's FMLA claim relating to the termination of his employment.
2. Last Chance Letter and September 1996 Suspension
Plaintiff also claims that defendant violated the FMLA's prohibition against interference by retaliating against him for exercising his FMLA rights. 29 U.S.C. § 2615(a)(1). Plaintiff must demonstrate a prima facie case by showing that he engaged in activity protected under the FMLA, that he subsequently suffered adverse employment action by defendant, and that a causal connection exists between plaintiff's activity and the adverse action. See Richmond v. ONEOK, Inc., 120 F.3d 205, 208 (citing Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997)). If plaintiff so demonstrates, the court then applies the McDonnell Douglas framework. See id.
Plaintiff took FMLA leave on several occasions; defendant subjected him to adverse employment actions on several occasions. After a full examination of the facts in a light most favorable to plaintiff, the court determines that only the Last Chance Agreement and the September 1996 suspension bear a causal connection to those occasions on which plaintiff took FMLA leave.
*1222 On September 9, 1996, plaintiff missed work due to illness and defendant disciplined him under its Rules of Conduct on the same day. Fifteen days later, plaintiff took FMLA leave. On October 1, the day he returned from leave, defendant issued further discipline for the September 9 absence, suspending plaintiff under its Attendance Policy. Plaintiff points out that this was the first occasion in several years of employment that defendant disciplined him under its Attendance Policy. The temporal proximity between the FMLA leave and the suspension, the fact that defendant disciplined plaintiff on two occasions for the same absence, and defendant's somewhat unusual exercise of the Attendance Policy suggest a causal connection. See Marx v. Schnuck Markets, Inc., 76 F.3d 324, 329 (10th Cir.1996) ("[P]rotected conduct closely followed by adverse action may justify an inference of retaliatory motive.").
Moreover, the wording of the March 1998 Last Chance Agreement, issued the day plaintiff returned from STD leave, suggests that the Agreement is causally connected to plaintiff's exercise of his FMLA rights. The letter reads in pertinent part, "Your attendance record has been unacceptable .... Currently, you have no available sick days and you have used all of your Family Medical Leave for a 12 month period .... If you are absent, tardy or leave early in the next twelve (12) months it will result in termination." A trier of fact could reasonably interpret the agreement to suggest that plaintiff was not entitled to FMLA leave; such a suggestion violates the FMLA's prohibition against interference. See 29 U.S.C. § 2615(a)(1). Moreover, a trier of fact could interpret the wording of the letter to suggest that plaintiff's record is unacceptable because he had taken FMLA leave also a violation of § 2615(a)(1).
Defendant asserts that it took these disciplinary actions in response to excessive absenteeism a legitimate, nondiscriminatory reason. However, plaintiff has created a genuine issue of material fact as to whether "excessive absenteeism" was a pretext for retaliating against plaintiff and for interfering with plaintiff's FMLA rights.
The court denies summary judgment with respect to the portions of plaintiff's FMLA interference claim relating to the October 1996 suspension and the Last Chance Agreement.
IT IS, THEREFORE, BY THE COURT ORDERED that defendant's motion for summary judgment (Doc. 17) is granted with respect to plaintiff's Title VII and § 1981 discrimination claims, denied with respect to plaintiff's Title VII and § 1981 retaliation claims, granted with respect to the portions of plaintiff's FMLA claim relating to his termination, and denied with respect to the portions of plaintiff's FMLA claim relating to the October 1996 suspension and the Last Chance Agreement.
The clerk shall mail copies of this order to counsel of record.
IT IS SO ORDERED.
NOTES
[1] Specifically, plaintiff alleges that "[o]ther similarly situated Caucasian employees had missed two or more mandatory Sundays without receiving any discipline. I know that Pam Friend missed more than two mandatory Sundays and was not suspended. Scott Campbell also missed two mandatory Sundays and was not suspended. I work with both of these individuals and was present on the days that they missed. I know that they were not suspended like I was." Plaintiff later testified that he thought Pam Friend missed "three or four, maybe five" mandatory overtime Sundays. Plaintiff also testified that "a couple of weeks later Danny Cunningham's 19-year-old stepdaughter was ill or something and I think he had missed his second and third mandatory Sunday and I think maybe [for] his second one he did get [written] up, but [for] his third one he was condoned and given money."
[2] The court analyzes § 1981 discrimination claims according to the same standards as Title VII discrimination claims. See Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1994); Durham v. Xerox Corp., 18 F.3d 836 (10th Cir. 1994).
[3] McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
[4] The court analyzes § 1981 retaliation claims according to the same standards as Title VII retaliation claims. See Patterson, 491 U.S. at 186, 109 S.Ct. 2363; Durham, 18 F.3d at 836.
[5] Plaintiff suggests in his "opposition to defendant's motion for summary judgment" that he did inquire about FMLA leave in the June 15, 1998 termination meeting. Not only is this allegation absent from both parties' factual assertions, but it is directly contradicted in plaintiff's affidavit at paragraph 45. Furthermore, plaintiff makes the allegation for the first time in the argument portion of his brief and fails to refer the court to any portion of the record that might provide support. The court therefore disregards the allegation.
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238 Wis.2d 27 (2000)
2000 WI App 148
615 N.W.2d 209
Barbara J. CHARITON, Plaintiff-Respondent,
v.
SATURN CORPORATION, a foreign corporation, Defendant-Appellant,
SATURN OF WAUKESHA, INC., a Wisconsin corporation, Defendant.
No. 99-0617.
Court of Appeals of Wisconsin.
Oral argument May 23, 2000.
Decided June 21, 2000.
*28 On behalf of the defendant-appellant, the cause was submitted on the briefs of Carl Paul Carver, Todd E. Gadtke, and Marlene A. Yoder of Bowman and Brooke LLP of Minneapolis, Minnesota. There was oral argument by Kim M. Schmid and Carl Paul Carver.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of William S. Pocan, Vincent P. Megna and Terrence M. Polich of Jastroch & Labarge, S.C. of Waukesha. There was oral argument by Vincent P. Megna.
Before Brown, P.J., Nettesheim and Anderson, JJ.
BROWN, P.J.
¶ 1. This appeal by a car manufacturer who did not comply with the Lemon Law's thirty-day time frame in which to replace the consumer's *29 vehicle or refund the purchase price is controlled by Church v. Chrysler Corp., 221 Wis. 2d 460, 585 N.W.2d 685 (Ct. App. 1998). There, we held that thirty days means thirty days; a dispute between the consumer and the manufacturer about the amount of refund does not toll the thirty-day period in which the manufacturer must act. The same is true of a dispute over the breadth of a release, as was the situation in this case. Here, Saturn violated the Lemon Law when it failed to refund the purchase price of Barbara J. Chariton's vehicle within thirty days after she offered to transfer title to the vehicle to Saturn. Chariton's refusal to sign a general release did not excuse Saturn from the thirty-day requirement. We affirm.
¶ 2. The facts are not in dispute. Chariton bought a 1996 Saturn and it turned out to be a lemon. See WIS. STAT. § 218.015(1)(h) (1997-98).[1] She submitted a customer claim form to BBB Auto Line, pursuant to Saturn's informal dispute settlement procedure. About one week later, Chariton sent a statutory offer to transfer title to Saturn, indicating that she wanted a refund under the Lemon Law. See § 218.015(2)(c). Saturn offered her a total refund of $20,170.75.[2] Saturn's letter also stated: "By accepting this offer Ms. Chariton agrees to complete all necessary documents to transfer title of the vehicle to Saturn Corporation including but not limited to a power of attorney (to correct any errors in title), an odometer statement and a General Settlement Agreement and Release." Chariton responded that the total refund should be $20,347.47 and that she *30 would "not necessarily sign whatever materials that you propose, if the same are not required by the Wisconsin Lemon Law." Ultimately, the thirty days in which Saturn was to tender its refund expired and Chariton filed suit, claiming a violation of the Lemon Law. Saturn moved for summary judgment, arguing that Chariton's lemon law claim should be dismissed. Saturn argued that it had followed the statute by making Chariton an offer within the thirty-day period and that Chariton's "failure to participate in the exchange should not work to create liability for Saturn." After the trial court denied Saturn's motion, the parties stipulated to an entry of judgment in favor of Chariton for $38,874.69-$22,374.69 in pecuniary damages and $16,500.00 for attorney's fees and other costs recoverable under the Lemon Law. It is from the trial court's denial of Saturn's motion for summary judgment that Saturn appeals.
¶ 3. What controls this case is the propriety of Saturn's release requirement.[3] Saturn argues that the Lemon Law's silence on the subject shows that a *31 release is not forbidden. Chariton claims that the "manufacturer may not require that the consumer sign a release in order to obtain a refund under the Wisconsin Lemon Law."
[1, 2]
¶ 4. Our standard of review is de novo. First, Saturn appeals the trial court's denial of a summary judgment motion. Because we employ the same methodology as the trial court, we owe no deference to its decision. See Church, 221 Wis. 2d at 465-66. Second, whether the manufacturer may require a general release is a question of statutory interpretation, which we thus examine and answer without deference to the trial court. See id. at 466.
[3, 4]
¶ 5. We conclude that the Lemon Law does not contemplate that the consumer be required to sign a general release in order to obtain a refund. WISCONSIN STAT. § 218.015(5) expressly states that the Lemon Law "does not limit rights or remedies available to a consumer under any other law." Our case law has made it clear that non-lemon law claims related to a faulty vehicle must be pled separately. See Gosse v. Navistar Int'l Transp. Corp., 2000 WI App 8, ¶ 14, 232 Wis. 2d 163, 605 N.W.2d 896, review denied, 233 Wis. 2d 85, 609 N.W.2d 474 (Wis. Feb. 22, 2000) (No. 98-3499) (consumer must assert personal injury in separate claim not based on Lemon Law). Rather than merely acknowledge that Saturn had fulfilled its obligations under the Lemon Law, the release Saturn wanted Chariton to sign would have barred any suit against anyone about anything having to do with her car.[4] Section 218.015(5) prohibits such a release. Furthermore, *32 just as the dispute about the amount of refund did not toll the thirty-day period in Church, Chariton's reluctance to sign Saturn's release did not suspend time in this case. Church tells us that regardless of the status of negotiations, the Lemon Law requires that the manufacturer provide a refund within thirty days or the Lemon Law has been violated. There are no excuses.
¶ 6. Finally, Saturn's proposed release included Dan Schultz, whose name appeared on the title as an owner. While we reject Saturn's release requirement, we do recognize that such a co-owner would have to sign off on the title before transfer could occur. See WIS. STAT. § 218.015(2)(c) ("When the manufacturer provides the . . . refund, the consumer shall return the motor vehicle . . . and provide . . . the certificate of title and all endorsements necessary to transfer title to the manufacturer.").
By the Court.Judgment and order affirmed.
NOTES
[1] All references to the Wisconsin Statutes are to the 1997-98 version.
[2] We note that the bulk of the refund would have gone to Chariton's secured creditor. For ease of discussion we refer to the total amounts, not just the amount going to Chariton.
[3] We acknowledge that in our notice of oral argument and request for supplemental briefing we also asked the parties to address whether the Lemon Law requires a consumer to deal in good faith. After reading the supplemental briefs and hearing oral argument, we have decided that this is not the proper case in which to determine whether the consumer has a duty to communicate promptly with the manufacturer regarding the details of the refund. It is undisputed that Saturn had all the information it needed to calculate Chariton's refund by the twenty-second day after Chariton made her offer to transfer title. The only issue remaining was Saturn's insistence on a general release and Chariton's refusal to sign it. This is not a case where the manufacturer was lost at sea due to the consumer's alleged evasiveness. Thus, we decline to address the good faith issue.
[4] Under the proposed release, Chariton would agree to:
release and discharge Releasee, its subsidiaries, divisions, officers, representatives, employees, stockholders, authorized Retailers, successors and assigns and all other persons, firms or corporations, who are or might be claimed to be liable, of and from any and every claim, demand, right or cause of action for the recovery for damages including, but not limited to, those for diminution in value, repair costs, or any other economic or non-economic injuries, losses, breach of warranty and/or damages including any claims for consequential or incidental damages and/or punitive damages, cost of suit and attorneys fees resulting or alleged to have resulted from the promotion, use or sale of, or any defect and/or nonconformities in the design or manufacture of assembly in the aforesaid Vehicle[.]
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544 A.2d 306 (1988)
Merlene COUTURIER, et al.
v.
PENOBSCOT INDIAN NATION et al.
Supreme Judicial Court of Maine.
Argued May 12, 1988.
Decided July 13, 1988.
Christopher G. Limberis (orally), Limberis, Limberis & Simonds, Bangor, for plaintiffs.
Carl F. Rella (orally), Leen & Emery, Bangor, for defendants.
Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, SCOLNIK and CLIFFORD, JJ.
CLIFFORD, Justice.
Plaintiffs Merlene and Ronald Couturier appeal from an order of the Superior Court, Penobscot County, dismissing their complaint *307 against the Penobscot Indian Nation and Mark Sockbeson, a police officer employed by the Penobscot Nation. The Superior Court determined that plaintiffs' suit was time barred under 14 M.R.S.A. § 8110 (1980), the two-year statute of limitations provision of the Maine Tort Claims Act. Because we determine that plaintiffs should have been afforded the opportunity to demonstrate that Sockbeson was not acting in a "governmental capacity" within the meaning of 30 M.R.S.A. § 6206(2) (Supp.1987), we vacate the judgment.
According to the Couturiers' complaint, on July 28, 1984, while on the premises of the community center at Indian Island,[1] Merlene Couturier was injured by the actions of Sockbeson, a police officer acting within the scope of his employment by the Penobscot Nation. The Couturiers sought recovery for physical and emotional injury and pecuniary loss suffered by Merlene, and for loss of consortium and pecuniary loss of Ronald Couturier, Merlene's husband.
The complaint was filed on June 26, 1987. The Superior Court dismissed the complaint as time barred under the two-year statute of limitations of the Maine Tort Claims Act,[2] and this appeal followed.
The Couturiers contend that the six-year statute of limitations, 14 M.R.S.A. § 752 (1980), and not the two-year statute of limitations prescribed by the Maine Tort Claims Act, applies, since the Penobscot Nation does not fall within the definition of "governmental entity" for purposes of the Maine Tort Claims Act.[3]
However, the language of the federal and state legislation dealing with the Penobscot Nation clearly evinces a legislative intention to make the acts of the Penobscot Nation, and its employees, while acting in a governmental capacity, subject to the Maine Tort Claims Act.
"`Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers,'" subject to the control of the Congress of the United States. Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061, 1064 (1st Cir.1979) quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 1677, 56 L.Ed.2d 106 (1978)). In enacting the Maine Indian Claims Settlement Act, Congress acted to limit the sovereign immunity of the Penobscot Nation and provided that:
[T]he Penobscot Nation ... may sue and be sued in the courts of the State of Maine and the United States to the same extent as any other entity or person residing in the State of Maine may sue or be sued in those courts. ... Provided, however, That ... the Penobscot Nation, and their officers and employees shall be immune from suit to the extent provided in the Maine Implementing Act.
25 U.S.C.A. § 1725(d)(1) (1983) (emphasis added).
The Maine Implementing Act referred to by Congress was the statute previously enacted by the Maine legislature, 30 M.R. S.A. ch. 601, §§ 6201-6214 (Supp.1987), An Act to Implement the Maine Indian Claims Settlement. That Act provides as follows:
*308 § 6206. Powers and duties of the Indian tribes within their respective Indian territories
. . . .
(2) Power to sue and be sued. The Passamaquoddy Tribe, the Penobscot Nation and their members may sue and be sued in the courts of the State to the same extent as any other entity or person in the State provided, however that the respective tribe or nation and its officers and employees shall be immune from suit when the respective tribe or nation is acting in its governmental capacity to the same extent as any municipality or like officers or employees thereof within the State.
30 M.R.S.A. § 6206(2) (Supp.1987) (emphasis added).
We agree with defendants that the Maine Tort Claims Act, from which municipalities derive their immunity and which governs any suit against a municipality, see Faucher v. City of Auburn, 465 A.2d 1120 (Me.1983), is made applicable to the Passamaquoddy Tribe and Penobscot Nation by section 6206(2). This is consistent with other provisions of this state's Act to Implement the Maine Indian Claims Settlement, which states in an introductory declaration of policy that "the Passamaquoddy Tribe and the Penobscot Nation have agreed to adopt the laws of the State as their own to the extent provided in this Act." 30 M.R. S.A. § 6202. In addition, the Tribe and Nation possess powers similar to the state's municipalities. The Passamaquoddy Tribe and Penobscot Nation "within their respective Indian territories, shall have, exercise and enjoy all the rights, privileges, powers and immunities, including, but without limitation, the power to enact ordinances and collect taxes, and shall be subject to all the duties, obligations, liabilities and limitations of a municipality of and subject to the laws of the State. ..." 30 M.R.S.A. § 6206(1) (emphasis added).[4]
That section 6206(2) does not refer specifically to the Maine Tort Claims Act is in keeping with the purpose of the Act to Implement the Maine Indian Claims Settlement, to serve as a basic, organic document establishing the broad and basic provisions of the relationship between the State and the Maine Indians. "Because of this nature of the [Settlement Act], it was not drafted to refer to specific provisions of State law, but to refer to the basic principles of State law that have remained constant." Report of Joint Select Committee on Indian Land Claims, Legis.Rec. (Special Appendix, 1980) (emphasis added).
It is clear that if Officer Sockbeson[5] was acting in a governmental capacity, section 6206(2) makes the provisions of the Maine Tort Claims Act applicable to the Couturiers' claim. If the Maine Tort Claims Act applies, then the claim is time barred since 14 M.R.S.A. § 8110, the two-year statute of limitations, applies to all tort claims brought under the Act, see Fitzpatrick v. Greater Portland Pub. Dev. Comm'n, 495 A.2d 791, 793 (Me.1985), and this claim was not brought within two years of the accrual of the cause of action.
However, the court dismissed the complaint under M.R.Civ.P. 12(b). Under M.R.Civ.P. 12 "the affirmative defense of the statute of limitations may be raised by a motion to dismiss if facts giving rise to the defense appear on the face of the ... complaint." Kasu Corp. v. Blake, Hall & Sprague, Inc., 540 A.2d 1112, 1113 (Me. 1988). A defendant carries the burden of proof on an affirmative defense. 1 Field, McKusick & Wroth, Maine Civil Practice § 8.7 at 199 (1970). A plaintiff need not anticipate an affirmative defense and is entitled to litigate the applicability of the statute of limitations by presenting to the court facts outside the pleadings. Kasu, 540 A.2d at 1113; 1 Field, McKusick & Wroth, § 12.12 at 250.
The Couturiers correctly contend that they should be afforded the opportunity to demonstrate that Officer Sockbeson was *309 not acting in a governmental capacity,[6] and therefore that the Maine Tort Claims Act and its two-year statute of limitations do not apply to this claim. This may be accomplished by the filing of counter-affidavits on a defendant's motion for summary judgment under M.R.Civ.P. 56. Kasu, 540 A.2d at 1113; Patten v. Milam, 468 A.2d 620, 622 (Me.1983); 1 Field, McKusick & Wroth, § 12.12 at 250. However, if not resolvable by affidavit on a motion for summary judgment, a trial of facts may be required to determine if the officer was acting in a governmental capacity.
The entry is:
Judgment vacated.
Remanded for proceedings consistent with the opinion herein.
All concurring.
NOTES
[1] Indian Island is an island in the Penboscot River "reserved to the Penobscot Nation." See 30 M.R.S.A. § 6203(8) (Supp.1987).
[2] 14 M.R.S.A. § 8110 provides:
Every claim against a governmental entity or its employees permitted under this chapter shall be forever barred from the courts of this State, unless an action therein is begun within 2 years after the cause of action accrues.
See also section 8107 requiring that a claimant notify the governmental entity of the claim within 180 days of its accrual.
[3] 14 M.R.S.A. § 8102(2) (1980) provides:
"Governmental entity" means and includes the State and political subdivisions as defined in subsection 3.
Subsection 3 provides in turn that:
"Political subdivision" means any city, town, plantation, county, administrative entity or instrumentality created pursuant to Title 30, chapters 203, 204 and 239, quasi-municipal corporation and special purpose district, including, but not limited to, any water district, sanitary district, hospital district and school district of any type.
Section 8102 (3) was later amended by P.L.1987, ch. 386 to include "any volunteer fire association as defined in Title 30, section 3771 and any emergency medical service."
[4] Section 6206(1) goes on to provide that internal tribal matters are not subject to state law.
[5] The Couturiers allege that Officer Sockbeson was acting within the scope of his employment.
[6] In limiting immunity to the Penobscot Nation and Passamaquoddy Tribe when "acting in [their] governmental capacity," section 6206(2) does not resurrect old distinctions between "governmental" or nonprofit and "proprietary" or profit making functions of a municipality formerly existing under Maine sovereign immunity common law. See Wilde v. Town of Madison, 145 Me. 83, 87, 72 A.2d 635 (1950); Anderson v. City of Portland, 130 Me. 214, 216, 154 A. 572 (1931). In Davies v. City of Bath, 364 A.2d 1269, 1273 (Me.1976), which abrogated common law sovereign immunity, those distinctions were forever eliminated. Rather, section 6206(2) provides immunity under the Maine Tort Claims Act to those functions dealing with the operation of the Tribe or Nation as a government. The Tribe or Nation is not immune when it is acting in its business capacity. See section 6208(3) (when acting in its business capacity, Tribe or Nation taxed as business corporation). Although the face of the Couturiers' complaint may suggest that Officer Sockbeson was acting in a governmental capacity at the time of the injury, on the basis of this scant record we cannot say that as a matter of law there are no facts that the Couturiers could present that would demonstrate that Officer Sockbeson was not acting in a governmental capacity.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1332
EDWARD KIJEWSKI,
Plaintiff - Appellant,
versus
BIG LOTS STORES,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CA-04-774-3)
Submitted: September 29, 2005 Decided: October 5, 2005
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David E. Noll, CRAVENS & NOLL, P.C., Richmond, Virginia, for
Appellant. William B. Tiller, J. Matthew Haynes, Jr., BEATYTILLER,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Edward Kijewski appeals from the district court's order
granting summary judgment in favor of Big Lots Stores, Inc. (“Big
Lots”) in Kijewski’s trip and fall premises liability case.
Following discovery and the arguments of counsel for the parties on
Big Lots’ summary judgment motion, the district court granted
summary judgment in favor of Big Lots, finding that the case was a
classic case covered by Southern Floors and Acoustics, Inc. v.
Anthony Max-Yeboah, 594 S.E.2d 908 (Va. 2004). Our review of the
record and the district court's opinion discloses that this appeal
is without merit.
Factually, there is no genuine issue of material fact in
dispute. Kijewski sustained injury when he tripped on a piece of
steel or “metal rubber tread” that was sticking up “between three-
quarters to an inch” off the ground at the door threshold as he
exited the store for the second time in a twenty-five minute
period. Specifically, Kijewski had entered the store by the left
exit door because it was open and the right side entrance door was
under construction at the time and had brown plastic tape across
it. He then exited through the same door he had entered,
discovered that he had forgotten an item, re-entered the store to
purchase the item, and exited the store for the second time through
the same exit door through which he had entered. It was during his
- 2 -
second exit of the store that he tripped and fell, sustaining
injury.
On appeal, Kijewski asserts that the Southern Floors case
is distinguishable because the exit door through which he was
passing when he tripped and fell was not being worked on by the
door company.1 He contends that the ingress and egress in which he
tripped was being used by all Big Lots patrons while the
construction workers worked on the set of doors immediately next to
the open ingress/egress. He testified that he did not know how
long the alleged defective condition existed before he fell, nor
did he know who or what caused the condition. Nor did Kijewski
present any evidence of actual or constructive notice of the
alleged defect by Big Lots. This court reviews de novo the
district court’s grant of summary judgment. Shaw v. Stroud, 13
F.3d 791, 798 (4th Cir. 1994).
While Kijewski distinguishes the facts of his case from
those in Southern Floors, making much of his argument that the
doorway in which he tripped was not under actual construction at
the time of his fall,2 he does not offer any evidence that Big Lots
had any actual or constructive notice of the defect, which was the
legal theory supporting the reversal of liability against Food Lion
1
The company conducting the construction was an entity
separate from Big Lots and was not made a party to the litigation.
2
In Southern Floors, the plaintiff fell in the same aisle and
area that was under construction. 594 S.E.2d at 910.
- 3 -
in Southern Floors, and which is the point of law on which the
district court in this case based its decision. See also Winn-
Dixie Stores v. Parker, 396 S.E.2d 649 (Va. 1990) (under Virginia
law, a plaintiff in a trip and fall case must show evidence of
actual or constructive notice by the premises owner of a dangerous
condition to establish a prima facie case of negligence).
Kijewski’s failure to demonstrate evidence of actual or
constructive notice of the condition that caused his fall is fatal
to his prima facie case and supports the district court’s adverse
grant of summary judgment.
Accordingly, because there is no genuine issue of
material fact in dispute, we affirm the district court’s order
granting Big Lots’ summary judgment motion. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
- 4 -
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WALKER V. STATE
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-05-382-CR
BILLY DALE WALKER APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
------------
MEMORANDUM OPINION
(footnote: 1)
------------
Appellant Billy Dale Walker appeals from his conviction for burglary of a motor vehicle. According to the trial court’s judgment, Appellant was convicted pursuant to a plea-bargain, and his punishment was assessed in accordance with the plea-bargain at fourteen months’ confinement.
The trial court’s certification states that this is a plea-bargain case and that Appellant has no right to appeal. Accordingly, we informed Appellant’s appointed counsel by letter on October 11, 2005 that this court would dismiss the appeal unless Appellant or any party showed grounds for continuing it. We received a response from Appellant’s appointed counsel, but the response does not show grounds for continuing the appeal in light of the trial court’s certification. Therefore, we dismiss this appeal.
(footnote: 2)
PER CURIAM
PANEL D: GARDNER, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P.
47.2(b)
DELIVERED: November 17, 2005
FOOTNOTES
1:See
Tex. R. App. P.
47.4.
2:See
Tex. R. App.
P. 25.2(d), 43.2(f).
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J-S84030-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN STANLEY :
:
Appellant : No. 2266 EDA 2018
Appeal from the PCRA Order Entered July 10, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0205561-2002
BEFORE: BENDER, P.J.E., OTT, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OTT, J.: FILED APRIL 26, 2019
John Stanley appeals, pro se, from the order entered July 10, 2018, in
the Court of Common Pleas of Philadelphia County, dismissing his serial
petition filed under the Post-Conviction Relief Act (“PCRA”)1 as untimely. On
appeal, Stanley claims he is entitled to PCRA relief because counsel failed to
impeach certain witnesses. Based on following, we affirm.
Stanley’s convictions stem from the shooting death of Benjamin Hooper
and the intimidation of a witness, Sharlena Rutledge. On February 3, 2003, a
jury convicted Stanley of first-degree murder, possessing an instrument of
crime (“PIC”), and intimidating a witness.2 On April 3, 2003, Stanley was
____________________________________________
1 42 Pa.C.S. §§ 9541-9546.
2 18 Pa.C.S. § 2502(a), 907(a), and 4952(a), respectively.
J-S84030-18
sentenced to life imprisonment, plus a consecutive term of 16 to 32 months’
imprisonment for intimidating a witness, and six to 12 months’ imprisonment
for PIC. On April 27, 2004, a panel of this Court affirmed Stanley’s judgment
of sentence. See Commonwealth v. Stanley, 852 A.2d 1255 (Pa. Super.
2003).3
Stanley filed the instant, serial PCRA petition4 on August 23, 2012. For
reasons not explained in the record or by the PCRA court, the matter then
went dormant until April 17, 2018, when the court notified Stanley of its intent
to dismiss the petition without a hearing because it determined the petition
was untimely and Stanley did not prove that one of the exceptions to the
timeliness provision set forth in 42 Pa.C.S. § 9545(b) applied. See
Pa.R.Crim.P. 907. Stanley did not file a response to the Rule 907 notice.5 On
____________________________________________
3 Stanley did not file a petition for allowance of appeal in the Pennsylvania
Supreme Court.
4 A review of the record, and as confirmed by the Commonwealth in its
appellee’s brief, indicates this is Stanley’s fourth petition. See
Commonwealth’s Brief 4. Stanley’s prior petitions have not provided him with
any relief.
5 Stanley did file a motion for extension of time to respond, including a request
for appointment of counsel, on April 26, 2018. A review of the record reveals
the court did not rule upon the motion. Nevertheless, Stanley never filed a
response and does not raise any argument regarding the matter on appeal.
-2-
J-S84030-18
July 10, 2018, the PCRA court dismissed his petition. This pro se appeal
followed.6
Stanley presents the following issue for our review:
Counsel’s failure to impeach witness or witnesses shows
ineffe[c]tiveness of counsel[’s] failure to argue real merits.
Stanley’s Brief at 4.
“Crucial to the determination of any PCRA appeal is the timeliness of the
underlying petition. Thus, we must first determine whether the instant PCRA
petition was timely filed.” Commonwealth v. Smith, 35 A.3d 766, 768 (Pa.
Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012).
The PCRA timeliness requirement … is mandatory and
jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951
A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 1,
753 A.2d 201, 203 (2000)). The court cannot ignore a petition’s
untimeliness and reach the merits of the petition. Id.
Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,
134 S. Ct. 2695 (U.S. 2014). A PCRA petition must be filed within one year
of the date the underlying judgment becomes final. See 42 Pa.C.S. §
9545(b)(1). A judgment is deemed final “at the conclusion of direct review,
including discretionary review in the Supreme Court of the United States and
the Supreme Court of Pennsylvania, or at the expiration of time for seeking
____________________________________________
6 The court did not order Stanley to file a concise statement of errors
complained of on appeal under Pa.R.A.P. 1925(b). On July 24, 2018, the trial
court issued an opinion under Pa.R.A.P. 1925(a).
-3-
J-S84030-18
review.” 42 Pa.C.S. § 9545(b)(3). Stanley’s judgment of sentence became
final on May 27, 2004, 30 days after a panel of this Court affirmed on direct
appeal. See Pa.R.A.P. 1113. Stanley, therefore, had one year thereafter to
file a PCRA petition — i.e., until May 27, 2005. 42 Pa.C.S. § 9545(b)(1).
Stanley filed the current petition on August 23, 2012, over seven years later.
Therefore, Stanley’s petition was patently untimely.
Nevertheless, an untimely PCRA petition may be considered if one of the
following three exceptions applies:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to
the petitioner and could not have been ascertained by the exercise
of due diligence; or
(iii) the right asserted is a constitutional right that was recognized
by the Supreme Court of the United States or the Supreme Court
of Pennsylvania after the time period provided in this section and
has been held by that court to apply retroactively.
42 Pa.C.S. § 9545(b)(1)(i-iii). “As such, exceptions to the time bar must be
pled in the PCRA petition, and may not be raised for the first time on appeal.”
Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007), citing
Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999). See also
-4-
J-S84030-18
Pa.R.A.P. Rule 302(a) (issues not raised in the lower court are waived and
cannot be raised for the first time on appeal).7
Here, a review of the record reveals that Stanley has waived his
ineffective assistance of counsel argument for failure to raise it in his August
23, 2012, PCRA petition. See Post-Conviction Relief Act Petition, 8/23/2012,
at unnumbered 1-8. Indeed, in his petition, Stanley contended he was entitled
to review pursuant to the PCRA’s new constitutional right exception at Section
9545(b)(1)(iii), based upon Miller v. Alabama, 567 U.S. 460 (2012), and
related case law.8 See Post-Conviction Relief Act Petition, 8/23/2012, at 3-7.
____________________________________________
7 We note that until recently, a petition invoking a timeliness exception had
to be filed within 60 days of the date the claim could have been presented.
However, effective December of 2017, Act 146 of 2018 amended 42 Pa.C.S.
§ 9545(b)(2), and now provides that an appellant has one year time to file a
PCRA petition, when invoking a timeliness exception. See Act 2018, Oct. 24,
P.L. 894, No. 146, §2 and §3. Although we note the change in the law, it does
not apply to Stanley, who filed his petition in 2012.
8 In Miller, the United States Supreme Court held that “mandatory life without
parole for those under the age of 18 at the time of their crimes violates
the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”
Miller, 567 U.S. at 465 (emphasis added). Subsequently, in Montgomery v.
Louisiana, 136 S. Ct. 718 (U.S. 2016), the Supreme Court held that Miller
was a new substantive right that, under the United States Constitution, must
be applied retroactively in cases on state collateral review. Montgomery,
136 S.Ct. at 736.
Even if Stanley had pursued this argument on appeal, we agree with the
PCRA court’s determination that Stanley is not entitled to relief under these
decisions because he was over the age of 18 when he committed the murder,
and Miller’s holding only applies to defendants who were under the age of 18
at the time of their crimes. See PCRA Court Opinion, 7/24/2018, at 1.
-5-
J-S84030-18
He did not complain that counsel was ineffective for failing to impeach certain
witnesses. More importantly, Stanley failed to explain how his ineffectiveness
argument comparts with any of the timeliness exceptions.
Accordingly, we conclude the PCRA court properly found that Stanley’s
petition is untimely and therefore, we lack the jurisdiction to review this
belated petition.9
____________________________________________
Moreover, to the extent Stanley argues that he has not reached the
necessary cognitive development at the age of 21 when he committed the
offenses, and therefore Miller should apply to him, we would have rejected
this contention as based on a recent en banc decision by this Court in
Commonwealth v. Lee, __ A.3d __, 2019 PA Super 64 [1891 WDA 2016]
(Pa. Super. March 1, 2019) (en banc). In Lee, the appellant argued “Miller
should apply to those who ground their claims on the Miller rationale -- the
‘immature brain’ theory – despite Miller’s express age limitation[.]” Lee, __
A.3d __, 2019 PA Super 64, ¶5. The en banc panel held:
We recognize that the principles underlying the Miller
holding are more general; who qualifies as a “juvenile” and
whether Miller applies to [the appellant] are better characterized
as questions on the merits, not as preliminary jurisdictional
questions under [S]ection 9545(b)(1)(iii). As compelling as the
“rationale” argument is, we find it untenable to extend Miller to
one who is over the age of 18 at the time of his or her offense for
purposes of satisfying the newly-recognized constitutional right
exception in section 9545(b)(1)(iii).
Lee, __ A.3d __, 2019 PA Super 64, ¶¶ 18-19. Therefore, if Stanley had
preserved this claim, we would conclude that Lee is controlling in this case,
and he was entitled to no relief. See also Commonwealth v. Housman,
986 A.2d 822, 840 (Pa. 2009) (“the general rule in Pennsylvania is to apply
the law in effect at the time of the appellate decision.”).
9 We note we “may affirm the lower court on any basis, even one not
considered or presented in the court below.” Commonwealth v. Burns, 988
A.2d 684, 690 n.6 (Pa. Super. 2009).
-6-
J-S84030-18
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/19
-7-
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184 Cal.App.4th 516 (2010)
109 Cal.Rptr.3d 412
THE PEOPLE, Plaintiff and Respondent,
v.
DEMETRIUS LABARRIAN BRANCH, Defendant and Appellant.
No. C060225.
Court of Appeals of California, Third District.
May 6, 2010.
CERTIFIED FOR PARTIAL PUBLICATION[*]
*517 Kat Kozik, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
*518 OPINION
CANTIL-SAKAUYE, J.
A jury convicted defendant of attempted pimping of a minor under the age of 16 (Pen. Code, §§ 664, 266h, subd. (b)(2))[1] (count one); pandering of a minor under the age of 16 (§ 266i, subd. (b)(2)) (count two); pimping (§ 266h, subd. (a)) (count three); and pandering (§ 266i, subd. (a)(1)) (count four). The jury acquitted defendant of assault with a deadly weapon (§ 245, subd. (a)(1)) (count five) and corporal injury on a cohabitant (§ 273.5, subd. (a)) (count six), and failed to reach a verdict on a lesser offense to the assault charge and convicted him of simple battery (§ 243, subd. (e)) as a lesser offense to the domestic violence charge. The trial court found true the allegation that defendant had served a prison term (§ 667.5, subd. (b)). Defendant was sentenced to an aggregate prison term of 10 years eight months.
On appeal, defendant contends (1) the jurors were not properly sworn; (2) it was prejudicial error to admit evidence of a prior rape by defendant; (3) the trial court erred in failing to instruct that defendant's good faith belief the minor was 18 was a defense to attempted pimping and pandering of a minor under the age of 16; (4) consecutive sentences for pimping and pandering the same victim violate section 654; (5) it was error to impose two restitution fines under section 1202.4; and (6) the abstract of judgment must be corrected to show the proper crime in count one. The Attorney General concedes the fourth and sixth errors. We accept those concessions and otherwise affirm.[2]
FACTS
Defendant lived with his girlfriend, Krista Armstrong, who worked as a prostitute. It was defendant's idea for her to work as a prostitute. Armstrong's earnings paid all the bills and defendant did not work. She gave defendant all the money she made and he sometimes drove her to work. During their relationship defendant used force and violence against Armstrong. Sometimes she did not want to work, but defendant would beat her if she did not work as a prostitute.
J.V., who was 15 years old, met defendant when he picked her up and gave her a ride. They exchanged phone numbers and she called him a week *519 later. J.V. spoke with defendant about working as a prostitute. J.V. had worked selling drugs, but wanted to work as a prostitute for the easy money.
When defendant brought J.V. home, Armstrong thought she was young. She asked J.V. how old she was and J.V. said 18, but she gave the wrong year as her birth date. Armstrong told defendant J.V. was only 15. During a fight, a friend of J.V. told defendant J.V. was 15. J.V. also told defendant her true age before she was arrested.
Armstrong caught defendant and J.V. having sex and was very angry. Armstrong and defendant fought and defendant beat Armstrong. Armstrong claimed defendant hit her with a samurai sword.
Defendant drove Armstrong and J.V. to the stroll to work as prostitutes three times. The first two times J.V. had no business. The third time, on February 6, 2008, J.V. was picked up by an undercover vice detective. J.V. asked what he wanted and the detective replied half-and-half, meaning oral sex and intercourse. J.V. quoted him a price of $150. The detective said he had only $80 and J.V. said that would get him only sex (intercourse). J.V. directed him to a park. There the detective asked for oral sex and J.V. said yes if he wore a condom. After the detective gave J.V. $80, he gave the signal and J.V. was arrested.
Armstrong did not return to defendant's that night after making $300-$400 as a prostitute. The next day she called the police and reported defendant beating her. J.V. told the FBI she saw defendant hit Armstrong.
At trial, J.V. claimed it was Armstrong who instructed her on how to be a prostitute.[3] She told the FBI, however, that defendant provided the instruction. He told her what to charge and to never give his name to the police. The night she was arrested, defendant wanted her to make $300 to $400. At trial, J.V. confirmed her statements to the FBI were true.
The police arranged for J.V. to make a pretext call to defendant, instructing her to call defendant by name. In the call, J.V. told defendant she was locked up; the trick was the police. J.V. told defendant, "I ain't doing this no more." Defendant responded he did not want her to. She told him she was picked up by the police right after he dropped her off.
*520 A phone call from defendant in jail to his mother was played for the jury. Defendant told his mother he did not hit Armstrong that night. "I probably kicked her ass probably aa couple weeks before that but that week, that night, no." Defendant cautioned his mother, "if they ask you anything about [J.V.], you don't know nothing .... [¶] ... [¶] ... [S]o from here on out, no, you don't know nothing about no [J.V.] and I don't know nothing about no mother-fucking [J.V.]." At the end of the call, defendant said, "I don't give a fuck how much time they give me, when I get up out of here, something happening to that bitch. Watch. As soon as I get up out of here."
Pursuant to Evidence Code section 1109, the trial court admitted evidence of defendant's prior acts of violence against L.C. who had lived with defendant on and off for four years and had a child with him. In December 2001, defendant came over and wanted sex. L.C. told the police he dragged her to the bedroom and had intercourse with her without her consent. She was involved in a custody battle with defendant and recanted the rape story at the preliminary hearing. In response to the trial court's question whether the recanting was the truth or a lie, L.C. said, "It was a lie. Some of it was true."
L.C. also testified about an incident in July 2002, where she and defendant got into an argument in a car and hit each other. Defendant hit her in the face; he kicked her out of the car and drove away.
DISCUSSION
I., II.[*]
III.
A Good Faith Belief the Minor Is 18 Is Not a Defense to Pimping or Pandering a Minor
Defendant contends the trial court erred in refusing the defense request to instruct the jury that defendant's good faith, reasonable belief J.V. was 18 was a defense to the charges of attempted pimping and pandering of a minor under the age of 16. Instead, the court instructed the jury that to convict, it must find J.V. was under the age of 16 at the time of the crimes alleged in counts one and two.
*521 (1) In People v. Hernandez (1964) 61 Cal.2d 529 [39 Cal.Rptr. 361, 393 P.2d 673] (Hernandez), the California Supreme Court held a charge of unlawful sexual intercourse could be defended on the basis the defendant lacked criminal intent because in good faith he had a reasonable belief the prosecutrix was 18 years or more of age. The court relied on the common law rule that an honest and reasonable belief in the existence of circumstances which, if true, would make the act innocent, was a good defense. (Id. at p. 535.) The Legislature had adopted this rule in section 20, requiring criminal intent for a crime, and section 26, which provides that one who commits an act under a mistake of fact that disproves criminal intent has not committed a crime. (Hernandez, supra, at pp. 532, 535.) The court indicated, however, this defense would not be available where the victim was a child of tender years. (Id. at p. 536.)
In a very short opinion, without any discussion of the facts, the court followed Hernandez in People v. Atchison (1978) 22 Cal.3d 181 [148 Cal.Rptr. 881, 583 P.2d 735] (Atchison), finding the trial court erred in instructing the jury it was immaterial whether defendant knew the age of the minor for purposes of the crime of contributing to the delinquency of a minor. (Id. at p. 183.) The court also reversed the charge of annoying or molesting a child under the age of 16 (former § 647a; see now § 647.6), finding the improper instruction may have misled the jury. (Atchison, supra, at p. 183.)
In People v. Olsen (1984) 36 Cal.3d 638 [205 Cal.Rptr. 492, 685 P.2d 52] (Olsen), the high court held a good faith, reasonable mistake as to age was not a defense to a charge of lewd or lascivious conduct with a minor under the age of 14 (§ 288, subd. (a)). The court found allowing the defense would contradict the "strong public policy to protect children of tender years." (Olsen, supra, at p. 646.) Recognizing the defense would also nullify the effect of section 1203.066, which permitted probation for defendants who honestly and reasonably believed the minor was 14 years of age or older. (Olsen, supra, at p. 647.)
Defendant contends the reasoning of Hernandez and Atchison should control because J.V. was 15 and not a child of tender years, as in Olsen. We disagree. In Hernandez, the court relied on the fact that the defendant would have had no criminal intent if the minor was older. (Hernandez, supra, 61 Cal.2d 529, 535-536.) Without discussion, Atchison simply relied on Hernandez.[5] (Atchison, supra, 22 Cal.3d at p. 183.) The present case is *522 distinguishable because defendant's conduct would be criminal regardless of J.V.'s age.
(2) In that regard, this case is similar to People v. Williams (1991) 233 Cal.App.3d 407 [284 Cal.Rptr. 454] (Williams), which we find controlling. In Williams, the defendant was charged with selling controlled substances to a minor. The trial court refused to instruct that a reasonable, good faith belief the minor was over 18 was a defense to the charge. The appellate court affirmed. "The specific intent for the crime of selling cocaine to a minor is the intent to sell cocaine, not the intent to sell it to a minor. [Citations.] It follows that ignorance as to the age of the offeree neither disproves criminal intent nor negates an evil design on the part of the offerer. It therefore does not give rise to a `mistake of fact' defense to the intent element of the crime. [Citations.]" (Id. at p. 411.) Here the criminal intent for the crimes of attempted pimping and pandering of a minor is the attempt to pimp and pander; the age of the victim only affects the severity of the sentence, not the criminality of the conduct. Regardless of his belief as to J.V.'s age, defendant acted with criminal intent.
(3) The Williams court also rejected the argument, similar to defendant's here, that under Olsen, supra, 36 Cal.3d 638, the Hernandez mistake of age defense is unavailable only where the child is under 14. Instead, the Williams court read Olsen, as we do, to conclude "that a Hernandez defense is not available when its application would violate a strong public policy." (Williams, supra, 233 Cal.App.3d at p. 412.)
(4) The trial court did not err in refusing defendant's proposed instruction on defendant's mistake as to J.V.'s age.
IV.-VI.[*]
DISPOSITION
The judgment is modified to stay the sentences on counts one, attempted pimping of a minor, and four, pandering. As so modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect that the crime in count one is attempted pimping of a minor under the *523 age of 16, not attempted pandering of a minor under the age of 16, and the terms imposed for count one and four are stayed pursuant to section 654. The trial court is further directed to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
Scotland, P. J., and Hull, J., concurred.
NOTES
[*] Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts I., II., IV., V., and VI. of the Discussion.
[1] Hereafter, undesignated statutory references are to the Penal Code.
[2] Pursuant to miscellaneous order No. 2010-002, we have considered whether defendant is entitled to additional presentence custody credit under recent amendments to section 4019. Due to his conviction under section 266i, subdivision (b), defendant is required to register as a sex offender. (§ 290, subd. (c).) Accordingly, he is not entitled to additional credit. (§ 4019, subd. (b)(2); Stats. 2009-2010, 3d Ex. Sess. 2009, ch. 28, § 50.)
[3] At trial, both J.V. and Armstrong testified under grants of immunity.
[*] See footnote, ante, page 516.
[5] We recognize that in Atchison, the charge of contributing to the delinquency of a minor was based on the conduct of furnishing marijuana to the child. In a concurring and dissenting opinion, Justice Clark notes this conduct would be criminal regardless of the defendant's belief concerning age. (Atchison, supra, 22 Cal.3d at p. 185 (conc. & dis. opn. of Clark, J.).) We note only that the majority opinion does not discuss the conduct at issue and speaks only of the crime charged.
[*] See footnote, ante, page 516.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00772-CV
Gulf Chemical & Metallurgical Corporation, Appellant
v.
Susan Combs, Comptroller of Public Accounts of the State of Texas; and
Greg Abbott, Attorney General of the State of Texas, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. D-1-GN-11-003174, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING
ORDER
PER CURIAM
Appellees have filed a fourth motion for extension of time to file their brief, asking
for a fifteen-day extension. Appellant opposes the motion, noting that appellees stated in their third
motion that they would seek no further extensions and that in both the third and fourth motions,
appellees stated that counsel’s time had been monopolized by work in an appeal in which appellees
filed notice that they would not be filing a response unless requested to do so. We share appellant’s
concerns but will grant appellees one last extension, making appellees brief due Friday, August 30,
2013. If the brief is not filed by that date, we will not accept a brief from appellees and will consider
the appeal based on appellant’s brief alone.
It is ordered August 22, 2013
Before Justices Puryear, Rose and Goodwin
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142 B.R. 819 (1992)
In re John A. BETTS, Debtor.
ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION OF the SUPREME COURT OF ILLINOIS, Plaintiff,
v.
John A. BETTS, Defendant.
Bankruptcy No. 91 B 21706, Adv. No. 92 A 00325.
United States Bankruptcy Court, N.D. Illinois, E.D.
June 16, 1992.
*820 *821 M. Scott Michel, U.S. Trustee, Chicago, Ill.
Ruthe A. Howes, Chicago, Ill., for Attorney Registration and Disciplinary Com'n of the Supreme Court of Illinois.
Kenneth A. Kozel, LaSalle, Ill., for John A. Betts, debtor.
MEMORANDUM OPINION
JOHN H. SQUIRES, Bankruptcy Judge.
This matter comes before the Court on a motion to dismiss filed by the Debtor, John A. Betts, pursuant to Federal Rule of Civil Procedure 12(b), seeking to dismiss the adversary proceeding and complaint filed by the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois ("ARDC"). For the reasons set forth herein, the Court having reviewed the pleadings, exhibits and papers attached thereto, hereby denies the motion.
I. JURISDICTION AND PROCEDURE
The Court has jurisdiction to entertain this motion pursuant to 28 U.S.C. § 1334 and General Rule 2.33(A) of the United States District Court for the Northern District of Illinois. This matter constitutes a core proceeding under 28 U.S.C. § 157(b)(2)(I), notwithstanding the argument raised by the Debtor that this adversary proceeding is non-core.
The Debtor alleges that proceedings to determine the dischargeability of a debt are core proceedings only when the estate has assets to administer. He concludes that if there is no estate to administer, then dischargeability determinations of claims are non-core related adversary proceedings. No authority for such proposition was cited, and hence is forfeited absent any legal support or sufficient explanation. Pelfresne v. Williams Bay, 917 F.2d 1017, 1023 (7th Cir.1990). The Court summarily rejects such conclusion. Even if a matter is non-core, that point is not a proper ground for dismissal of a complaint.
28 U.S.C. § 157(b)(2) provides that core proceedings include, but are not limited to, a number of various matters which specifically include determinations as to the dischargeability of particular debts. See 28 U.S.C. § 157(b)(2)(I). More importantly, the Debtor's unsupported point misses the mark by erroneously concluding that core proceedings only involve matters wherein there is an estate for a trustee to administer. This approach ignores the two central congressional policies underlying the Bankruptcy Code, namely a fresh start for a debtor and payment of creditors' claims. Whether or not there is a bankruptcy estate to be administered is not outcome determinative of either of these two central policies, both of which are implicated in dischargeability adversary proceedings. ARDC seeks to have its claim found not to be subject to an order of discharge. The *822 Debtor, on the other hand, opposing same, understandably does not want his fresh start impaired by the survival of any more pre-petition debts than those statutorily excepted as outlined in section 523. Thus, it is logical and at the heart of bankruptcy jurisprudence to conclude that dischargeability determinations are core proceedings, regardless of whether there is an estate for a trustee to administer.
II. FACTS AND BACKGROUND
A. HISTORY OF THE PROCEEDINGS
On October 11, 1991, the Debtor, a practicing Illinois attorney, filed a pro se Chapter 7 petition. The petition was accompanied with a list of creditors which did not include ARDC. It was not accompanied with the requisite schedules of assets and liabilities and the statement of affairs as required by Official Bankruptcy Forms 6 and 7. On October 29, 1991, a notice of commencement of the case and of the initial section 341 meeting of creditors, set for November 21, 1991, was administratively issued by the Clerk of the Bankruptcy Court and served on the Debtor at his address of record, the interim Chapter 7 trustee, and the one scheduled creditor. That notice indicated that the deadline to file a complaint objecting to discharge of the Debtor, or to determine dischargeability of certain types of debts under 11 U.S.C. § 523(a)(2), (4) or (6) had to be filed by January 21, 1992.
The required schedules and statement of affairs were filed late on February 12, 1992. Thereafter, the interim trustee filed a no asset report on February 20, 1992. The attorney for ARDC filed an appearance on March 6, 1992, at the time a hearing was had on ARDC's motion for additional time to allow the filing of objections to discharge. On March 20, 1992, ARDC filed the instant adversary proceeding to determine dischargeability of a debt pursuant to section 523(a)(7), not an objection to discharge under 11 U.S.C. § 727.
The complaint alleges, inter alia, that ARDC is the agency established by the Supreme Court of Illinois pursuant to Ill. Rev.Stat. ch. 110A, para. 751 et. seq., to investigate and prosecute allegations of attorney misconduct. The complaint alleges that the Debtor was licensed to practice law in the state of Illinois and was suspended for a six-month period back in May, 1986 for engaging in attorney misconduct and was investigated and prosecuted by ARDC. Copies of the relevant Supreme Court of Illinois opinions and orders were attached to the complaint. The complaint further alleges that Illinois Supreme Court Rule 773 provides that an attorney who is the subject of a disciplinary proceeding that results in the imposition of discipline has a duty to reimburse ARDC for costs incurred. In addition, the complaint asserts that ARDC, in conjunction with the investigation and prosecution of the matter which led to the Debtor's suspension, incurred costs in the amount of $3,833.06, which was the subject of an order by the Supreme Court of Illinois entered on June 25, 1991 assessing costs against the Debtor, entering a judgment against him in said amount, and ordering him to pay same within thirty days thereafter. Moreover, the complaint claims that the judgment is unpaid and constitutes a fine, penalty or forfeiture payable to and for the benefit of ARDC as a governmental unit, and accordingly is nondischargeable pursuant to section 523(a)(7).
B. CONTENTIONS OF THE PARTIES
The Debtor has retained separate counsel who has entered a supplemental appearance and filed the instant motion to dismiss. The Debtor argues two principal grounds in addition to the above discussed contention that the matter is non-core. First, the Debtor contends the filing of the complaint is untimely, and that the previous motion for extension of time filed by ARDC was void because allegedly made ex parte. Second, the Debtor maintains the Court lacks in personam jurisdiction because a copy of the summons purportedly served on the Debtor with the complaint was not issued by the Clerk of the Bankruptcy Court, and was undated, unsigned and did not contain the information about the assigned number and initial status hearing in the subject adversary proceeding.
*823 In its response, ARDC contends that when the Debtor filed the case, he failed to schedule ARDC and that it did not receive actual notice of the filing of the petition and pendency of the Chapter 7 case until sometime in late January, 1992. ARDC thereafter served out its motion to extend time on the Debtor at his address of record via overnight mail which service allegedly was refused. ARDC further contends that when it filed the instant complaint, it had the Clerk issue a summons which was served on March 20, 1992, in accordance with the requirement of Federal Rule of Bankruptcy Procedure 7004(b)(1). A fully executed copy of the summons was also later served by letter of transmittal to the Debtor dated April 8, 1992. Thus, ARDC contends the dischargeability complaint was timely filed, adequately served, and states a meritorious cause of action. In reply, the Debtor reasserts the original grounds argued in the motion, adds ad hominem attacks on ARDC and its attorney, and concludes that ARDC has proceeded improperly. For purposes of deciding the motion, the Court will not reach the merits of the complaint although both sides argue same.
III. DISCUSSION
A. STANDARDS ON MOTIONS TO DISMISS
Notice pleadings filed under Rule 8 of the Federal Rules of Civil Procedure should be liberally construed. Sutliff, Inc. v. Donovan Cos., 727 F.2d 648, 653 (7th Cir.1984). Rule 8 applies in adversary proceedings filed as related matters under the Bankruptcy Code pursuant to Federal Rule of Bankruptcy Procedure 7008. "A complaint under Rule 8 limns the claim; details of both fact and law come later, in other documents. Instead of asking whether the complaint points to the appropriate statute, a court should ask whether relief is possible under any set of facts that could be established consistent with the allegations." Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir.1992).
In order for the Debtor to prevail on the motion to dismiss under Rule 12 and its bankruptcy analogue Rule 7012, it must clearly appear from the pleadings that ARDC can prove no set of facts in support of its claim which would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Meriwether v. Faulkner, 821 F.2d 408, 411 (7th Cir.1987), cert. denied, 484 U.S. 935, 108 S.Ct. 311, 98 L.Ed.2d 269 (1987); Doe v. St. Joseph's Hospital, 788 F.2d 411, 414 (7th Cir.1986); Swanson v. Wabash, Inc., 577 F.Supp. 1308, 1312 (N.D.Ill.1983). The Seventh Circuit has emphasized that "[d]espite their liberality on pleading matters . . . the federal rules still require that a complaint allege facts that, if proven, would provide an adequate basis for each claim." Gray v. County of Dane, 854 F.2d 179, 182 (7th Cir.1988). It is well established that alleging mere legal conclusions, without a factual predicate, is inadequate to state a claim for relief. Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir.1981), aff'd, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). Moreover, the Court must take as true all well pleaded material facts in the complaint and must view these facts and all reasonable inferences which may be drawn from them in a light most favorable to ARDC. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Infinity Broadcasting Corp. v. Prudential Ins. Co., 869 F.2d 1073, 1075 (7th Cir. 1989); Corcoran v. Chicago Park Dist., 875 F.2d 609, 611 (7th Cir.1989); Marmon Group, Inc. v. Rexnord, Inc., 822 F.2d 31, 34 (7th Cir.1987); Meriwether v. Faulkner, 821 F.2d at 410; Ellsworth v. Racine, 774 F.2d 182, 184 (7th Cir.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1265, 89 L.Ed.2d 574 (1986). The issue is not whether the ARDC will ultimately prevail, but whether ARDC has pleaded a cause of action sufficient to entitle it to offer evidence in support of its claim. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).
B. FEDERAL RULE OF BANKRUPTCY PROCEDURE 4007 AND DISCHARGEABILITY COMPLAINTS UNDER 11 U.S.C. § 523
The Debtor's argument relative to the timeliness of the filing of the complaint, though not cited by either party, is apparently based on the sixty-day time requirement *824 established under Federal Rule of Bankruptcy Procedure 4007. In relevant part, Bankruptcy Rule 4007(c) provides that a complaint to determine the dischargeability of any debt pursuant to section 523(c) of the Code shall be filed not later than sixty days following the first date set for the meeting of creditors held pursuant to section 341(a). The Rule further provides that on motion of any party of interest, after hearing on notice, the Court may for cause extend the time fixed under this subdivision. The motion shall be made before the time has expired. On the other hand, subsection (b) of that Rule provides that a complaint other than under section 523(c) may be filed at any time.
Section 523(c), except for certain exceptions not applicable here, only references discharge determinations under section 523(a)(2), (4), (6) and (11). Most importantly is the omission by way of reference in section 523(c) to all the other subparagraphs including section 523(a)(7) upon which ARDC's complaint is based. Thus, the sixty-day time limit of Bankruptcy Rule 4007(c) only applies if the underlying theory of a dischargeability complaint is based on fraud, false financial statement, fraud or defalcation by a fiduciary, embezzlement or larceny, willful and malicious injuries to a person or property, or fraud or defalcation by a fiduciary with respect to a depository institution.
If a creditor fails to file its dischargeability complaint within the statutory period on one of those theories or timely seek an extension of time within that period, the claim will be discharged regardless of the merits. Dischargeability complaints, however, based on the other subparagraphs of section 523(a) are not so similarly time restricted. See generally 1 R. Ginsberg, Bankruptcy: Text, Statute, Rules, § 11.07[a] at p. 957 (2d ed. 1991 Supp.) (collecting cases). The Debtor's arguments concerning the extension of time granted are further inapposite because the only extension granted was for objections to discharge to be filed on or before March 20, 1992. No objections to discharge under section 727 have been filed, only the pending dischargeability complaint under section 523(a)(7).
C. FEDERAL RULE OF BANKRUPTCY PROCEDURE 7004 AND ADEQUACY OF SERVICE OF PROCESS
Federal Rule of Bankruptcy Procedure 7004 sets the requirements for and adequacy of service of process. Although the Debtor indicates that he was served with an incomplete copy of the summons, from a cursory review of the Court file and the response by ARDC, it appears that on March 20, 1992, the Clerk of the Bankruptcy Court duly issued a summons as required by Bankruptcy Rule 7004(a). There is no dispute that a summons and a copy of the complaint were mailed by first class mail postage prepaid to the Debtor and the interim trustee at their respective addresses of record, according to the certification of service. Returns of service executed by counsel for plaintiffs are prima facie evidence of valid service, Trustees of Local Union No. 727 Pension Fund v. Perfect Parking, Inc., 126 F.R.D. 48, 52 (N.D.Ill. 1989), and as such, import a verity "`which can only be overcome by strong and convincing evidence.'" Id. (quoting Hicklin v. Edwards, 226 F.2d 410, 414 (8th Cir.1955)). Pursuant to ARDC's response in opposition, another employee of ARDC later enclosed and transmitted to the Debtor a seal copy of the fully executed and issued summons on April 8, 1992, albeit more than ten days after issuance and service of the incomplete summons on March 20, 1992.
Bankruptcy Rule 7004(b) and (d) provides for nationwide service by first class mail. Under Bankruptcy Rule 7004(b)(9), service may be had on the Debtor after a petition has been filed by mailing copies of the summons and complaint to the Debtor at the address shown in the petition or statement of affairs, or such other address the Debtor may designate in a filed writing and, if the Debtor is represented by an attorney, to the attorney at the attorney's address. Bankruptcy Rule 7004(f) requires service within ten days following issuance of the summons. If service is made by any other authorized form of mail, the summons and complaint shall be deposited in the mail within ten days following issuance of the summons. If a summons is *825 not timely delivered or mailed, another summons shall be issued and served. Under Bankruptcy Rule 7004(f), service is completed on the mailing of the pleadings, not the delivery.
Rule 4(h), incorporated by Bankruptcy Rule 7004(a), provides that "[a]t any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued." Fed.R.Civ.P. 4(h). "Where there is a good faith attempt to comply with the requirements of the bankruptcy rules and the federal rules . . . errors in such process should be amendable so long as there is no prejudice to the party served. On the other hand, where there is flagrant disregard of such requirements then process may be held to be void and not curable." 9 Collier on Bankruptcy, ¶ 7004.03[8] at 7004-26 (15th ed. 1992). See generally 2 Moore's Federal Practice and Procedure, ¶ 4.09 (2d ed. 1990).
Caselaw construing Bankruptcy Rule 7004 provides instructive judicial gloss. The bankruptcy court has discretion to decide whether to dismiss an action on the basis of improper service. See In re Hollis & Co., 86 B.R. 152, 154 (Bankr. E.D.Ark.1988). Failure to provide simultaneous service of the summons and complaint is not fatal in every instance, rather Bankruptcy Rule 7004(f) provides that if a summons is not timely delivered or mailed, another may be issued, suggesting that lack of simultaneous service is not de facto fatal to jurisdiction. In re Horob, 54 B.R. 693, 696 (Bankr.D.N.D.1985). A technical defect in service of process was held not to deprive the bankruptcy court of in personam jurisdiction in an adversary proceeding where the defendant had received the complaint and summons and where no judgment by default had been entered. In re Fleet, 53 B.R. 833, 841 (Bankr.E.D.Pa. 1985).
Moreover, attempted service of a dischargeability complaint on a debtor by a method which did not comply with Bankruptcy Rule 7004 did not warrant dismissal where the plaintiff attempted to correct the discrepancy immediately after it had been disclosed, and where there was no material prejudice to the debtor. In re Keller, 56 B.R. 79, 81 (Bankr.N.D. Ohio 1985). Because the summons which was served upon debtor had expired, the debtor could not be considered properly before the court, and thus the clerk was directed to issue and the plaintiff required to serve an alias summons. Id. Furthermore, in view of lack of prejudice to the defendant, an oral motion to amend process was granted and the debtor was allowed the opportunity to effect service on the proper official. In re Regal Const. Co., 18 B.R. 353, 355 (Bankr. D.Md.1982). The court held that dismissal of a complaint is an improper remedy for incomplete service of process. Id. A showing of material prejudice is required before service of process can be found improper, and none was shown in In re Lewis G. Johnson, Inc., 21 B.R. 186, 188 (Bankr. S.D.N.Y.1982).
Additionally, creditors were allowed to obtain new summons and serve same upon debtors in an adversary proceeding in accordance with Bankruptcy Rule 7004(b)(9) where no rights of the debtors were affected by requiring further service of process. In re Valeu, 53 B.R. 549, 554 (Bankr. D.N.D.1985). The original service was defective for failure to mail the debtors, in addition to their attorney, the summons and copy of the complaint. Id. The court found no evidence that further efforts to properly serve the summons and complaint would be futile. Id. In the absence of any showing by the debtor that the plaintiff intentionally delayed service or was improperly motivated to delay service of a second summons, failure to serve the second summons on the defendant within ten days of its issuance did not warrant dismissal, although the 120-day time period following filing of the complaint had passed. In re Riposo, 59 B.R. 563, 567 (Bankr. N.D.N.Y.1986). Furthermore, a defect in service was held not to warrant dismissal where the rights of the debtor were not materially prejudiced and where the debtor was significantly involved in the case because of his filing notices of deposition, appearing at pretrial conference, and participating in depositions. In re Zacharias, *826 60 B.R. 142, 143-144 (Bankr.N.D.Ohio 1986).
From the foregoing authorities the Court finds that the defect in service of process was technical and has not divested this Court of in personam jurisdiction over the Debtor. At worst, he was served with an incompletely executed copy of the summons that was issued by the Clerk, but was otherwise duly and timely served with a copy of the complaint. No prejudice or undue delay has accrued to the detriment of the Debtor by virtue thereof. He promptly retained an attorney to defend his interests before any action could be taken against him on the merits of the complaint. While perhaps he was inconvenienced by lack of all the information on the summons, the Debtor was timely served with the complaint which facially states a cause of action under section 523(a)(7).
The Court finds that the defect in service of the summons does not warrant dismissal where the rights of the Debtor are not materially prejudiced. The blanks on the summons did not preclude him from timely appearing, serving and filing a motion to dismiss before the initial status date set in the summons. The Debtor has received the essential fundamentals of procedural due process because he was served in ample time and given notice of the pendency of this proceeding, and has had an opportunity for hearing before any relief has been rendered.
To allow the motion and dismiss on the ground that a fully executed copy of the summons was not served on the Debtor within the ten-day period provided under Bankruptcy Rule 7004(f) would be a meaningless exercise under the foregoing authorities. As a matter of right, ARDC could have the Clerk's office issue an alias summons which could be easily served on the Debtor by mail within the time limits prescribed. Service of an alias summons and another copy of the complaint at this stage would merely increase the cost and delay the resolution of this matter. Literal compliance with the letter of Bankruptcy Rule 7004 on these facts would be at the expense of the spirit of the last sentence of Bankruptcy Rule 1001, which construes the rules to secure "the just, speedy, and inexpensive determination of every case and proceeding." Fed.R.Bankr.P. 1001. Accordingly, the Court exercises its discretion and denies the motion to dismiss. The Debtor shall answer the complaint within ten days after entry hereof.
IV. CONCLUSION
For the foregoing reasons, the Court hereby denies the motion to dismiss the complaint in this adversary proceeding.
This Opinion is to serve as findings of fact and conclusions of law pursuant to Federal Rule of Bankruptcy Procedure 7052.
See written Order.
ORDER
For reasons set forth in a Memorandum Opinion dated the 16th day of June, 1992, the Court hereby denies the motion to dismiss filed by the Debtor, John A. Betts, pursuant to Federal Rule of Civil Procedure 12(b). The Debtor shall answer the complaint within ten days of the entry hereof.
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HELM v. BD. OF COUNTY COMMISSIONERS OF ROGERS COUNTY
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HELM v. BD. OF COUNTY COMMISSIONERS OF ROGERS COUNTY2019 OK CIV APP 68Case Number: 117455; Comp. w/117344Decided: 10/21/2019Mandate Issued: 11/14/2019DIVISION ITHE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION I
Cite as: 2019 OK CIV APP 68, __ P.3d __
MICHAEL EARL HELM, a.k.a. MIKE HELM, Petitioner/Appellant,
v.
BOARD OF COUNTY COMMISSIONERS OF ROGERS COUNTY, OKLAHOMA, Respondent/Appellee.
APPEAL FROM THE DISTRICT COURT OF
ROGERS COUNTY, OKLAHOMA
HONORABLE M. JOHN KANE, JUDGE
REVERSED
Stanley D. Monroe, Ann E. Keele, MONROE & KEELE, PC, Tulsa, Oklahoma, for Petitioner/Appellant,
Benjamin Lepak, Assistant District Attorney, Claremore, Oklahoma, for Respondent/Appellee.
BRIAN JACK GOREE, CHIEF JUDGE:
¶1 Michael Earl Helm (Petitioner/Appellant) was suspended from his office as County Commissioner of Rogers County, Oklahoma. Afterward, he wrote a letter to the Board of County Commissioners of Rogers County (Respondent/Appellee) demanding back pay and benefits from the date of the suspension. The Board denied his request. Helm commenced an action in Rogers County asking the district court to issue an alternative writ of mandamus requiring Board to pay his salary, benefits, and interest in the performance of its duty pursuant to 19 O.S. §153.
¶2 The Board argued Helm's claim is barred by the Oklahoma Governmental Tort Claims Act because he did not comply with its notice provisions. The trial court agreed and granted the Board's motion to dismiss for failure to state a claim. 12 O.S. §2012(B)(6). Helm appealed. He argues the dismissal was erroneous because his action requests an extraordinary writ of mandamus and the GTCA does not apply. We review the order de novo because a motion to dismiss tests the law governing a claim. Dani v. Miller, 2016 OK 35, ¶10, 374 P.3d 779, 785-86. The legal question is whether Petitioner's claim is a tort within the meaning of 51 O.S. Supp. 2014 §152(14).
¶3 "Tort" is defined by the GTCA as:
A legal wrong, independent of contract, involving violation of a duty imposed by general law, statute, the Constitution of the State of Oklahoma, or otherwise, resulting in a loss to any person, association or corporation as the proximate result of an act or omission of a political subdivision or the state or an employee acting within the scope of employment.
§152(14). Accordingly, we must examine the petition and analyze whether Helm is requesting relief, independent of contract, involving violation of a duty imposed by statute and within the meaning of the Governmental Tort Claims Act.
¶4 Helm filed a Petition for Alternative Writ of Mandamus. He alleges petition states, (1) he was suspended as County Commissioner of Rogers County, (2) The Board is charged with the duty of paying the salary and benefits of all county offices pursuant to 19 O.S. §153, and (3) the Board failed to perform its duty to pay his salary and benefits. Helm petitioned the Court to issue an alternative writ of mandamus requiring Board to perform its duty. If the relief sought is a statutory tort within the meaning of §152(14) then the action could be governed by the GTCA.
¶5 The County correctly points out that the Legislature broadened the scope of the GTCA by adding torts that derive from statutes. A statutory tort is a legislatively-crafted, non-contractual duty, unknown to the common law, for the breach of which an action ex delicto, will lie. Morgan v. Galilean Health Enterprises, Inc., 1998 OK 130, ¶8, 977 P.2d 357, 361. A liability created by statute, however, is not necessarily a tort. Sweeten v. Lawson, 2017 OK CIV APP 51, ¶24, 404 P.3d 885, 892-93 (a claim for statutory replevin is not a tort pursuant to the GTCA); Barton v. City of Midwest City, 2011 OK CIV APP 71, ¶¶23-24, 257 P.3d 422, 426 (a statutory proceeding for inverse condemnation is not a tort as defined by 51 O.S. §152(14).
¶6 In Price v. Board of County Commissioners of Pawnee County, 2016 OK 16, 371 P.3d 1089, the Supreme Court directed the trial court to grant relief to a county officer who had requested an alternative writ of mandamus requiring the Board of County Commissioners to perform its statutory duty to pay his salary and retirement benefits for the period of his suspension. Mandamus may be issued by a district court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station. 12 O.S. §1451.
¶7 On the authority of Price we hold a writ of mandamus is the appropriate remedy for a county officer who claims that a board of county commissioners has failed to perform its duty required by Title 19 O.S. §153.
¶8 Title 19 of the Oklahoma Statutes regulates county government including county officers. Section 153 provides:
The salary of all county officers, their clerks and deputies, shall be paid either monthly or twice a month, out of the county treasury by order of the board of county commissioners: Provided, however, that no salary shall be allowed or paid until their reports are filed and approved by the board of county commissioners, as provided by law.
¶9 The Supreme Court has rarely recognized a private right of action for the violation of rights conferred by a statute. It is only when the terms of the statute are sufficiently clear to divine a legislative intent to fashion a private right of action that a statutory tort may be acknowledged. See Morgan, ¶8 (acknowledging the Nursing Home Care Act, 63 O.S. Supp. 1992 §1-1901 et seq. explicitly created a statutory tort with a private right of action).
¶10 A statute creating a private right of action, permitting a citizen to maintain an action to recover damages, is distinct from a regulatory (public-law) statute. See Holbert v. Echeverria, 1987 OK 99, 744 P.2d 960. A county's statutory duty to pay its officers a monthly salary out of the county treasury is regulatory in nature, and the district court is authorized to issue a writ of mandamus to compel its performance.
¶11 We hold that when the Legislature expanded the definition of "tort" in the Governmental Tort Claims Act, 51 O.S. §152(14), to include a "duty imposed by . . . statute" its intent was to include statutory torts that create a private right of action and not governmental regulatory laws. Therefore, Helm's petition requesting a writ of mandamus to compel the performance of 19 O.S. §153 was not an action in tort within the meaning of 51 O.S. Supp. 2014 §152(14) of the Oklahoma Governmental Tort Claims Act. The trial court's order granting the Board's motion to dismiss is REVERSED.
JOPLIN, P.J., and BUETTNER, J., concur.
Citationizer© Summary of Documents Citing This Document
Cite
Name
Level
None Found.
Citationizer: Table of Authority
Cite
Name
Level
Oklahoma Court of Civil Appeals Cases
CiteNameLevel
2011 OK CIV APP 71, 257 P.3d 422, BARTON v. CITY OF MIDWEST CITYDiscussed
2017 OK CIV APP 51, 404 P.3d 885, SWEETEN v. LAWSONDiscussed
Oklahoma Supreme Court Cases
CiteNameLevel
1987 OK 99, 744 P.2d 960, 58 OBJ 2887, Holbert v. EcheverriaDiscussed
2016 OK 16, 371 P.3d 1089, PRICE v. BOARD OF COUNTY COMMISSIONERS OF PAWNEE CO.Discussed
2016 OK 35, 374 P.3d 779, DANI v. MILLERDiscussed
1998 OK 130, 977 P.2d 357, 70 OBJ 59, Morgan v. Galilean Health Enterprises, Inc.Discussed
Title 12. Civil Procedure
CiteNameLevel
12 O.S. 1451, Writ of Mandamus - Issued - FunctionCited
12 O.S. 2012, Defenses and Objections - When and How Presented - By Pleading or MotionCited
Title 19. Counties and County Officers
CiteNameLevel
19 O.S. 153, Salaries of County Officers, Clerks and DeputiesDiscussed at Length
Title 51. Officers
CiteNameLevel
51 O.S. 152, DefinitionsDiscussed at Length
Title 63. Public Health and Safety
CiteNameLevel
63 O.S. 1-1901, Short TitleCited
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| {
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243 F.3d 124 (2nd Cir. 2001)
IN RE SHARLENE DE ANN TAYLOR, Debtor.THE NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM, Appellant,v.JEFFREY L. SAPIR, STANDING CHAPTER 13 TRUSTEE FOR THE SOUTHERN DISTRICT OF NEW YORK, and SHARLENE DE ANN TAYLOR, Appellees.
Docket No. 00-5045August Term 2000
UNITED STATES COURT OF APPEALSFor the Second Circuit
Argued: January 10, 2001Decided: March 20, 2001
Appeal from the judgment of the United States District Court for the Southern District of New York (Alvin K. Hellerstein, District Judge), affirming the order of the Bankruptcy Court for the Southern District of New York (Cornelius Blackshear, Bankruptcy Judge), holding that pension contributions are disposable income within the meaning of the Bankruptcy Code.
Vacated and remanded.
1
MARTA ROSS, Assistant Corporation Counsel of the City of New York, New York (Michael D. Hess, Corporation Counsel of the City of New York, Leonard Koerner, Edward F.X. Hart, M. Diane Jasinski, of counsel, on the brief), for Appellant.
2
JODY L. KAVA, White Plains, N.Y., for Appellee Trustee Sapir.
3
SHELDON BARASCH, DC 37 Municipal Employees Legal Svcs., New York, for Debtor-Appellee.
4
MICHAEL J. O'CONNOR, O'Connor, O'Connor, Mayberger, Frist, P.C., Albany, N.Y., for amicus curiae National Association of Consumer Bankruptcy Attorneys, Inc.
5
ROBERT H. EASTON, Assistant Solicitor General (Eliot Spitzer, Attorney General of the State of New York, Daniel Smirlock, Deputy Solicitor General), for amicus curiae State of New York, H. Carl McCall, Comptroller of the State of New York, and New York State Teachers' Retirement System.
6
Before: VAN GRAAFEILAND, CALABRESI, Circuit Judges, and PATTERSON*, District Judge.
PATTERSON, District Judge:
7
Appellant New York City Employees' Retirement System ("NYCERS"), joined by amicus curiae the National Association of Consumer Bankruptcy Attorneys, Inc. ("NACBA"), the State of New York, H. Carl McCall, Comptroller of the State of New York, and the New York State Teachers' Retirement System ("NYSTRS"), appeals from the order of the United States District Court for the Southern District of New York (Alvin K. Hellerstein, Judge), affirming the order of the bankruptcy court, which held that Appellee Sharlene De Ann Taylor's pension contributions to NYCERS are disposable income within the meaning of the Bankruptcy Code, 11 U.S.C. § 1325. For the reasons that follow, we vacate and remand to the district court.
BACKGROUND
8
Sharlene De Ann Taylor works as an employee for the New York City Housing Authority ("NYCHA"). As a city employee, Taylor is a member of NYCERS, a multi-employer benefit plan in the public sector. According to Taylor's Schedule I - Current Income of Individual Debtor form, $134.20 per month is automatically deducted from her salary and placed in NYCERS. On June 15, 1998, Taylor filed for Chapter 13 bankruptcy in accordance with 11 U.S.C. § 1325(b).1 She is the debtor in this action. (Taylor will hereinafter be referred to as "Debtor.") Debtor presented her Chapter 13 plan ("Plan") to Jeffrey L. Sapir ("Trustee"), who objected to the Plan on the grounds that Debtor's pension contributions are not reasonably necessary expenses and, therefore, need to be included in her disposable income. Pursuant to the Trustee's objection to the Plan, Debtor filed a motion in bankruptcy court requesting an order that NYCHA and NYCERS "cease payroll deduction for pension contribution for the duration of the [bankruptcy] plan."2 NYCERS objected to Debtor's motion on the ground that pension contributions are mandated by state statutes3 that require that certain public employees participate as members of NYCERS and that members contribute to the fund. Because membership and contributions are mandated by state statute, NYCERS argued that the pension contributions are a reasonably necessary expense and, therefore, cannot be included as disposable income in the Plan.
9
On July 8, 1999, Bankruptcy Judge Blackshear of the Southern District of New York held that pension withholdings from a Chapter 13 debtor's salary are disposable income and thus must be included in the Plan to pay outstanding debts and obtain discharge.4 See In re Jaiyesimi, 236 B.R. 145 (Bankr. S.D.N.Y. 1999). Judge Blackshear based his opinion on a finding that most cases hold that voluntary pension contributions to retirement funds are disposable income and a finding that pension contributions are not a condition of employment and therefore are not mandatory. "[I]f the Debtors ceased contributing to the retirement funds the debtors would not be forced to resign from their jobs.... Therefore, the pension contributions are not mandatory." Id. at 149. The court found that because the contributions are not mandatory and can be discontinued, they are not a reasonably necessary expense. The court ordered NYCHA and NYCERS to "discontinue the Debtor's Pension Contributions for the duration of the term of the Debtor's Chapter 13 Plan, or such earlier time as the Debtor's case is dismissed or converted to a case under Chapter 7 of the Bankruptcy Code."
10
In August of 1999, NYCERS appealed the order of the bankruptcy court to the district court. On May 5, 2000, Judge Hellerstein of the Southern District of New York concluded, "The decision of the Bankruptcy Court that the debtor's pension contributions and loan repayments are part of her disposable income pursuant to 11 U.S.C. § 1325(b) is affirmed." In re Taylor, 248 B.R. 37, 42 (S.D.N.Y. 2000). The court relied on In re Nation, 236 B.R. 150 (Bankr. S.D.N.Y. 1999), in finding that "while payroll deductions may be considered mandatory in the sense that New York Retirement and Social Security Law and NYCERS regulations require deductions from a debtor's pay regardless of a debtor's wishes, such action may not be allowed to interfere with the creditors' 'entitlement to receive all of the debtor's disposable income under Section 1325(b)(1)(B).'" Taylor, 248 B.R. at 41 (quoting Nation, 236 B.R. at 154). In finding that the contributions were not mandatory, the court also relied on the fact that Debtor would not be terminated if she did not make the contributions. Finally, the court noted, "Although the City has the right to offset amounts owed the plan from salary and other benefits payable to the employee, the right to offset cannot be allowed to interfere with a Chapter 13 Bankruptcy Plan." Id. at 41 (internal citations omitted). NYCERS appeals.
DISCUSSION
11
The Second Circuit decision in In re Duplan Corp., 212 F.3d 144 (2d Cir. 2000) outlines the relevant standard for review.
12
A district court's order in a bankruptcy case is subject to plenary review, meaning that this Court undertakes an independent examination of the factual findings and legal conclusions of the bankruptcy court. The Bankruptcy Court's findings of fact are reviewed for clear error and its conclusions of law are reviewed de novo. See In re Colony Hill Assoc., 111 F.3d 269, 273 (2d Cir. 1997). The Bankruptcy Court's interpretation of the text of the Plan, the Confirmation Order, and the Final Decree are conclusions of law reviewed de novo. See Bellefonte Reins. Co. v. Aetna Cas. and Sur. Co., 903 F.2d 910, 912 (2d Cir.1990) ("The proper standard for appellate review of a pure textual construction by the district court, whatever the procedural posture of the case, is de novo.").
13
Duplan, 212 F.3d at 151.
14
At issue here is whether the NYCERS employee pension contributions, required by N.Y. Retire. & Soc. Sec. Law § 613(a) (McKinney 2000), constitute "disposable income" within the meaning of the Bankruptcy Code. Section 1325(b)(2)(A) of the Bankruptcy Code defines "disposable income," as is applicable here, as "income which is received by the debtor and which is not reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor." The Bankruptcy Code does not define "reasonably necessary." The parties, relying on several bankruptcy court cases, interpreted reasonably necessary to mean mandatory, as opposed to voluntary, and the dispute below was over whether or not the pension contributions are mandatory. Both parties argue for a bright line rule: Appellant argues that pension contributions are required by state statute and, thus, are mandatory and should not be included as disposable income; Appellees argue that pension contributions are not truly mandatory and, thus, are not reasonably necessary and should be included as disposable income. A survey of the relevant cases reveals case law on both sides of the debate. In their briefs, the parties relied mainly on two bankruptcy court cases, each of which concluded with a different holding. Those cases merit a brief discussion here.
15
The case of In re Nation, 236 B.R. 150 (Bankr. S.D.N.Y. 1999), presented facts that are nearly identical to those before this Court. A city employee subject to NYCERS pension contributions filed for Chapter 13 bankruptcy, and the court had to determine whether the pension contributions should be included as disposable income. The court held that the NYCERS pension contributions, though required by state statute, are not truly mandatory and, therefore, must count as disposable income. The court based its ruling on the doctrine of preemption, reasoning that the mandatory state law conflicts with the Bankruptcy Code and, therefore, the Code preempts the state law. See Nation, 236 B.R. at 154 ("National policy codified in a statute of Congress such as the Bankruptcy Code must be given primacy over local enactments and private contracts.").
16
In addition to the preemption theory, the court based its decision on the argument that the contributions are not reasonably necessary within the plain meaning of § 1325(b) and that holding otherwise would benefit debtors at the expense of other creditors.
17
In addition to the clear language of the statute, most courts have perceived an inherent unfairness in a debtor paying himself by funding his own savings account, retirement plan, or pension fund while paying creditors only a fraction of their just claims. For these reasons the great majority of courts have held under Section 1325(b) that funds contributed to savings or pension plans constitute "disposable income" that must be paid to creditors under a plan if the plan is to be confirmed.
18
Id. at 152 (collecting cases). The court also noted that the contributions are not mandatory "in any material, consequential sense," because the discontinuance of the contributions would not result in the loss of one's job. Id. at 153.
19
The case of In re Davis, 241 B.R. 704 (Bankr. D. Mont. 1999), presented similar facts but reached an opposite conclusion to Nation. The court in Davis found that the doctrine of preemption did not apply and instead based its decision on an analysis of the definition of "reasonably necessary." See Davis, 241 B.R. at 707. In rejecting Nation's use of the doctrine of preemption, the court noted that it had no reason to apply the doctrine because the state statute, read with the above definition of reasonably necessary, did not actually conflict with the Code. See id. at 708. Furthermore, the court found no evidence of a congressional intent to preempt. See id. at 709. Rather than rely on a preemption theory, the court based its decision on the interpretation of "reasonably necessary." See id. ("[T]he use of a phrase such as 'reasonably necessary' appears to invite the Court to look at the circumstances of each case and each individual debtor, and his or her obligations under State law or contract to determine whether such obligations are in fact reasonably necessary for the support of debtors and their dependents."). The court reasoned that the deductions were required by state law and that, because the debtor's job was obviously reasonably necessary to his maintenance and support, the deductions were therefore reasonably necessary and could not be included as disposable income.
20
Rather than adopt either strict rule, this Court opts for a more flexible solution. It is within the discretion of the bankruptcy court judge to make a decision, based on the facts of each individual case, whether or not the pension contributions qualify as a reasonably necessary expense for that debtor. If the bankruptcy judge finds that the contributions are a reasonably necessary expense for an individual debtor based on the circumstances confronting that debtor, they will not be included in the figure for disposable income, and the pension contributions will continue. Conversely, if the judge finds that the contributions are not a reasonably necessary expense for an individual debtor based on the circumstances confronting that debtor, they will be included in the figure for disposable income, and the contribution deductions will be ordered discontinued for the duration of the Plan.5
21
In making this determination of whether or not pension contributions are reasonably necessary for an individual debtor, the bankruptcy judge may consider any factors properly before the court, including but not limited to: the age of the debtor and the amount of time until expected retirement; the amount of the monthly contributions and the total amount of pension contributions debtor will have to buy back if the payments are discontinued; the likelihood that buy-back payments will jeopardize the debtor's fresh start; the number and nature of the debtor's dependants; evidence that the debtor will suffer adverse employment conditions if the contributions are ceased; the debtor's yearly income; the debtor's overall budget; who moved for an order to discontinue payments;6 and any other constraints on the debtor that make it likely that the pension contributions are reasonably necessary expenses for that debtor. Administrative inconvenience to NYCERS and NYCHA, however, is not to be considered. The impact on the administrator of the fund is irrelevant in determining whether or not the pension contribution is a reasonably necessary expense to an individual debtor.
CONCLUSION
22
Accordingly, we VACATE and REMAND to the district court for further proceedings consistent with this opinion.
NOTES:
*
The Honorable Robert P. Patterson, Jr., of the United States District Court for the Southern District of New York, sitting by designation.
1
Section 1325(b) states, in relevant part:
(1) If the trustee or the holder of an allowed unsecured claim objects to the confirmation of the plan, then the court may not approve the plan unless, as of the effective date of the plan
...
(B) the plan provides that all of the debtor's projected disposable income to be received in the three year period beginning on the date that the first payment is due under the plan will be applied to make payments under the plan.
(2) For purposes of this subsection, "disposable income" means income which is received by the debtor and which is not reasonably necessary to be expended
(A) for the maintenance or support of the debtor or a dependent of the debtor....
2
The Trustee himself did not file a formal objection with the court because the Debtor filed the motion.
3
N.Y. Retire. & Soc. Sec. Law § 600(b)(1) (McKinney 2000) requires that certain public employees become members of NYCERS:
b. [P]ersons who on or after July first, nineteen hundred seventy six:
1. Enter the employment of a public employer which participates for such employees in the New York city employees' retirement system... shall be required to become members or shall be eligible or ineligible for membership in such retirement system or pension fund in the manner provided for by the relevant provisions of the New York city administrative code and other relevant laws and rules and regulations....
The applicable law mandating membership is N.Y.C. Admin. Code § 13-104(1):
[T]he membership of the retirement system shall consists of:
1. All persons in city-service, as defined in this title, in positions in the competitive or labor class of the civil service, who en-tered [sic] or reentered such service after the first day of October, nineteen hundred twenty, whose compensation is at a rate not less than eight hundred forty dollars per annum, and who completed or shall complete six months of city-service after such entrance or re-entrance.
As an employee of NYCHA, Debtor's job qualifies as a "city-service" position. N.Y.C. Admin. Code § 13-101(3)(b).
The N.Y. Retire. & Soc. Sec. Law § 613(a)(1) (McKinney 2000) mandates that NYCERS members make pension contributions:
[M]embers shall contribute three percent of annual wages to the retirement system in which they have membership. The head of each retirement system shall promulgate such regulations as may be necessary and appropriate with respect to the deduction of such contribution from members' wages and for the maintenance of any special fund or funds with respect to amounts so contributed.
4
The bankruptcy court opinion also ruled on the case of Adeyemi O. and Olufunke E. Jaiyesimi, a case not at issue here. In addition, the opinion considered both pension loan repayments and pension contributions. Only the pension contributions are at issue on appeal.
5
The NACBA has advocated a similar position in its amicus brief to this Court. See Brief for Amicus Curiae NACBA at 8 (suggesting that whether a particular expenditure is reasonably necessary should be decided on a case-by-case basis). One bankruptcy court has already adopted such a discretionary rule in this context. See In re Awuku, 248 B.R. 21, 29 (Bankr. E.D.N.Y. 2000) (adopting a discretionary rule as to whether pension contributions are reasonably necessary expenses); see also In re Mills, 246 B.R. 395 (Bankr. S.D. Cal. 2000) (rejecting a per se rule and determining that a voluntary contribution to a 401(k) plan was reasonably necessary on the facts of that case).
6
The fact that a debtor makes a motion to discontinue contribution deductions can be significant. A debtor may make such a motion because she desires speedy approval of her plan and may decide that pension contributions are not reasonably necessary for her. If an individual debtor does not consider the contributions to be a reasonably necessary expense and believes that she can buy back the discontinued payments post-bankruptcy, this is a relevant factor. If, however, a debtor moves to discontinue payments simply because the trustee threatens to object, this may not be as reflective of whether the debtor believes the contributions are reasonably necessary expenses.
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Becker v. State
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
IN RE: JIMMY LEE SWEED,
Relator.
§
§
§
§
§
§
No. 08-07-00130-CV
IN ORIGINAL PROCEEDING
IN MANDAMUS
OPINION ON PETITION FOR WRIT OF MANDAMUS
In his petition for mandamus, Sweed seeks a mandamus against the trial court on the ground
that the court misapplied the law and clearly abused its discretion in granting the defendant's plea
to the jurisdiction. For the following reasons, we deny Sweed's petition for mandamus relief.
Mandamus will lie only to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d
833, 839-40 (Tex. 1992)(orig. proceeding). In addition, there must be no other adequate remedy at
law. Id. at 840.
Sweed alleges the trial court misapplied the law under the Texas Civil Practice and Remedies
Code Section 101.021(1) &(2) because the court did have subject matter jurisdiction over El Paso
County Jail, a defendant in the case. Section 101.021 states:
A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful
act or omission or the negligence of an employee acting within his scope of
employment if:
(A) the property damage, personal injury, or death arises from the operation
or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to
Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or
real property if the governmental unit would, were it a private person, be liable to the
claimant according to Texas law.
Tex.Civ.Prac.&Rem.Code Ann. § 101.021(1) & (2)(Vernon 2005).
Thus, Sweed contends the El Paso County Jail as a governmental unit defendant is liable to
him for his alleged injuries by the conditions and use of its alleged tangible personal property
through the wrongful act or omission or negligence of its employees.
Mandamus will issue only when there is no other adequate remedy at law. Walker, 827
S.W.2d at 840. In this case, mandamus relief will not issue to supervise or correct incidental rulings
of a trial judge, such as a pleas to the jurisdiction, when there is an adequate remedy by appeal. Bell
Helicopter Textron, Inc. v. Walker, 787 S.W.2d 954 (Tex. 1990). Because Relator has an adequate
remedy by appeal, we deny mandamus relief.
June 21, 2007
ANN CRAWFORD McCLURE, Justice
Before Chew, C.J., McClure, and Carr, JJ.
Chew, C.J., not participating
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963 F.2d 369
Courvillev.Texaco, Inc.*
NO. 91-3367
United States Court of Appeals,Fifth Circuit.
May 04, 1992
1
Appeal From: E.D.La.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 2, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ALIREZA VAZIRABADI,
Plaintiff - Appellant,
v. No. 18-1411
(D.C. No. 1:17-CV-01737-RBJ)
DENVER HEALTH AND HOSPITAL (D. Colo.)
AUTHORITY, as Employer; JEREMY
LEE, in his individual capacity;
ELIZABETH FINGADO, in her individual
capacity; MARK GENKINGER, in his
individual capacity; THEODORE
POKRYWKA, in his individual capacity;
DOES ENTITIES 1 THROUGH 10, whose
true names are unknown; JOHN AND
JANE DOES, 1 through 10,
Defendants - Appellees.
------------------------------
SHL US INC.,
Interested Party - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, MATHESON, and MORITZ, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment 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.
_________________________________
Alireza Vazirabadi, appearing pro se,1 appeals from the district court’s grant of
summary judgment to defendants. Exercising jurisdiction under 28 U.S.C. § 1291,
we affirm.
I
Vazirabadi applied for two positions in the Lean Department with Denver
Health in July 2016. Denver Health sought candidates with strong project
management skills, familiarity facilitating groups and motivating people to adapt to
new processes, and experience dealing with interpersonal relationships and conflicts.
At the time he applied for the positions, Vazirabadi had been working as an Uber
driver for nearly three years, had a bachelor’s degree in industrial engineering, and
did not have any experience in the healthcare field.
Appellant applied for the positions online. The application form included a
request that the applicant list all fluent languages. Vazirabadi entered
“Farsi/Persian.” Denver Health emailed Vazirabadi an online competency
evaluation. SHL US Inc. (“SHL”) hosted and administered the test. In connection
with the test, SHL asked a series of demographic questions.2 One such question
1
Because Vazirabadi appears pro se, we construe his filings liberally, but do
not serve as his advocate. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836,
840 (10th Cir. 2005).
2
SHL asserts that the questions were entirely voluntary and enabled SHL to
ensure that its tests did not discriminate against any protected group.
2
asked “[a]re you 40 years of age or older?” Vazirabadi answered by clicking the
button next to the word yes.3
SHL provided the substantive test results to Denver Health as a percentile
score with a recommendation. Vazirabadi scored in the fifth percentile for deductive
reasoning and in the twenty-fifth percentile overall; he was “[n]ot [r]ecommended”
for hiring. SHL did not provide Denver Health with responses to the demographic
questions on a per-applicant basis. Instead, SHL made them available in batches that
contained aggregate information related to multiple applicants. And only Denver
Health’s director of recruitment, Mark Genkinger, had access to the batches. He did
not review any batch relating to July 2016 applications in the relevant timeframe.
Vazirabadi nonetheless claims SHL communicated his over-forty status to
Denver Health via metadata transmitted with his score report. To support this
allegation, Vazirabadi trumpets what appears to be a screenshot from a document
review tool that shows the text “'40” next to his last name in two locations. On its
face, the captured image purports to “Show Only Hidden Text.” Vazirabadi did not
authenticate the screenshot,4 and we cannot discern its origins from the record. The
3
The parties dispute whether Vazirabadi saw an option to click a button next
to the text labeled “[p]refer not to answer.” Our disposition of this case does not
require resolution of the dispute.
4
He did make a sworn statement that the screenshot is “true and correct.” But
that naked remark says nothing about the source of the document shown to be under
review in the screenshot, who performed the review, what program generated the
image, etc.
3
record does not contain evidence that any of the defendants ever saw a “'40”
designation beside Vazirabadi’s name.
Elizabeth Fingado ran Denver Health’s Lean Department. Fingado tasked
Jeremy Lee with reviewing 112 applications for the two open positions and selecting
candidates. Because neither position required foreign language skills, Lee did not
review responses to the language-related section of the applications. Lee selected
Vazirabadi and fifteen other candidates to interview by telephone for both open
positions. A panel of existing employees interviewed each of the candidates using a
prepared list of questions. The panel members scored each candidate in several
work-related areas. Denver Health selected the three candidates with the highest
scores related to each open position for in-person interviews. Vazirabadi was not
selected for an in-person interview, and Denver Health ultimately hired others for the
two positions.
Vazirabadi then sued Denver Health and several of its employees for
employment discrimination, alleging they discriminated against him based on his age
and national origin. The district court granted summary judgment and dismissed his
case with prejudice. Vazirabadi appealed.
II
A
Vazirabadi appeals the district court’s decision not to recuse from this case.
He filed a motion seeking recusal of the district court judge in accordance with 28
U.S.C. §§ 144 and 455(a). Section 144 provides that if a judge has a “personal bias
4
or prejudice” for or against one of the parties, the judge should be recused. Under
§ 144, the court strictly construes the affidavits filed in support of recusal against the
affiant, and the moving party has a substantial burden to demonstrate that the judge is
not impartial. Weatherhead v. Globe Int’l, Inc., 832 F.2d 1226, 1227 (10th Cir.
1987). Section 455(a) provides that a judge “shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned.” Under § 455,
the “test is whether a reasonable person, knowing all the relevant facts, would harbor
doubts about the judge’s impartiality.” Hinman v. Rogers, 831 F.2d 937, 939 (10th
Cir. 1987) (per curiam). “We review the denial of a motion for recusal for an abuse
of discretion.” Cauthon v. Rogers, 116 F.3d 1334, 1336 (10th Cir. 1997).
The district court carefully considered each of Vazirabadi’s arguments, and
concluded that the facts did not show “bias, prejudice, or a basis on which a
reasonable person would question the Court’s impartiality.” We agree.
On appeal, Vazirabadi does not dispute the substance of the district court’s
findings. Instead, he asserts the district court erred because its explanation omitted
an explicit reference to § 144, citing only § 455(a). But § 455(b)(1) “entirely
duplicate[s] the grounds of recusal set forth in § 144 (‘bias or prejudice’).” Liteky v.
United States, 510 U.S. 540, 548 (1994). Section 455(a), in turn, “is a ‘catch-all’
provision that is broader than the specific grounds for disqualification set forth in
§ 455(b).” United States v. Young, 45 F.3d 1405, 1415 (10th Cir. 1995). “Inasmuch
as the grounds for disqualification set out in Section 144 ‘personal bias or prejudice
either against (a party) or in favor of any adverse party’ are included in Section 455,
5
we may consider both sections together.” United States v. Gigax, 605 F.2d 507, 512
(10th Cir. 1979) (quotation and citation omitted), overruled in part on other grounds
by United States v. Lang, 364 F.3d 1210 (10th Cir. 2004). The district court
therefore did not err by citing only § 455.
B
Vazirabadi next challenges the district court’s quashing a subpoena he issued
to defendants’ expert witness Forensic Pursuit. In September 2017, defense counsel
retained Forensic Pursuit as a consulting expert in this action. On March 23, 2018,
Vazirabadi contacted Forensic Pursuit to engage the firm as his expert in this action.
Forensic Pursuit declined, citing its work for defendants. On April 4, 2018,
Vazirabadi issued a subpoena to Forensic Pursuit seeking production of documents
related to Denver Health. Defendants moved to quash the subpoena under Federal
Rule of Civil Procedure 26(b)(4)(D)(ii), and Vazirabadi filed a competing motion to
compel.
Rule 26(b)(4)(D)(ii) permits discovery of a consulting expert who is not
expected to testify at trial only on a showing of “exceptional circumstances under
which it is impracticable for the party to obtain facts or opinions on the same subject
by other means.” The district court ruled in favor of defendants, finding that they
hired Forensic Pursuit as a consulting expert and Vazirabadi did not make the
necessary showing of exceptional circumstances. “We review pretrial discovery
rulings for abuse of discretion. A trial court abuses its discretion when it issues a
ruling that is arbitrary, capricious, whimsical, or manifestly unreasonable.” King v.
6
PA Consulting Grp., Inc., 485 F.3d 577, 590 (10th Cir. 2007) (quotation and citation
omitted).
On appeal, Vazirabadi argues that there was insufficient evidentiary support
for the conclusion that defense counsel retained Forensic Pursuit on defendants’
behalf. This evidence included representations of defense counsel and an affidavit
submitted by Forensic Pursuit’s CEO, Robert Keslo, in which Keslo states that “[o]n
September 19, 2017, a representative of [defense counsel] contacted Forensic Pursuit
and asked the firm to perform consulting services on behalf of the [d]efendants in the
present case.” Vazirabadi’s attacks on the evidence do not hold water.5 We therefore
conclude that the district court did not abuse its discretion by quashing the subpoena
issued to Forensic Pursuit.
C
Vazirabadi also challenges the district court’s denials of his two motions to
amend his once-amended complaint. Under its scheduling order, the district court set
November 6, 2017, as the deadline for amendment of the pleadings and June 1, 2018,
as the discovery cut-off. On June 7, 2018, Vazirabadi filed a motion to amend his
5
Vazirabadi’s argument that Keslo’s supporting affidavit should be stricken
(because it lacks the phrases “true and correct” and “under penalty of perjury,” and
contains trivial alleged inconsistencies) fails for the reasons discussed infra. His
argument that the affidavit is not based on personal knowledge because it describes
actions taken by another person misapprehends the concept that a person can
competently testify about the actions they have observed another person take. His
remaining arguments deliberately disregard the affidavit’s clear statement that
defense counsel retained Forensic Pursuit to perform services on defendants’ behalf.
7
once-amended complaint to add three defendants and one cause of action. The
district court found Vazirabadi did not establish good cause for amending his
complaint, and it denied the motion. On August 7, 2018, Vazirabadi filed a second
motion to amend his complaint. The district court applied Rule 15(a)(2) and denied
this motion because the proposed amendment would be futile and would result in
undue prejudice to the defendants.
Rule 15(a)(2) provides that after the initial deadline for amendment has
passed, “a party may amend its pleading only with the opposing party’s written
consent or the court’s leave.” Id. “The court should freely give leave when justice
so requires.” Id. But “[a]fter a scheduling order deadline, a party seeking leave to
amend must demonstrate (1) good cause for seeking modification under Fed. R. Civ.
P. 16(b)(4) and (2) satisfaction of the Rule 15(a) standard.” Gorsuch, Ltd., B.C. v.
Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1240 (10th Cir. 2014). Rule 16(b)(4),
in turn, provides that a scheduling order “may be modified only for good cause and
with the judge’s consent.” Id. “Rule 16’s good cause requirement may be satisfied,
for example, if a plaintiff learns new information through discovery or if the
underlying law has changed. If the plaintiff knew of the underlying conduct but
simply failed to raise [applicable] claims, however, the claims are barred.” Gorsuch,
771 F.3d at 1240 (citation omitted). “We review for abuse of discretion a district
court’s denial of a motion to amend a complaint after the scheduling order’s deadline
for amendments has passed.” Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1247 (10th
Cir. 2015).
8
Vazirabadi’s first motion to amend his once-amended complaint did not
provide any reasoning as to why the amendment should be allowed. Instead, it
contained only conclusory and irrelevant statements. The district court thus properly
denied the first motion to amend due to his failure to establish good cause.
Vazirabadi’s second motion to amend articulated reasons for allowing the
amendment, and the district court evaluated the request under Rule 15(a)(2). District
courts may consider a wide range of factors, including undue delay, bad faith,
dilatory motive, undue prejudice to the opposing party, and futility. See Minter v.
Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006). The “most important[]
factor in deciding a motion to amend the pleadings[] is whether the amendment
would prejudice the nonmoving party.” Id. at 1207. The district court found the
proposed amendment would prejudice defendants. We agree. The district court did
not abuse its discretion in denying Vazirabadi’s motions to amend.
D
Vazirabadi appeals the district court’s reliance on affidavits provided by
defendants supporting their motion for summary judgment. He claims that because
the affidavits state neither that they are “true and correct” nor signed “under the
penalty of perjury,” the affidavits are void.
An affidavit is “[a] voluntary declaration of facts written down and sworn to
by a declarant, [usually] before an officer authorized to administer oaths.” Affidavit,
Black’s Law Dictionary (11th ed. 2019). Each of the affidavits at issue in this case is
styled as an “Affidavit of [name].” Each of them contains an introductory sentence
9
in substantially the following form: “I, [name], being of lawful age and first duly
sworn upon oath, depose and state that I have personal knowledge and information
concerning the following.” And each of them states that it was “subscribed and
sworn” before a notary public. The defendants’ submitted affidavits legally suffice,
and the district court properly relied on them.
Vazirabadi’s argument that an affidavit must contain the phrases “true and
correct” and “under penalty of perjury” misconstrues 28 U.S.C. § 1746. That statute
authorizes parties to submit unsworn declarations in lieu of affidavits, provided that
the declarations state that they are “true and correct” and are made “under the penalty
of perjury,” among other things. Id. But § 1746 does not apply to sworn affidavits.
Appellant further claims the district court should have disregarded Lee’s
affidavit because the notary’s stamp indicated that her commission expires on
January 17, 2020, whereas the notary’s handwritten note indicated that her
commission expired on January 17, 2018—before Lee executed the affidavit on
August 28, 2018. But regardless whether the notary’s commission had expired, Lee
swore to the affidavit’s contents “upon oath,” and the district court properly
considered it.
Vazirabadi also presents a new argument on appeal that defendants’ affidavits
should have been stricken because they contradict attached exhibits. We generally
consider arguments not presented to the district court to be forfeited. See Richison v.
Ernest Grp., Inc., 634 F.3d 1123, 1127-28 (10th Cir. 2011). “[W]e will entertain
forfeited theories on appeal, but we will reverse a district court’s judgment on the
10
basis of a forfeited theory only if failing to do so would entrench a plainly erroneous
result.” Id. at 1128.
“Contradictions found in a witness’ testimony are not, in themselves, sufficient
to preclude such testimony.” Ralston v. Smith & Nephew Richards, Inc., 275 F.3d
965, 973 (10th Cir. 2001). This principle controls in this case, as the alleged
inconsistencies concern trivial issues of fact, and the support for the supposed
contradictions is speculative. The district court did not commit plain error in relying
on the defendants’ affidavits.
E
Vazirabadi appeals the district court’s grant of summary judgment to
defendants. Summary judgment should be granted “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “To avoid summary judgment, a party must
produce specific facts showing that there remains a genuine issue for trial . . . .” Branson
v. Price River Coal Co., 853 F.2d 768, 771-72 (10th Cir. 1988) (quotation omitted). We
review the district court’s summary judgment decision de novo, viewing the factual
record and making reasonable inferences from it in the light most favorable to the
nonmoving party. Bird v. W. Valley City, 832 F.3d 1188, 1199 (10th Cir. 2016).
Appellant alleges Denver Health violated the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. §§ 621-634. An employer violates the
ADEA if it “fail[s] or refuse[s] to hire . . . any individual . . . because of such
individual’s age.” § 623(a)(1). “[T]he plaintiff retains the burden of persuasion to
11
establish that age was the ‘but-for’ cause of the employer’s adverse action.” Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009).
A plaintiff may demonstrate age discrimination in violation of the ADEA by
providing either direct or circumstantial evidence of discrimination. See Roberts v.
Int’l Bus. Machs. Corp., 733 F.3d 1306, 1308-09 (10th Cir. 2013). Direct evidence
in this context “is evidence from which the trier of fact may conclude, without
inference, that the employment action was undertaken because of the employee’s
protected status.” Sanders v. Sw. Bell Tel., L.P., 544 F.3d 1101, 1105 (10th Cir.
2008). If the plaintiff relies on circumstantial evidence, then we review his claim
under the burden-shifting framework first described in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Roberts, 733 F.3d at 1309.
The attempt to prove age discrimination in this case rests on an
unauthenticated screenshot of a document review tool that supposedly shows hidden
metadata that flagged Vazirabadi as an over-forty candidate and on an allegation that
SHL transmitted the hidden metadata to Denver Health with Vazirabadi’s
competency test scores. The district court found that Vazirabadi “failed to put
forward any admissible or even arguably credible evidence that creates a triable issue
of fact as to whether [Denver Health] knew [] Vazirabadi’s age, much less acted on
it.” We agree.
Because Vazirabadi has no direct evidence to support his age discrimination
claim, his case must proceed under the three-step framework of McDonnell Douglas.
Under that framework, a plaintiff alleging discrimination in a failure to hire case has
12
the initial burden on summary judgment of producing evidence sufficient for a
reasonable jury to conclude the plaintiff “applied for an available position for which
she was qualified, but was rejected under circumstances which give rise to an
inference of unlawful discrimination.” Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981) (describing McDonnell Douglas framework).
If the plaintiff makes this initial showing, the burden shifts to the defendant to
articulate a nondiscriminatory reason for not hiring the plaintiff. Id. If the employer
does so, then the burden shifts back to the plaintiff to produce sufficient evidence for
a reasonable jury to conclude the defendant’s proffered rationale is a pretext for
discrimination. See id.; Roberts, 733 F.3d at 1309. “Under our precedents, a
plaintiff can establish pretext by showing the defendant’s proffered non-
discriminatory explanations for its actions are so incoherent, weak, inconsistent, or
contradictory that a rational factfinder could conclude they are unworthy of belief.”
Johnson v. Weld Cty., 594 F.3d 1202, 1211 (10th Cir. 2010) (alteration and quotation
omitted). “Mere conjecture that the employer’s explanation is a pretext for
intentional discrimination is an insufficient basis for denial of summary judgment.”
Bekkem v. Wilkie, 915 F.3d 1258, 1268 (10th Cir. 2019) (quotation omitted).
Assuming without deciding that Vazirabadi satisfied the initial step in the
McDonnell Douglas process, his claim nevertheless fails. Denver Health provided a
legitimate, nondiscriminatory reason for not hiring Vazirabadi: other candidates
were more qualified and performed better during the interview process. At the time
he applied for employment with Denver Health, Vazirabadi had been working as an
13
Uber driver for nearly three years, had a bachelor’s degree in industrial engineering,
and did not have any experience in healthcare. During his interview, Vazirabadi
failed to provide concrete examples that related his experience to the positions. And
the candidates ultimately hired had significantly more relevant education and work
experience.
Because Denver Health provided a nondiscriminatory reason for hiring other
candidates, the burden shifted back to Vazirabadi to produce evidence that Denver
Health’s proffered rationale was pretext for age discrimination. He provided no such
evidence, and therefore the district court properly granted summary judgment in
favor of defendants.
Vazirabadi also brought a conspiracy claim under 42 U.S.C. § 1985(3) related
to the alleged age discrimination. “The essential elements of a § 1985(3) claim are:
(1) a conspiracy; (2) to deprive plaintiff of equal protection or equal privileges and
immunities; (3) an act in furtherance of the conspiracy; and (4) an injury or
deprivation resulting therefrom.” Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir.
1993).
Each of the individual defendants provided evidence that they (1) did not know
Vazirabadi’s age at the time the relevant hiring decisions were made, (2) did not take
his age into account when making a hiring decision, and (3) did not otherwise
conspire to discriminate against Vazirabadi. Lee and Fingado submitted evidence
that the interview and selection process provided Vazirabadi with a fair and equal
opportunity to be hired.
14
Vazirabadi has not pointed to any specific facts that call this evidence into
question. His sweeping allegations that defendants destroyed, forged, or altered
documents in furtherance of their supposed conspiracy lack evidentiary support. The
district court thus properly granted summary judgment in favor of the defendants on
the conspiracy claim.6
Finally, Vazirabadi brings a claim of national origin discrimination under 42
U.S.C. § 2000e-2(a)(1). Title VII of the Civil Rights Act of 1964 makes it an
“unlawful employment practice for an employer . . . to fail or refuse to hire . . . any
individual . . . because of such individual’s race, color, religion, sex, or national
origin.” § 2000e-2(a)(1). “To survive summary judgment on a Title VII claim of
discrimination based on race, color, religion, sex, or national origin, a plaintiff must
present either direct evidence of discrimination or indirect evidence that satisfies the
burden-shifting framework of McDonnell Douglas.” Bekkem, 915 F.3d at 1267
(citation omitted).
Appellant does not challenge the district court’s finding that he “has no direct
proof of national origin discrimination.” We therefore evaluate his claim of national
origin discrimination by applying the McDonnell Douglas framework. But again,
even if we assume Vazirabadi has established a prima facie case of discrimination,
Denver Health has articulated a nondiscriminatory reason for not hiring Vazirabadi.
6
To the extent his § 1985(3) cause of action also asserted an equal protection
claim, we affirm the district court’s grant of summary judgment on that claim for
substantially the same reasons cited by the district court.
15
Applying McDonnell Douglas, this shifted the burden back to appellant to prove that
Denver Health’s rationale was pretext for national origin discrimination. The district
court found that Vazirabadi did not make this showing and we agree.
F
Vazirabadi’s briefs raise additional claims that he did not present to the district
court. For example, he now asserts that defendants violated § 2000e-2(a)(2) by
asking for his language fluencies. Similarly, Vazirabadi avers that defendants ran
afoul of the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R.
§§ 1607.1-1607.18. Vazirabadi’s amended complaint does not assert either of these
causes of action. As a result, the district court did not rule on either of these claims
as separate causes of action.7 An issue must generally be “presented to, considered
and decided by the trial court before it can be raised on appeal.” Tele-Commc’ns,
Inc. v. Comm’r, 104 F.3d 1229, 1233 (10th Cir. 1997) (alterations and quotation
omitted). We decline Vazirabadi’s invitation to address these claims for the first
time on appeal.
7
The district court did address Vazirabadi’s argument, made in connection
with his ADEA and conspiracy causes of action, that SHL—which is not a party in
this case—violated the law by asking whether Vazirabadi was over the age of forty.
The district court pointed out that the issue of whether SHL properly asked about
Vazirabadi’s age is irrelevant to the claims in this case given that “there is no
evidence that the information about [] Vazirabadi’s age was known to or used by
[Denver Health] in its hiring decision.” We agree.
16
III
For the reasons stated above, we AFFIRM.
Entered for the Court
Carlos F. Lucero
Circuit Judge
17
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735 N.W.2d 275 (2007)
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Lamont Donale WIMBLEY, Defendant-Appellant.
Docket No. 133833. COA No. 271957.
Supreme Court of Michigan.
July 30, 2007.
On order of the Court, the application for leave to appeal the March 30, 2007 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).
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742 F.2d 1455
McIntoshv.Secretary of Health and Human Services
83-1079
United States Court of Appeals,Sixth Circuit.
8/28/84
1
W.D.Mich.
REVERSED AND REMANDED
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Order Michigan Supreme Court
Lansing, Michigan
June 21, 2013 Robert P. Young, Jr.,
Chief Justice
Michael F. Cavanagh
Stephen J. Markman
146610 Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano,
PEOPLE OF THE STATE OF MICHIGAN, Justices
Plaintiff-Appellee,
v SC: 146610
COA: 305525
Kalamazoo CC: 2010-002059-FC
SCOTT DENIS CRONIN,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the December 6, 2012
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court. Although we
deny leave to appeal, we note that in People v Bush, 187 Mich App 316, 329 (1991),
aff’d in part and rev’d in part on other grounds sub nom People v Harding, 443 Mich 693
(1993), the Court of Appeals erroneously stated that the failure to move for a new trial in
the trial court precludes appellate review of a “great weight of the evidence” argument.
To the contrary, review of an unpreserved “great weight” issue is reviewable on appeal,
subject to the “plain error” standard of review. See People v Cameron, 291 Mich App
599, 616-617 (2011).
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 21, 2013
s0618
Clerk
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262 Cal.App.2d 734 (1968)
THE PEOPLE, Plaintiff and Respondent,
v.
WALTER LEE MIDKIFF, Defendant and Appellant.
Crim. No. 14464.
California Court of Appeals. Second Dist., Div. One.
June 5, 1968.
Mitchell J. Grossman, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Frederick R. Millar, Jr., Deputy Attorney General, for Plaintiff and Respondent.
LILLIE, J.
A jury found defendant guilty of second degree burglary ( 459, Pen. Code) and grand theft ( 487, subd. 1, Pen. Code); he admitted three prior convictions of burglary. Defendant appeals from the judgment.
O'Keefe Medical Service and Eureka X-Ray Tube Company occupy the same premises at 841 South Grandview. At 7:30 a.m. on April 14, 1967, Mr. McKee, an employee of Eureka had trouble opening the lock on the side door because it had been tampered with; later certain of his tools left in order on his work bench were missing. Looking around he found some of them scattered in the O'Keefe part of the building; thereafter Mr. Puls, service manager of O'Keefe, and another tenant saw a small hole, 18" by 24", in the roof of the front part of the showroom. A rope was hanging down to the floor from a rafter and there was debris over the showroom carpet and couches. Numerous items belonging to *736 O'Keefe were missing, [fn. 1] the total value of which was $830 or $840.
Around 6 a.m. on April 14, 1967, Mr. Basaraba, who lives across the alley approximately 30 feet from the South Grandview premises, came around the corner of the apartment building and noticed a metallic blue Mercury Monterey parked in the alley immediately beside the rear door of the O'Keefe warehouse building; all doors were open and the front seat of the car was torn. He saw two men around the car on the driver's side, one of whom he identified as defendant; he saw defendant enter the building through the door with a dolly. Mr. Basaraba went over to his own car and cleaned the rear window, all the while watching the car because he figured he would have trouble getting his own car out. He then got in, started up and backed his car out to the west waiting there awhile hoping they would move the car. By this time he became suspicious and wrote down the license number, FGY 238, which he later turned over to the police. Finally, he saw defendant come out of the warehouse with the dolly, get into the car and move it to one side; he noticed a cream- colored item about two feet long, a foot high and a foot acress in the rear seat, also a dark object. After the car was moved Mr. Basaraba proceeded to work.
Officer Dauer had information concerning a 1959 Mercury, license number FGY 238. On April 25, 1967, he saw the car twice--around 2 p.m. and later at 3 p.m.--and stopped it; defendant was driving and alone. The car was no longer metallic blue but black; the paint was a rough finish as though it had been handpainted by an inexperienced painter and the blue showed through the black. Officer Dauer arrested defendant. Various items missing from the South Grandview premises were in the vehicle.
For the defense Mary Hall testified that on April 12, 1967, around 6:30 p.m., defendant came to her apartment accompanied by two men; he knew she had a blank cash receipt book and wanted to use it because he was selling his car to them and they were making a deposit; he wrote a receipt making two copies, the white one he gave to the two men and kept the pink carbon copy; a cash transfer of funds took place and within ten days to two weeks the balance was to be paid; *737 on the morning of April 25, 1957, the two men returned with the car and left it saying they would have the money for it in a day or two; defendant drove her to work that morning; the car had been freshly painted and was loaded with merchandise consisting of women's clothing; there were a few items in the front seat and the back was loaded.
On rebuttal Officer Willis testified that around 4 p.m. on April 25, 1967, at the police station he advised defendant of his constitutional rights; he asked defendant if he understood them and he said that he did; he asked defendant if the car belonged to him and defendant said the car was his; he asked him if he had ever loaned the car to anyone and defendant answered, "No" and that no one other than he had used the car since he had acquired it. Defendant was not asked whether he sold the car, and he did not volunteer any statement that he had sold it.
[1a] Without merit is appellant's contention that his statements to Officer Willis were not admissible in evidence because they were made prior to being advised of his right to counsel; and that while he was advised generally of his rights after he made the statements he was not told that he could have an attorney present during his interrogation. Officer Willis' testimony establishes that an hour after defendant's arrest, and at the police station, defendant was properly advised of his constitutional rights in accord with Miranda v. Arizona, 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], and that immediately thereafter defendant told him that the car was his, he never loaned the car to anyone and no one other than he had used the car since he had acquired it.
The People did not offer defendant's statements on their case in chief; the statements were offered on rebuttal to refute the claim of defense witness, Mary Hall, that defendant sold his car thus, at the time of the burglary he did not have possession of the vehicle. However, before the statements were received in evidence extensive testimony was taken outside of the presence of the jury for the purpose of permitting the judge to determine whether defendant had been properly advised of his constitutional rights under Miranda ( 405, Evid. Code). Thus Officer Willis testified that following defendant's arrest and at Rampart police station he, Officers Dauer, Farmer and Johnson and defendant were present; before defendant made any statements he advised defendant *738 of his constitutional rights; [fn. 2] defendant did not indicate that he did not understand the admonition, to the contrary, he "stated that he understood it"; then he asked defendant if the car belonged to him and defendant said that it was his car; he asked defendant if he had loaned the car to anyone and defendant stated no; asked, 'You have, no one else has ever used this car since you acquired it?" defendant answered, "That's right"; then questions were asked defendant concerning the articles in the car at which time defendant indicated he didn't want to make any further statements and wanted to see his attorney. At the termination of this testimony defense counsel argued to the trial judge that there had not been a "proper waiver" by defendant of his constitutional rights, that the officer did not go far enough to determine whether defendant desired to "give up" his rights, and "I don't think they [People] have carried their burden." The court replied, "I am satisfied that they have." Then for the limited purpose of the hearing, defendant testified on voir dire outside of the presence of the jury that the arresting officers did not advise him of his constitutional rights; he told the arresting officers he did not want to say anything about the case until he had talked to his attorney; thirty or forty-five minutes later at the station he had a conversation with Officer Willis prior to being given his rights and "the whole conversation was before he told me about my rights"; after the conversation Officer Willis told him his rights but did not tell him "You don't have to say anything without somebody, an attorney"; and he advised Officer Willis that he didn't want to say anything until he had an attorney. The trial judge announced "I don't believe the defendant," and found defendant's statements to be admissible *739 in evidence. Before the jury Officer Willis again testified concerning his admonitions to defendant and defendant's subsequent statements to him. [fn. 3]"
[2] Whether defendant was properly given his constitutional rights and knew and understood them and notwithstanding these advices voluntarily elected to talk to Officer Willis were issues decided by the judge after a hearing outside the presence of the jury. (People v. Schader, 62 Cal.2d 716, 728 [44 Cal.Rptr. 193, 401 P.2d 665]; People v. Eli, 66 Cal.2d 63, 76 [56 Cal.Rptr. 916, 424 P.2d 356].) Conflicts in the evidence relative to such issues are predominantly questions for the trial judge; his determination will not be disturbed on appeal unless it is "palpably erroneous." (People v. Stafford, 240 Cal.App.2d 422, 424 [49 Cal.Rptr. 598]; People v. Salcido, 246 Cal.App.2d 450, 456 [54 Cal.Rptr. 820].) [1b] The judge's determination on the issue is clearly supported by the evidence. The judge expressed his rejection of defendant's version of what occurred at the police station as not credible and accepted the testimony of Officer Willis as true; the officer's testimony is more than adequate to sustain the People's burden to establish that before defendant made any statement to Officer Willis he was properly informed of his rights and knowingly and intelligently waived them.
[3a] Appellant's final contention that there is insufficient evidence to support the judgment is without substance. [4] Before a judgment may be set aside it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below. (People v. Newland, 15 Cal.2d 678, 681 [104 P.2d 778].) [3b] Viewing the evidence in a light most favorable to the judgment and assuming the existence of every fact reasonably deducible from the evidence we find no grounds upon which to reverse the judgment. *740
Appellant's extensive factual argument has no place on appeal for this court may not reweigh the evidence or reject the jury's finding on the credibility of witnesses. (People v. Perez, 58 Cal.2d 229, 237 [23 Cal.Rptr. 569, 373 P.2d 617, 3 A.L.R.3d 946]; People v. Hillery, 62 Cal.2d 692, 702 [44 Cal.Rptr. 30, 401 P.2d 382].) Contrary to appellant's position that the People's case rests solely on circumstantial evidence, there was an eyewitness to the burglary of the Grandview premises--Mr. Basaraba, who identified defendant as the man he saw with a dolly going in and out of the rear of the warehouse early in the morning to a vehicle parked in the rear bearing license number FGY 238; he watched defendant and his activities for some time because he was waiting to move his own vehicle. While on cross-examination he said that he was not "absolutely" certain of defendant's identity, he did testify, "I would say I am sure." This was sufficient to connect defendant to the crimes. Moreover, the identification of the defendant need not be positive (People v. Yates, 165 Cal.App.2d 489, 494 [332 P.2d 314]); the sufficiency of the evidence is a question for the trier of the facts and if any inference of uncertainty can be drawn from Mr. Basaraba's identification because of the conditions under which he observed defendant, it was strictly a matter of argument to the jury. (People v. Sloan, 223 Cal.App.2d 96, 98-99 [35 Cal.Rptr. 519].)
The testimony of defense witness Mary Hall that defendant sold his vehicle during the period in question which appellant claims is confirmed by the receipt of the sale entered in evidence, even if believed, does not preclude a finding that defendant had possession of the vehicle on the morning of April 14, 1967. Her testimony indicated but a "transfer of funds" between defendant and two unidentified persons and a statement of terms for payment of the balance of the purchase price. However, her testimony of "sale" was entirely inconsistent with defendant's own admission that the car belonged to him, he never loaned the car to anyone and no one other than he had used the car since he had acquired it. It is also inconsistent with Mr. Basaraba's identification of the car (by color, make and license number) as the one he saw defendant move in order to allow him to back his own car out of his premises on the morning of April 14, 1967. Any conflict or ambiguity in the evidence raised by the defense testimony was for the jury to resolve (People v. Cook, 233 Cal.App.2d 435, 439 [43 Cal.Rptr. 646]) and the jury resolved the same against defendant. *741
[5] While mere possession of stolen property standing alone is not sufficient to connect a defendant with the commission of a burglary, it is nevertheless a circumstance strongly indicating guilt, and only slight corroborating evidence is required if the goods were recently stolen. (People v. Beverly, 200 Cal.App.2d 119, 123-124 [19 Cal.Rptr. 67]; People v. Hickok, 198 Cal.App.2d 442, 445 [17 Cal.Rptr. 875].) [3c] Here the items stolen from the South Grandview premises were recovered only ten days after the theft by Officer Dauer from defendant's car which defendant was driving. Further corroborating circumstances, of course, are the presence of defendant's car on the morning of the burglary in the alley behind the warehouse and defendant's activities in connection therewith.
The judgment is affirmed.
Wood, P. J., and Fourt, J., concurred.
"I stated, 'You understand that you have the right to have an attorney represent you during all portions of the proceedings against you?' He said, yes, he did."
"I asked him if he understood that he had a right to consult with an attorney prior to our questioning, and that he had the right to have an attorney present during our questioning. He stated that he did."
"I advised him that if he was unable to afford a private attorney, the court would appoint the public defender to represent him."
"I advised him that he had the right to remain silent. He didn't have to tell me anything, but if he did say anything, it could be used against him at his trial."
"I asked him if he understood all that and he stated that he did."
"I asked him if he had any questions about those rights. He stated, 'No.' "
"In informed him that he had the right to remain silent. He did not have to tell me anything, but that anything he did say could be used against him at his trial."
"I asked him if he understood all those rights. He stated he did. I asked him if he had any question about them and he stated, 'No.' "
NOTES
[fn. 1] 1. Speed wrench with a blue handle, set of drills, incomplete set of taps, five rectifying X- ray valve tubes (new, with a fair market value of $100 apiece), small blow torch, screwdrivers, wrenches, wire cutters, striker cast cutter (fair market value $92), four Craftsman drills (fair market value $80), Singer vacuum cleaner, and miscellaneous items.
[fn. 2] 2. "I asked the defendant if he had ever been advised of his constitutional rights in the past. He said he had.
[fn. 3] 3. "I told the defendant that he had the right to have an attorney represent him during all portions of the proceedings against him. That he had a right to consult with an attorney prior to my questioning of him. That he had a right to have an attorney present while I questioned him, and that if he was unable to afford the service of a private attorney, the Court would appoint the public defender to represent him.
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89 F.Supp.2d 475 (2000)
Jason B. NICHOLAS, Plaintiff,
v.
Edward TUCKER, Superintendent, et al., Defendants.
No. 95 Civ. 9705 (LAK).
United States District Court, S.D. New York.
March 14, 2000.
*476 Jason B. Nicholas, plaintiff pro se.
Elizabeth A. Forman, Assistant Attorney General, Eliot Spitzer, Attorney General of the State of New York, New York City, for defendants.
MEMORANDUM OPINION
KAPLAN, District Judge.
Plaintiff, a prison inmate who claims that he was improperly subjected to prison discipline in violation of his federal constitutional rights, objects to the report and recommendation of Magistrate Judge Ellis, dated January 27, 2000, which recommended that defendants' motion for summary judgment be granted and plaintiff's cross-motion for partial summary judgment be denied.
Facts
The facts material to this disposition of these motions may be stated briefly.
At all relevant times, plaintiff was an inmate at New York's Woodbourne Correctional Facility in consequence of his conviction for manslaughter in the first degree and possession of a dangerous weapon. He is Caucasian and professes the Muslim religion.
*477 Plaintiff's regular work assignment at Woodbourne was in the business office in the administration building, which was outside the secured area of the prison. On each day on which plaintiff was scheduled to report to work, he presented himself to Correction Officer Clayton Cook, a defendant here, was pat frisked, and then proceeded to the office where Cook, among others, was responsible for supervising plaintiff during his employment. The office contained State-owned computers, and plaintiff claims that he had used those computers for personal work without objection from defendants.[1]
At some point, plaintiff began wearing a kufi, headgear associated with the profession of the Muslim religion. On September 10, 1995, he wore the kufi to his work assignment for the first time.[2] When he presented himself to Officer Cook on September 13, 1995, Cook questioned his right to wear the kufi to his job and brought plaintiff to Deputy Superintendent Budd for a determination.[3] According to plaintiff's account, Budd told Cook to "take care of it."[4]
On September 14, 1995, plaintiff reported to Cook for the pat frisk prior to going to work in the administration building. During the pat frisk, Cook discovered that plaintiff was carrying personal legal papers. He told plaintiff that such papers were not allowed in the business office and to remove them by the end of the day.[5] Later that day, Cook observed plaintiff entering his personal legal work on one of the computers in the office and saw other legal documents unrelated to plaintiff's work assignment at his desk.[6] He then prepared an Inmate Misbehavior Report charging plaintiff, inter alia, with misuse of state property in violation of New York State Department of Correctional Services ("DOCS") Rule 116.10 by his use of State-owned computers to do his personal work. Plaintiff was placed in keeplock on the same day and subjected to a Tier III disciplinary hearing at which he was convicted of the Rule 116.10 violation and, as modified on subsequent administrative appeal, sentenced to 60 days in keeplock with loss of certain privileges.
Insofar as is relevant here, plaintiff claims that he was disciplined in violation of his right to due process of law in that (a) DOCS Rule 116.10 is unconstitutionally vague as applied to this case, (b) he was not given sufficient notice of the disciplinary charge against him, and (c) the hearing officer improperly prejudged the case against him. In addition, plaintiff claims that the disciplinary proceeding was brought against him in retaliation for his wearing a kufi to work and/or because the work he was doing was legal in nature, that he was confined prior to adjudication of the disciplinary complaint because he attempted to have the legal work that was seized from him returned, and that the penalty imposed upon him was increased because he defended vigorously against the charges.
The Due Process Claims
The Magistrate Judge found the existence of genuine issues of fact as to whether plaintiff had a protected liberty interest, and there is no need to revisit that issue. The question is whether he correctly recommended the entry of judgment for the defendants on the merits of the due process claims.
Vagueness
The charge of which plaintiff was found guilty was violation of DOCS Rule 116.10, which states that "inmates shall not lose, destroy, steal, misuse, damage or waste any type of State property." The basis for the charge was plaintiff's use of a computer *478 in the administration building at Woodbourne Correctional Facility, to which he had proper access as part of his prison work assignment, to do personal legal work.
As the Magistrate Judge concluded, this Circuit employs a two-pronged test in determining whether a statute or rule is unconstitutionally vague as applied. The court first must determine whether the statute gives a person of ordinary intelligence a reasonable opportunity to know what is prohibited and then whether the law affords sufficiently explicit standards for those who must apply it.[7]
Plaintiff was afforded access to the State-owned computer in the administration building for the purpose of performing his work assignment. A person of ordinary intelligence had a reasonable opportunity to know that the use of that computer to prepare papers for his personal litigations was inappropriate. Nor would anyone charged with applying Rule 116.10 be afforded excessive discretion in these circumstances. Rule 116.10 as applied in this case therefore satisfies both prongs of the governing standard.[8]
Notice of Charge
Plaintiff complains next that the misbehavior report gave him notice of a charge of misuse of state property but that he was found guilty only of causing property damage or loss, a charge of which he had no advance notice.[9] In fact, however, the inmate misbehavior report with which plaintiff was served in advance of the hearing[10] clearly explained the conduct with which plaintiff was chargedthe use of a State-owned computer for his personal work and that this conduct allegedly violated Rule 116.10. The hearing officer's determination clearly demonstrates that this was the basis of the Rule 116.10 conviction.[11] Moreover, the only charge sustained through the appellate process was that of misuse of state property in violation of Rule 116.10.[12]
The only basis for plaintiff's contrary contention is the fact that a computer summary of his disciplinary record refers to this incident as "116.10 LOSS/DAMAGE PROP."[13] This is insufficient to raise a genuine issue of material fact, as the record clearly establishes the nature of the charge and the basis for the conviction. The inappropriate use of the State-owned computer in violation of Rule 116.10 readily could be summarized in shorthand as involving a property lossthe State's loss of the exclusive use of its own equipment for its own purposes. The offense is quite analogous to theft of services and other similar property crimes.
Alleged Prejudgment
Plaintiff claims that the hearing officer prejudged the case against him because the hearing officer's disposition sheet states that the date and time of the hearing was September 20 at 10:57 a.m. although no testimony was taken until a subsequent date. This, plaintiff argues, shows that the hearing officer decided that he was guilty before hearing the evidence.
This contention is groundless for the reasons stated by the Magistrate Judge essentially, that the date on the form in fact was the date on which the hearing first convened and that there is no competent evidence that the finding of guilt was *479 placed on the form before the hearing was concluded.
Retaliation
"In order to sustain a retaliation claim, the plaintiff must demonstrate that he engaged in constitutionally protected conduct and that the `protected conduct was a substantial or motivating factor in the prison officials' decision to discipline the plaintiff.' [citation omitted] Once the plaintiff carries his initial burden, `the defendants must show by a preponderance of the evidence that they would have disciplined the plaintiff "even in the absence of the protected conduct."'"[14]
There is no evidence, as distinguished from conclusory assertion, that plaintiff was placed in administrative segregation pending the hearing on the misbehavior report because he tried to get his legal papers back or that the hearing officer imposed a stiffer sentence because plaintiff defended himself vigorously against the charges. In consequence, those contentions fail at the outset even on the assumption that the conduct in which plaintiff engaged was constitutionally protected, as doubtless was true of his defense to the charges. His other retaliation claims, however, are more troublesome.
Defendants do not dispute that plaintiff's wearing of the kufi and his preparation of legal papers were constitutionally protected activities. Moreover, in each case, there is at least some evidence to support the contention that the charges were borne of animus against the constitutionally protected activity. Cook's questioning of plaintiff's wearing of the kufi may have been the product of appropriate motives, but its temporal proximity to the misbehavior reportparticularly coupled with the contention that Deputy Superintendent Budd told Cook to "take care of" the problem of plaintiff's headgear and the evidence that plaintiff had openly done his personal work on the State computers for some time without objectionsuggests the possibility of a retaliatory motive. So too does the fact that, allegedly, no objection was raised to plaintiff's use of the computer for personal work prior to the discovery that he was preparing legal papers on it. The question therefore becomes whether defendants are entitled to judgment as a matter of law even if Cook was motivated in whole or in part by constitutionally proscribed motives.
Defendants argue that plaintiff's admission that he used the State-owned computer to do personal work, a violation of Rule 116.10, is fatal to the retaliation claims on the theory that there is no liability if the allegedly retaliatory actions could have been taken on a proper basis. They rely on Lowrance v. Achtyl,[15] which bears some similarity to this case. The Court there assumed arguendo that the inmate had established that a retaliatory motive had played a substantial part in the correction officer's decision to bring charges, but nevertheless affirmed the dismissal of the inmate's complaint based on its conclusion that the inmate's admission of the misbehavior at issue readily permitted the inference that the disciplinary charges would have been brought even in the absence of improper motives.[16]
Lowrance supports defendants' position. If it stood alone, the Court would be obliged to grant summary judgment on the retaliation claims based on its authority. But defendants ignore the fact that Lowrance is not the Circuit's last word on this subject.
The first step in the Circuit's retreat from Lowrance perhaps was Rivera v. *480 Senkowski.[17] The plaintiff there claimed, among other things, that he had been reclassified adversely in retaliation for the filing of grievances. The Circuit recognized the presumption of proper purpose created by Lowrance. In remanding to the district court, however, it added "some guidance to the district court as to the applicability of Lowrance...."[18] A unanimous panel wrote:
"The district court should recognize that the presumption of proper purpose accorded the acts of prison officials is particularly strong when officials act pursuant to a duty imposed by a prison regulation which is observed in practice and is essential to prison discipline and order. In such a case, the inmate's claims must render it unlikely that the prison official would have performed the act absent a retaliatory purpose. We express no opinion on whether Rivera's claims of retaliation suffice."[19]
The next relevant case is Graham v. Henderson.[20] The plaintiff in that case claimed that he had been subjected to disciplinary charges in retaliation for filing a grievance against prison officials. In reversing the dismissal of the suit on a motion for summary judgment, the Circuit simply focused on the fact that the plaintiff's claim of retaliation was not conclusory and that there was evidence from which the trier of fact reasonably might have concluded that retaliatory animus in fact motivated the defendants.[21]
The most recent decision on this subject is Hynes v. Squillace.[22] The plaintiff there was disciplined for, inter alia, refusing to comply with a direct order and making a threat, conduct which he admitted. He claimed that the discipline was imposed to retaliate for his having complained to the superintendent about one of the correction officers. The Circuit affirmed the district court's dismissal of the action on summary judgment in reliance on Lowrance. Nevertheless, it cited Rivera with approval.
What then is to be made of this line of authority? There is little doubt, as the Circuit said in Lowrance, "that prison officials have broad administrative and discretionary authority over the institutions they manage."[23] Courts must afford substantial deference to judgments made in often ambiguous circumstances. Moreover, we must be ever mindful that claims of retaliation are readily made in the highly regimented environment of penal institutions and that the ability of inmates to haul prison officials into court on the thinnest of pretexts itself would undermine discipline. Nevertheless, deference does not require turning a blind eye to violations of the Constitution. As Rivera made clear, the degree of deference depends upon the circumstances. When prison officials act pursuant to a duty clearly imposed upon them, where the rule they invoke is enforced regularly, and where its enforcement is essential to the maintenance of order and discipline, the deference is at its maximum. Where the action is discretionary, where the rule is not uniformly enforced, and where the rule is not directly related to order and discipline, the degree of deference that is appropriate is correspondingly reduced.
In this case, the Court assumes that Officer Cook brought the misbehavior report pursuant to a specific rule, as there was a facility directive that forbad the use of State-owned computers by inmates for personal projects. But there is substantial evidence that prison officials often did not enforce the directive. It is not intuitively obvious, and there certainly is no evidence, *481 that the directive was essential or even particularly relevant to safety, order and discipline. In consequence, the Court holds that the defendants have failed to establish as a matter of law that plaintiff would have been disciplined even in the absence of any retaliatory motive, although of course they might prevail on this issue with the trier of fact. In consequence, this aspect of the retaliation claim is sufficient to withstand defendants' motion for summary judgment absent some other ground for dismissal.
Other Issues
The preceding conclusion requires the Court to reach alleged grounds for dismissal not considered by the Magistrate Judge.
To begin with, the complaint, insofar as it is brought against DOCS (s/h/a New York State Department of Correctional Facility) must be dismissed. DOCS is an agency of the State, and the State is immune from a damages suit such as this by virtue of the Eleventh Amendment.[24]
The only defendant charged with having acted out of a retaliatory motive in the one respect that withstands defendants' motion is Correction Officer Cook. Given the lack of personal involvement by the other defendants in the activity complained of, the complaint must be dismissed as to all but Officer Cook.[25] The remaining question is whether the retaliation claim against Officer Cook, as defendants argue, must be dismissed on the ground of qualified immunity.
"Government officials are protected from suits against them in their individual capacity for money damages where `their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' "[26] "A right is `clearly established' if `[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.'""[27]
Summary judgment on the basis of qualified immunity is appropriate only where the court can find, as a matter of law, that the defendant reasonably believed his conduct was lawful.[28] Where there are disputed issues of fact relevant to the qualified immunity defense, summary judgment is not appropriate.[29] In *482 such case, the defense of qualified immunity may be presented at trial.[30]
Plaintiff alleges that Officer Cook acted solely out of a retaliatory motive.[31] This allegation is not merely conclusory, but is supported by at least some evidence.[32] If proved, retaliation on the basis of plaintiff's preparation of legal papers would violate plaintiffs constitutional rights as clearly established at the time.[33] Further, it would have been objectively unreasonable for Officer Cook to have believed that he properly brought the misbehavior report if his sole motive was retaliation for plaintiff's preparation of legal papers.
It is not quite as clear that retaliation for plaintiff's wearing of the kufi violated plaintiff's clearly established constitutional rights at the time of the incident. The Second Circuit in Burgin v. Henderson[34] held that a prison cannot restrict an inmate's wearing of religious headgear without an inquiry into the relative weights of the prison's interest in the restriction and the inmate's constitutional interest in wearing the headgear. But defendants have not addressed the implications of Burgin for this case or the broader question that it implicates. Hence, the Court cannot now say that retaliation for plaintiff's wearing of the kufi did not violate plaintiff's constitutional rights as clearly established at the time, although that issue remains open.
Defendants respond that Officer Cook's actions were motivated in whole or in part by legitimate disciplinary reasons rather than by illegitimate reasons alone.[35] This factual contention, however, is insufficient to prevail on a motion for summary judgment. In consequence, summary judgment the basis of qualified immunity is not appropriate.
Conclusion
For the foregoing reasons, defendants' motion for summary judgment dismissing the complaint is granted in all respects except as to plaintiff's claim against Officer Cook for retaliation based on plaintiff's wearing of the kufi and his preparation of legal papers. Plaintiff's cross-motion for partial summary judgment is denied.
SO ORDERED.
NOTES
[1] Docket item 48, ¶ 19.
[2] Tucker Aff, Ex. A, at 35-37.
[3] Id. at 37-38.
[4] Docket item 48, ¶ 19.
[5] Def. 56.1 St. ¶ 10.
[6] Id. ¶ 11.
[7] See Chatin v. Coombe, 186 F.3d 82, 87 (2d Cir.1999).
[8] The Court reaches this conclusion irrespective of whether Facility Directive 2810 or the corresponding DOCS directive was known by or available to plaintiff or posted in an area accessible to him.
[9] Pl.Mem. at 30.
[10] Tucker Aff.Ex. A, at 3.
[11] Id. at 4.
[12] Selsky 1995 Aff. ¶¶ 4-6.
[13] Pl.Aff. in Reply Ex. 38.
[14] Hynes v. Squillace, 143 F.3d 653, 657 (2d Cir.1998) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996)) (in turn quoting Mt. Healthy City Schl. Dist. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)).
[15] 20 F.3d 529 (2d Cir.1994).
[16] Id. at 535.
[17] 62 F.3d 80 (2d Cir.1995).
[18] Id. at 86.
[19] Id.
[20] 89 F.3d 75 (2d Cir.1996).
[21] Id. at 80-81.
[22] 143 F.3d 653.
[23] Lowrance, 20 F.3d at 535.
[24] See Kentucky v. Graham, 473 U.S. 159, 169, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). The Supreme Court has held also that section 1983 does not abrogate a state's Eleventh Amendment immunity. Id. at 169 n. 17, 105 S.Ct. 3099 (citing Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974)).
[25] See Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.1997) ("A supervisory official is liable for constitutional violations if he or she (1) directly participated in the violation; (2) failed to remedy the violation after learning of it through a report or appeal; (3) created a custom or policy fostering the violation or allowed the custom or policy to continue after learning of it; or (4) was grossly negligent in supervising subordinates who caused the violation."); Williams v. Smith, 781 F.2d 319, 323 (2d Cir.1986) ("[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.") (internal quotations omitted).
[26] Diamondstone v. Macaluso, 148 F.3d 113, 126 (2d Cir.1998) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
[27] Id. (quoting LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir.1998) and Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).
[28] See Blissett v. Coughlin, 66 F.3d 531, 538 (2d Cir.1995).
[29] See Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991) (In order to overcome qualified immunity defense at summary judgment, plaintiff's allegations, if accepted as true, must state a claim for violation of a clearly established constitutional right.); Al-Jundi v. Mancusi, 926 F.2d 235, 237 (2d Cir.1991) ("Qualified immunity is available on motion for summary judgment if it appears, from undisputed facts, that an officer's conduct did not violate constitutional rights that were clearly established at time of his actions...."). See also McKelvie v. Cooper, 190 F.3d 58, 63 (2d Cir.1999) (Issue of fact precludes legal conclusion as to whether police officers' conduct was "extreme and outrageous" and therefore precludes summary judgment on ground of qualified immunity.); Breen v. Garrison, 169 F.3d 152, 153 (2d Cir.1999) (Disputes of material fact regarding extent of force used and injuries suffered precludes summary judgment on defense of qualified immunity.); Washington Square Post # 1212 Am. Legion v. Maduro, 907 F.2d 1288, 1292 (2d Cir.1990) (Plaintiff's allegation that searched premises was not open to the public, although disputed by defendant, is assumed for purpose of motion for summary judgment based on qualified immunity.).
[30] See Blissett, 66 F.3d at 538.
[31] Am.Cpt. ¶ 78.
[32] As discussed above, several facts support plaintiff's contention that Officer Cook's actions were retaliatory, including the temporal proximity of the misbehavior report and Officer Cook's questioning of plaintiff about the kufi, the contention that Deputy Superintendent Budd told Cook to "take care of" the problem of plaintiff's headgear, and evidence that plaintiff had openly done his personal legal work on the state computers without objection. See Docket item 48, ¶¶ 4, 19-20; Docket item 55, ¶ 9; Tucker Aff., Ex. A, at 35-38.
[33] See Easton v. Sundram, 947 F.2d 1011, 1015 (2d Cir.1991) (institution of an Article 78 lawsuit is first amendment protected activity); Franco v. Kelly, 854 F.2d 584, 589 (2d Cir.1988) (confiscation of prisoner's legal papers violates constitutional right of access to the courts).
[34] 536 F.2d 501 (2d Cir.1976).
[35] Def.Mem. at 33.
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132 F.3d 43
97 CJ C.A.R. 2922
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Darrell D. MATHIS, Petitioner-Appellant,v.H.N. SCOTT; Attorney General of the State of Oklahoma,Respondent-Appellee.
No. 97-6230.(D.C.No. 97-CV-420)
United States Court of Appeals, Tenth Circuit.
Nov. 19, 1997.
1
Before BALDOCK, MCKAY and LUCERO, C.JJ.
2
ORDER AND JUDGMENT*
3
LUCERO, C.J.
4
Darrell Mathis pled guilty on February 19, 1993 to felony murder. Following his conviction, petitioner did not move to withdraw his plea or file a direct appeal. In May 1994, he filed his first application for post-conviction relief in Oklahoma state court. The application was denied, as was his appeal. In April 1996, petitioner filed a second application for post-conviction relief in the state court, raising for the first time the claims presented in this § 2254 petition. His second application was also denied.
5
On appeal, the Court of Criminal Appeals of the State of Oklahoma determined that Mathis had failed to meet the requirements of Oklahoma's Post-Conviction Procedure Act, Okla. Stat. tit. 22, § 1086 (1986). Section 1086 states,
6
All grounds for relief available to an applicant under this act must be raised in his original, supplemental or amended application. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the prior application.
7
The Court of Criminal Appeals concluded that petitioner failed to assert "sufficient reason" for failing to raise his claims on direct appeal or in his first application for post-conviction relief, and therefore they were procedurally barred under Oklahoma state law.
8
Pursuant to 28 U.S.C. § 2254, Mathis filed a petition for writ of habeas corpus. The Findings and Recommendation of the magistrate judge concluded that petitioner's claims were procedurally defaulted in state court, petitioner had failed to demonstrate cause for the defaults, and all of petitioner's claims were without merit. The district court adopted the magistrate's findings and denied petitioner a certificate of appealability.
9
The Supreme Court has clearly held that procedural default at the state level will bar federal habeas review:
10
We now make it explicit: In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.
11
Coleman v. Thompson, 501 U.S. 722, 750 (1991). Petitioner has failed to demonstrate either cause for the default or actual prejudice. In addition, a review of his claims indicates that they are without merit.
12
We DENY petitioner a certificate of appealability and the petition for writ of habeas corpus is DISMISSED.
13
The mandate shall issue forthwith.
*
The case is unanimously ordered submitted without oral argument pursuant to Fed. R.App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The 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
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FINAL REPORT1
Amendment to Pa.R.Crim.P. 576.1
TECHNICAL CORRECTION TO THE ELECTRONIC FILING RULE
On August 3, 2020, effective October 1, 2020, upon the recommendation of the
Criminal Procedural Rules Committee, the Court amended Rule 576.1 (Electronic Filing
and Service of Legal Papers) to clarify provisions regarding the definition of “legal
paper” in the rule and the description in the Comment to the rule regarding how
individual participation in electronic filing is initiated. This issue was brought to the
Committee’s attention after the Juvenile Court Procedural Rules Committee (“Juvenile
Rules Committee”) had developed electronic filing rules that were subsequently adopted
by the Court. These rules were based in large part on Rule 576.1 (Electronic Filing and
Service of Legal Papers). The Juvenile Rules Committee’s proposed rules,
Pa.Rs.J.C.P. 205 and 1205, were published for comment and subsequently two
concerns were identified from the Administrative Office of Pennsylvania Courts
Information Technology department (“AOPC IT”). The first regarded the definition of the
term “legal papers.” Like Rule 576.1, the juvenile rules, as published, defined “legal
papers” as a pleading or other submission to the court, including motions, answers,
notices, or other documents, of which filing is required or permitted, including orders,
exhibits, and attachments,….”
It was suggested that inclusion of the word “exhibits” without modification could
be interpreted to permit originals of exhibits to be filed electronically, as a means of
evidence storage. It is the Committee’s understanding that AOPC’s policy is that the
PACFile system is not to be used as storage system for evidentiary exhibits. It was
reported to the Juvenile Rules Committee that certain jurisdictions’ Family Courts were
reducing documentary exhibits in juvenile cases to electronic form and storing them on
the PACFile system. As a result of this comment, the Juvenile Rules Committee
modified the definition of “legal paper” to include “copies of exhibits”, but not the original
exhibits offered into evidence. This revision was intended to reinforce the prohibition
against using the PACFile system to be used for the storage of evidence. They also
included in the list of documents that may not be filed electronically “exhibits offered into
1The Committee's Final Reports should not be confused with the official Committee
Comments to the rules. Also, note that the Supreme Court does not adopt the
Committee's Comments or the contents of the Committee's explanatory Final Reports.
Technical Correction to the Electronic Filing Rule Final Report: 08/03/2020
evidence, whether or not admitted, in a court proceeding…” These provisions were part
of the rules that were adopted by the Court.
Because Rule 576.1 is identical in many ways with Pa.Rs.J.C.P. 205 and 1205,
the Committee considered that it would be beneficial to modify Rule 576.1 consistent
with the changes recommended by the Juvenile Rules Committee to their electronic
filing rules. To that end, the phrase “copies of” has been added to the word “exhibits” in
the definition of “legal papers” contained in Rule 576.1(C). Additionally, the phrase
“exhibits offered into evidence…” has been added to the list of items that may not be
filed electronically, consistent with the similar provision in Pa.Rs.J.C.P. 205 and 1205.
During the development of Pa.Rs.J.C.P. 205 and 1205, AOPC IT expressed a
concern regarding Comment language describing the way in which individual
participation in electronic filing is initiated. Participation requires that a user establish an
account in the PACFile system. For pro se parties, there is a requirement for an
authorization process. The establishment of an account constitutes consent to
participate in electronic filing including receipt of service of filed documents. The extent
to which this consent may include other cases the participant may also be involved with
is subject to the authorization of AOPC.
While the rules generally provide that participation in electronic filing is voluntary
(except in those counties that choose to make it mandatory), a party who has agreed to
participate in electronic filing is permitted to file legal papers in a physical paper format.
However, any party that agrees to participate in electronic filing must accept service
electronically. Pa.Rs.J.C.P. 205 and 1205 contain language identical to paragraph
(D)(3) of Rule 576.1 that permits a participating party to file either in a physical paper
format or electronically. The Comment to Pa.Rs.J.C.P. 205 and 1205 contained the
following language regarding participation which was identical to that contained in Rule
576.1:
Upon submission of the electronic filing of a legal paper, the electronic filing
system shall automatically send notice of the filing to all parties who have agreed
to service by electronic transmission or whose e-mail address is included on an
appearance or prior legal paper filed in connection with the case.
AOPC IT believed that this language was inaccurate in that it suggest that electronic
service may be initiated simply by including an email address in a previous case filing.
As a result, the Juvenile Rules Committee recommended replacing the phrase “or
whose e-mail address is included on an appearance or prior legal paper filed in
connection with the case” with a cross-reference to the requirements for participation
contained in paragraph (D) in order to eliminate the possibility of confusion.
Since the language in the Rule 576.1 Comment is identical to the language
originally contained in the juvenile rules, the Committee concluded that it would be
Technical Correction to the Electronic Filing Rule Final Report: 08/03/2020 -2-
beneficial to make a similar change. This has been incorporated in the ninth paragraph
of the Comment.
The Juvenile Rules Committee made one additional change from the published
version regarding participation. This is a modification of paragraph (D)(2) of
Pa.Rs.J.C.P. 205 and 1205 to include the additional phrase marked in bold and
underlined below:
2) Establishment of an account by an attorney or authorization of a non-attorney
in the system, to the extent so authorized by the Administrative Office of
Pennsylvania Courts pursuant to paragraph (D)(1), shall constitute consent to
participate in electronic filing, including acceptance of service electronically of
any document filed on the system in any judicial district that permits electronic
filing.
This phrase was added to the juvenile rule text at the request of AOPC IT to address an
issue regarding dependency cases. The parties in a delinquency and a criminal
proceeding don’t differ much aside from the juvenile probation office being
involved. However, dependency proceedings will involve parents and a separate
dependency case is opened for each child. It appears that the intent of this additional
language was to prevent permission in one case from bleeding over into other
cases. Instead, authorization would be on a case-by-case basis for the parents. While
the Committee concluded that this concern was not present in criminal cases, the
language has been included in the changes to Rule 576.1 for consistency.
Technical Correction to the Electronic Filing Rule Final Report: 08/03/2020 -3-
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362 B.R. 612 (2007)
In re Matthew J. PHILLIPS and Tina K. Phillips, Debtors.
No. 06-21242.
United States Bankruptcy Court, W.D. New York.
March 1, 2007.
*613 Bonnie S. Baker, Deily, Mooney & Glastetter, LLP, Albany, NY, for Creditor.
George M. Reiber, Rochester, NY, trustee.
Carl J. Schwartz, Jr., Penn Yan, NY, for Debtors.
DECISION & ORDER
JOHN C. NINFO, II, Bankruptcy Judge.
BACKGROUND
On July 18, 2006, Matthew J. and Tina K. Phillips (the "Debtors") filed a petition initiating a Chapter 13 case, and' George M. Reiber, Esq. (the "Trustee") was appointed as their Chapter 13 Trustee.
The Debtors filed a Chapter 13 Plan (the "Plan") which provided, pursuant to that portion of Section 1325(a)(9) that has become known as the "Hanging Paragraph, that the claim of American Honda Financial Corporation" ("American Honda"), secured by a 2005 Honda Odyssey (the "Odyssey"), was to be treated as an allowed secured claim in the amount of $33,269.00. This amount represented the amount the Debtors believed was due on the "Retail Installment Contract" they entered into when they purchased the Odyssey. The Plan further provided that the allowed secured claim of $33,269.00 was to be paid with interest, in equal monthly installments through the Plan.[1]
On August 24, 2006, the Trustee filed a Motion, which was amended on August 29, 2006, (the "Valuation Motion") which requested that the Court, pursuant to Section 506(a)(1), determine that American Honda had an allowed secured claim for the $27,425.00 August NADA Guide retail value of the Odyssey and an unsecured claim for the balance of the American Honda Secured Claim. The Valuation Motion asserted that: (1) the Debtors purchased the Odyssey on March 17, 2005 for their personal use from Ontario Honda ("Ontario Honda"), which was within 910 days of the filing of their petition; (2) in connection with their purchase, they traded in a 2002 Chrysler Plymouth Voyager (the "Voyager"), which was valued at $17,000.00 on the Retail Installment Contract[2]; (3) at *614 the time they traded in the Voyager, it was subject to a lien in favor of Chrysler Financial that was owed in excess of $16,500.00; (4) the March 2005 NADA Guide indicated that the Voyager had a trade-in value of $8,425.00; (5) the Retail Installment Contract indicated that the purchase price for the Odyssey was $37,010.00, even though the July 2005 NADA Guide indicated that the manufacturer's suggested retail price for a new Odyssey was $30,295.00;[3] (6) the combination of the marked-up trade-in allowance for the Voyager and the marked-up sale price for the used Odyssey indicated that the Debtors had substantial negative equity in the Voyager that was refinanced as one of the transactions evidenced by the Retail Installment. Contract so that the amount due to Chrysler Financial could be paid and a lien release obtained; (7) although the Retail Installment Contract granted the holder a security interest in the Odyssey for the entire amount financed, because the American Honda Secured Claim included rolled-in and refinanced debt, American Honda did not have a purchase money security interest for that portion of the debt, and, therefore, for all of the debt included in the American Honda Secured Claim, as specifically required by the Section 1325(a)(9) Hanging Paragraph; and (8) because American Honda had a purchase money security interest for only a portion and not all of the debt included in the American Honda Secured Claim, the exception set forth in the Section 1325(a)(9) Hanging Paragraph did not apply, and the American Honda Secured Claim was subject to the cram-down and bifurcation provisions of Section 506(a)(1).[4]
On September 8, 2006, American Honda filed Opposition to the Valuation Motion.
The Trustee filed similar valuation motions in other Chapter 13 cases involving secured claims filed by a number of other motor vehicle financers (these creditors, along with American Honda, will be referred to collectively as the "Motor Vehicle Finance Group").[5]
The Court conducted hearings on September 13, 2006 and November 15, 2006 at which time it heard the oral arguments of the Trustee and attorneys for a number of the Motor Vehicle Finance Group, including the attorneys for American Honda.
*615 On December 22, 2006, the Court issued a Decision & Order in In re Peaslee, 358 B.R. 545 (Bankr.W.D.N.Y.2006) ("Peaslee"). In Peaslee, a copy of which is attached,[*] the Court found that Section 506(a)(1), rather than the Section 1325(a)(9) Hanging Paragraph, governs the treatment of the secured claim of a motor vehicle financer, even though the debtor has purchased a replacement motor vehicle within 910 days of the filing of their petition for personal use, where: (1) it is shown that the secured claim includes amounts loaned to the debtor to pay off the debtor's negative equity in a trade-in vehicle, not to pay any part of the actual purchase price of the replacement vehicle, so that not all of the debt included in the secured claim is secured by a purchase money security interest; and (2) the Court, on all of the facts and circumstances presented in these refinancing of negative equity cases, in the exercise of its discretion, as specifically provided for by Section 9-103(h) of the New York Uniform Commercial Code, determined that a transformation rather than a dual status rule would be in the best interests of all of the parties and the Bankruptcy System.
On January 10, 2007, the Court issued a Decision & Order in In re Jackson, 358 B.R. 560 (Bankr.W.D.N.Y.2007) ("Jackson'). In Jackson, a copy of which is attached,[**] the Court found that: (1) where the applicable retail installment contract did not itself indicate that negative equity had been refinanced, any interested party objecting to a motor vehicle financer's secured claim receiving treatment under that Section 1325(a)(9) Hanging Paragraph had the initial burden to demonstrate that the secured claim included debt that was not secured by a purchase money security interest; (2) the objecting party could utilize the appropriate NADA Guide value to meet their initial burden of proof as to the trade-in value of a trade-in vehicle, the retail value of a used replacement vehicle, or manufacturer's suggested retail price of a new replacement vehicle; (3) notwithstanding a determination by the Court that an interested party using NADA Guide values may have met their initial burden of proof to demonstrate the refinancing of negative equity, so that a motor vehicle financer's secured claim included debt that was not secured by a purchase money security interest, the motor vehicle financer always retained the right to demonstrate that in fact no negative equity in the trade-in vehicle was refinanced and to request a hearing for the Court to make that determination; and (4) in the event that the Court determined that the allowed secured claim of a motor vehicle financer was to be treated under Section 506(a)(1), the motor vehicle financer always retained the right to dispute any alleged retail value for the vehicle in question, and to request a hearing for the Court to determine the actual retail value.[6]
DISCUSSION
In this case, `this Court finds that the Trustee has met his initial burden of proof to demonstrate to the Court's satisfaction that the two separate financial transactions evidenced by the applicable Retail Installment Contract included the separate transaction *616 where Ontario Honda loaned the Debtors money to refinance the negative equity they had in the Voyager for the following reasons:
1. Ontario Honda gave the Debtors a $17,000.00 allowance for the Voyager, even though the NADA Guide trade-in value for the Voyager was only $8,425.00;
2. Even though the $17,000.00 allowance for the Voyager may have been within the range of the values that resulted in the NADA Guide trade-in value of $8,425.00, although that seems unlikely, the Debtors paid more than $37,000.00 for the Odyssey replacement vehicle that had a manufacturer's suggested retail price of approximately $30,295.00 and a sticker price of $31,010.00; and
3. The overall price paid by the Debtors for the Odyssey indicates that they in fact had significant negative equity in the Voyager.
CONCLUSION
Subject to the right of American Honda to request a hearing by March 12, 2007 on the issues of whether negative equity was refinanced or to determine the retail value of the Odyssey, for the reasons set forth in Peaslee[7] and Jackson, pursuant to Section 506(a)(1)., American Honda shall have an allowed secured claim of $27,425.00, reduced by any payments received in the Phillips Case, to be paid in equal monthly payments together with the applicable Till rate of interest, to be set forth in the Confirmation Order presented to the Court by the Trustee, and an unsecured claim for $5,844.00.
IT IS SO ORDERED.
NOTES
[1] On September 1, 2006, American Honda filed a secured claim (the "American Honda Secured Claim") in the amount of $33,500.00.
[2] The Retail Installment Contract was later assigned to American Honda.
[3] On or about September 8, 2006, the Trustee filed a copy of the window sticker for the Odyssey showing a total vehicle price of $31,010.00, including a $515.00 destination charge.
[4] Section 506 provides, in part, that:
(a)(1) An allowed claim of a creditor secured by a lien on property in which the estate has an interest, or that is subject to setoff under section 553 of this title, is a secured claim to the extent of the value of such creditor's interest in the estate's interest in such property, or to the extent of the amount subject to setoff, as the case may be, and is an unsecured claim to the extent that the value of such creditor's interest or the amount so subject to setoff is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor's interest.
11 U.S.C. § 506 (2006).
[5] The Trustee initially filed objections to confirmation in the cases where he believed that because of the roll-in and refinance of negative equity, the Section 1325(a)(9) Hanging Paragraph did not apply, even though the respective debtor's plan provided for treatment of the secured claim under the Section 1325(a)(9) Hanging Paragraph. It was at the Court's suggestion that the Trustee filed the valuation motions in order to insure that the respective members of the Motor Vehicle Finance Group received clear and detailed notice of the Trustee's position and so the motions could then be set down for consolidated oral arguments.
[*] [Editor's Note: Attachment omitted by publisher for publication purposes.]
[**] [Editor's Note: Attachment omitted by publisher for publication purposes.]
[6] These findings, numbered (3) and (4), were primarily to address the Court's determinations in the ten other cases it had on reserve when Peaslee and Jackson were decided, including this case. Jackson also indicated that in the future these refinancing of negative equity cases would be addressed in connection with objections to confirmation when any response by a motor vehicle financer should address whether it requests a hearing on negative equity or retail value.
[7] The position and principal arguments asserted by American Honda were addressed in Peaslee.
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Case: 12-30026 Document: 00511935224 Page: 1 Date Filed: 07/26/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 26, 2012
No. 12-30026 Lyle W. Cayce
Summary Calendar Clerk
FEDERAL TRADE COMMISSION
Plaintiff-Appellee
v.
ROBERT NAMER
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
CV No. 89-1740
Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
Robert Namer appeals the judgment of the district court approving the
renewal of the United State’s judgment liens created in this matter under the
provisions of the Federal Debt Collection Procedures Act, 28 U.S.C. §
3201(c)(2)(B). Namer argues that the money judgment dated November 8, 1991
became invalid and unenforceable ten years later on November 8, 2001, as it was
*
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: 12-30026 Document: 00511935224 Page: 2 Date Filed: 07/26/2012
No. 12-30026
never revived within ten years after it was rendered as required by Louisiana
Civil Code Article 3501. This argument is without merit.
Although Federal Rule of Civil Procedure 69(a)(1) provides that the federal
government's enforcement by writ of execution "must accord with the procedures
of the state where the court is located," that Rule goes on to provide that
notwithstanding this directive, "a federal statute governs to the extent it
applies." Fed R. Civ. P. 69(a)(1). The Federal Debt Collection Procedures Act of
1990 ("FDCPA") is such a statute. The FDCPA provides that, with the
exception of conflicting federal law, it "provides the exclusive civil procedures for
the United States to . . . recover a judgment on a debt." 28 U.S.C. § 3001. The
judgment liens at issue in this case are “debts” within the meaning of the
FDCPA. Federal Trade Commission v. National Business Consultants, Inc., 376
F.3d 317 (5th Cir. 2004) (an earlier proceeding in this case). The FDCPA further
Provides that it "shall preempt State law to the extent such law is inconsistent."
28 U.S.C. § 3003(d).
The Louisiana state law Namer relies on, Louisiana Civil Code Article
3501, clearly conflicts with the provisions of the FDCPA. It provides that a
money judgment “is prescribed by the lapse of ten years from its signing”
although any party having an interest in the judgment may have it revived
before it prescribes, as provided in Article 2031 of the Code of Civil Procedure.
Id. In contrast, the FDCPA provides for the duration of liens as follows:
(c) Duration of lien; renewal.
(1) Except as provided in paragraph (2), a lien created under
subsection (a) is effective, unless satisfied, for a period of 20 years.
2
Case: 12-30026 Document: 00511935224 Page: 3 Date Filed: 07/26/2012
No. 12-30026
(2) Such lien may be renewed for one additional period of 20 years
upon filing a notice of renewal in the same manner as the judgment
is filed and shall relate back to the date the judgment is filed if–
(A) the notice of renewal is filed before the expiration of the
20-year period to prevent the expiration of the lien; and
(B) the court approves the renewal of such lien under this
paragraph.
28 U.S.C. § 3201 (emphasis added). Louisiana Civil Code Article 3501, which
would preclude enforcement of the judgment after ten years from the entry of
that judgment unless timely revived, is such an inconsistent state law and is,
therefore, preempted. The FDCPA allows twenty years for renewal of
judgments. See 28 U.S.C. § 3201.
Further, because the purpose of the FDCPA "is to create a
comprehensive statutory framework for the collection of debts owed
to the United States government [and to] improve the efficiency and
speed in collecting those debts," H.R. Rep. No. 101-736, at 32 (1990),
a state law limiting such collection is inconsistent with the purpose
of the act and is, therefore, preempted.
United States v. Gianelli, 543 F.3d 1178, 1183 (9th Cir. 2008) (dealing with
California law precluding enforcement of a judgment when 10 years has passed
since the judgment was entered). We agree with Gianelli on the following point
as well.
Although not binding upon us, the reasoning of United States v.
Pierce, 231 B.R. 890, 893 (E.D.N.C. 1998) supports our conclusion.
In Pierce, the district court rejected the argument that where the
government proceeded to enforce a judgment under the FDCPA,
Federal Rule of Civil Procedure 69(a)(1) incorporated a state law
limitation prohibiting enforcement after ten years. Id. That court
reasoned that, in light of the legislative history underlying the
3
Case: 12-30026 Document: 00511935224 Page: 4 Date Filed: 07/26/2012
No. 12-30026
FDCPA and the language of the statute itself, binding the federal
government to state law limitations on enforcement "would
completely thwart the FDCPA's stated purpose of the creation of
uniform federal procedures for the collection of debts to the federal
government." Id.
Accordingly, the judgment of the district court is AFFIRMED.
4
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NO. 07-05-0291-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 2, 2006
______________________________
HELEN M. ABEL, d/b/a 24/7 BAIL BONDS,
Appellant
V.
BEST PUBLICATIONS, L.L.P.,
Appellee
_________________________________
FROM THE 47th DISTRICT COURT OF RANDALL COUNTY;
NO. 55,530-A; HON. HAL MINER, PRESIDING
_______________________________
ORDER DISMISSING APPEAL
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant and appellee, by and through their attorneys, have moved to dismiss the
appeal numbered above due to all matters having been resolved between the parties.
Without passing on the merits of the case, we grant the motion pursuant to Texas Rule of
Appellate Procedure 42.1(a)(2) and dismiss the appeal. Having dismissed the appeal at
the request of both parties, no motion for rehearing will be entertained, and our mandate
will issue forthwith.
Brian Quinn
Chief Justice
sans-serif;
font-size: 12pt;
font-weight: normal;
font-style: normal
}
NO. 07-07-0184-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 28, 2008
______________________________
TAI THANH HO,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 403rd DISTRICT COURT OF TRAVIS COUNTY;
NO. 07-904001; HON. BRENDA KENNEDY, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
After a jury trial, appellant Tai Thanh Ho (appellant) was convicted of the offense
of murder. Punishment was assessed by the jury at seventy-five years in the Texas
Department of Criminal Justice Institutional Division. Appellant timely filed his notice of
appeal.
Appellant’s appointed counsel has filed a motion to withdraw, together with an
Anders
brief, wherein he certifies that, after diligently searching the record, he has
concluded that appellant’s appeal is without merit. Along with his brief, he has filed a copy
of a letter sent to appellant informing him of counsel’s belief that there was no reversible
error and of appellant’s right to appeal pro se. By letter dated October 5, 2007, this court
notified appellant of his right to file his own brief or response by November 5, 2007, if he
wished to do so. Appellant filed a response wherein he contends that 1) the trial court
erred by failing to, sua sponte, give a reasonable doubt instruction to the jury on
extraneous offenses or bad acts, and in allowing witnesses to testify about bad acts
concerning his statement in needing a gun, 2) the State failed to give notice of use of
extraneous offenses, 3) the State failed to comply with Rules 404(b) and 609(f) of the
Texas Rules of Evidence and “Art. 37.07 §3 and Art. 38.37 of T.C.C.P.” and 4) the trial
court erred by allowing testimony regarding his cell phone account.
In compliance with the principles enunciated in Anders, appellate counsel discussed
each phase of the trial including 1) voir dire, 2) admission of crime scene and autopsy
photos at trial, 3) testimony at trial by several witnesses, 4) business records introduced
at trial, 5) legal and factual sufficiency of the evidence at trial, 6) the jury charge for both
guilt/innocence and punishment phases of the trial and 7) jury argument. At each phase,
counsel discussed the applicable law and analyzed the evidence according to that law.
Upon his final analysis, counsel determined no reversible error existed. Thereafter, we
conducted our own review of the record to assess the accuracy of appellate counsel’s
conclusions and to uncover any error, reversible or otherwise, pursuant to Stafford v. State,
813 S.W.2d 503 ( Tex. Crim. App. 1991), along with appellant’s response, and concluded
the same.
Accordingly, the motion to withdraw is granted and the judgment is affirmed.
Brian Quinn
Chief Justice
Do not publish.
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981 So.2d 1204 (2008)
ESCALADE LIMOUSINE CO., LLC
v.
HILLSBOROUGH CO. PUBLIC TRANSP. COM'N.
No. 2D08-1281.
District Court of Appeal of Florida, Second District.
June 3, 2008.
Decision without published opinion. App.dismissed.
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625 A.2d 886 (1993)
Collis E. PORTER, Petitioner,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent,
George Washington University and Liberty Mutual Insurance Company, Intervenors.
No. 92-AA-259.
District of Columbia Court of Appeals.
Argued April 26, 1993.
Decided May 27, 1993.
*887 Collis E. Porter, pro se.
Donald P. Maiberger, Rockville, for intervenor.
Before STEADMAN, SCHWELB, and FARRELL, Associate Judges.
FARRELL, Associate Judge:
Petitioner Collis Porter seeks review of the denial by the District of Columbia Department of Employment Services *888 (DOES) of her claim for disability compensation under the District of Columbia Workers' Compensation Act of 1979, as amended, D.C.Code § 36-301 et seq. (1988). Petitioner was struck by a gurney (a wheeled cot or stretcher) while performing her duties as a nursing assistant at George Washington University Hospital. Following an evidentiary hearing, the DOES hearing examiner found that petitioner's resulting physical injury had been treated successfully and resolved, and that her current disability was not causally related to the accident, but rather stemmed from a preexisting personality disorder. She therefore held that petitioner was not entitled to compensation. The Director of DOES affirmed the examiner's decision. Our task on review "is limited to determining whether the Director's order is in accordance with law and supported by substantial evidence in the record." King v. District of Columbia Dep't of Employment Servs., 560 A.2d 1067, 1072 (D.C.1989). That inquiry, however, requires that we first identify the standard of causation applied by the examiner and the Director.[1]
Petitioner claimed that her present disability was a post-traumatic stress disorder, a serious personality disturbance traceable directly to the gurney accident on the job. Her primary witness in support of this theory was Dr. Ralph Wadeson, a board-certified psychiatrist. The employer/intervenors countered with testimony (via deposition) by Dr. Bruce Smoller, also a board-certified psychiatrist, that petitioner's present condition of severe depression had not been caused by the gurney accident, but stemmed from a pre-existing hysterical/hypochondriacal personality disorder marked by cyclothymic features, i.e., "up and down" shifts in mood.
In McEvily v. District of Columbia Dep't of Employment Servs., 500 A.2d 1022 (D.C.1985), this court considered the agency's rejection of a claim for workers' compensation not unlike the present one. In that case the hearing examiner credited testimony by the intervenor's examining psychiatrist that the petitioner's present "depressive reaction" stemmed from a pre-existing "cyclothymic disorder ... and a narcissistic personality disorder," rather than from conditions of his work. Id. at 1023. In sustaining the examiner's finding that the depression did not arise out of the petitioner's employment,[2] both the Director and the court implicitly approved the test for causation reflected in the psychiatrist's evaluation:
Dr. Schulman could not find any incident, experience, or ongoing occurrence that represented a significant stressor that would have affected anyone who was not so predisposed [to the depressive reaction]. He concluded that there could be no reasonable assessment of job-related stress, because the nature of that stress was highly subjective to petitioner.
Id. (emphasis added).
Subsequently, in Spartin v. District of Columbia Dep't of Employment Servs., 584 A.2d 564 (D.C.1990), the agency employed a similar "standard for cases of [alleged] emotional injury caused by job stress," id. at 568, in considering the claim of an executive consultant that stressful job conditions had caused him to become *889 disabled by depression and other psychological illnesses. As in McEvily, the intervenor's psychiatrist had concluded that job stress was not responsible for the petitioner's emotional illness. In analyzing the evidence of causation, the Director applied a test derived from the agency's earlier decision in Dailey v. 3M Co. & Northwest Nat'l Ins. Co., H & AS No. 85-259 (May 19, 1988), under which, as this court explained,
an employee predisposed to psychic injury could recover if he is exposed to work conditions so stressful that a normal employee might have suffered similar injury. Thus, an employee with a predisposition to mental illness is not precluded from recovering under Dailey.
Spartin, 584 A.2d at 570 (emphasis added). We recognized that the Dailey test "fits within the modern trend to compensate workers for emotional injury caused by job stress" even though they bring to the job some predisposition to emotional illness, but that the test "is objective: it focuses on whether the stresses of the job were so great that they could have caused harm to an average worker." Id. at 569 (emphasis added). While we rejected the petitioner's argument that the Dailey test was an "inappropriate [one] for determining whether [petitioner] suffered a compensable injury," id. at 568, we remanded for further consideration because of (inter alia) faults in the agency's application of "the objective Dailey standard...." Id. at 570.
In the present case, the hearing examiner did not expressly apply the Dailey test or inquire, in McEvily's language, whether petitioner had been involved in an "incident [or] experience ... represent[ing] a significant stressor that would have affected anyone who was not so predisposed"i.e., Dailey's "average worker."[3] Yet in essence that is the test the examiner applied. She found that petitioner's current depressive condition "was not causally related to her ... work injuries," which had resulted in no "objective evidence" of continued disability; rather, it was "related solely to her hysterical/hypochondriacal personality disorder." The Director likewise concluded that petitioner's "alleged stress/psychological disorder was not work-related" because no "specific, articulable source" rooted in the job, no "concrete non-personal stressors" (emphasis added), had been identified as its cause. Both the examiner and the Director concluded, in other words, that the gurney accident would not have caused a person lacking petitioner's subjective, preexisting personality disorder to suffer the disability she now experienced.
As in Spartin, we perceive no reason here why the agency's application of an objective causal test to petitioner's claim of emotional injury is inconsistent with the Workers' Compensation Act. As one court has pointed out,
In cases where the disability or impairment is established, [a contrary] subjective test for causal nexus would result in an award of compensation for virtually all, if not all, claims based on mental disorders. If the claimant perceived that the job conditions caused the mental disorders, even if this were not true, the employer would be liable. [A] subjective formulation ignores the fundamental statutory requirement that diseases or disorders arise out of and in the scope of employment.
McGarrah v. SAIF, 296 Or. 145, 675 P.2d 159, 171 (1983) (emphasis in original). Nor is it decisive that petitioner, unlike the claimant in Spartin, cites a specific job-related accident as the cause of her disorder rather than less easily identified conditions of stress in the employment. Whatever the triggering event or condition, the Director may properly apply a rule for causation in this difficult area of emotional injury that discourages spurious claims one focusing on the objective conditions of the job and their effect on the "normal employee" not predisposed to the injury by a mental disorder.
Our remaining inquiry, therefore, is whether there is substantial evidence in the *890 record which supports the examiner's decision that the gurney accident did not cause petitioner's disabling depression. We conclude that there was. First, the examiner had before him the deposition testimony of Dr. Smoller, Medical Director of the Bethesda Pain Center, who took a complete history of petitioner, reviewed her prior medical records, and performed a physical and psychiatric examination of her. He concluded that petitioner "had a personality disorder consisting of a hysterical personality with cyclothymic features," which "predisposed [her] to seeing her injury as the focus of a series of events which she believes is disabling her." Dr. Smoller could find no residual "objective evidence, [no] damage" stemming from the job accident; rather, petitioner's "personality disorder made it seem to [her] that her symptoms were of greater magnitude than one could find organically...." Petitioner was "turning psychological material into physical," and thus "was predisposed to continuing [to] see[] her injury as disabling." Dr. Smoller could find no evidence of "a life threatening trauma" sufficient to support a diagnosis of post-traumatic stress disorder.
Second, Dr. Smoller's opinion that there was no objective, organic basis for petitioner's disability was supported by the reports of various specialistsincluding a thoracic surgeon, an internist, a rheumatologist, and a neurosurgeonwho examined petitioner in the several years following the accident. They ascribed varying diagnoses to her condition, but most agreed that by the time petitioner's treatment had concluded there was little objective basis for her complaints, or, at least, that her complaints were in excess of what would be expected from her limited physical injury.[4]
Third, the report and testimony of Dr. Ronald Wynne, a clinical psychologist retained by petitioner to conduct a psychological evaluation, partially corroborated Dr. Smoller's opinion. While agreeing with petitioner's psychiatric witness Dr. Wadeson that petitioner suffered from post-traumatic stress disorder, Dr. Wynne also agreed with Dr. Smoller that petitioner had a preexisting personality disorder that included histrionic and hypochondriacal features. He found that petitioner "has a tendency to decompensate somewhat in the face of illness and stress. She ... put[s] problems into her body ... The accident built on this foundation, heightening and exaggerating pre-existing tendencies...."[5]
Finally, Dr. Wadeson's contrary testimony that petitioner's post-traumatic stress disorder was not causally linked to an underlying personality disorder was problematical, as the Director recognized in her decision. In Dr. Wadeson's opinion, "the [gurney] accident on the job caused the post traumatic stress disorder which [petitioner] *891 now experiences." Dr. Wadeson agreed that a diagnosis of post-traumatic stress disorder requires the occurrence of a causative event "catastrophic" to the person involved. He then defined the gurney accident as such an event substantially because of the disability it had produced: "Any injury that takes away a person's livelihood is a catastrophic experience." The Director recognized the ambiguity in this conclusion by pointing out that "Dr. Wadeson's analysis lacked any concrete non-personal stressors correlating the injury and the work environment to post traumatic stress disorder" (emphasis added).[6]
Affirmed.
NOTES
[1] The hearing examiner who entered the compensation order was not the examiner who conducted the hearing and heard the testimony. (The latter had left the agency's employment in the meantime.) But, while decisions of a hearing examiner "are to be given special weight when they depend upon demeanor of witnesses," Dell v. District of Columbia Dep't of Employment Servs., 499 A.2d 102, 106 (D.C.1985) (emphasis added; citation omitted), the deference implicit in our "substantial evidence" standard of review rests on more than the examiner's ability to assess demeanor evidence. Cf. Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985). Moreover, when it became apparent that a new hearing examiner would have to render the compensation decision, petitioner's counsel in the administrative proceedings agreed that the new examiner could decide the case upon the record already constituted. Hence we apply our customary, limited standard of review of the agency's decision.
[2] To be compensable under the Workers' Compensation Act, an accidental injury or death must be one "arising out of and in the course of employment...." D.C.Code § 36-301(12) (1988).
[3] That the examiner did not purport to rely on Dailey is not surprising since the compensation order in that case was not issued until some three months after the examiner issued his order in this case.
[4] For example, on October 24, 1985, Dr. Hix, a thoracic surgeon, diagnosed petitioner as having a possible hematoma or fracture, opining that "the injury was painful, but not serious, and that she would not harm herself nor impede healing by resuming her normal activities ... [but that] she seems quite distraught about the condition." On November 7, 1985, he noted that she was less symptomatic and did not evidence any significant tenderness of the chest area, and that "it was safe for her to return to work."
Petitioner was admitted to the George Washington University Hospital on January 8, 1986 for back pain. She was given a lumbosacral corset and cane and discharged on January 24, 1986, with orthopaedist Dr. Wiesel noting that "[s]he underwent exhaustive testing with a CAT scan, myelogram, neurologic and neurosurgical consults and there was no mechanical problem found to account for her back pain."
Finally, a neurologist, Dr. Stevens, examined petitioner in early 1987 and concluded that there were no objective signs of injury and no neurologic sequelae. He concluded that it would be in petitioner's best interests to return to work as soon as possible.
[5] Dr. Wynne testified:
[i]f something happens to [petitioner], instead of developing a psychological symptom, she develops a bodily symptom. She acts out her emotional problems inside her body. She is very tuned into her body, very tuned into bodily problems....
* * * * * *
She has this tendency to sort of park emotional problems in her body, to focus on what is going on inside her body, to assume that something is going on there that must be wrong, to become anxious about it. The anxiety has kind of fed on itself so that there are just all sorts of things in her life right now which essentially have her emotionally immobilized. The data from the different measures support that.
[6] Even if Dr. Wadeson's testimony were fully credited, moreover, we have stated that, "[w]here there is substantial evidence to support the Director's findings, ... then the mere existence of substantial evidence contrary to that finding does not allow this court to substitute its judgment for that of the Director." McEvily, 500 A.2d at 1024 n. 3.
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294 So.2d 841 (1974)
L. G. CAMPBELL, Plaintiff-Appellee,
v.
Ray GRAY et al., Defendants-Appellants.
No. 12238.
Court of Appeal of Louisiana, Second Circuit.
February 12, 1974.
Rehearing Denied March 19, 1974.
Wilkinson, Carmody & Peatross, by John M. Madison, Jr., Shreveport, for defendant-appellant, Ray Gray.
Nelson, Ltd., by Harry R. Nelson, Shreveport, for defendant-appellant, Demopulos & Ferguson, Inc.
Campbell & Campbell, by L. G. Campbell, Bossier City, for plaintiff-appellee.
Before BOLIN, PRICE and WILLIAMS, JJ.
En Banc. Rehearing Denied March 19, 1974.
BOLIN, Judge.
From a judgment in favor of L. G. Campbell against Ray Gray and Demopulos & Ferguson, Inc., in solido, for $2,000 for a willful trespass committed by defendants on plaintiff's land, defendants appeal. We affirm the ruling of the lower court.
Plaintiff's residence faces west and is located on a corner plot of land in Benton, Bossier Parish, Louisiana. It is bounded on the west by Louisiana Highway No. 3 and on the north by the old Bellevue Road. The Town of Benton entered into a written contract with Ray Gray to extend a six-inch sewer line in order to serve the new Bossier Parish Courthouse being constructed south of plaintiff's property. Gray bid on and was awarded the contract by the Town of Benton to perform the work in accordance with plans drawn by Demopulos & Ferguson, Inc., consulting engineers. Gray subsequently "farmed out" the work to R. L. Pierson d/b/a P & S Construction Company.
In preparation for doing the construction work Pierson was furnished a plat by Demopulos & Ferguson depicting the location of the sewer line which was to run west along the south right-of-way of the old Bellevue Road, adjacent to plaintiff's property on the north; thence turn south across the entire front lawn of plaintiff's property approximately 20 feet from the right-of-way of Highway 3. Pierson's agents and employees dug a deep ditch and laid the line west along the south right-of-way *842 of the old Bellevue Road, thence continued south across plaintiff's property, until the Mayor of Benton sent word for the work to be immediately discontinued. The construction across plaintiff's property was done without his knowledge or consent, without obtaining a right-of-way, and without any stakes or markers being placed thereon denoting the intended location of the line. Plaintiff did not learn of the digging of the ditch and laying of the pipeline across his property until late in the afternoon after the damage had been done.
While there is some conflict in the evidence, we agree with the findings of the trial judge that both Ray Gray, through his agents, and Demopulos & Ferguson were guilty of a willful trespass across plaintiff's land. Pierson was in bad faith because he admitted he dug the ditch and laid the pipe across plaintiff's yard knowing it was on private property and that this action was taken prior to the engineer laying out the line or placing any stakes thereon. Demopulos & Ferguson was in bad faith because its employee was on the site the day of the trespass, saw the pipe lying on the ground, knew or should have known Pierson intended to lay the pipe across plaintiff's property, knew no right-of-way had been obtained but did nothing to prevent the trespass taking place. We experience no difficulty in finding as a fact Gray and Demopulos & Ferguson were guilty of a willful trespass.
The lower court awarded plaintiff a total of $2,000, being $500 for actual damages and $1500 for "humiliation, mental anguish, and aggravations connected with this trespass."
Several witnesses testified as to the amount that would be required to restore the lawn to its original condition. These estimates ranged from $125 by defendants' witnesses to $2000 by plaintiff's witnesses. The lower court awarded $500 for this item and we find this amount is reasonable and the award is amply justified by the record.
In support of the award of $1500 the district judge in his written reasons cited the following cases: Loeblich v. Garnier (La.App. 1 Cir. 1959) 113 So.2d 95; Loe v. Whitman (La.App. 2d Cir. 1958) 107 So. 2d 536; and General Accident Fire & Assurance Corp. v. Humble Oil, etc. (La.App. 1 Cir. 1971), 243 So.2d 865.
As noted by the trial judge, the Loeblich case contains an excellent review of the jurisprudence relating to "exemplary damages". There the court said:
"The often found general statement that only compensatory and not punitive damages are awardable in Louisiana is in apparent conflict with the awards often made for damages for mental anguish and embarrassment caused by an illegal and deliberate violation of property rights or for such violation itself irrespective of any pecuniary damage caused thereby (which damages, according to the definition above cited, are regarded in other states as exemplary or punitive damages). The key to resolution of this conflict seems to be that in such circumstances such awards in Louisiana are regarded as compensatory for violations of a recognized property right, rather than punitory."
We agree with the trial judge that the trespass in this case was willful and committed by both defendants without a vestige of legal right or good faith. Since the trier of facts was in a much better position than this court to determine the extent and nature of the damages for humiliation, mental anguish and aggravation caused plaintiff by this willful trespass, we choose not to change the amount of his award.
Having found both Ray Gray and Demopulos & Ferguson equally at fault, Gray's third party demand against Demopulos & Ferguson was properly rejected.
The judgment of the lower court is affirmed at appellants' cost.
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211 P.3d 1267 (2009)
STATE of Arizona ex rel. INDUSTRIAL COMMISSION of Arizona, Plaintiff/Judgment Creditor/Appellee,
v.
Tommy WORD dba Pacific Mechanical Service, Defendant/Judgment Debtor/Appellant.
No. 1 CA-CV 08-0218.
Court of Appeals of Arizona, Division 1, Department B.
April 21, 2009.
*1268 Terry Goddard, Arizona Attorney General By Miral A. Sigurani, Assistant Attorney General, Phoenix, Attorneys for Plaintiff/Judgment Credtior/Appellee.
Philip R. Wooten PC By Philip R. Wooten, Phoenix, Attorney for Defendant/Judgment Debtor/Appellant.
OPINION
DOWNIE, Judge.
¶ 1 Tommy Word, dba Pacific Mechanical Service ("Word"), appeals the superior court's denial of his motion for relief from judgment pursuant to Rule 60(c), Arizona Rules of Civil Procedure. Resolution of this case turns on interpretation of Arizona Revised Statutes ("A.R.S.") section 23-907(E), a statute addressing the collection of judgments from employers who fail to maintain workers' compensation insurance for their employees. For the following reasons, we reverse the superior court's ruling and remand with instructions to grant Word's Rule 60(c) motion.
FACTS AND PROCEDURAL BACKGROUND
¶ 2 In August 1991, Robert Ruehrmund was injured while working on a job for Word. Word did not have workers' compensation insurance. Pursuant to A.R.S. 23-907(B), in lieu of proceeding against Word in a civil action, Ruehrmund opted to apply for benefits through the statutorily-established "Special Fund" administered by the Industrial Commission of Arizona ("ICA" or "Commission").
¶ 3 On September 18, 1991, the Special Fund issued a "Notice of Determination Pursuant to A.R.S. 23-907(B)." The notice stated that Ruehrmund's claim had been accepted, though it did not establish the amount or type of benefits to be paid. The notice advised Word that he could request a hearing if he disagreed with the Commission's determination.
¶ 4 Word requested a hearing, which was held on January 22, 1992 before an administrative law judge ("ALJ"). Among other things, Word contended that Ruehrmund was an independent contractor and not his employee at the time of the injury.
¶ 5 On April 10, 1992, the ALJ issued a "Decision Upon Hearing and Findings and Award for Compensable Claim." The concluding portion of that document states:
AWARD
IT IS ORDERED AS FOLLOWS:
1. The caption is amended to show that the defendant employer is RHONDA & TOMMY WORD, husband and wife, dba Pacific Mechanical Service.
2. The applicant is awarded hospital, surgical and medical benefits as provided for by law from August 2, 1991 until his condition becomes medically stationary.
3. The applicant is awarded compensation benefits as provided for by law from August 2, 1991 until his condition becomes stationary.
*1269 The ALJ's ruling further stated that the award would become final unless a timely request for review were filed.
¶ 6 Word filed a request for review, which the ALJ denied. Word and his wife then filed a special action in this court. They argued that the ALJ erred in amending the caption at the time of hearing to add them individually as parties. Word v. Indust. Comm'n of Ariz., 175 Ariz. 474, 476, 857 P.2d 1328, 1330 (App.1993). We held that the ALJ exceeded his authority in adding Mrs. Word as a party, but affirmed the AL J's decision in all other respects. Id.
¶ 7 On December 3, 1993, the ICA issued a document captioned "Continuing Award," listing payments that the Special Fund had made on Ruehrmund's claim between August 2, 1991 and November 29, 1993. This document states, in pertinent part:
Pursuant to ARS Section 23-907(C),[1] the non-insured employer in the above-captioned claim is hereby notified of their liability to the Special Fund of the Industrial Commission of Arizona as follows:
Balance Forward $
----------
Medical Benefits $ 3,669.22
----------
Compensation Benefits $14,264.86
----------
Permanent Benefits $
----------
Death Benefits $
----------
Benefits Total $17,934.08
__________
Penalties $ 1,793.41
----------
Employer Payments to ICA $
___________
TOTAL $19,727.49
The Industrial Commission of Arizona shall file a judgment for the amounts listed together with attorney's fees, interest, and costs to the extent permitted by law, with the clerk of the superior court and shall record such judgment as a lien with the county recorder. Be advised that this award is made only for the purpose of notifying the non-insured employer of its liability to the Special Fund.
The document further advised Word of his right to request a hearing if he disagreed "with the calculations set forth in this AWARD. . . ." It also stated that the "award" would become final if no timely hearing request were filed. Word did not request a hearing.
¶ 8 On May 20, 1994, the ICA issued a "Supplemental Continuing Award." Except for the title, dates, signature, and dollar amounts, this document is identical to the December 3, 1993 "Continuing Award" outlined in the preceding paragraph. It lists a "balance forward" of $17,934.08, medical benefits of $5,708.29, compensation benefits of $3,169.42, and penalties of $2,681.18, for a total of $29,492.97. The ICA issued a second "Supplemental Continuing Award" on March 9, 1998 in the same form. It reflects a balance forward of $26,811.79, medical benefits of $18,687.53, compensation benefits of $30,302.03, and penalties of $7,580.14, for a total of $83,381.49.
¶ 9 The ICA made its last payment to Ruehrmund on November 18, 1998. Almost two years later, on October 11, 2000, the Commission issued a document captioned "Final Award." The format mirrored the earlier "awards" and listed a balance forward of $75,801.35, medical benefits of $858.00, and penalties of $7,665.93, for a total of $84,325.28. The ICA filed this "Final Award" with the Clerk of the superior court on July 11, 2001 and recorded it with the county recorder on July 25, 2001. The ICA did not file or record any of the earlier "awards."[2] Almost six years later, in April 2007, the ICA obtained and served several writs of garnishment in an attempt to collect on the Final Award from Word.
¶ 10 In October 2007, Word filed a motion for relief from judgment pursuant to Rule 60(c). He argued that the ICA had no valid judgment to enforce because the eight-year *1270 limitations period set forth in A.R.S. § 23-907(E) had lapsed. By minute entry order dated January 7, 2008, the superior court denied Word's motion, finding that the limitations period began to run when the "Final Award" was issued on October 11, 2000 and not on the earlier dates advocated by Word. The court entered a formal, signed order on February 22, 2008. Word timely appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(B), (C), and (E).
DISCUSSION
¶ 11 We review a superior court order denying relief from judgment under Rule 60(c) for an abuse of discretion. City of Phoenix v. Geyler, 144 Ariz. 323, 328, 697 P.2d 1073, 1078 (1985). However, an abuse of discretion occurs if the trial court commits an error of law in exercising its discretion. Fuentes v. Fuentes, 209 Ariz. 51, 56, ¶ 23, 97 P.3d 876, 881 (App.2004). We consider issues of statutory interpretation de novo. City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, 178, ¶ 5, 181 P.3d 219, 225 (App.2008); Johnson v. Johnson, 195 Ariz. 389, 391, ¶ 9, 988 P.2d 621, 623 (App.1999).
A.R.S. § 23-907(E)
¶ 12 This dispute hinges on interpretation of A.R.S. § 23-907(E), which reads:
The employer shall be notified of the employer's liability to the special fund periodically and this notice shall include a ten per cent [sic] penalty of the amount expended by the special fund or a penalty of one thousand dollars, whichever is greater, plus interest on the amount expended and the penalty pursuant to § 44-1201. The payments made from the special fund pursuant to the award plus the penalty shall act as a judgment against the employer. The commission shall file the award in the office of the clerk of the superior court in any county in the state and such award shall be entered in the civil order book and judgment docket and when so filed and entered shall be a lien for eight years from the date of the award upon the property of the employer located in the county. Execution may issue thereon within eight years in the same manner and with like effect as if the award were a judgment of the superior court.
¶ 13 When interpreting a statutory provision, courts look primarily to the statute's language and give effect to the statute's terms in accordance with their commonly accepted meanings. State v. Reynolds, 170 Ariz. 233, 234, 823 P.2d 681, 682 (1992). Where a statute's language is "clear and unambiguous, we apply it without resorting to other methods of statutory interpretation." Hayes v. Cont'l Ins. Co., 178 Ariz. 264, 268, 872 P.2d 668, 672 (1994).
¶ 14 Breaking down A.R.S. § 23-907(E) into its operable components, we find the statutory rights and obligations to be clear and unambiguous. Specifically:
1. The ICA was required to notify Word "periodically" of the amount of his liability to the Special Fund, which increased over time as benefits were paid on Ruehrmund's claim. It is uncontested that the Commission complied with this requirement.
2. The employer notices had to include certain statutory penalties. The notices here complied.
3. The ICA was required[3] to file "the award" with the superior court Clerk. Such an award, when entered in the civil order book and judgment docket, becomes "a lien for eight years from the date of the award upon the property of the employer." Execution on that lien may issue "within eight years in the same manner and with like effect as if the award were a judgment of the superior court." We discuss this clause in more detail infra.
4. Payments made from the Special Fund pursuant to "the award" (plus penalties) "shall act as a judgment against the employer." We also analyze this provision below.
The Commission Did Not File "the Award."
¶ 15 The Commission conceded below that, "[a]n Original Award was issued . . . on *1271 April 10, 1992." As noted supra, however, the only document the ICA filed with the superior court clerk was the "Final Award" dated October 11, 2000. Notwithstanding its caption, this document was not an "award," as that term is defined by the legislature and Arizona case law. It did, however, qualify as one of the statutorily-required notices sent to employers periodically to advise them of their liability to the Special Fund.
¶ 16 Section 23-901(1) defines "Award" as "the finding or decision of an administrative law judge or the commission as to the amount of compensation or benefit due an injured employee." A.R.S. § 23-901(1). As Word correctly notes, "awards" adjudicate rights of injured workers. "Awards" are not synonymous with the statutory employer notices required by A.R.S. § 23-907(E). The latter are in the nature of accounting documents generated after payments have already been made pursuant to an existing award. Indeed, the introductory language of the "Final Award" (and the other so-called "awards") advises that the document is being sent for the purpose of notifying Word of his liability to the Special Fund. It is also significant that employers like Word may request a hearing only if they disagree with "the calculations" set forth in the statutory notices. By contrast, Word could contest not merely the mathematical accuracy of the original award, but also the underlying substantive decision.[4]
¶ 17 The Commission's reliance on Meva Corp. v. Industrial Comm'n, 15 Ariz.App. 20, 485 P.2d 844 (1971), is unpersuasive. Although this Court acknowledged the relative breadth of the term "award" in Meva, we recognized an important limitation. Specifically, we held that an "award" includes "[a]ny formal written document in a matter adjudicating the right of a workman." 15 Ariz. App. at 24, 485 P.2d at 848 (emphasis added). The statutory notices at issue here did not adjudicate any rights of Ruehrmund, but merely summarized amounts that had already been paid on his claim.
¶ 18 Our interpretation is bolstered by the statutory language that "payments" made pursuant to "the award" act as a judgment against the employer. A.R.S. § 23-907(E). The statute speaks of "payments" made by the Special Fund in the plural, but uses the term "award" in the singular. It also contemplates payments made pursuant to a pre-existing award, not an "award" filed years after benefit payments cease.
¶ 19 Applying the clear language of the statute, we determine that the ICA must file "the award," which then acts as a lien on the employer's property.[5] Thereafter, as benefit payments are made, by operation of law, the amounts paid can be recouped as a judgment against the employer. This process is analogous to that created in A.R.S. § 25-503(1), dealing with child support orders, which provides:
The right of a party entitled to receive support or the department to receive child support payments as provided in the court order vests as each installment falls due. Each vested child support installment is enforceable as a final judgment by operation of law.
(Emphasis added.)
¶ 20 If it chooses to do so, the ICA may begin enforcement proceedings against an employer immediately upon paying benefits on a claim. Prompt collection action is consistent with the legislative history of A.R.S. *1272 § 23-907. In considering 1977 amendments that provided for immediate benefit payments by the Special Fund versus waiting to see whether an employer would make full payment, the legislature considered the following testimony by the Commission:
Mr. Budd of the Industrial Commission spoke in support of the bill. He said there are problems with uninsured employers operating in the state unlawfully and when an employee is injured his compensation is paid for out of the special fund of the Industrial Commission. He added that presently by the time the money is payable the employer is out of business and cannot be found and the special fund must make a payment without being able to recover its costs which is a tax upon the insurance carriers of the state.
Workmen's Compensation; Benefits; Special Fund Liability: Minutes of S.B. 1100 Before Comm. on Agriculture, Commerce and Labor, 33d Leg. 1st Sess. 10 (Ariz.1977).
¶ 21 Finally, a contrary interpretation of A.R.S. § 23-907(E) would allow the Commission to wait years or even decades before issuing a final "award," placing the eight year limitations period solely within the control of the ICA.[6] If the legislature intended such a result, we presume that it will amend the statute to so reflect.
CONCLUSION[7]
¶ 22 Pursuant to A.R.S. § 23-907(E), the Commission must file "the award" to perfect its judgment rights. That did not occur here. As a result, the Commission has no valid judgment. The superior court should have granted Word's Rule 60(c) motion.
¶ 23 Word requests an award of attorneys' fees incurred on appeal pursuant to A.R.S. § 12-348. A.R.S. § 12-348(A)(1) provides that the court shall award fees to a party that prevails on the merits in a civil action brought by the state or a city, town or county. See also MVC Const., Inc. v. Treadway, 182 Ariz. 615, 898 P.2d 993 (App.1995) (the use of the words "shall award fees" in A.R.S. § 12-348(A), as well as the legislative history, indicate that the legislature intended to make such an award mandatory); Columbia Parcar Corp. v. Ariz. Dep't of Transp., 193 Ariz. 181, 184, ¶ 19, 971 P.2d 1042, 1045 (App.1999) (there is a strong public policy in favor of awarding attorneys' fees to parties who are required to litigate against governmental entities and who ultimately succeed). Upon compliance with Rule 21 of the Arizona Rules of Civil Appellate Procedure, we award Word his costs and attorneys' fees (subject to the limitations in A.R.S. § 12-348(E)) incurred on appeal.
¶ 24 This matter is remanded to the superior court with instructions to grant Word's Rule 60(c) motion. The superior court shall also reconsider Word's request for attorneys' fees incurred in that court in light of the fact that he is now the prevailing party.
CONCURRING: JON W. THOMPSON, Presiding Judge, and DONN KESSLER, Judge.
NOTES
[1] The employer notifications were sent to Word at a time when the relevant statutory provision was A.R.S. § 23-907(C). In 2003, the statute was amended, and subsection (C) became subsection (E). There was also an increase in the statutory penalties. In other relevant respects, the statute remained the same.
[2] On February 1, 2002, the Commission issued a "Continuing Award" that reduced the balance owed by Word to $81,952.01. The ICA filed this award in the superior court on January 17, 2008.
[3] The term "shall" is ordinarily interpreted as mandating the subsequently described action. See In re Maricopa County Superior Court No. MH XXXX-XXXXXX, 206 Ariz. 367, 369, 78 P.3d 1088, 1090 (App.2003).
[4] At oral argument, counsel for the Commission suggested that Word could have requested a hearing to challenge more than "the calculations." The Commission's communications, however, do not say this. Additionally, the ICA cites no authority for this proposition. Moreover, the employer notices do not include any back-up documentation for "the calculations." Given the fact that an employer must request a hearing within 10 days if he disagrees with "the calculations," the notion that he can evaluate and contest substantive decisions in time to request a hearing strains credulity. Finally, it is significant that other "notices" and "awards" advised Word that he could contest the Commission's "determination" by requesting a hearing within 30 days. A "determination" connotes substance, whereas the term "calculations" connotes mathematical accuracy.
[5] Although we are not required to decide the question given the facts presented, if the ICA issues multiple true awards over the course of a claim, those awards could presumably be filed as entered, preserving the Commission's ability to seek reimbursement for the full amount of benefits paid.
[6] In the case at bar, the Commission waited almost two years after the last benefit payment was made before issuing a "Final Award." Nine months later, it filed the "award," which lay dormant for almost six years until the ICA sought writs of garnishment.
[7] Based on our determination that the ICA failed to perfect its judgment rights, we need not decide whether and how the Commission can renew its judgment rights.
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4 F.2d 142 (1925)
TURK et al.
v.
NEWARK FIRE INS. CO.
No. 10892.
District Court, E. D. Pennsylvania.
January 8, 1925.
*143 Arthur S. Arnold, of Philadelphia, Pa., for plaintiffs.
Horace M. Schell, of Philadelphia, Pa., for defendant.
McKEEHAN, District Judge.
This is a suit on a fire insurance policy for $6,000 issued by the defendant to the plaintiffs as owners of premises 316 Market street, Chester, Pa. A loss occurred amounting to $14,276, and the question is whether the defendant is liable for 6/16 of this loss, or $5,353.50, as claimed by the plaintiffs, or for only 6/21, or $4,079, as claimed by the defendant. This depends upon whether the total contributing insurance upon the plaintiff's interest in the property was $16,000 or $21,000.
On May 31, 1919, the property in question was acquired by the plaintiffs by purchase from Bristol R. Lord, Jr., and William K. Lord, whereupon the plaintiffs placed three insurance policies on the property, the policy in suit for $6,000; a policy of the Firemen's Insurance Company for $5,000; and a policy of the Colonial Fire Underwriters for $5,000 (a total of $16,000), all of which were in effect at the time of the fire, which occurred on February 17, 1924.
Immediately prior to the conveyance the Lord Bros. had owned 316 Market street and also the adjoining property, 318 Market street, and on April 20, 1919, had secured a policy for $5,000, covering both properties from the Springfield Fire & Marine Insurance Company; the policy being issued to Bristol R. Lord, Jr., and William K. Lord. The latter policy was not purchased by the plaintiffs from the Lord *144 Bros., was never assigned to the plaintiffs, and there was no agreement for its purchase by the plaintiffs. It appears from the pleadings that at the time of the conveyance the Springfield policy was in the possession of George K. Crozer, Jr., treasurer, as mortgagee under the standard New York mortgage clause. The affidavit of defense avers that a few weeks after the conveyance Messrs. Gray & Co., the writing agents of the Springfield Company "acquired knowledge of the transfer of the said property," and that subsequently, on October 24, 1919, Mr. Crozer delivered the policy to Gray & Co. for the purpose of having an indorsement placed thereon, changing the mortgagee's interest from George K. Crozer, Jr., treasurer, to J. Lewis Crozer Library, which change was duly made by indorsement attached to the policy. Upon these averments the defendant bases the contentions, first, that in view of Gray & Co.'s knowledge, this new indorsement, in spite of the change of ownership, rendered the policy valid as between the Springfield Company and the mortgagee, and that, being valid as to the mortgagee, it should, as between the parties to this suit, be considered as contributing insurance and pro rata with the policies carried by the plaintiffs on their property; second, that by the new indorsement, the Springfield Company ratified the transfer of ownership, and would be estopped from setting that up in a suit by the plaintiffs.
The first argument is based, I think, upon a misconception of the contractual relationships that exist between an insurer and an insured owner on the one hand and the insurer and a mortgagee on the other hand. A mortgagee clause creates a new and separate contract between the insurer and the mortgagee, and effects a separate insurance of the interest of the mortgagee, not affected for the most part by any act or neglect of the mortgagor of which the mortgagee is ignorant. Syndicate Insurance Co. v. Bohn, 65 F. 165, 12 C. C. A. 531, 27 L. R. A. 614; Pennsylvania Co. for Insurance on Lives, etc., v. Aachen (D. C.). 257 F. 189. Whether the mortgagee can recover from the Springfield Company is immaterial. The Springfield policy contained the usual clause that it should be void "if the interest of the insured be other than unconditional and sole ownership." The mortgagee clause modified this provision only so far as the mortgagee was concerned. It provided that "as to the interest of the mortgagee" the policy should not be invalidated by a change in ownership providing the mortgagee notified the company of any change of ownership which might come to its knowledge, and providing also that, if the insurer should pay the mortgagee any loss under the policy and claim that as to the mortgagor or owner no liability existed, the insurer would, to the extent of such payment, be subrogated to all of the rights of the mortgagee. The owners insured by the Springfield Company policy were the Lord Bros. They conveyed the property to the plaintiffs, but no assignment of the policy to them was made or contemplated. The Springfield Company has no contractual relationship with the plaintiffs, and, as I say, its liability, if any, to the mortgagee is immaterial to this suit.
The defendant's argument that the Springfield Company would be estopped in a suit by the plaintiffs to set up the change of ownership as a defense is, I think, equally without merit. In the first place, I agree with the learned counsel for the plaintiffs that the simple averment that in June, 1919, the Springfield Company's writing agents "acquired knowledge of the transfer of the said property" by Lord Bros. is too vague and is insufficient under the authorities to charge the Springfield Company. The agent's knowledge must have been acquired in his capacity as agent, regarding a matter within the scope of his agency, and the averment should be specific as to this. Again, the insurer's willingness to name a new mortgagee or the same mortgagee under another name, could scarcely be construed as a waiver of any right it had against the owner. Furthermore, waiver and estoppel are equitable doctrines, founded on the principle that one who has induced another into acting or forbearing to act may not, to the other's injury, set up a defense inconsistent with what he induced the other to rely upon. Defendant does not aver that the plaintiffs acted or forbore to act in the belief that they had an insurance policy with the Springfield Company. The affidavit does not even aver that the plaintiffs (or, for that matter, the defendant) knew of the existence of the Springfield policy, and the statement of claim expressly avers that the plaintiffs never knew of its existence until after the fire.
The defense just referred to assumes, of course, that but for the alleged estoppel the Springfield Company would not be a contributing insurer. I think there can be no doubt as to this. To constitute "other" or "contributing" insurance the *145 policies must cover the same interest, the same property, and the same risk. Sloat v. Insurance Co., 49 Pa. 14, 88 Am. Dec. 477; Yanko v. Insurance Co., 31 Pa. Super. Ct. 1; Meigs v. Insurance Co., 205 Pa. 378, 54 A. 1053; King v. Lancaster, 45 Pa. Super. Ct. 464. The Springfield Company insured the interest of the Lord Bros. The loss was sustained by the plaintiffs, whose interest was not insured by the Springfield policy.
Even if the Springfield policy ran in favor of the plaintiffs, the defendant could not set up that policy in mitigation of its liability, for the reason that the policy sued on is a Pennsylvania contract, to be construed according to Pennsylvania law, and, as the policy sued on covered only 316 Market street, and the Springfield policy covered both 316 and 318 Market street, the Pennsylvania rule would be applicable that, where the insured has a policy covering several parcels of property and also specific insurance covering only one parcel, the latter must be entirely exhausted before the other policies can be called upon for contribution, the two classes of policies covering different subjects, risks, and interests. Meigs v. Insurance Co., 205 Pa. 378, 54 A. 1053; Zeigler v. Commonwealth Union Assurance Co., 38 Pa. Super. Ct. 532; Clarke v. Assurance Co., 146 Pa. 561, 23 A. 248, 15 L. R. A. 127, 28 Am. St. Rep. 821. It is true that Judge McPherson in Meigs v. London Assurance Co. (C. C.) 126 F. 781, declined to accept the Pennsylvania rule, holding that "the question is one of general commercial law upon which the federal courts are at liberty to entertain an independent opinion." But in Home Insurance Co. v. Baltimore Warehouse Co., 93 U. S. 527, 23 L. Ed. 868, upon which Judge McPherson relied, no question of the lex loci contractus was raised or considered, and I think it clear that the obligation of an insurance contract, like that of any other contract, rests upon the law under which the contract was made, and that the federal courts will not, under the pretext of a "general commercial law," read into such a contract something that was not intended by the parties. Northwestern Mutual Life Insurance Co. v. McCue, 223 U. S. 234, 32 S. Ct. 220, 56 L. Ed. 419, 38 L. R. A. (N. S.) 57. Indeed, it may be seriously doubted whether there is any such thing in this country as a "general commercial law." While the phrase is often used, probably as a result of Mr. Justice Story's opinion in Swift v. Tyson, 41 U. S. (16 Pet.) 1, 10 L. Ed. 865, it really means little more than that in some cases the federal courts will follow the decisions of state courts and in other cases will not. It would be difficult to add to what Mr. Chief Justice Mitchell said on the subject in Forepaugh v. Railroad Co., 128 Pa. 217, 18 A. 503, 5 L. R. A. 508, 15 Am. St. Rep. 672. The importance of adhering to the lex loci contractus in ascertaining the meaning of a contract could scarcely be better illustrated than by a case involving such a long-established and well-understood rule as the Pennsylvania rule just referred to.
It remains to notice one further defense. The statement of claim avers that, after the fire, the plaintiffs, acting under mistaken advice that the Springfield Company was liable, filed proofs of loss with that company, and were later advised by their counsel that the Springfield Company was without liability to them. The affidavit of defense avers that at the time the loss was settled and adjusted "it was agreed by and between the General Adjustment Bureau, acting for and on behalf of the defendant, and the Pennsylvania Salvage Company, acting for and on behalf of the plaintiffs, that the amount of the agreed loss, to wit, $14,276, was to be paid by apportioning the said loss to $21,000 of insurance carried by the said plaintiffs upon said premises at the time of the said alleged fire." This averment does not sufficiently plead a compromise or accord and satisfaction. The plaintiffs are not estopped from asserting the truth simply by having filed a proof of claim against the Springfield Company in the mistaken belief that this company was liable. Baldi v. Insurance Co., 24 Pa. Super. Ct. 288; Penn Furniture Co. v. Insurance Co., 47 Pa. Super. Ct. 77. The affidavit of defense sets up no consideration for the alleged agreement either by way of advantage to the plaintiff or disadvantage to the defendant. It avers no change in the status quo of either party. No satisfaction is pleaded which is necessary to give effect to an accord. Diller v. Brubaker, 52 Pa. 498, 91 Am. Dec. 177; Martin v. Frantz, 127 Pa. 389, 18 A. 20, 14 Am. St. Rep. 859; Hosler v. Hursh, 151 Pa. 415, 25 A. 52; Fink v. Farmers' Bank, 178 Pa. 154, 35 A. 636, 56 Am. St. Rep. 746.
Judgment may be entered for the plaintiffs in the sum of $5,353.50, with interest from May 12, 1924, for want of a sufficient affidavit of defense.
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113 Ga. App. 328 (1966)
147 S.E.2d 782
HOARD et al.
v.
WILEY.
41567.
Court of Appeals of Georgia.
Argued October 6, 1965.
Decided March 17, 1966.
*331 Floyd G. Hoard, for appellants.
Quillian & Quillian, Alfred A. Quillian, for appellee.
BELL, Presiding Judge.
This case affords the court an opportunity to bring into a somewhat better focus a phase of the law which has become confusing and hazy through too many ill-considered opinions originating in the appellate courts. The issue concerns the always elusive question of value which, it is safe to say, is present in some manner in a majority of the civil cases litigated.
1. It is to be observed from the factual summation that the plaintiff, as owner of the goods, testified without any explanation that in his opinion the value of the beer "was $200.00 or better." Viewing the quoted testimony in its most favorable light and without considering plaintiff's other testimony on cross examination which gravely detracts from its efficacy, that testimony standing alone would not authorize a verdict in plaintiff's favor for that or any other sum.
When a witness is called to testify as to the value of something, in effect he is asked to estimate or to appraise the worth of the thing. Value means "1. To estimate the worth of; to rate at a certain price; to appraise. . . 2. to place a certain estimate of worth on in a scale of values. . ." Webster's New Twentieth Century Dictionary (2d Ed., c. 1964). Applying the simple meaning of the word it is obvious that it is infrequent indeed when testimony as to value, whether relating to chattels, services, realty, or anything else, amounts to more than an expression of the witness' opinion. Rarely is testimony as to value testimony as to a fact. "Value in its essence is exclusively a matter of opinion. . ." Gulf Refining Co. v. Smith, 164 Ga. 811 (4) (139 SE 716). "After all, every estimate of value is a mere matter of opinion, and this principle is recognized by the courts." Reidsville &c. R. Co. v. Baxter, 13 Ga. App. 357, 366 (79 SE 187). This court found no error in a trial judge's charge which stated, "As to what any piece of property might be worth at a given time is necessarily a question of the witness' opinion. . ." Ward v. Nance, 102 Ga. App. 201 (6) (115 SE2d 781).
*332 Thus when an opinion is sought from a witness as to the value of a thing, it is necessary that it be shown that the witness has some knowledge, experience or familiarity with the value of the thing or of similar things. This foundation is essential in order to show the bases or the reasons for the witness' opinion as to the value of the thing. In absence of that showing, the testimony is inadmissible and is utterly insignificant since it represents nothing more than an unsupported conclusion or guess of the witness.[1] For that reason, even though testimony of that type be admitted without objection and remain in the record, it cannot support a verdict as it has no probative value. "One need not be an expert or dealer in the article, but may testify as to value, if he has an opportunity for forming a correct opinion." Code § 38-1709. "Where the question under examination . . . shall be one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor." Code § 38-1708. The plain language of our Code sections (supra) precludes an owner from testifying to the value of his goods in a single or gross amount without "giving his reasons therefor" or else showing that he has had "an opportunity for forming a correct opinion." The Georgia courts have generally *333 so construed the statutes. See Baker v. Goddard, 205 Ga. 477, 482 (53 SE2d 754); Central Railroad v. Wolff, 74 Ga. 664; Cohn v. Rigsby, 60 Ga. App. 728, 730 (5 SE2d 93); Firemen's Ins. Co. v. Allmond, 105 Ga. App. 763, 766 (125 SE2d 545). "Conclusions of witnesses are of no probative value unless the facts on which the opinions are based sustain the opinions rendered." Gordy Tire Co. v. Bulman, 98 Ga. App. 563, 564 (106 SE2d 332). But this court has sometimes gone astray. For example, Division 2 of the case of Warren v. State, 76 Ga. App. 243 (45 SE2d 726) is in conflict with the statutes and with decisions of the Supreme Court. Therefore Warren together with all other cases of this court so holding is expressly overruled. The decision in National-Ben Franklin Fire Ins. Co. v. Darby, 48 Ga. App. 394 (3) (172 SE 74) cited in Warren, is incomplete and not a fully accurate statement of the rule since it did not include either the necessity that the owner show "his reasons" for his opinion or show he had "an opportunity for forming a correct opinion."
For an excellent annotation in depth on the subject see 37 ALR2d 967-1041. However, it should be pointed out that § 9 of the annotation on pp. 987, 988 has misinterpreted the cited Georgia decisions. This is due, apparently, to the annotator's preoccupation with the erroneous holding in Warren which is here overruled.
2. On cross examination the plaintiff testified that the value of five cases of Carlings Black Label Beer, King size, had a value of $29.50 as he had paid that much for it. Without any explanation, even as to the cost price, he valued three cases of Pabst Blue Ribbon Beer at $18. When asked questions regarding the quantities of various kinds of wines for which he sued, the plaintiff testified he did not know the quantities of any kind. He expressed no opinion as to the value of the wines, nor could he have since he admitted he did not know how much he had.
According to the evidence in the record, there is absolutely no showing of value of any of the items for which plaintiff sued.
Testimony as to the cost price of an item of property standing alone is insufficient data upon which to base an opinion as to the value of the thing. Mills v. Mangum, 111 Ga. App. 396, *334 397 (141 SE2d 773). As we construe the holding in Mangum, it is twofold. (1) The cost price of an item, if coupled properly with other evidence such as a showing of the condition of the item both at the time of purchase and at the time its value is in issue, may be admitted as an element upon which an opinion may be formed as to the item's value. (2) An opinion as to value based solely on cost price is inadmissible as it has no probative value.
It follows that the testimony of the value of the five cases of Carlings Black Label Beer, $29.50, based solely as it was on its cost price has no probative value and even though admitted without objection, is insufficient to support a verdict for that amount.
The testimony as to the value of the Pabst Blue Ribbon Beer, $18, where cost price does not appear to have been the basis for the opinion, would not support a verdict for $18 for the reasons stated in Division 1 of this opinion.
3. The trial judge directed a verdict for the plaintiff although the sole issue was the value of property which, by the nature of the property, could only be determined by testimony stating the opinions of witnesses as to its value. Although it has been pointed out in the preceding divisions of this opinion that the evidence was totally insufficient to support a verdict, it is nevertheless essential for a further holding to be entered in the case that the trial judge erred in directing a verdict for the plaintiff.
The question of the value of property is peculiarly one for the jury. Jurors are not required to accept as correct opinion evidence of value even where there is no other evidence of facts and data upon which the jury might base an independent conclusion. Baker v. Richmond City Mill Works, 105 Ga. 225 (1) (31 SE 426); Jennings v. Stripling, 127 Ga. 778 (3) (56 SE 1026); Martin v. Martin, 135 Ga. 162 (1) (68 SE 1095); McCarthy v. Lazarus, 137 Ga. 282 (2) (73 SE 493); Finleyson v. International Harvester Co., 138 Ga. 247 (2) (75 SE 103); Hammock v. Kemp, 146 Ga. 681 (2) (92 SE 57); Daniell & Beutell v. McRee, 31 Ga. App. 210 (1) (120 SE 448); Jefferson v. Kennedy, 41 Ga. App. 672 (3) (154 SE 378); Radcliffe v. *335 Jones, 46 Ga. App. 33 (7) (166 SE 450); Watson v. Tompkins Chevrolet Co., 83 Ga. App. 440 (3) (63 SE2d 681); Atlantic C. L. R. Co. v. Clements, 92 Ga. App. 451, 455 (88 SE2d 809). "The evidence relied on to show the reasonable value of the rent of the land was mere opinion evidence, and such questions are always to be determined by the jury, and a verdict ought not to be directed where such evidence is involved." Bonds v. Brown, 133 Ga. 451, 455 (66 SE 156).
We are not unaware of statements of this court to the contrary. Thus the first complete paragraph on p. 257 of the case of Elder v. Woodruff Hardware &c. Co., 16 Ga. App. 255 (85 SE 268), contains erroneous statements in part and obiter in part and is specifically disapproved.
4. Defendants filed their answer in this suit in trover after its appearance date, which is thirty days after service of the petition and process. Code § 81-201.
The right to open an automatic default within the fifteen-day period provided by Code § 110-401 is expressly conditioned upon the payment of costs. The defendants having failed to comply with this condition, the trial court did not err in granting plaintiff's motion to strike defendants' answer. See Tuten v. Zetterower, 218 Ga. 230, 233 (126 SE2d 752); Thompson v. Nichols, 208 Ga. 147 (2) (65 SE2d 603).
The judgment of the trial court is reversed on the general grounds and on special ground 3 for the reasons stated in Divisions 1, 2 and 3 of this opinion. Special grounds 1 and 2 have no merit.
Judgment reversed. Jordan, Hall, Eberhardt and Deen, JJ., concur. Felton, C. J., Nichols, P. J., Frankum and Pannell, JJ., concur specially. Bell, P. J., Jordan and Deen, JJ., addendum. PANNELL, Judge, concurring specially.
I concur in the judgment of reversal for the sole reason that the only testimony as to value (that of the plaintiff himself) did not demand, or authorize, the verdict directed, and this is true regardless of the cases discussed and of the various rules sponsored by the various opinions. The testimony of the plaintiff as to value was contradictory and equivocal, and construed most strongly against him did not authorize the verdict directed. It, therefore, is unnecessary *336 to affirm or overrule any of the previous decisions of this court discussed and referred to in the opinion and relating to the probative value and legal effect of opinion evidence, and I expressly dissent, for this reason, to the overruling of any of these decisions.
I am authorized to say that Felton, C. J., Nichols, P. J., and Frankum, J., join me in this special concurrence.
EBERHARDT, Judge, concurring.
Judge Hall and I are in full agreement with what is held in the majority opinion. However, we do feel that our view as to why Fulton County v. Bailey, 107 Ga. App. 512 (130 SE2d 800) (cert. denied) is not in conflict and does not require overruling should be stated.
In that condemnation case the condemnor, whose burden it was to prove what the condemnee should recover for his land taken, introduced one expert witness who testified that the value was $11,500, and rested. At that point the condemnee was placed in the position of electing to accept the value as thus proven or contest it and show by other evidence that it was something else. The condemnee, being content with the value as asserted, accepted it and on the basis of it moved for a directed verdict. When that happened the evidence no longer occupied the status merely of opinion testimony, but rose to a level comparable to that of an agreement, thus eliminating the issue, and a verdict was demanded. While it did not have the technical attributes of an agreement, it was in that general category and the situation became analogous to trover cases brought under sales agreements, conditional sales contracts and bills of sales to secure debt, as in Fisher v. George S. Jones Co., 108 Ga. 490 (34 SE 172); Moultrie Repair Co. v. Hill, 120 Ga. 730 (5) (48 SE 143); Young v. Durham, 15 Ga. App. 678 (1) (84 SE 165); Jones v. May, 27 Ga. App. 152 (1a) (107 SE 897); Benton v. Harley, 21 Ga. App. 168 (2) (94 SE 46); Levy v. American Wholesale Co., 32 Ga. App. 103 (2) (122 SE 808); Griffeth v. Wilmore, 46 Ga. App. 481 (167 SE 914); and cf. Fussell v. Heard & Fullington, 119 Ga. 527 (46 SE 621), and Citizens Bank v. Shaw, 132 Ga. 771 (3) (65 SE 81). This would not have been the situation, of course, if there had been any other evidence as to value. Rather, it would have been *337 a situation similar to Elder v. Woodruff Hardware &c. Co., 9 Ga. App. 484 (71 SE 806), where it was held error to have directed a verdict for the amount due under the security instrument when there was evidence that the property had less value.
The situation in Fulton County v. Bailey, 107 Ga. App. 512, supra, a condemnation case, is analogous too, to a situation where the plaintiff in an action has alleged the value of property to be an amount and the defendant in his answer had admitted it. The issue is no longer for the jury. Of course the condemnor in Fulton County v. Bailey would not have been entitled to a directed verdict, for as to it there was only opinion testimony before the court and until the condemnee elected to accept and agree with the testimony the issue was one that could only be settled by the jury. There could have been no direction of a verdict until the testimony was raised to a higher status. But when the condemnor offered expert testimony showing one value only, and the condemnee accepted that as satisfactory the parties had, in effect, "fixed the value as between themselves," as in Bradley v. Burkett, 82 Ga. 255, 257 (11 SE 492). Because of the peculiar nature of the case and the situation in Fulton County v. Bailey it is an exception that will not often occur. It would have no application in the ordinary trover suit or damage action.
BELL, P. J., JORDAN and DEEN, JJ., Addendum. It is our view that the case of Fulton County v. Bailey, 107 Ga. App. 512, supra, should be overruled as we feel it is in conflict with decisions of the Supreme Court. The majority of the court, however, disagrees.
With respect to the other cases overruled, it is our firm conviction that it is an important duty of the appellate courts to remove from the already far too voluminous body of precedent law all cases which are wrong or else to reconcile or distinguish cases in apparent conflict. It requires more effort on the part of individual judges and the courts to do those things but the continuity of stare decisis demands that it be done. Counsel these days are plagued with reading numerous decisions on practically every point of law researched and appellate courts add immeasurably to counsel's burden by ignoring cases in conflict, *338 or as elsewhere suggested in the report of this case, by refusing to take notice of important issues present in a case and taking the easy way out.
NOTES
[1] The rule in Georgia as to the admissibility or probative value of opinions as to value which are based on hearsay has been clouded by an obvious conflict in two fairly recent fullbench decisions of the Supreme Court. See Powers v. Powers, 213 Ga. 461 (2) (99 SE2d 818) which states that "Special ground 2 complains of alleged illegal testimony as to the value of the farm conveyed by warranty deed from the father to the son, wherein he reserved a life estate, on the ground that the evidence of value as told to the witness by others was hearsay. Evidence of value is not to be excluded merely because the valuation fixed by the witness as a matter of opinion depends on hearsay, hence the testimony of the witness is not objectionable for the reasons stated." And see Harper v. Harper, 220 Ga. 770, 771 (141 SE2d 403) which holds that "Thus was demonstrated that she testified not from knowledge but from the opinions of others. Her testimony was no stronger than the hearsay upon which it was based, and that means that it was without probative value."
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560 F.Supp. 43 (1983)
Donnie S. MORRIS, Committee for Mona Katherine Morris, who sues on behalf of Mona Katherine Morris, a mental incompetent, Plaintiff,
v.
MARSHALL COUNTY BOARD OF EDUCATION, et al., Defendant and Third-Party Plaintiffs,
v.
The BALTIMORE AND OHIO RAILROAD COMPANY, Third-Party Defendant.
Civ. A. No. 82-0060-W(H).
United States District Court, N.D. West Virginia, Wheeling Division.
April 13, 1983.
*44 Melvin W. Kahle, Jr., Wheeling, W.Va., for plaintiff.
Frederick P. Stamp, Jr., Wheeling, W.Va., Richard A. Hayhurst, Davis, Davis, Hall & Clovis, Parkersburg, W.Va., for defendant and third-party plaintiffs.
MEMORANDUM OPINION AND ORDER
HADEN, Chief Judge.
I. Facts
This action[1] arises from an automobile accident which occurred on September 14, 1967, in Marshall County, West Virginia. The Plaintiff brought this action in the Circuit Court of Marshall County on behalf of his ward, Mona Katherine Morris, who was injured in the accident. The complaint named the Marshall County Board of Education (Board of Education) and its employee, Charles Howard Bonar, as Defendants. The complaint alleged that Bonar negligently drove a truck into the automobile in which Plaintiff's ward was a passenger, causing her to suffer permanent injuries. On June 2, 1982, the Board of Education filed a Third-Party complaint against The Baltimore and Ohio Railway Company (B & O) alleging that the September 14, 1967 accident was caused by "a cloud of smoke" emanating from B & O's nearby railroad tracks where B & O workers were clear-burning a right-of-way. The Board of Education asserted that this smoke drifted over the highway on which Bonar was traveling and that the reduced visibility caused by the smoke proximately resulted in Bonar's vehicle striking the automobile in which Mona Katherine Morris was a passenger. The injection of B & O into the case created the diversity of citizenship necessary for federal jurisdiction.[2] Asserting federal diversity jurisdiction, B & O removed the action to this Court on June 29, 1982, pursuant to 28 U.S.C. § 1441(c). This action is presently before the Court on Plaintiff's motion to remand.
II. Opinion
The Plaintiff's legal argument is easily stated. The Plaintiff contends that B & O, being a Third-Party Defendant, had no statutory authorization to remove this action from state to federal court. The Court agrees. "It is a well-settled rule of law that the removal statutes are to be strictly construed against permitting removal." Continental Resources and Mining *45 Corporation v. Continental Insurance Co., 546 F.Supp. 850, 852 (S.D.W.Va.1982); see also Shamrock Oil Corp. v. Sheets, 313 U.S. 100, 107, 61 S.Ct. 868, 871, 85 L.Ed. 1214 (1941); West Virginia State Bar v. Bostic, 351 F.Supp. 1118, 1120 (S.D.W.Va.1972). Mindful of this principle of statutory construction, and of the split of authority among the federal courts which have addressed this issue,[3] the Court is of the opinion that the better reasoned cases hold that under 28 U.S.C. § 1441(c) a Third-Party Defendant is not entitled to invoke removal jurisdiction; Section 1441 contemplates removal only by the original Defendant. See Continental Resources and Mining Corporation, 546 F.Supp. at 852 (collecting cases) and Garnas v. American Farm Equipment Co., 502 F.Supp. 349 (D.N.D.1980)[4] (collecting cases). Therefore, the Court concludes that B & O was not entitled to remove this action from state court and that the removal of this action to this Court by B & O was improper.
In an argument unrelated to the question of whether Section 1441(c) entitles a Third-Party Defendant to remove an action to federal court, B & O asserts that the Plaintiff at bar cannot now contest the propriety of the removal of this action to federal court because the Plaintiff failed to timely respond to B & O's request for admissions which accompanied B & O's petition for removal. In its request for admission, B & O asked the Plaintiff and the Board of Education to admit that removal to federal court was proper. B & O contends that because Plaintiff did not respond within the thirty-day period provided by Rule 36(a), the Plaintiff has admitted that jurisdiction in this Court is proper and is now estopped from contesting removal.[5] In support of this argument B & O claims that the scope of Rule 36(a) is broad enough to encompass requests for admissions concerning jurisdictional facts. See Oroco Marine, Inc. v. National Marine Service, Inc., 71 F.R.D. 220 (E.D.Tex.1976); Khalili v. Pan Am Petroleum Corp., 49 F.R.D. 22 (D.Alaska 1964); McConigle v. Baxter, 27 F.R.D. 504 (E.D.Pa.1961).
B & O's argument is inapposite here. The cases cited by B & O involve admissions concerning jurisdictional facts. See, e.g., McConigle, 27 F.R.D. at 504 (admission concerning plaintiff's citizenship); Khalili, 49 F.R.D. at 22 (admission concerning the actual amount in controversy). In this case, however, the jurisdictional question does not revolve on facts, but upon the law. Specifically, the decisional law on whether a Third-Party Defendant can remove an action to federal court. The Court having determined that Section 1441 precludes a Third-Party Defendant from removing an action from state to federal court, it is obvious that any admissions by the Plaintiff as to jurisdictional facts or the propriety of *46 removal are totally irrelevant.[6] Stated another way, parties cannot by stipulation or admission confer jurisdiction upon a court. See Washington Local No. 104 v. International Brotherhood of Boilermakers, 621 F.2d 1032 (9th Cir.1980). Consequently, the Plaintiff's failure to timely respond to B & O's request for admissions has no place in this Court's analysis of whether removal jurisdiction is proper in this action.
III. ORDER
For the reasons discussed above, the Court concludes that this action was improvidently removed to this Court and, therefore, grants the Plaintiff's motion to remand. It is hereby ORDERED that this case be remanded to the Circuit Court of Marshall County, West Virginia. It is further ORDERED that this case be dismissed from the docket of this Court.
NOTES
[1] Pursuant to 28 U.S.C. § 1405, this Court has deemed it advisable, so as to prevent any further delay in this already protracted litigation, to retain this case on its docket following the realignment of the federal judicial districts in this State. See P.L. 97-471 (97th Congress).
[2] 28 U.S.C. § 1332; the Plaintiff and the Board of Education are both citizens of Marshall County, West Virginia; B & O is a Maryland corporation.
[3] Compare cases cited in the text with Motor Vehicle Casualty Co. v. Russian River County Sanitation District, 538 F.Supp. 488 (N.D.Cal. 1981); Carl Heck Engineers, Inc. v. Lafourche Parish Police Jury, 622 F.2d 133 (5th Cir.1980); Southland Corporation v. Estridge, 456 F.Supp. 1296 (C.D.Cal.1978); Bond v. Doig, 433 F.Supp. 243 (D.N.J.1977); Ted Lokey Real Estate Co. v. Gentry, 336 F.Supp. 741 (N.D.Tex.1972).
[4] In Garnas the court noted that the seminal decision on this issue was Sequoyah Feed & Supply Co., Inc. v. Robinson, 101 F.Supp. 680 (W.D.Ark.1951) wherein the court disallowed removal by a Third-Party defendant saying, at 682:
"[The court has] no desire to deprive any defendant of its right to remove, but is simply of the opinion that the Congress has not created such a right in this instance. The Congress could have done so, but had it so intended, it certainly would have used language more clearly evidencing such an intent. And, in the absence of such language, the court feels compelled to adhere to the accepted doctrine of declining jurisdiction in doubtful cases."
The court in Garnas, therefore, refused to change by judicial fiat what Congress had declined to change in the twenty-nine years since it had notice of the Sequoyah court's restrictive interpretation of Section 1441. 502 F.Supp. at 352.
[5] Rule 36(a) provides, in part, that the "matter [contained in the request for admission] is admitted unless, within thirty days after service of the request ... the party to whom the request is directed serves upon the party requesting the admission a written answer or objection ...."
[6] Ruductio ad absurdum, B & O's argument would permit any action to be removed to federal court if (1) the party seeking to remove the action accompanied his petition for removal with a Rule 36(a) request for admission asking the opposing party to admit that the removal was proper, and; (2) where the opposing party fails to respond to the request in a timely fashion (or where the opposing party agrees that removal jurisdiction is proper). Such a result is, of course, unacceptable.
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535 U.S. 1077
EASTERN MINERALS INTERNATIONAL, INC., ET AL.v.UNITED STATES.
No. 01-1100.
Supreme Court of the United States.
May 20, 2002.
1
C. A. Fed. Cir. Certiorari denied. Reported below: 271 F. 3d 1090.
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
DYLAN HARRIS,
Appellant,
v. Case No. 5D16-2888
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed December 2, 2016
3.850 Appeal from the Circuit
Court for Citrus County,
Richard A. Howard, Judge.
Dylan Harris, Chipley, pro se.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Marjorie Vincent-Tripp,
Assistant Attorney General, Daytona
Beach, for Appellee.
PALMER, J.
Dylan Harris (the defendant) appeals the post-conviction court's order summarily
denying his motion for post-conviction relief. See Fla. R. App. P. 3.850. Because claim
two of the defendant's motion is sufficiently pled and not refuted by the record, we reverse
the summary denial of same. We affirm in all other respects.
The defendant filed a rule 3.850 motion alleging, in claim 2, that counsel was
ineffective for failing to inform him of a five-year plea offer. The motion alleged that, during
the plea hearing, the defendant overheard a conversation between defense counsel and
the prosecutor during which the prosecutor asked why the defendant never accepted the
five-year plea offer. Additionally, the motion alleged that, had defense counsel presented
the five-year offer to him, he would have accepted it, the State would not have withdrawn
it, the post-conviction court would have accepted it, and the sentence under the offer's
terms would have been less severe than the sentence actually imposed. See Alcorn v.
State, 121 So. 3d 419 (Fla. 2013). The State filed a written response asserting that the
prosecutor never made a five-year plea offer to defense counsel. Relying on the State's
response, the post-conviction court summarily denied this claim.
The defendant argues that the post-conviction court erred in so ruling because the
State's response failed to cite to any record support for the claim that no five-year offer
had been made. We agree.
"The standard of review of a summary denial of a rule 3.850
motion is de novo." Lebron v. State, 827 So. 3d 132, 133 (Fla.
5th DCA 2012) (citing McLin v. State, 827 So. 2d 948, 954
(Fla. 2002)). To uphold the summary denial, "the claims must
be either facially invalid or conclusively refuted by the record."
Peede v. State, 748 So. 2d 253,257 (Fla. 1999) (citing Fla. R.
Crim. P. 3.850(d)); see also Freeman v. State, 761 So. 2d
1055, 1061 (Fla. 2002).
Hird v. State, 41 Fla. L. Weekly D1638 (Fla. 5th DCA July 15, 2016).
"Documents prepared to refute claims in a postconviction motion are not
substitutes for an evidentiary hearing . . . . ” Flores v. State, 662 So. 2d 1350, 1351–52
(Fla. 2d DCA 1995); see also Smalls v. State, 18 So. 3d 606 (Fla. 1st DCA 2009) (holding
2
that court impermissibly relied on photographs attached to the State's response, that were
not part of the record, in summarily denying the post-conviction motion).
Accordingly, we reverse the summary denial of claim 2 and remand for the
post-conviction court to either conduct an evidentiary hearing or attach portions of the
record that conclusively refute the claim. See Warren v. State, 149 So. 3d 738, 738 (Fla.
5th DCA 2014) (reversing summary denial of post-conviction claim where attachments
did not conclusively refute claim and remanding for attachments or evidentiary hearing).
AFFIRMED in part; REVERSED in part; REMANDED.
WALLIS and EDWARDS, JJ., concur.
3
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 74827-1-1
)
Respondent, )
) DIVISION ONE
v. )
)
RANDALL PAULSON, ) UNPUBLISHED OPINION
)
Appellant. ) FILED: July 3, 2017
)
MANN, J. — Randall Paulson appeals his conviction for possession of
methamphetamine arguing that the State improperly commented on his exercise of his
postarrest right to remain silent. Because Paulson voluntarily waived his right to remain
silent and chose to respond to police interrogation, we affirm.
FACTS
A. Arrest and Interrogation
Based on three controlled drug buys that were conducted with a confidential
informant, the Bellevue Police Department obtained warrants to arrest Paulson and to
search his house, vehicle, and phone. On May 26, 2015, Paulson was arrested
following a traffic stop.
No. 74827-1-1/2
Detective William Hallifax conducted two interviews with Paulson following his
arrest. The first interview occurred at the scene of Paulson's arrest. After being
advised of his Mirandal rights, Paulson agreed to speak to Hallifax. No one else was
present for this first interview and Hallifax did not record it. Hallifax asked Paulson if he
had any drugs in his car. Paulson said he didn't. Hallifax then asked if Paulson had any
drugs in the safe at his house. Paulson answered "No, my safe is wide open in my
bedroom." Hallifax asked where the drugs were. Paulson answered,"There may be
some drugs left on my other nightstand."
Immediately after the initial interview with Paulson, police officers executed the
search warrant on Paulson's house. In Paulson's room, there were two nightstands on
either side of the bed. There was an open safe on one of the nightstands. In this
nightstand, a meth pipe, some baggies, and paperwork with Paulson's name on it were
found. In the other nightstand, police found "4.5 grams of methamphetamine and
packaging material."
After the search, Hallifax interviewed Paulson at the police station. Paulson
confirmed that he remembered his Miranda rights and was still willing to talk. During
this conversation
Paulson said he did not use drugs, sell drugs or give anyone
drugs. Detective Hallifax explained that controlled buys had
been done on him and Mr. Paulson stated that investigators
must have been confused. He later stated that he knew
people in the neighborhood were frustrated with him, and
that he did not want all the homeless people coming to his
house.[21
I Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694(1966).
Papers(CP)at 71.
2 Clerk's
-2-
No. 74827-1-1/3
He then stated that people were constantly coming to his
house asking for dope or wanting to work for dope. Mr.
Paulson said he might have given some people drugs in the
past when they worked on his home. He said that he was
just trying to help drug addicts out when they came over
because they were sick.[3]
When Detective Hallifax asked him why he thought drug
addicts were constantly coming to his place asking for drugs,
he stated he did not know. Mr. Paulson repeatedly
demanded that he get a Pepsi and a cigarette, and if he did,
he would tell investigators what they wanted to know.
Detective Hallifax said no and asked what drug dealers are
in the area. Mr. Paulson responded, "I know all the big drug
dealers. I will give you names if you get me a Pepsi."
Detective Hallifax ended the interview at this point.[4]
B. Pretrial Procedure
Paulson testified at the CrR 3.5 hearing that he asked for an attorney before the
second interview and that Hallifax did not provide him one. Paulson argued that his
statements at the police station should be suppressed because the police failed to
provide the requested attorney. Paulson did not claim that he did not understand his
rights or that he had invoked his right to silence. The trial court found Paulson's claim
that he had requested counsel "less than credible." The trial court concluded that
Paulson was read his Miranda rights, that he understood his rights, that he stated he
was willing to speak with investigators, and that he "knowingly, intelligently and
voluntarily waived his Constitutional rights, including his right to counsel." Paulson does
not challenge the trial court's CrR 3.5 findings or conclusions.
In response to Paulson's ER 403 motion to suppress, the trial court excluded
several of Paulson's statements from trial, including:(1)that he did not use drugs or sell
3 CPat71.
4 CP at71.
-3-
No. 74827-1-1/4
drugs,(2)that he knew "all the big drug dealers",(3) that people constantly came over
to his house asking for dope,(4) that he might have given some people drugs in the
past, and (5) that he tried to help sick drug addicts.
C. Trial Testimony and Argument
At trial, Hallifax testified that the following occurred at the scene of Paulson's
arrest:
I asked Mr. Paulson if he was willing to speak with us, and he said he was.
I confirmed that he understood all of his rights that were read to him, and
he said he did understand them. I asked him several questions about the
location of drugs in his car, and he said he didn't have any drugs in his
car. Then 1 asked, Do you have them in the safe at your house? And he
said, No, my safe is wide open in my bedroom. I said, Where are the
drugs. He said, There may be some drugs left on my other nightstand,
other than the one that the safe was on.[5]
Hallifax then described the second interview at the police station. The following
exchange occurred between the prosecutor and Hallifax:
[STATE]: Did you tell him what you found at his home?
[HALLIFAX]: Yes.
[STATE]: Did he ever deny what you found (inaudible)?
[HALLIFAX]: No.
[STATE]: Did he mention anyone else being in his room?
[HALLIFAX]: No.
Defense Counsel: Objection.
The Court: Basis?
Defense Counsel: Based on pretrial rulings, and rule of completeness.
The Court: Overruled.
[STATE]: Did he ever mention anyone else was in his room?
[HALLIFAX]: No.
[STATE]: Did he make any statements?
[HALLIFAX]: Yes. 1 was asking him several questions, and he repeatedly
demanded a Pepsi and a cigarette and he would tell us everything we
wanted; but based on the fact that we can't provide bribes, or threats, or
5 Report of Proceedings(RP)(Feb. 17, 2016) at 196.
-4-
No. 74827-1-1/5
promises, or anything like that, I just shut the interview down after the third
or fourth time he had asked.[6]
During closing argument, the prosecutor first discussed the initial post-Miranda
statements made by Paulson when he was arrested after the traffic stop:
When Detective Hallifax asked him,"Where is your safe or do you have a
safe?" He said,"My safe is wide open on my nightstand next to my bed."
Detective Hallifax then asked him,"Where are the drugs?" He said, "I may
have some drugs in my other nightstand," in a matter-of-fact tone. No
questioning. No confusion.rn
The prosecutor then discussed the subsequent search and the
methamphetamine located where Paulson said it would be:
And in the other nightstand was the methamphetamine. His home. His
bedroom. His safe. His drugs.[8]
The prosecutor then described the second interview at the police station:
The second interview that Detective Hallifax had. He went back to the
station. He asked Mr. Paulson if he [remembered] his rights, if he still
understood them, if he was still willing to talk; and Mr. Paulson said he
was still willing to talk, that he remembered his rights. Detective Hallifax
explained to us this morning that he told Mr. Paulson what they had found
in the way of methamphetamine. Mr. Paulson didn't deny it. His
response: Demanding a Pepsi and a cigarette, and I'll tell you all you want
to know. He didn't deny it. He didn't mention, you know what, that's
actually not mine; that's someone else's. You know what, actually, there
are these two other people that live there that might have drug
backgrounds; that's actually [theirs]. He didn't say that. All he did was
demand a Pepsi and a cigarette, and say I'll tell you what you want to
know if you get me those things. That was his opportunity.[9]
6 RP (Feb. 18, 2016) at 226-27.
7 RP (Feb. 18, 2016) at 356.
8 RP (Feb. 18, 2016) at 356.
9 RP (Feb. 18, 2016) at 363.
-5-
No. 74827-1-1/6
Paulson's attorney then objected: "Improper argument and comment on Fifth
Amendment." The trial court overruled the objection and reminded the jury that lawyer's
arguments are not evidence.
The jury returned a guilty verdict. Paulson appeals.
ANALYSIS
1
Paulson asserts that the State improperly commented on his constitutional right
to postarrest silence by arguing that he did not deny that the methamphetamine was in
his room and by not claiming that the methamphetamine belonged to someone else.
We disagree.
Both the United States and Washington constitutions guarantee a criminal
defendant the right to be free from self-incrimination, including the right to silence. U.S.
CONST. amend. V; WASH. CONST. art. I, § 9; State v. Easter, 130 Wn.2d 228, 922 P.2d
1285 (1996). This right prevents the State from commenting on "the silence of the
defendant so as to infer guilt from a refusal to answer questions." State v. Lewis, 130
Wn.2d 700, 705, 927 P.2d 235(1996); State v. Clark, 143 Wn.2d 731, 764, 24 P.3d
1006 (2001). A defendant has the right to remain silent both prearrest and postarrest;
i.e., both before and after a defendant is given Miranda warnings. State v. Burke, 163
Wn.2d 204, 217, 181 P.3d 1 (2008).
"It is well established that Miranda rights must be invoked unambiguously."
State v. Piatnitsky, 180 Wn.2d 407, 413, 325 P.3d 167(2014)(citing Davis v. Unitied
States, 512 U.S. 452,459, 114 S. Ct. 2350, 129 L. Ed. 2d 362(1994); State v. Radcliffe,
164 Wn.2d 900, 906, 194 P.3d 250 (2008)). Invocation of the right to remain silent must
-6-
No. 74827-1-1/7
be unequivocal and "requires the expression of an objective intent to cease
communication with interrogating officers." Piatnitskv, 180 Wn.2d at 412.
Once a defendant invokes the right to silence, "the State may not elicit comments
from witnesses or make closing arguments relating to a defendant's silence to infer guilt
from such silence." Easter, 130 Wn.2d at 236. However, when a defendant does not
remain silent and instead talks to police and answers substantive crime-related
questions, the State may comment on what the defendant does not say. State v. Clark,
143 Wn.2d 731, 765, 24 P.3d 1006 (2001); State v. Young, 89 Wn.2d 613, 621, 574
P.2d 1171 (1978). See also State v. Curtiss, 161 Wn. App. 673, 691-92, 250 P.3d 496
(2011).
Young, for example, concerned a prosecution for the bombing murder of a judge.
After being arrested and read his Miranda rights, the defendant spoke to postal
inspectors about the bombing. During a two-hour car ride, the defendant "was silent
much of the time, but did make several damaging comments and asked several
inculpatory questions, all of which were testified to by the inspectors." Young, 89 Wn.2d
at 619. During closing argument, the prosecutor argued:"Now did you hear in any of
the testimony of these two men [referring to the arresting postal inspectors]—think
about this—did you hear anyone, in their entire testimony, say that the defendant
denied that he mailed the bomb or had anything to do with the construction of it?"
Young, 89 Wn.2d at 620 (alteration in original). Our Supreme Court found no error,
holding "[t]he prosecutor was entitled to argue the failure of the defendant to disclaim
responsibility after he voluntarily waived his right to remain silent and when his
questions and comments showed knowledge of the crime." Young, 89 Wn.2d at 621.
-7-
No. 74827-1-1/8
Similarly, in Curtiss, after being informed of her Miranda rights, Renee Curtiss
agreed to a taped interview concerning the murder of her former boyfriend. Believing
the statute of limitations for rendering criminal assistance had expired, Curtiss
confessed to rendering criminal assistance by helping to cover up the murder. She
provided substantive detail concerning disposal of the body and weapon. She denied
being involved with the murder or being present at the time the murder was carried out.
Curtiss, 161 Wn. App. at 685-86. At the conclusion of the interview, the detective told
Curtiss that he did not believe her and believed that she had asked for the boyfriend to
be murdered and was present at the time. Curtiss, 161 Wn. App. at 685-86. During
Curtiss's trial for first degree murder, the detective testified that during the interview
Curtiss did not react to or deny accusations that she had asked for the murder to be
carried out or that she was present in the house at the time of the murder. Division Two
of this court found the testimony proper because "Curtiss never invoked her right to
remain silent." Curtiss, 161 Wn. App. at 691-92.
Here, like Young and Curtiss, Paulson did not invoke his right to silence. As the
trial court's unchallenged findings and conclusions confirmed, Paulson understood his
rights, and knowingly, intelligently, and voluntarily waived his rights and spoke with the
investigators. Unchallenged findings of fact entered following a CrR 3.5 hearing are
verities on appeal. State v. Piatniskv, 170 Wn. App. 195, 221, 282 P.3d 1184(2012).
After being read his Miranda rights, Paulson answered Hallifax's substantive questions
and told him where he would find the methamphetamine in his room. Paulson's
responses showed knowledge of the crime—possession of methamphetamine. It was
-8-
No. 74827-1-1/9
not misconduct for the State to comment on his failure to disclaim responsibility. Young,
89 Wn.2d at 621.
Paulson relies primarily on cases where the defendants clearly exercised their
right to silence by not responding to substantive, crime-related questions. For example,
in State v. Fuller, 169 Wn. App. 797, 816, 282 P.3d 126 (2012), after being read his
Miranda rights, Jaycee Fuller agreed to speak with detectives and answered a series of
questions about himself, including the loss of his job, an eviction, and that he had been
pawning items. Fuller, 169 Wn. App. at 806. The detective then turned to the details of
the murder investigation and informed Fuller that they had a surveillance video showing
Fuller getting into the victim's cab and that a hat was later found at the scene of the
crime. Fuller did not respond other than to say he would like to see the video. During
testimony and closing argument, the State repeatedly referred to Fuller's failure to deny
culpability. Fuller, 169 Wn. App. at 807-811.
Division Two of this court reversed Fuller's conviction based on the State's
improper comments on his failure to deny the crime. The court held that Fuller had
unequivocally invoked his right to silence in response to substantive questioning: "Here,
Fuller invoked his right to partial silence in not responding to some of[the detective's]
questions or statements during the custodial interrogation. Thus, the State could not
elicit testimony or comment on Fuller's partial silence to infer his guilt." Fuller, 169 Wn.
App. at 816. The court distinguished Young by pointing out that unlike Young, Fuller
had not voluntarily waived his right to silence, and had made statements showing
knowledge of the crime. Fuller, 169 Wn. App. at 816.
-9-
No. 74827-1-1/10
But unlike Fuller, Paulson did not decline to answer substantive, crime-related
questions at any time during his interviews with Hallifax. During the first interview,
Paulson responded to substantive crime-related questions such as providing the
location of methamphetamine in his room. During the second interview, Paulson
continued to respond to Hallifax's questions by offering to provide answers in exchange
for a Pepsi and a cigarette.1° Because Paulson did not unequivocally invoke his right to
silence and responded to substantive, crime-related questions. The State did not
commit misconduct by commenting on his failure to deny his guilt. Clark, 143 Wn.2d at
765; Young, 89 Wn.2d at 621; Curtiss, 161 Wn. App. at 691-92.
11
The State argues that even if error occurred, Paulson's conviction should not be
reversed even under a constitutional harmless error standard. We agree.
The State bears the burden of showing a constitutional error is harmless. This
court finds a constitutional error harmless "only if convinced beyond a reasonable doubt
any reasonable jury would reach the same result absent the error." Easter, 130 Wn.2d
at 242.
Paulson's statements during his initial interview with Hallifax at the time of the
arrest was untainted. Similarly, because the search of Paulson's residence was
conducted before the second interview, the fruits of the search and observations made
during that search were untainted.
10 Paulson also relies on State v. Pinson, 183 Wn. App. 411, 416-17, 333 P.3d 528(2014); State
v. Silva, 119 Wn. App. 422, 81 P.3d 889(2003); and State v. Knapp, 148 Wn. App. 414,420, 199 P.3d
505(2009). But in all three cases, like Fuller, the defendant unequivocally exercised their right to silence
by not responding to substantive crime-related questions.
-10-
No. 74827-1-1/11
The jury was instructed on the definition of "possession." Jury instruction 9
stated:
Possession means having a substance in one's custody or control. It may
be either actual or constructive. Actual possession occurs when the item is
in the actual physical custody of the person charged with possession.
Constructive possession occurs when there is no actual physical
possession but there is dominion and control over the substance.
Proximity alone without proof of dominion and control is insufficient to
establish constructive possession. Dominion and control need not be
exclusive to support a finding of constructive possession.
In deciding whether the defendant had dominion and control over a
substance, you are to consider all the relevant circumstances in the case.
Factors that you may consider, among others, include whether the
defendant had the ability to take actual possession of the substance,
whether the defendant had the capacity to exclude others from possession
of the substance, and whether the defendant had dominion and control
over the premises where the substance was located. No single one of
these factors necessarily controls your decision.
11 WASHINGTON PRACTICE: PATTERN JURY INSTRUCTIONS: CRIMINAL 50.03 (4th ed.
2016).
During Paulson's initial interview, he identified his bedroom as having two
nightstands. He told Hallifax that one of the nightstands had an open safe on top of it.
Paulson told Hallifax that the he might have drugs in the second nightstand. During the
search of Paulson's residence, police found only one bedroom in the house with two
nightstands including one with an open safe on top as Paulson described. Police found
methamphetamine in the second nightstand, again, just as Paulson described. The
bedroom was also full of evidence showing Paulson's dominion and control over the
bedroom. On the bed and in the nightstand, police found mail addressed to Paulson,
-11-
No. 74827-1-1/12
other documents with Paulson's name on them, and a credit card with Paulson's name
on it.
Considering Paulson told the police exactly where to find drugs in the nightstand
in his bedroom, and that there was no evidence linking anyone else to the drugs, any
reasonable jury would have convicted Paulson of possession of the methamphetamine
even without the challenged evidence and argument related to his failure to deny the
crime. Thus, even if the State erred, the error was constitutionally harmless.
III
Paulson also asks that no costs be awarded on appeal. Appellate costs are
generally awarded to the substantially prevailing party on review. However, when a trial
court makes a finding of indigency, that finding remains throughout review "unless the
commissioner or clerk determines by a preponderance of the evidence that the
offender's financial circumstances have significantly improved since the last
determination of indigency." RAP 14.2. Here, Paulson was found indigent by the trial
court. If the State has evidence indicating that Paulson's financial circumstances have
significantly improved since the trial court's finding, it may file a motion for costs with the
commissioner.
-12-
No. 74827-1-1/13
We affirm.
WE CONCUR:
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618 F.2d 1009
104 L.R.R.M. (BNA) 2054, 88 Lab.Cas. P 12,019
WHEELING-PITTSBURGH STEEL CORP., Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 79-1568.
United States Court of Appeals,Third Circuit.
Argued Feb. 11, 1980.Decided April 14, 1980.
Donald L. Dotson (argued), Francis P. Massco, Pittsburgh, Pa., for petitioner.
Candace M. Carroll (argued), Norton J. Come, Acting Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D. C., for respondent.
Before ADAMS, VAN DUSEN and GARTH, Circuit Judges.
OPINION OF THE COURT
VAN DUSEN, Senior Circuit Judge.
1
Wheeling-Pittsburgh Steel Corporation (the Company) petitions this court for review of the April 30, 1979, decision and order of the National Labor Relations Board (the Board). The Board cross-applies for enforcement of its order. The Board found that the Company had committed unfair labor practices in violation of §§ 8(a)(1) and 8(a)(3) of the National Labor Relations Act (the Act), 29 U.S.C. §§ 158(a)(1), (3),1 by suspending two employees for invoking their contractually protected right not to work under conditions they believed to be unsafe. The Board also found that the Company had violated § 8(a)(1) of the Act due to a remark made by a foreman concerning the length of the suspension. Based on the findings of unfair labor practices, the Board ordered the Company to rescind the suspensions, to delete any references to the suspensions from the personnel files, to compensate the two employees for the earnings they lost while suspended, to cease and desist from engaging in the unfair labor practices, and to post notices informing the employees that they will not be subjected to these or similar unfair labor practices. We will deny the petition for review and enforce the Board's order insofar as it relates to the suspension of the two employees. We will grant the Company's petition and deny enforcement of those portions of the order relating to the foreman's remark.2I.
2
The Company produces steel and steel products. Its facility at Allenport, Pennsylvania, converts semifinished steel into sheet and tubular products. Approximately 2600 employees work at the Allenport facility; of these, 2400 are represented by the United Steelworkers of America (the union). Section 14(C) of the 1977-1980 collective bargaining agreement between the Company and the union provides that employees who believe their working conditions are abnormally unsafe or unhealthy are entitled to refuse to work without losing their right to return to their jobs.3 This provision has been included in the collective bargaining agreements since the Company was formed in 1969. The agreement also contains a grievance and arbitration procedure, a no-strike clause, and a provision that an employee cannot be suspended more than five days without a hearing.
3
In Building Number 5 at the Tube Mill at Allenport, tubes and pipes are received, cut, threaded, painted, tested, inspected, and loaded onto railroad cars for shipment. Building Number 5 operates three shifts a day, seven days a week, with one crane operator and approximately 35 employees per shift. It contains an electric overhead crane which rides on rails mounted 30 feet above the floor, 115 feet apart from each other, and which extend the length of the building. The bridge of the crane spans the 115-foot width and rests on wheels which roll along the rails. The crane can lift loads weighing up to 71/2 tons. Loads of pipe are either tied to, or cradled in,4 the crane's hoist mechanism by employees known as "hookers" who work on the production floor.
4
On September 19, 1977, Edmond Semancik was operating the crane in Building Number 5. Semancik had operated that crane on a regular basis for three years. He had never before refused to operate the crane for safety or any other reasons. On this particular morning Semancik observed that the crane was riding more roughly than usual. The crane was bumping and sliding along the rails, causing the loads of pipe to rock and sway. Semancik stopped the crane to investigate and discovered a hole in the tread face of one of the wheels. The hole measured approximately 31/2 inches long, 21/2 inches wide, and 1/2 inch deep. Semancik had never seen such a hole in a crane wheel.5 He testified that when the hole met a joint in the rail it caused the crane to slide suddenly, which in turn caused the load of pipes to sway. Semancik reported this to the production foreman and asked him to call the crane repairman. When the repairman arrived, Semancik showed him the wheel. When the repairman asked if Semancik wished to have the wheel changed, Semancik answered in the affirmative. The repairman left to get the equipment necessary to change the wheel and to report to his supervisor, Charles Michaels, the general foreman of shop services. The repairman returned and informed Semancik that Michaels had decided not to halt production and change the wheel. Semancik said that Michaels must not have understood the situation and, accompanied by the two employees who were working as "hookers" on that shift, walked to Michaels' office. Michaels told Semancik that the wheel was not going to be changed and ordered Semancik to run the crane or to go home. Semancik stated that he was invoking his right under § 14(C) of the collective bargaining agreement to be relieved of an unsafe job.
5
Semancik returned to the crane where he met the crane repairman and the crane repair foreman. Semancik operated the crane while they stood on the bridge observing the wheel. The repair foreman declared that the rails appeared to be slippery and needed sanding, but that the wheel was safe. During the sanding process one of the foremen noticed that the crane was out of alignment, "which could cause bumping, thumping and other noises." App. at 446a. He proceeded to realign the crane. After the wheels were sanded and the crane realigned,6 the foremen concluded that any previous rough operation of the crane had been remedied and asked Semancik to resume operating the crane. When Semancik said that he was invoking his § 14(C) rights, the production foreman told him he was suspended. Semancik telephoned the union president. Semancik then told the general foreman that he was relying on § 14(C) in refusing to operate the crane. The general foreman reiterated that Semancik was suspended and ordered a replacement crane operator. At that point the union president arrived and told Semancik that he had a right under § 14(C) to inform the replacement of the condition which he believed to be unsafe, but not to attempt to persuade the replacement to refuse to work. Semancik described the condition of the wheel to the first replacement, who inspected the wheel and then invoked his § 14(C) right not to work.7 When the second replacement, Francis Roberts, arrived, Semancik again pointed out the hole, visible from the production floor, and stated that he had asked to be relieved from his job under § 14(C) because the crane was not operating properly. Roberts decided that he too would invoke his § 14(C) rights. Although the foreman told Roberts that management believed the crane was safe and urged him to operate the crane, Roberts insisted on his right under § 14(C) to refuse to work under unsafe conditions. Roberts was then suspended. Shortly thereafter, he and Semancik left the building and went home.
6
The union president left, stating that he was going to file a safety complaint with the Occupational Safety and Health Administration. The union grievance committeeman, who had arrived a short time earlier, remained. When a third replacement crane operator reported, the committeeman informed him about the hole in the wheel and the suspension of Semancik and Roberts. The division superintendent assured him the crane was safe. This operator inspected the wheel and briefly operated the crane. He agreed to operate it at a slow speed on the condition that he not be held responsible if anything went wrong due to the hole in the wheel. He operated the crane without incident for the rest of the day.8
7
The general foreman telephoned Semancik and Roberts on the afternoon of September 19 and informed them that they had been suspended for five days, the longest period of suspension without a prior hearing permitted by the collective bargaining agreement. Disciplinary hearings for both employees were held on September 23. Semancik, represented by the union committeeman and the acting union president, contended that he had properly invoked his contractual right, had been unjustly suspended, and was entitled to reinstatement with back pay. The Company charged that no hazardous condition had existed on September 19, that Semancik had been unreasonable in not accepting management's opinion that the crane was safe, and that he had unjustifiably refused to work, causing a loss in the scheduled production. The hearing became heated. Semancik insisted he had not been unreasonable in refusing to operate the crane.
8
Roberts' hearing followed. The same union and management representatives were present. The same matters were discussed, but the verbal exchange was less heated.
9
After the hearings the management representatives conferred and decided to suspend Semancik and Roberts for an additional 30 days to punish them for being inflexible and unreasonable and refusing to concede that they had been wrong. See App. at 452a. The employees were notified of their extended suspensions. They returned to work on October 30, 1977. Shortly thereafter, Roberts told Michaels, the general foreman, that he and Semancik had not deserved 30-day suspensions. Michaels responded by saying that the additional discipline would not have been imposed if Semancik had "kept his mouth shut at the meeting". App. at 113a-114a.
II.
10
In its petition for review, the Company argues that the dispute here concerned contract interpretation, rather than violations of the national labor laws. Consequently, it is the Company's position before this court that the Board should have refrained from acting and allowed the arbitration machinery to resolve the issues. The Board asserts that the contract issue was only incidental to the alleged unfair labor practice. Moreover, according to the Board, even when the resolution of a contract issue is more central to a case, the Board is not pre-empted by the overlapping domain of the arbitrator. In this the Board is correct. As the Supreme Court stated in National Labor Relations Board v. Strong, 393 U.S. 357, 360-61, 89 S.Ct. 541, 544, 21 L.Ed.2d 546 (1969):
11
"(I)n some circumstances the authority of the Board and the law of the contract are overlapping, concurrent regimes, neither pre-empting the other. Arbitrators and courts are still the principal sources of contract interpretation, but the Board may proscribe conduct which is an unfair labor practice even though it is also a breach of contract remediable as such by arbitration and in the courts. It may also, if necessary to adjudicate an unfair labor practice, interpret and give effect to the terms of a collective bargaining contract." (Citations and footnote omitted.)
12
See National Labor Relations Board v. C & C Plywood Corporation, 385 U.S. 421, 87 S.Ct. 559, 17 L.Ed.2d 486 (1967); Mastro Plastics Corp. v. Labor Board, 350 U.S. 270, 76 S.Ct. 349, 100 L.Ed. 309 (1956).
13
Although not ousted from jurisdiction by the presence of contractual issues, the Board may choose to defer to the arbitration process. Collyer Insulated Wire, 192 N.L.R.B. 837 (1971). In Carey v. Westinghouse Electric Corporation, 375 U.S. 261, 271-72, 84 S.Ct. 401, 408-09, 11 L.Ed.2d 320 (1964), where 29 U.S.C. §§ 158(b)(4)(D) and 160(k) were applicable, the Supreme Court noted with approval the Board's discretionary practice of deferral. Cf. Smith v. Evening News Association, 371 U.S. 195, 198 n. 6, 83 S.Ct. 267, 269 n. 6, 9 L.Ed.2d 246 (1962). The Board has exercised its discretion to defer not only when there is an outstanding arbitral award, Spielberg Manufacturing Company, 112 N.L.R.B. 1080, 1082 (1955),9 but also in some circumstances when no award has yet been issued. Collyer Insulated Wire, 192 N.L.R.B. at 841-42.10 The Board has indicated that the party seeking deferral must raise it before the administrative law judge, and must state the factors which make deferral appropriate for that particular case. MacDonald Engineering Company, 202 N.L.R.B. 748, 748 (1973); see Montgomery Ward & Company, 195 N.L.R.B. 725, 725 n. 1 (1972). This court in Food Fair Stores, Inc. v. National Labor Relations Board, 491 F.2d 388, 395-96 n. 9 (3d Cir. 1974), recognized the Board's practice of considering deferral only if raised as an affirmative defense. In approving this policy, the court highlighted two reasons justifying the requirement that deferral be raised as an affirmative defense:
14
"First, the failure to raise such a defense may indicate that neither party to the contract desires arbitration a factor clearly mitigating against deferral. Second, the rule assures that the Board will have the opportunity of deciding whether to defer to arbitration after hearing all the facts relevant to the appropriateness of deferral in each particular situation."
15
Id. At oral argument, when queried as to whether it had requested deferral, the Company called attention to the written opening statement it introduced at the hearing before the administrative law judge (ALJ) and to the exceptions to the decision of the ALJ it raised before the Board. We have carefully reviewed the opening statement and find no request in it for deferral. Similarly, our examination of the 42 exceptions was fruitless. Indeed, the word "deferral" was not mentioned even once in the record, nor did the Company enumerate to the ALJ those facts it considered supportive of the appropriateness of deferral in this particular situation. Moreover, at the hearing the Company never even stated that there were ongoing arbitration proceedings; the ALJ raised this issue on his own. App. at 17a. Only in response to the ALJ's question did the Company answer that a grievance had been filed and that it was "expected in due course that it would go to arbitration." App. at 18a. The Company, however, never hinted that it was raising the affirmative defense of deferral.11 It certainly never pressed the issue before the ALJ and the Board. Because we find the record barren of any explicit request for deferral in this case, we cannot say the Board in this case abused its discretion by proceeding to consider the unfair labor practices charge.
III.
16
If the Board's decision is supported by "substantial evidence on the record as a whole," we are bound to enforce its order. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Company v. National Labor Relations Board, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938); see Tri-State Truck Service, Inc. v. National Labor Relations Board, 615 F.2d 65 (3d Cir. 1980). Turning first to the suspensions of Semancik and Roberts, we hold that the Board's conclusion that these incidents constituted an unfair labor practice in violation of § 8(a)(1) of the Act is supported by substantial evidence on the record as a whole.
17
Section 7 of the Act, 29 U.S.C. § 157, provides in pertinent part:
18
"Employees shall have the right to . . . engage in other concerted activities for the purpose of . . . mutual aid or protection . . ."
Section 8(a)(1) provides:
19
"It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title(.)"
20
The Company admits that it suspended Semancik and Roberts for refusing to operate the crane in Building Number 5. The Company denies, however, that these suspensions constitute an unfair labor practice. It asserts that these employees were not exercising rights protected by § 7 when they were suspended. The Company characterizes Semancik's and Roberts' refusals to operate the crane as individual acts, not concerted activity. However, we cannot say that the Board's conclusion in this regard is erroneous.
21
The record reveals that this incident involved more than individual refusals by Semancik and Roberts. When Semancik invoked his rights under § 14(C) of the collective bargaining agreement, he declared that the safety of the employees working on the floor below was endangered, as well as his own. App. at 456a. When he went to discuss the condition of the wheel with Michaels, the electric shop foreman, two other employees working with the crane accompanied him. App. at 443a.12 Roberts spoke to Semancik about the possible hazard before he decided to refuse to operate the crane. Thus, from the beginning there was some group action by fellow workers in the interest of employee safety. Further, the union was also involved. Semancik contacted his union representatives before he left the building on the morning of September 19, 1977. At his request, the union president and union grievance committeeman came to the site of the incident. App. at 448a-449a. The union represented Semancik and Roberts at their hearings on September 23. Additionally, the union president filed a complaint with the Occupational Safety and Health Administration concerning the potential danger the wheel created for all the employees.13 On this record it would be fair to say that Semancik and Roberts acted here as spokesmen for the safety of all the employees, and that the employees as indicated by the union's actions shared this safety concern.
22
Support for this analysis is provided by Mushroom Transportation Company v. National Labor Relations Board, 330 F.2d 683 (3d Cir. 1964). There the court recognized that, while mere griping by an employee about his individual concerns is not protected under § 7, some statements by individuals do rise to the level of concerted activity. The court emphasized:
23
"It is not questioned that a conversation may constitute a concerted activity although it involves only a speaker and a listener, but to qualify as such, it must appear at the very least that it was engaged in with the object of initiating or inducing or preparing for group action or that it had some relation to group action in the interest of the employees.
24
"Activity which consists of mere talk must, in order to be protected, be talk looking toward group action. If its only purpose is to advise an individual as to what he could or should do without involving fellow workers or union representation to protect or improve his own status or working position, it is an individual, not a concerted, activity, and, if it looks forward to no action at all, it is more than likely to be mere 'griping.' "
25
Id. at 685 (emphasis supplied). In light of the fact that both the action of fellow workers and union representation were present in this case, we conclude that there is substantial evidence to support the Board's finding of concerted activity within the meaning of § 7 of the Act.14
26
Similarly, there is evidence in the record to support the finding that the actions of Semancik and Roberts were not only concerted, as opposed to individual, but also undertaken for mutual aid or protection. Indeed, the very evidence discussed above supports this finding. It was the concern for the safety of the other employees, as well as themselves, that motivated Semancik and Roberts.
27
Although concerted action for mutual aid or protection is generally protected under § 7 of the Act, there are certain types of concerted activity which fall outside the shelter of § 7. Activities which are unlawful, violent, or in breach of contract are unprotected. National Labor Relations Board v. Washington Aluminum Company, 370 U.S. 9, 17, 82 S.Ct. 1099, 1104, 8 L.Ed.2d 298 (1962). See National Labor Relations Board v. Sands Manufacturing Company, 306 U.S. 332, 345, 59 S.Ct. 508, 515, 83 L.Ed. 682 (1939). The Company urges that the actions of Semancik and Roberts violated the collective bargaining agreement and thus are unprotected. Specifically, the Company argues that the refusals of Semancik and Roberts to operate the crane were not in good faith within the meaning of § 14(C) of the collective bargaining agreement. Therefore, according to the Company, they were properly subject to discipline. The Company contends that the ALJ erred in declining to use the good faith test fashioned by some arbitrators in interpreting clauses similar to § 14(C). The Company insists that both prongs of this test must be met: (1) sincere belief, and (2) reasonable basis in fact.
28
The ALJ noted that the disputed clause pertains to "employees who believe they are being required to work under conditions which are unsafe or unhealthy beyond the normal hazard inherent in the operation in question". He distinguished the arbitration cases defining good faith which the Company presented, and stated that he believed that the good faith component of § 14(C) required only that the employee have a sincere belief that an abnormally hazardous condition existed and that he not invoke the clause as a pretext. App. at 454a-455a. The ALJ also went further and made specific findings that the actions of Semancik and Roberts were both sincere and reasonable.15
29
Our review of the record indicates that there is substantial evidence to support these findings. It is undisputed that Semancik was an experienced crane operator. The production foreman testified that Semancik was one of the best cranemen he had ever supervised. App. at 213a. He had never before refused to work for safety reasons or any other reasons. On the morning of September 19, he experienced difficulty in operating the crane smoothly. Upon inspection, he discovered a hole in the tread face of one of the wheels of the crane. He had never before seen such a hole on a crane wheel. He immediately reported it to his supervisor, indicated his concern for the safety of himself and others, and requested that the wheel be changed. The Company argues that Semancik was unreasonable because he continued to believe that the wheel constituted a hazard in the face of the contrary opinions voiced by Company officials. A number of supervisors did attest to the safety of the crane at the time of the incident; not all of them were knowledgeable about electrical crane maintenance, however. See, e. g., App. at 194a, 216a, 218a. Although at least two were qualified in this field (Board's brief at 32-33 n. 25), we believe that there is substantial evidence to support the ALJ's finding that, in light of Semancik's experience and skill, the crane operators' refusals to work for safety reasons on September 19 had a reasonable basis in fact and did not constitute a breach of contract.16
30
Accordingly, the Board's conclusion that the conduct of Semancik and Roberts on September 19, 1977, was protected by § 7 of the Act, and that the Company therefore violated § 8(a)(1) of the Act by disciplining them for that conduct, is supported by substantial evidence on the record as a whole.
IV.
31
The Board upheld the ALJ's conclusion that the suspensions of Semancik and Roberts also constituted an unfair labor practice in violation of § 8(a)(3) of the Act. This section provides:
32
"It shall be an unfair labor practice for an employer by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . ."
33
A violation of this section is based upon the existence of both discrimination and a resulting discouragement of union membership. Generally, a finding of anti-union purpose must also be present. American Ship Building Company v. National Labor Relations Board, 380 U.S. 300, 311, 85 S.Ct. 955, 963, 13 L.Ed.2d 855 (1965). The Supreme Court has explained the significance of the employer's motive in § 8(a)(3) cases.
34
"It has long been established that a finding of violation under this section will normally turn on the employer's motivation. Thus when the employer discharges a union leader who has broken shop rules, the problem posed is to determine whether the employer has acted purely in disinterested defense of shop discipline or has sought to damage employee organization. It is likely that the discharge will naturally tend to discourage union membership in both cases, because of the loss of union leadership and the employees' suspicion of the employer's true intention. But we have consistently construed the section to leave unscathed a wide range of employer actions taken to serve legitimate business interests in some significant fashion, even though the act committed may tend to discourage union membership. Such a construction of § 8(a)(3) is essential if due protection is to be accorded the employer's right to manage his enterprise."
35
Id. (citations omitted). There is some conduct, however, which is so "inherently destructive of employee interests" that proof of improper motive is not necessary. National Labor Relations Board v. Great Dane Trailers, Inc., 388 U.S. 26, 33, 87 S.Ct. 1792, 1797, 18 L.Ed.2d 1027 (1967).
36
In this case, the decision of the ALJ, adopted without modification by the Board, focused on the § 8(a)(1) claim. Indeed, the § 8(a)(3) claim was only discussed in a portion of one sentence. Without any factual basis, the ALJ simply maintained:
37
"(The employer's action in disciplining Semancik and Roberts) constitutes, as well, discrimination which discourages employees from relying on the fruits of a collective bargaining contract secured for them by their collective bargaining agent in violation of Section 8(a)(3)."
38
App. at 454a. No attempt was made to document this assertion or to analyze the situation to determine whether it was likely that discouragement of union membership would result. Moreover, a careful examination of the record reveals that the evidence of anti-union animus is non-existent. In face of the lack of factual underpinnings for the ALJ's assertion, the absence of anti-union purpose, and the absence of any contention that the suspensions at issue are so "inherently destructive of employee interests" that improper motive is irrelevant, we cannot say that this barren record supports a finding that the Company violated § 8(a)(3). Accordingly, we hold that the Board's conclusion that the Company violated § 8(a)(3) is not supported by substantial evidence on the record as a whole.
V.
39
Lastly, the Board concluded that a remark made by Michaels, the general foreman, constituted an unfair labor practice in violation of § 8(a)(1). As noted above, this section of the Act protects employees in the exercise of their § 7 rights (see discussion at p. 1016). The ALJ made a specific factual finding that after the two employees returned to work from their suspension Roberts remarked to Michaels that they had not deserved the 30-day suspensions. Michaels answered that the lengthy suspension would not have been imposed if Semancik had "kept his mouth shut" at the hearing. App. at 453a. The ALJ concluded that this remark by Michaels "interfered with, restrained and coerced employees in the exercise of their Section 7 rights to protected union and other concerted activities" (in that) "such a statement might well serve as a warning that adherence to and a vigorous defense of employees' invocation of rights under a collective bargaining agreement would lead to more severe disciplinary action than would otherwise be imposed." App. at 458a.
40
To establish a § 8(a)(1) violation, it must be shown that, in light of all the existing circumstances, the employer's conduct may "reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act." National Labor Relations Board v. Armcor Industries, Inc., 535 F.2d 239, 242 (3d Cir. 1976). See Local 542, International Union of Operating Engineers v. National Labor Relations Board, 328 F.2d 850, 852-53 (3d Cir.), cert. denied, 379 U.S. 826, 85 S.Ct. 52, 13 L.Ed.2d 35 (1964). The fact-finder must determine whether a threat, either latent or overt, is contained in the employer's words. National Labor Relations Board v. Triangle Publications, Inc., 500 F.2d 597, 599 (3d Cir. 1974); Mon River Towing, Inc. v. National Labor Relations Board, 421 F.2d 1, 9-10 (3d Cir. 1969). As with other findings, the appellate court must review the Board's determination to ensure that it is reasonable and supported by substantial evidence. Id.
41
Judged by these standards, we find unreasonable the ALJ's determination that coercion and threat of reprisal were implicit in the comment made by Michaels. It is undisputed that Michaels did not initiate the conversation, but rather, only responded to a comment made by Roberts. Apparently the whole exchange totalled only two sentences. There is no evidence in the record to indicate that this remark was made in a hostile or vindictive tone. As stated earlier (see pp. 1018-1019, supra ), there is no evidence of anti-union animus on the part of the employer. Further, it is undisputed that Semancik had responded heatedly at his disciplinary hearing. The remark by Michaels thus was not an inappropriate comment on the tenor of the hearing. In sum, the record reveals that Michaels made a single, isolated, non-hostile, comment in response to a remark by Roberts. A review of the record as a whole compels us to conclude that the finding by the ALJ that this remark reasonably tended to coerce or intimidate employees is not supported by substantial evidence. Therefore, we conclude that the Board erred in deciding that this incident constituted an unfair labor practice in violation of § 8(a)(1).
VI.
42
In conclusion, we hold that under the circumstances of this case the Board did not abuse its discretion in not deferring to a pending, uncompleted arbitration proceeding. We further hold that on the record considered as a whole there is substantial evidence that the Company committed an unfair labor practice, in violation of § 8(a)(1), when it suspended Semancik and Roberts. We believe, however, that substantial evidence does not exist to support the conclusion that the Company violated § 8(a)(3) by suspending these two employees. Nor is there substantial evidence that the remark by general foreman Michaels constituted an unfair labor practice in violation of § 8(a)(1). Accordingly, insofar as the Board's order relates to the suspension of Semancik and Roberts in violation of § 8(a)(1), we will enforce the Board's order and deny the Company's petition for review.17 Insofar as the Board's order relates to the remark made by Michaels, we will deny enforcement of the Board's order and grant the Company's petition.
43
For the foregoing reasons, the order of the Board shall be modified by deleting (1) paragraph 1(b) of the order of the Board, and (2) the second paragraph of the Notice to Employees,18 and, as so modified, the order will be enforced.
1
29 U.S.C. § 158(a) provides in pertinent part:
" § 158. Unfair labor practices
"(a) It shall be an unfair labor practice for an employer
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . ."
2
Because we have decided that the Board properly exercised its discretion in not deferring to arbitration in view of the record in this case (see II, infra ), we will deny the motion filed by the Company on February 19, 1980, seeking to vacate the Board's order or, in the alternative, to remand for a clarification of the Board's deferral practices
3
"Section 14(C). DISPUTES
An employee or group of employees who believe that they are being required to work under conditions which are unsafe or unhealthy beyond the normal hazard inherent in the operation in question shall have the right to:
1
File a grievance on the Second Step of the complaint and grievance procedure for preferred handling in such procedure and arbitration; and/or
2
Relief from the job or jobs, without loss to their right to return to such job or jobs, and, at Management's discretion, assignment to such other employment as may be available in the plant; provided, however, that no employee, other than communicating the facts relating to the safety of the job, shall take any steps to prevent another employee from working on the job, provided he first reports the matter to his committeeman or foreman. Should either the Management or the Arbitrator conclude that an unsafe condition within the meaning of this Section existed and should the Employee not have been assigned to other available, equal or higher-rated work, he shall be paid for the earnings he otherwise would have received
It is recognized that emergency circumstances may exist and the local parties are authorized to make mutually satisfactory arrangements for immediate arbitration to handle such situations in an expeditious manner."
4
Some loads of pipe are tied, that is, bound, to the hooks of the crane with tightly wrapped cables; others are cradled: lifted in two loops of cable which have not been tightened around the load
5
Unbeknownst to Semancik, this hole or "spall" had first been discovered in a routine inspection in May 1977. The affected wheel was removed two weeks later and replaced with a new, carbonized wheel. On July 31, 1977, the axle on the newly installed wheel broke. The previously removed wheel, which had been kept as a spare, was reinstalled. It, in turn, was replaced with another new wheel on October 9, 1977. See App. at 453a
6
Carroll, the superintendent of electrical maintenance, observed the spalled wheel and the operation of the crane after it had been realigned. He concluded that (1) the spalled area did not come in contact with the rails, (2) there was no bumping or thumping, which can be caused by the crane's being out of alignment, as the crane rode back and forth on the rails, (3) the wheel was safe and did not need to be changed immediately, but that a change could be scheduled for the "normal downturn" which was due to take place the next weekend or so, and (4) meanwhile it was safe to operate the crane. The managers and supervisors conferred among themselves and unanimously reached the conclusion that the spalled wheel did not create an unsafe or dangerous condition in the operation of the crane. Also, they were of the opinion that Semancik and Roberts acted without a reasonable basis for their belief that the wheel was dangerous. See App. at 446a-447a
7
This replacement was not suspended because he was a new employee who was not yet fully qualified to operate the crane. App. at 155a, 448a
8
In fact, the wheel in dispute was not replaced until October 9, 1977 (see note 5, supra ). The crane operated without incident in the interim
9
In Spielberg Manufacturing Company, 112 N.L.R.B. 1080 (1955), the Board refrained from exercising jurisdiction and deferred to an arbitrator's decision on the merits. The Board summarized its policy of deferring in cases where an arbitrator's award is present if "the proceedings appear to have been fair and regular, all parties had agreed to be bound, and the decision of the arbitration panel is not clearly repugnant to the purposes and policies of the (National Labor Relations) Act." Id. at 1082
10
In Collyer Insulated Wire, 192 N.L.R.B. 837 (1971), the Board deferred to arbitration proceedings which had not been completed at the time of the unfair labor practice hearing. The Board identified three factors which supported the exercise of its discretion to defer: (1) a long-standing bargaining relationship with clearly defined and tested grievance-arbitration procedures; (2) the absence of evidence of anti-union animus; and (3) a dispute which is well suited to resolution by arbitration
In 1977 a change, attributable to a change in the membership of the Board, in this policy developed. In General American Transportation Corporation, 228 N.L.R.B. 808 (1977), the Board, in a split vote, announced the following policy: although the Board has the authority to defer to ongoing arbitration proceedings, the Board will not exercise its discretion to defer in instances where §§ 8(a)(1) and 8(a)(3) have allegedly been violated. Since that time the Board has not deferred in § 8(a)(1) and § 8(a)(3) cases.
There is no need to address the merits of the doctrines in the cases cited in notes 9 and 10 of this opinion on the record in this case.
11
Although in its petition for review the Company does not claim that remarks made at the hearing constitute a request for deferral, we note that the matter of arbitration was discussed. We believe that a fair reading of that discussion leads to the conclusion that the Company was urging the ALJ to consider the pertinent arbitral law in reaching his decision on the unfair labor practice charge, rather than requesting deferral. Implicit in the plea to the ALJ to give weight to the interpretations of past arbitrators is the idea that the ALJ will be deciding the case, not deferring. The pertinent passage follows:
"MR. DOTSON; We will elaborate on this later, but I would like at this point to invite the Court's attention to the fact that there is a substantial body of arbitual law which is the common law of our agreement sustaining the corporation's position in awarding discipline under facts, identical and similar to those involved in this case.
"But I think it's important for the Court to understand from the out-set that the provision we are dealing with in the contract is identical to that found in the basic Labor agreements of the basic steel industry.
"It has been arbitrated many times and the Court must look at the consistent interpretations that have been placed on that provision to have a proper understanding of the case.
"You simply can't take, as I am sure Your Honor knows, the bare language of an agreement and have an accurate understanding of how it has been implemented and how it will be implemented.
"JUDGE BISGYER: Has this matter gone to arbitration?
"MR. DOTSON: A grievance has been filed and it is expected in due course that it will go to arbitration.
"We have a typical grievance arbitration procedure final and binding in cases of contract interpretation as well as discipline. We have a permanent umpire and the system has worked well for many years.
"MR. ELAM: Well, Your Honor, we would take the position that whether or not the employees' claim was found to be meritorious under the contract, the employee still has the right to raise issues under the contract which he believes to be covered by the contract and is engaging in protected activities, even should his claim turn out to be non-meritorious.
"JUDGE BISGYER: Well, let's proceed. There hasn't been an award, and if there were an award, and the General Counsel had claimed that the award was repugnant to the rights accorded parties under the Act, we'd go through the procedure to determine what the facts are, and to determine whether the award coincides with the law."
App. at 17a-18a.
12
These were "hookers," see p. 1012, supra, employees whose safety would likely be most endangered if the pipes suspended from the crane slipped or swung haphazardly
13
On September 19, the date Semancik discovered the hole in the wheel, the union president telephoned the Occupational Safety and Health Administration (OSHA) to report the hazardous condition of the wheel. Semancik and Roberts responded to OSHA's request for more information. An OSHA representative visited the plant two days later and inspected the wheel. OSHA issued a citation requiring the Company to remedy the situation by November 7, 1977. The wheel was, in fact, removed on October 9. Apparently, OSHA scheduled a hearing on the citation, but the citation was withdrawn and a hearing never took place. See App. at 453a
14
Our decision in National Labor Relations Board v. Northern Metal Company, 440 F.2d 881 (3d Cir. 1971), is not applicable to this record. Because there is ample evidence in the record to support the finding that the refusals to operate the crane were not solitary acts by individual employees, we need not reach the issue of constructive concerted activity. We note that this court in Northern Metal, supra at 884, declined to follow the constructive concerted activity doctrine enunciated in National Labor Relations Board v. Interboro Contractors, Inc., 388 F.2d 495 (2d Cir. 1967)
15
We note that in National Labor Relations Board v. Modern Carpet Industries, Inc., 611 F.2d 811 (10th Cir. 1979), the Tenth Circuit apparently adopted the NLRB's position that a good faith belief that working conditions are abnormally hazardous need not be reasonable so long as it is sincere. We do not address this issue because, as explained in the text at page 1018 below, there is evidence in this case to support the ALJ's findings that the employees' actions were reasonable as well as sincere
16
The Company asserts that the uneven functioning of the crane on September 19 was due not to the hole in the wheel but to misalignment of the crane. We conclude, however, that on this record there is substantial evidence to support the ALJ's finding that Semancik and Roberts were entitled to act on their belief that a dangerous condition continued to exist after the realignment
17
As the Board concluded on alternative grounds (§ 8(a)(1) and § 8(a)(3)) that the suspensions were unlawful, and we have upheld the Board on one of its theories (§ 8(a)(1)), the relief granted to remedy the suspensions must be afforded to the employees
18
Paragraph 1(b) of the order states that the Company shall cease and desist from
"(w)arning employees that adherence to, and a vigorous defense of their invocation of rights under a collective-bargaining agreement would lead to more severe disciplinary action than would otherwise be imposed."
App. at 460a.
The second paragraph of the notice ordered by the Board states:
"WE WILL NOT warn or threaten employees that adherence to, or a vigorous defense of their invocation of their rights under a collective bargaining agreement would lead to more severe disciplinary action than would otherwise be imposed."
App. at 437a.
Of course, the Company may not lawfully threaten employees with more severe disciplinary action than otherwise would be imposed if they invoke their rights under the collective bargaining agreement. The presence of these paragraphs in the order and notice, however, implies that the Company has made such unlawful threats. Since we have found that coercive remarks did not occur here, we conclude that this implication is improper and that these paragraphs should be excised.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE )
)
v. ) ID No. 0109020376
)
SHACIN PATEL, )
Defendant. )
ORDER GRANTING MOTION TO MODIFY SENTENCE
Upon consideration of the motion for modification of sentence of Defendant
Shacin Patel, as well as Rule 35 of the Superior Court Rules of Criminal
Procedure; the facts, arguments and legal authorities set forth in the Rule 35
Motion; statutory and decisional law; and the entire record in this case, the Court
finds as follows:
1. The Delaware State Police arrested Shacin Patel on September 29,
2001 and charged him with Theft Over $1000 (a felony), Conspiracy Second
Degree (a felony), and Civil Contempt (a misdemeanor). 1 Mr. Patel’s arrest came
as the result of stealing 350 phone cards from a Sunoco gas station. Mr. Patel was
20 years old at the time of the offense.
2. A Grand Jury indicted Mr. Patel on December 3, 2001 on both
felonies. Mr. Patel’s trial began on June 25, 2002 but ended in a mistrial. The
1
The Civil Contempt charge was later dismissed.
State retried Mr. Patel on December 10, 2002 and the jury returned a guilty verdict
on both counts on December 11, 2002.
3. The Court immediately sentenced Mr. Patel as follows:
• Theft Over $1000: 18 months Level V, suspended immediately for 18
months Level II.
• Conspiracy Second Degree: 6 months Level V, suspended
immediately for 6 months Level II.
• The Court also ordered Mr. Patel to pay restitution in the amount of
$2,250.00.
4. On April 16, 2004, Commissioner Vavala discharged Mr. Patel’s
restitution obligations, noting that Mr. Patel had paid “a lot” of the amount owed.
5. The Court discharged Mr. Patel from probation on May 6, 2004.
6. Mr. Patel is originally from London, England, but has been a Lawful
Permanent Resident of the United States since 1994. He is currently in removal
proceedings from the United States and is being charged with being a deportable
and inadmissible alien because he has been convicted of an “aggravated felony.”
An aggravated felony can result in mandatory detention, deportation, and, most
importantly, bars eligibility for relief from these penalties.
7. A theft conviction with a sentence of one year or more is an
“aggravated felony” for immigration purposes.2 Under federal law, a sentence is
2
Immigration and Nationality Act (“INA”) § 101(a)(43)(G); 8 U.S.C. § 1101(a)(43)(G)(2000).
defined as the “period of incarceration or confinement order by a court of law,
regardless of suspension of the imposition or execution of that imprisonment in
whole or in part.”3
8. Mr. Patel’s only means to prevent deportation in this scenario is
through an application for cancellation of removal; however, Mr. Patel’s
aggravated felony precludes him from this form of relief. As such, he faces
imminent deportation.
9. However, modifying Mr. Patel’s “term of imprisonment” to below
one year eliminates his “aggravated felony” status for immigration purposes.4
10. Under Superior Court Criminal Rule 35(b), this Court may entertain a
motion to modify or reduce a sentence after the 90 day deadline imposed by the
rule if there are “extraordinary circumstances.”
11. Generally, once a sentence is complete, a conviction stands and may
not be appealed or collaterally attacked. However, the Delaware Supreme Court
has adopted the “federal rule,” which provides that “the satisfaction of the sentence
renders the case moot unless, in consequence of the conviction or sentence, the
defendant suffers collateral legal disabilities or burdens; in which event the
defendant is considered to have a sufficient stake in the conviction or sentence to
3
INA § 101(a)(48)(B); 8 U.S.C. § 1101(a)(48)(B).
4
Matter of Oscar Costas-Vargas, 23 I&N Dec. 849, 852 (BIA 2005).
survive the satisfaction of the sentence and to permit him to obtain a review or
institute a challenge.”5
11. In State v. Lewis, the Delaware Supreme Court held that the Superior
Court has the authority to modify a sentence under Superior Court Criminal Rule
35(b), even if the sentence has expired, if collateral consequences (such as
deportation) attach to the sentence.6
12. Mr. Patel is well outside of the 90 day deadline to move this Court for
a reduction or modification of his sentence but he meets the “extraordinary
circumstances” exception and therefore is eligible for a modification or reduction
of his sentence. Moreover, the State does not oppose the modification sought.
13. Mr. Patel’s 2002 sentence categorizes his conviction as an
“aggravated felony” under federal law, which makes him eligible for deportation.
The only way to pursue relief from deportation is to eliminate the aggravated
felony from his record and petition the immigration court. A modification of his
sentence to less than one year will accomplish this goal 7 and reinstate his eligibility
to challenge the immigration proceedings.
14. Mr. Patel made a mistake 14 years ago as a 20 year old. Since then,
he has worked hard to become a productive member of society. He works, pays
5
Gural v. State, 251 A.2d 344, 344-45 (Del. 1969).
6
797 A.2d 1198, 1199, 1202 (Del. 2002).
7
See Matter of Oscar Cota-Vargas.
his taxes, and provides for his family. Due to his father’s failing health, he is
taking on the responsibility of running his family’s business and is the sole source
of income for his wife and two parents.
15. Mr. Patel is facing deportation as the result of his theft conviction, and
therefore suffers from a collateral disability or burden. Consequently, Mr. Patel
has a stake in his conviction and sentence that allows him to survive the
satisfaction of the sentence and to permit him to obtain a review or institute a
challenge.8
NOW, THEREFORE, this 9th day of October, 2015, the Motion for
Modification of Sentence for Sachin Patel is hereby GRANTED. An amended
sentencing order shall issue consistent with this opinion, modifying the sentence
imposed for theft to a period of ten (10) months.
IT IS SO ORDERED.
Andrea L. Rocanelli
_____________________________
The Honorable Andrea L. Rocanelli
8
See Gural,251 A.2d at 344-45; Lewis, 797 A.2d at 1199.
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748 F.2d 688
Rickardv.Johnson*
NO. 84-8271
United States Court of Appeals,Eleventh Circuit.
NOV 16, 1984
1
Appeal From: N.D.Ga.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 23
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673 F.2d 1325
*Lonsdalev.Egger
81-1572
UNITED STATES COURT OF APPEALS Fifth Circuit
3/22/82
N.D.Tex., 525 F.Supp. 610
DISMISSED
1
---------------
* Fed.R.App.P. 34(a); 5th Cir. R. 18.
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543 U.S. 1110
HOUSTONv.UNITED STATES.
No. 04-6574.
Supreme Court of United States.
January 24, 2005.
1
C. A. 6th Cir. Reported below: 107 Fed. Appx. 603; Motions of petitioners for leave to proceed in forma pauperis granted. Certiorari granted, judgments vacated, and cases remanded for further consideration in light of United States v. Booker, ante, p. 220.
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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: ______________
3 Filing Date: August 17, 2017
4 NO. 35,219
5 JAIME MOLINAR,
6 Worker-Appellant,
7 v.
8 LARRY REETZ CONSTRUCTION, LTD.,
9 REETZ CONSTRUCTION, INC., and
10 BUILDERS TRUST OF NEW MEXICO,
11 Employer/Insurer-Appellees.
12 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
13 Reginald C. Woodard, Workers’ Compensation Judge
14 LeeAnn Ortiz
15 Albuquerque, NM
16 for Appellant
17 Butt Thornton & Baehr PC
18 M. Scott Owen
19 Albuquerque, NM
20 for Appellees
1 OPINION
2 HANISEE, Judge.
3 {1} Worker Jaime Molinar appeals a decision of the Workers’ Compensation Judge
4 (WCJ) denying Worker’s claim for permanent partial disability (PPD) and medical
5 benefits based on the WCJ’s finding that Worker’s disability was not caused by his
6 work-related accident. Worker argues that his work-related accident aggravated a
7 preexisting condition, resulting in his PPD, thus entitling him to PPD and medical
8 benefits, as well as mileage reimbursement for travel associated with his medical
9 appointments. Worker also claims that the Workers’ Compensation Administration
10 (WCA) violated NMSA 1978, Section 52-1-54(M) (2013) of the Workers’
11 Compensation Act (the Act) by paying Employer/Insurer attorney fees prior to the
12 settlement or adjudication of Worker’s claim. We reverse and remand for proceedings
13 consistent with this opinion.
14 BACKGROUND
15 History of Worker’s Prior Injury
16 {2} Worker suffered a non-work-related injury (femoral neck fracture) to his right
17 hip in 2002 that required installation of hip screws and a side plate in his right hip.
18 Worker recovered from his 2002 injury and began working shortly thereafter as a
19 carpenter for Larry Reetz Construction, Ltd. (Employer).
1 {3} In November 2006 Worker began to experience pain in his leg, specifically in
2 the right thigh/hip area where he experienced the femoral neck fracture in 2002. He
3 was seen at the University of New Mexico Hospital (UNMH) six times between 2006
4 and 2011 to address his pain. During Worker’s 2006 visit, Worker’s treating
5 physician noted that Worker had “right hip posttraumatic arthritis” and that the
6 arthritis was “in the initial stage[.]” In February 2007 Worker was diagnosed with
7 avascular necrosis (AVN) of the right femoral neck, and a total hip replacement was
8 discussed. Worker did not proceed with hip replacement surgery for economic
9 reasons. In January 2008 Worker returned to UNMH due to “significant pain in his
10 right hip especially with ambulation and work.” At that time, total hip replacement
11 was recommended. Worker was again seen in July 2008, at which time a total hip
12 replacement was again recommended and Worker was referred for a preoperative
13 evaluation, which never occurred. Upon Employer’s request in 2008, Worker
14 disclosed his preexisting condition of a “bad hip” to Employer and agreed to submit
15 to a medical examination if required. Worker did not return to UNMH until June
16 2010, when he was given an injection to manage his worsening pain because he
17 indicated that he could not afford to be off work in order to have the total hip
18 replacement surgery. In February 2011 Worker was ready to undergo surgery because
19 he “could not continue to work due to pain.” Worker’s treating physician at that time
2
1 described Worker’s condition as “posttraumatic degenerative joint disease of the right
2 hip, end-stage.” Worker had a preoperative evaluation, and surgery was scheduled.
3 However, Worker never had the surgery, did not seek additional medical care for his
4 hip after his 2011 visit to UNMH, and continued to work for Employer “at full duty”
5 until March 11, 2014, when Worker suffered an on-the-job injury.
6 {4} According to Employer’s president, Larry Reetz, Worker was “a dependable
7 employee” who did “good work” and is an “honest individual.” Mr. Reetz testified
8 that Worker did not frequently call in sick nor was Worker a problem from the
9 standpoint of absenteeism. He would have been aware, but was not, had Worker, at
10 some time during his employment, requested an extended period of time off due to
11 his preexisting hip condition. Similarly, Mr. Reetz had no memory of Worker
12 declining to perform a job or task based upon his preexisting condition.
13 Worker’s March 11, 2014, Work-Related Accident and Subsequent Medical
14 Treatment
15 {5} On March 11, 2014, Worker fell from the third step of a ladder while working
16 at one of Employer’s job sites, landing on his right side (March 2014 accident).
17 Worker was referred by Employer to its health care provider, Concentra Medical,
18 where he was seen by Steve Cardenas, P.A. Worker reported an “intense pain in [his]
19 hip” with a pain level of 10/10 and was initially diagnosed with a “contusion of [the]
20 thigh,” prescribed pain medication and crutches, and instructed not to work. Worker
3
1 returned to work when he was released to modified duty on May 8, 2014, then
2 allowed to lift up to fifty pounds. Worker continued to work within the restrictions
3 imposed by his treating physicians until July 12, 2014, when Worker’s pain became
4 so debilitating that he was no longer able to continue his employment. Worker has not
5 since returned to work.
6 {6} Worker continued to receive treatment at Concentra and was eventually
7 prescribed use of a cane because Worker “just could not ambulate without it. He
8 needed the support because his pain was so bad.” Worker also continued to be
9 prescribed pain medication to manage his pain and was referred to physical therapy,
10 which he reported was ineffective.
11 Worker’s Orthopaedic Surgeon’s Causation Opinion
12 {7} Employer’s insurer, Builders Trust of New Mexico (Insurer), referred Worker
13 to New Mexico Orthopaedics, where worker was first seen by Dr. Arnold Kiburz on
14 June 9, 2014. Dr. Kiburz noted that Worker’s “current condition is very likely related
15 to his initial fall and right hip fracture in a somewhat remote past” but also stated that
16 his “symptoms are consistent with [the] reported work injury.” Dr. Kiburz then
17 referred Worker to his colleague Dr. Joshua Carothers because of Dr. Carothers’
18 specialization in hip replacement surgery.
4
1 {8} Dr. Carothers first saw Worker on July 8, 2014, four days before Worker was
2 no longer able to work. On that date, Dr. Carothers noted in Worker’s chart that
3 “[Worker] broke his hip back in 2002 and underwent open reduction and internal
4 fixation.” As to his observations based on his examination of Worker’s right hip, Dr.
5 Carothers noted:
6 Radiographs of the right hip reviewed today reveal severe joint space
7 narrowing[.] There is a [two] hole dynamic hip screw and side plate with
8 a derotation screw. The hardware appears to be in good position
9 however there has been [AVN] of the femoral head with severe collapse.
10 This is consistent with Ficat stage IV.
11 At Worker’s followup visit on July 17, 2014, Dr. Carothers noted:
12 [T]he changes in the hip are rather chronic and I believe that the [AVN]
13 has been long-standing and predated the injury. The patient was having
14 pain prior to his fall and I believe that he had a well[-]compensated
15 condition of the hip that was allowing him to function with occasional
16 and relatively minimal discomfort. I believe that the fall disrupted [the]
17 tenuous balance of the hip and has resulted in an aggravation of the hip
18 and more constant and more debilitating pain.
19 In response to a question from Insurer’s claims department asking him to “[p]lease
20 state to a reasonable degree of medical probability, if the need for a left right necrotic
21 revision and right hip replace[ment is] related to [Worker’s] 3/11/14 loss[,]” Dr.
22 Carothers stated: “I believe that the AVN was present prior to the 3/11/14 fall but the
23 fall aggravated the condition and worsened the pain.”
5
1 Employer/Insurer’s Workers’ Compensation Complaint
2 {9} Employer/Insurer filed a complaint with the WCA on August 8, 2014, seeking
3 a determination of compensability and benefits related to Worker’s March 2014
4 accident and injury. Employer/Insurer challenged Dr. Carothers’ causation opinion
5 that Worker’s fall “aggravated” Worker’s “necrosis condition.” Specifically,
6 Employer/Insurer stated that Dr. Carothers’ opinion was “highly suspect” because Dr.
7 Carothers had not reviewed Worker’s prior medical records and could not “pinpoint
8 when the necrosis of the right femur head began without reviewing prior x-rays.”
9 Therefore, Employer/Insurer requested that the parties be allowed to depose Dr.
10 Carothers in order to “provide [Dr. Carothers] with all pertinent medical records”
11 because, Employer/Insurer argued, “Dr. Carothers’ opinion cannot establish
12 causation, at least not until he has reviewed all pertinent information.”1
13 Dr. Carothers’ Deposition Testimony
14 {10} The parties deposed Dr. Carothers on November 5, 2014. When asked by
15 Worker during his deposition what he meant by the phrase “aggravation of the hip”
16 in his July 17 notes, Dr. Carothers explained:
17 1
Employer/Insurer cited Niederstadt v. Ancho Rico Consolidated Mines, 1975-
18 NMCA-059, 88 N.M. 48, 536 P.2d 1104, as the basis for its request. We discuss the
19 import of Niederstadt later in this opinion.
6
1 So my assessment of this is that the severity of his hip did not result
2 from his fall in March. I believe that it—the downward spiral of his
3 hip[—]began with his trauma and fracture in 2002 and he has likely
4 been dealing with or coping with a bad hip for a longer period of time
5 and his symptoms worsened as a result of the fall. But I believe that his
6 hip was in end[-]stage arthritis related to [AVN] prior to the fall.
7 During its examination of Dr. Carothers, Employer/Insurer presented Dr. Carothers
8 with Worker’s UNMH medical records from 2006-2011. After reviewing the records
9 and being asked whether “there has been a change in your opinion as to aggravation,
10 causation with respect to the initial fall and March [2014] fall[,]” Dr. Carothers
11 stated:
12 So like I attempted to make clear, I think [Worker’s] condition of his hip
13 relates to his initial fall in 2002. I would have expected him to have pain
14 long before the fall in March [2014] as is demonstrated by the notes
15 from UNM[H;] however, there is a [three]-year gap between the last
16 UNM[H] note and the New Mexico Orthopedic notes, so he obviously
17 didn’t have a total hip replacement [and] has been making d[o]. So the
18 difficulty is [Worker has] been making d[o], he has another fall at work,
19 now he is not making d[o]. So it’s reasonable to say that the fall could
20 have aggravated the condition of his hip, but by [and] large his
21 symptoms, his hip pain are stemming from the original injury.
22 When asked by Employer/Insurer whether he had “an opinion as to whether or not the
23 need for the total hip [replacement] is related to the initial fall versus the March
24 [2014] fall[,]” Dr. Carothers responded:
25 The need for a total hip [replacement] was established by the initial fall,
26 the injury, the sub congeal—or the [AVN], and the resultant severe
27 arthritis. The need for it at this moment may be related to his aggravated
28 symptoms.
7
1 On redirect, Dr. Carothers was asked, “Is it your opinion that the work accident in
2 March [2014] hastened the need for the total hip replacement surgery?” Dr. Carothers
3 responded:
4 That’s a difficult question because he’s been contemplating hip
5 replacement for it sounds like the past five or six years. And, as I made
6 clear in my notes, his hip has been existing in a tenuous balance being
7 able to deal with the severity of his hip arthritis. So I would still
8 maintain that the need for hip replacement now may be related to that
9 fall from March [2014]. But he’s been needing hip replacement for
10 years.
11 Asked to state his causation opinion based on a reasonable degree of medical
12 probability, Dr. Carothers stated, “So I would say his fall in March [2014] prompted
13 him to seek a hip replacement at that time or within the next few months” and
14 explained that his opinion was “based on the symptoms reported” to him by Worker.
15 Worker’s Complaint Seeking Benefits
16 {11} On December 9, 2014, Worker filed a complaint with the WCA, seeking
17 temporary total disability (TTD), PPD, and medical benefits. In support of his
18 complaint, Worker relied on Dr. Carothers’ testimony regarding causation between
19 Worker’s March 2014 accident and his disability. Specifically, Worker contended
20 that:
21 Dr. Carothers stated that the fall at work aggravated Worker’s
22 preexisting condition and worsened his pain. Dr. Carothers also stated
23 that there was a [three]-year gap in medical records immediately prior
24 to the fall at work on March 11, 2014[,] indicating that Worker was
8
1 making due regarding his hip condition. Notably, Worker has been
2 working as a carpenter for this Employer the last [eight] years. Dr.
3 Carothers state[d] that the fall at work prompted Worker to seek a hip
4 replacement.
5 Worker included Dr. Carothers’ deposition testimony with his complaint as well as
6 Dr. Carothers’ earlier form letter in which he had opined that Worker’s March 2014
7 fall “aggravated the condition and worsened the pain.”
8 {12} Employer/Insurer answered the complaint and raised as affirmative defenses
9 that Worker was not hurt on the job, Worker was not disabled as a result of the March
10 2014 accident, and Worker failed to establish a causal link between the March 2014
11 accident and his disability to a reasonable medical probability. Employer/Insurer
12 continued to challenge Dr. Carothers’ causation opinion as being “not valid” and
13 “deficien[t]” based on Worker’s inclusion of Dr. Carothers’ form letter as an
14 attachment to his complaint, which Employer/Insurer noted Dr. Carothers provided
15 before he was deposed and, therefore, before he “had all pertinent medical
16 information.”2 Employer/Insurer also argued that Dr. Carothers’ testimony failed to
17 establish a causal link between the March 2014 accident and Worker’s disability
18 because “Dr. Carothers testified that Worker’s need for [a] total hip [replacement]
19 2
Employer/Insurer again cited Niederstadt despite having itself presented Dr.
20 Carothers with Worker’s UNMH records during Dr. Carothers’ deposition and the
21 fact that Dr. Carothers’ opinion that Worker’s AVN was aggravated by the fall was
22 unchanged.
9
1 was established by an unrelated fall” and that “the need for surgery might be related
2 to the fall reported with this Employer.”
3 {13} The parties attended a mediation conference on January 13, 2015, but were
4 unable to reach an agreement. The mediator’s recommended resolution found that
5 “Worker has carried his burden of proof and Worker’s current complaints are related
6 to his on-the-job injury” and thus recommended that “the treatment recommended by
7 Worker’s [health care provider] be provided with all related treatment[.]” Employer
8 rejected the recommended resolution.
9 Worker’s Independent Medical Examination (IME)
10 {14} In March 2015 Worker petitioned the WCJ for an IME “to determine whether
11 the need for right hip replacement surgery recommended by orthopaedic surgeon Dr.
12 Carothers is causally related to the work accident of March 11, 2014.” Worker
13 explained that “[d]espite Dr. Carothers testifying that the work accident aggravated
14 and worsened the pre[]existing hip condition, the surgery has been denied.” Despite
15 Employer/Insurer’s opposition, the WCJ granted Worker’s request.
16 {15} An IME panel comprised of Dr. Barrie Ross, a specialist in physical medicine
17 and rehabilitation, and Dr. Paul Legant, an orthopaedic surgeon, met on June 30,
18 2015. In its ensuing report, the panel responded to specific questions posed by the
10
1 WCJ.3 In response to a question about “the nature of the injury or injuries sustained
2 by Worker as a result of the job[-]related accident(s)[,]” the panel described the injury
3 Worker suffered in the March 2014 accident as a “[r]ight hip contusion superimposed
4 upon severe pre[]existing posttraumatic right hip degenerative joint disease.” In
5 response to the question, “[w]hich of Worker’s complaints, if any, are not related to
6 the job related injury(ies) on the above date(s) of injury[,]” the panel stated, “None
7 of [Worker’s] current complaints are related to the work injury of March 11, 2014. . . .
8 [Worker’s] current symptoms and condition are a direct result of his pre[]existing
9 right hip diagnoses.” The WCJ also asked whether “the medical care that has been
10 provided to Worker to date for treatment of [the] work[-]related injury or injuries
11 identified [by the panel has] been reasonable and necessary for treatment of the job
12 related injury(ies)[,]” and if not, for a detailed explanation of what aspects of
13 Worker’s “pa[s]t treatment (including [W]orker’s medication regimen) was not
14 reasonable or necessary.” The panel responded, “Yes, the medical care [Worker] has
15 received to date has been medically reasonable and necessary.” Finally, the panel
16 3
The WCJ’s order granting Worker’s request for an IME provided that the
17 parties were to work together to jointly prepare a letter to the IME panel and that in
18 the event the parties could not agree, the WCJ would issue a letter to the panel. On
19 May 13, 2015, the WCJ held a hearing at which the parties explained that they had
20 been unable to reach agreement as to a letter. Thus the WCJ issued his own letter to
21 the panel, containing thirteen questions.
11
1 recommended that Worker undergo “total hip arthroplasty” but noted that “[t]his
2 treatment recommendation is unrelated to the . . . March 2014 [injury] and rather,
3 follows [the] course of care discussed in 2007, recommended in 2008 and scheduled
4 for . . . 2011 at UNMH.”
5 {16} The parties proceeded to trial on November 9, 2015. Worker and Mr. Reetz
6 testified in person, and the WCJ admitted the deposition testimony of all of Worker’s
7 treating health care providers as well as IME panelists Drs. Ross and Legant. In
8 pertinent part, the WCJ made the following findings regarding Worker’s injury,
9 causation, and entitlement to benefits:
10 53. The medical evidence herein support[s] a [f]inding[] that
11 Worker’s [AVN] was not caused by Worker’s fall from a ladder
12 on March 11, 2014.
13 54. The medical evidence herein supports a [f]inding that Worker
14 suffered a contusion to his right thigh as a result of Worker’s fall
15 from a ladder on March 11, 2014.
16 ....
17 60. Worker is not entitled to modifier benefits after June 30, 2015[,
18 his date of maximum medical improvement,] because his inability
19 to return to work is not caused by his work[-]related injury.
20 The WCJ thus concluded that:
21 3. Worker suffered job[-]related injuries which arose within the
22 course and scope of, and incidental to, his employment with
23 Employer on March 11, 2014.
12
1 ....
2 6. Worker’s contusion to his right thigh on March 11, 2014[,] was
3 suffered within the course and scope of his employment with
4 Employer[] and as a consequence, is compensable under
5 the . . . Act.
6 7. Worker’s AVN and the need for total right hip
7 replacement/arthroplas[t]y are unrelated to Worker’s fall on
8 March 11, 2014, and were not suffered within the course and
9 scope of his employment with Employer[] and as a consequence,
10 are not compensable under the Worker[s’] Compensation Act.
11 8. Worker’s unrelated right hip condition precludes Worker’s return
12 to work with Employer at this time.
13 The WCJ awarded Worker “[b]enefits consistent with, and limited by, the terms of
14 this [o]rder.” Worker appealed.
15 DISCUSSION
16 {17} Worker raises three points of error: (1) the WCJ failed to apply the correct legal
17 standard in determining whether Worker met his burden of proof as to causation
18 between his accident and his disability, thereby incorrectly denying worker PPD and
19 medical benefits; (2) the WCJ failed to award Worker mileage to and from medical
20 appointments; and (3) the WCJ erred by declining to address Worker’s bad faith
21 claim against Employer/Insurer and refusing to impose a bad faith penalty on
22 Employer/Insurer. We address each issue in turn.
13
1 I. Whether the WCJ Properly Applied the Requirements of NMSA 1978,
2 Section 52-1-28 (1987)
3 {18} Throughout the process, Employer/Insurer framed the issue in this case as
4 being “whether there was a causal connection between the March 11, 2014[,] work
5 injury and Worker’s total right hip disability, including Worker’s need for total hip
6 replacement.” Citing Section 52-1-28(A), Employer/Insurer asserts, “Worker bore the
7 statutory burden of establishing a causal connection between his March 11, 2014
8 accident and his current overall disability to his right hip and need for total hip
9 replacement surgery.” By “current overall disability to his right hip[,]” we understand
10 Employer/Insurer to mean Worker’s AVN. The WCJ appears to have agreed with and
11 followed Employer/Insurer’s framing of the issue as evidenced by his findings and
12 conclusions that focus on the causal connection between Worker’s March 2014
13 accident and (1) his AVN, and (2) Worker’s need for hip replacement surgery.
14 Worker contends that Employer/Insurer and the WCJ applied the wrong legal
15 standard because the issue in this case is whether the medical evidence shows that
16 Worker’s accident resulted in an injury—i.e., the aggravation of his preexisting
17 AVN—that caused him to become disabled, not whether Worker’s need for a
18 particular type of medical procedure (i.e., total hip replacement surgery) to treat his
19 preexisting AVN arose from his March 2014 accident. We agree with Worker.
14
1 A. Standard of Review
2 {19} At its core, this case involves a question of statutory interpretation, namely,
3 whether the WCJ properly interpreted and applied the requirements of Section 52-1-
4 28. We review the interpretation of a statute de novo. Smith v. Ariz. Pub. Serv. Co.,
5 2003-NMCA-097, ¶ 5, 134 N.M. 202, 75 P.3d 418. “This Court is not required to
6 defer to the WCJ’s interpretation of [the Act].” Baca v. Complete Drywall Co., 2002-
7 NMCA-002, ¶ 12, 131 N.M. 413, 38 P.3d 181. We consider the Act “in its entirety,
8 construing each section in connection with every other section.” Id. ¶ 13 (internal
9 quotation marks and citation omitted).
10 {20} Recognizing, as many New Mexico appellate courts have, that the Act’s
11 provisions are imprecise, we begin by parsing Section 52-1-28 in order to clarify its
12 requirements. See Chavez v. Mountain States Constructors, 1996-NMSC-070, ¶¶ 25-
13 44, 122 N.M. 579, 929 P.2d 971 (discussing the ambiguity of NMSA 1978, Section
14 52-1-24 (1990) of the Act and undertaking to “examine and describe the various
15 elements of the statute to clarify their meaning” in order to apply them to the given
16 facts). Once we “ascertain[] the meaning of the statute, we review the whole record
17 to determine whether the WCJ’s findings and award are supported by substantial
18 evidence.” Smith, 2003-NMCA-097, ¶ 5. “[W]e disregard that [evidence] which has
19 little or no worth and then decide if there is substantial evidence in the whole record
15
1 to support the agency’s finding or decision.” Trujillo v. Los Alamos Nat’l Lab., 2016-
2 NMCA-041, ¶ 15, 368 P.3d 1259 (internal quotation marks and citation omitted),
3 cert. denied, 2016-NMCERT-004. “Where all or substantially all of the evidence on
4 a material issue is documentary or by deposition, the [reviewing court] will examine
5 and weigh it, and will review the record, giving some weight to the findings of the
6 [court] on such issue, and will not disturb the same upon conflicting evidence unless
7 such findings are manifestly wrong or clearly opposed to the evidence.” Martinez v.
8 Universal Constructors, Inc., 1971-NMCA-160, ¶ 10, 83 N.M. 283, 491 P.2d 171
9 (internal quotation marks and citation omitted). We review the WCJ’s application of
10 the law to the facts de novo. Tom Growney Equip. Co. v. Jouett, 2005-NMSC-015,
11 ¶ 13, 137 N.M. 497, 113 P.3d 320.
12 B. Compensable Claims Under the Act
13 {21} Section 52-1-28(A) provides that workers’ compensation claims are only
14 compensable “(1) when the worker has sustained an accidental injury arising out of
15 and in the course of his employment; (2) when the accident was reasonably incident
16 to his employment; and (3) when the disability is a natural and direct result of the
17 accident.” When an employer denies that “an alleged disability is the natural and
18 direct result of the accident, the worker must establish that causal connection as a
19 probability by expert testimony of a health care provider[.]” Section 52-1-28(B).
16
1 While Sections 52-1-28(A)(3) and (B) appear to require a single causation analysis
2 (between the accident and the disability), embedded within that analysis is the
3 requirement that there be an injury that is causally connected to both the accident and
4 the disability. See Oliver v. City of Albuquerque, 1987-NMSC-096, ¶ 4, 106 N.M.
5 350, 742 P.2d 1055 (explaining that Section 52-1-28(A) “requires that a worker’s
6 disability . . . be causally connected to the worker’s injury . . . and that the injury be
7 causally connected to the worker’s accident”); Trujillo, 2016-NMCA-041, ¶ 46, n.4
8 (holding that there was evidence of the existence of a causal relationship between the
9 worker’s accident and injuries but noting that the WCJ’s conclusions did not address
10 whether causation as to disability had been established). Thus, Section 52-1-28 must
11 be understood as requiring the worker to establish that (1) a work-related accident
12 caused an injury or injuries, and (2) the injury resulted in disability. Where a worker
13 sustains multiple injuries as a result of one accident, a causal connection between the
14 accident and each injury must be established in order for the injury to be
15 compensable. See, e.g., Trujillo, 2016-NMCA-041, ¶¶ 32, 36 (explaining that “a
16 health care provider must be allowed to equivocate with respect to certain injuries
17 about which he or she is unsure as to causation while still offering positive statements
18 as to others” and concluding that the expert testimony established causation as to
19 certain injuries but not others); Sanchez v. Zanio’s Foods, Inc., 2005-NMCA-134,
17
1 ¶¶ 7, 54, 138 N.M. 555, 123 P.3d 788 (explaining that the worker was diagnosed with
2 two different injuries and reversing and remanding the WCJ’s compensation award
3 because there was insufficient evidence to support a finding of causation between the
4 worker’s accident and one of the two claimed injuries). Likewise, where multiple
5 types of disability are claimed, a causal connection between each accidental injury
6 and the resulting claimed disability must be established. See, e.g., Baca, 2002-
7 NMCA-002, ¶¶ 14-26 (explaining that a single accident can result in multiple
8 injuries, some of which may develop immediately while others may not develop until
9 much later, and that each type of disability—e.g., TTD and PPD—that results from
10 a work-related accidental injury is potentially compensable).
11 1. The Injury Requirement Vis-à-Vis a Preexisting Condition
12 {22} In order to receive benefits, a worker must “sustain[] an accidental injury
13 arising out of and in the course of his employment[.]” Section 52-1-28(A)(1).
14 “Pre[]existing disease or infirmity of the employee does not disqualify a claim under
15 the ‘arising out of employment’ requirement [of Section 52-1-28(A)(1)] if the [work-
16 related accident] aggravated, accelerated, or combined with the disease or infirmity
17 to produce the death or disability for which compensation is sought.” Edmiston v.
18 City of Hobbs, 1997-NMCA-085, ¶ 9, 123 N.M. 654, 944 P.2d 883 (first internal
19 quotation marks and citation omitted). In cases where the worker has a preexisting
18
1 condition, there are at least two different types of injuries that may result: (1) the
2 aggravation, acceleration, or worsening of a preexisting condition or prior non-
3 disabling injury; or (2) a new injury that combines with a worker’s preexisting
4 condition and is amplified by a worker’s unusual susceptibility to injury because of
5 the preexisting condition. Compare Tom Growney, 2005-NMSC-015, ¶ 28
6 (explaining that “[i]f the stress of labor aggravates or accelerates the development of
7 a preexisting infirmity causing an internal breakdown of that part of the structure, a
8 personal injury by accident does occur” (internal quotation marks and citation
9 omitted)), Oliver, 1987-NMSC-096, ¶ 6 (explaining that “where a pre[]existing
10 condition . . . is aggravated by [a work-related accident, Section 52-1-28’s]
11 requirement as to job-related injury is met”), Reynolds v. Ruidoso Racing Ass’n,
12 1961-NMSC-116, ¶¶ 20-23, 69 N.M. 248, 365 P.2d 671 (discussing the differences
13 between “aggravation” or “acceleration” of a preexisting condition and instances
14 where an accident “precipitates disability from a latent prior condition” or
15 “combine[s] with the disease or infirmity to produce the . . . disability” (internal
16 quotation marks and citations omitted)), with Edmiston, 1997-NMCA-085, ¶¶ 23-24,
17 26-27 (holding compensable a worker’s PPD resulting from the combination of the
18 worker’s preexisting condition—multiple myeloma cancer—and a work-related back
19 injury, the treatment of which was limited by the worker’s cancer), and Leo v.
19
1 Cornucopia Rest., 1994-NMCA-099, ¶¶ 6, 30, 118 N.M. 354, 881 P.2d 714
2 (explaining that the worker’s accident “did not exacerbate or accelerate [the worker’s
3 preexisting] heart and lung conditions, although the heart and lung conditions
4 imposed significant restrictions on the treatment of [the worker’s] back condition and
5 on his recovery from the back injury[,]” and holding that compensation is based on
6 “the combined effect of both impairments”). Cf. Salopek v. Friedman, 2013-NMCA-
7 087, ¶¶ 17-22, 308 P.3d 139 (explaining the differences between “aggravation” and
8 “eggshell” theories of liability in tort law). The latter type of injury is the constructive
9 equivalent of the “eggshell plaintiff” theory in tort law. Compare id. ¶ 17 (discussing
10 New Mexico’s “eggshell plaintiff” jury instruction, UJI 13-1802 NMRA, which states
11 that a tort defendant “is said to ‘take the [p]laintiff as he finds him’ ” (quoting UJI 13-
12 1802)), with Edmiston, 1997-NMCA-085, ¶ 25 (explaining that in workers’
13 compensation law, the prevailing rule is that “ ‘the employer takes the employee as
14 it finds that employee’ ” (quoting 1 Arthur Larson & Lex K. Larson, The Law of
15 Workmen’s Compensation § 12.21 (1996))). If either type of injury results in
16 disability, “the employee is entitled to compensation to the full extent of the disability
17 even though attributable in part to a pre[]existing condition.” Smith, 2003-NMCA-
18 097, ¶ 12 (internal quotation marks and citation omitted).
20
1 {23} Aggravation, acceleration, or worsening of a preexisting condition is, itself, a
2 discrete type of injury and can occur either as a result of a single accidental incident
3 or develop over time as a result of employment activities. Compare Bufalino v.
4 Safeway Stores, Inc., 1982-NMCA-127, ¶¶ 2, 21, 98 N.M. 560, 650 P.2d 844
5 (describing the worker’s accident as “the stress which occurred in lifting heavy
6 boxes[,]” resulting in his heart attack (injury)); with Oliver, 1987-NMSC-096, ¶ 4
7 (describing the worker’s accident as “the stress induced by [the worker’s] job”; which
8 caused his heart attack (injury)); and Tom Growney, 2005-NMSC-015, ¶ 27
9 (explaining that New Mexico “precedent does not require a discrete ‘accident,’ in the
10 traditional sense, if employment activity itself aggravates a preexisting injury and
11 results in disability”). See Herndon v. Albuquerque Pub. Schs., 1978-NMCA-072,
12 ¶ 27, 92 N.M. 635, 593 P.2d 470 (explaining that “if the stress of labor aggravates or
13 accelerates the development of a preexisting infirmity causing an internal breakdown
14 of that part of the structure, a personal injury by accident does occur”). Non-
15 debilitating pain attributable to a prior injury or preexisting condition that increases
16 and becomes disabling as a result of a work-related accident is a type of compensable
17 injury. See Tom Growney, 2005-NMSC-015, ¶ 53; Tallman v. ABF (Arkansas Best
18 Freight), 1988-NMCA-091, ¶ 29, 108 N.M. 124, 767 P.2d 363 (affirming the WCJ’s
19 finding that an accidental injury occurred where the worker had experienced pain for
21
1 many years prior to his work-related accident but experienced a different level of pain
2 afterwards that was “so severe he could no longer work”). “There is no requirement
3 that there be a physical tissue change for there to be a compensable disability.”
4 Schober v. Mountain Bell Tel., 1980-NMCA-113, ¶ 8, 96 N.M. 376, 630 P.2d 1231
5 (rejecting the employer’s argument that “[w]ithout some permanent physical
6 alteration . . . there is no disability”). “If the employee suffers from a latent
7 preexisting condition that inevitably will produce injury or death, but the employment
8 acts on the preexisting condition to hasten the appearance of symptoms or accelerate
9 its injurious consequences, the employment will be considered the medical cause of
10 the resulting injury.” Ex parte Reed Contracting Servs., Inc. v. Reed Contracting
11 Servs., Inc., 203 So. 3d 96, 102-03 (Ala. Civ. App. 2016) (internal quotation marks
12 and citation omitted).4
13 2. What Constitutes a “Disability” Under Section 52-1-28
14 {24} The term “disability” as used in the Act has evolved as a result of legislative
15 amendments to the Act. At one point, it was true that “the primary test of disability
16 4
In his concurring and dissenting opinion in Edmiston, Chief Judge Hartz noted
17 that while reliance on out-of-state cases involving workers’ compensation is “unwise
18 on many issues” because the Act contains “a number of unique provisions,
19 . . . because the language regarding causation is fairly uniform among workers’
20 compensation statutes, we have typically looked to the law elsewhere for guidance
18 on novel issues with respect to causation.” 1997-NMCA-085, ¶ 35 (Hartz, C.J.,
19 concurring in part, dissenting in part).
22
1 [was] the worker’s capacity to perform work.” Salcido v. Transamerica Ins. Grp.,
2 1985-NMSC-002, ¶ 10, 102 N.M. 217, 693 P.2d 583 (emphasis omitted). Many cases
3 construing Section 52-1-28 articulated and applied this standard in making
4 determinations regarding causation between an accident and disability, regardless of
5 the type of compensation sought. Compare Salcido, 1985-NMSC-002, ¶¶ 9-13
6 (applying the “capacity to perform work” test for determining disability in a case
7 where the worker sought temporary disability benefits for a discrete interval of time),
8 with Bufalino, 1982-NMCA-127, ¶¶ 1, 15 (explaining that “[t]he primary test of
9 disability is the capacity to perform work” in a case where the worker was seeking
10 “total permanent disability” benefits). In the 1980s, however, the Legislature
11 amended the Act numerous times, specifically altering how “disability” is defined in
12 New Mexico. See Leo, 1994-NMCA-099, ¶ 12. In Leo, this Court explained:
13 The changing and competing policy interests behind
14 compensation laws are reflected in the successive legislative changes
15 defining disability. Most compensation laws adopt one of three
16 approaches in defining disability: a definition based on wage loss, a
17 definition based on impairment rating, or a definition based on a
18 reduction in an individual’s ability to perform work. Prior to 1986,
19 disability under [the Act] was defined in terms of capacity to work. In
20 1986 the definition was changed to incorporate concepts of all three
21 approaches. In 1987 the statutory definition of disability was again
22 amended to incorporate the concepts of both impairment and inability
23 to perform work. . . . [A]s a practical matter, the definition of disability
24 in the 1987 Act represents a return to the pre-1986 definition of
25 disability.
23
1 Id. (citations omitted).
2 {25} In 1990 the Legislature again amended the Act and established a clear
3 distinction between TTD and PPD, effectively defining “disability” in two different
4 ways. Whereas prior to 1990 the concept of the worker’s capacity to perform work
5 was incorporated into definitions of both TTD and PPD, after 1990 the concept only
6 remains in defining TTD. See NMSA 1978, § 52-1-25.1(A) (1990, amended 2005 and
7 2017) (“As used in the . . . Act, ‘temporary total disability’ means the inability of the
8 worker . . . to perform his duties prior to the date of the worker’s maximum medical
9 improvement.”). Compare NMSA 1978, § 52-1-26(B) (1989, amended 1990 and
10 2017) (providing that “ ‘partial disability’ means a condition whereby a worker . . .
11 suffers an impairment and is unable to some percentage extent to perform any work
12 for which he is fitted by age, education and training”), with § 52-1-26(B) (1990)
13 (providing that “ ‘partial disability’ means a condition whereby a worker . . . suffers
14 a permanent impairment”). Capacity to work still plays a role in determining PPD
15 benefits based on the physical capacity modifier variable of the statutory formula
16 established in the 1990 amendments. See NMSA 1978, § 52-1-26.4(B) (2003)
17 (providing that “[t]he award of points to a worker shall be based upon the difference
18 between the physical capacity necessary to perform the worker’s usual and customary
19 work and the worker’s residual physical capacity”). However, whether or not a
24
1 worker is deemed partially disabled under Section 52-1-26(B) is based solely on
2 physical impairment, not ability to work. See Smith, 2003-NMCA-097, ¶¶ 15-16
3 (discussing the differences between TTD and PPD and explaining that PPD is
4 determined not by one’s ability or inability to work but rather based on impairment).
5 Thus, following the 1990 amendments, the relevant causation inquiry under Section
6 52-1-28 necessarily changes depending on what type of disability the worker claims.
7 In cases where a worker claims TTD, the relevant question is whether the worker has
8 established a causal connection between his accident and his inability to work. In
9 cases where a worker claims PPD, the relevant question is whether the worker has
10 established a causal connection between his accident and a permanent impairment.
11 {26} Importantly, there is no indication in the plain language of the Act, in our cases
12 interpreting the Act, or that can be gleaned from legislative amendments to it that
13 suggests that Section 52-1-28(A) requires that a worker prove a causal connection
14 between an accident and the need for a particular type of medical treatment. See § 52-
15 1-28(A)(3) (providing that compensation is allowed “when the disability is a natural
16 and direct result of the accident” and saying nothing regarding a causal connection
17 between an accident and recommended medical services to treat the worker’s injury
18 or condition (emphasis added)). Whether an employer is liable for providing a
19 particular health care service—such as surgery—depends on whether the service is
25
1 “reasonable and necessary” and is not part of the causation analysis under Section 52-
2 1-28(A). See NMSA 1978, § 52-1-49(A) (1990) (providing that “[a]fter an injury to
3 a worker . . . and continuing as long as medical or related treatment is reasonably
4 necessary, the employer shall . . . provide the worker in a timely manner reasonable
5 and necessary health care services from a health care provider”). Such a
6 determination, while related to the question of the compensability of an injury, is a
7 separate matter that does not bear on the determination of causation under Section 52-
8 1-28(A). See Scott v. Transwestern Tankers, Inc., 1963-NMSC-205, ¶ 7, 73 N.M.
9 219, 387 P.2d 327 (explaining that “[m]edical and surgical treatment is incidental to
10 and a concomitant part of a compensable injury for which the employer is liable under
11 the Act”); Douglass v. N.M. Regulation & Licensing Dep’t, 1991-NMCA-041, ¶ 19,
12 112 N.M. 183, 812 P.2d 1331 (explaining that “the right to recover medical benefits
13 requires a showing that [the] worker has suffered a ‘compensable injury’ before
14 medical benefits may be awarded”). Notably, entitlement to medical
15 benefits—including coverage for the cost of surgery—depends simply on whether the
16 worker suffered an injury and is not contingent on a finding of disability. Section 52-
17 1-49(A) (providing that health care services are to be provided “[a]fter an injury to
18 a worker” (emphasis added)); DiMatteo v. Dona Ana Cty., 1985-NMCA-099, ¶ 13,
19 104 N.M. 599, 725 P.2d 575 (“An award of medical expenses is properly made
26
1 despite the absence of a finding of disability.”); cf. Vargas v. City of Albuquerque,
2 1993-NMCA-136, ¶ 9, 116 N.M. 664, 866 P.2d 392 (affirming the WCJ’s denial of
3 medical benefits where the WCJ found that the worker “did not sustain any injury”
4 in the work-related accident because an employer “is only obligated to provide
5 services after an injury”).
6 {27} Finally, inevitability of disability (or death) plays no role in determining
7 whether a worker’s actual disability is causally related to a work-related accident. See
8 Edmiston, 1997-NMCA-085, ¶¶ 19-27 (holding that the WCJ erred by relying, in part,
9 on the fact that the worker’s preexisting condition “might have been just as disabling
10 with or without the [accidental injury]” suffered (emphasis added)); see also Gilbert
11 v. E.B. Law & Son, Inc., 1955-NMSC-083, ¶¶ 22-23, 31, 60 N.M. 101, 287 P.2d 992
12 (affirming the trial court’s refusal to instruct the jury that a worker’s preexisting
13 condition “would inevitably have caused his death” because such an instruction “does
14 not correctly state the law in that it ignores the proposition that [a preexisting
15 condition] may have been materially aggravated and death accelerated by reason of
16 [a work-related accidental injury]” (internal quotation marks omitted)). In a case such
17 as this involving a preexisting condition, WCJs must take care not to rely on the fact
18 that a worker’s preexisting condition may have potentially become just as disabling
19 without an accidental injury in determining whether causation has been established.
27
1 Edmiston, 1997-NMCA-085, ¶¶ 19-20, 25-27. “[T]he test is not what would have
2 happened to someone else . . . but what [the accident] actually did to its victim.” Id.
3 ¶ 25 (internal quotation marks and citation omitted).
4 3. Causation and Proof Thereof
5 {28} “In order to establish causation under the . . . Act, a worker must show that his
6 disability more likely than not was a result of his work-related accident.” Buchanan
7 v. Kerr-McGee Corp., 1995-NMCA-131, ¶ 23, 121 N.M. 12, 908 P.2d 242 (internal
8 quotation marks and citation omitted). “It is settled that the contributing factor need
9 not be the major contributory cause.” Id. (internal quotation marks and citation
10 omitted). “To be compensable, a worker’s accident need not be the sole cause of his
11 disability or death[;] a worker need only show that it was a contributing cause.”
12 Wilson v. Yellow Freight Sys., 1992-NMCA-093, ¶ 12, 114 N.M. 407, 839 P.2d 151.
13 “The work-related cause may, in fact, be a minor factor so long as the worker
14 establishes that, as a matter of medical probability, it was a cause of the disability.”
15 Buchanan, 1995-NMCA-131, ¶ 23. “Causation exists within a reasonable medical
16 probability when a qualified medical expert testifies as to his opinion concerning
17 causation and, in the absence of other reasonable causal explanations, it becomes
18 more likely than not that the injury was a result of its action.” Sanchez v. Molycorp,
19 Inc., 1985-NMCA-067, ¶ 16, 103 N.M. 148, 703 P.2d 925. “[O]nce [a worker]
28
1 establishe[s] that the accidental injury caused disability, it matters not whether a
2 pre[]existing condition contributed to the ultimate disability.” Tallman, 1988-NMCA-
3 091, ¶ 33. Thus, principles of causation are equally applicable to the assessment of
4 compensability regardless of whether an accidental injury is new or if it entails
5 aggravation of a preexisting condition.
6 {29} Section 52-1-28(B) requires the worker to establish causation “as a probability
7 by expert testimony of a health care provider” in cases where the employer disputes
8 a causal connection between the accident and disability. “[T]he medical expert need
9 not state his opinion in positive, dogmatic language or in the exact language of the
10 statute. But he must testify in language the sense of which reasonably connotes
11 precisely what the statute categorically requires.” Gammon v. Ebasco Corp., 1965-
12 NMSC-015, ¶ 23, 74 N.M. 789, 399 P.2d 279. “An opinion, an honest effort to
13 logically and rationally connect the cause and effect, is all that we can hope to
14 obtain.” Elsea v. Broome Furniture Co., 1943-NMSC-036, ¶ 43, 47 N.M. 356, 143
15 P.2d 572.
16 {30} New Mexico has adopted the uncontradicted medical evidence rule, which is
17 “an exception to the general rule that a trial court can accept or reject expert opinion
18 as it sees fit.” Banks v. IMC Kalium Carlsbad Potash Co., 2003-NMSC-026, ¶ 35,
19 134 N.M. 421, 77 P.3d 1014 (internal quotation marks and citation omitted). “The
29
1 rule is based on [Section] 52-1-28(B), which requires the worker to prove causal
2 connection between disability and accident as a medical probability by expert medical
3 testimony. Because the statute requires a certain type of proof, uncontradicted
4 evidence in the form of that type of proof is binding on the trial court.” Id. (internal
5 quotation marks and citation omitted). “In the event of a dispute between the parties
6 concerning . . . the cause of an injury or any other medical issue, . . . either party may
7 petition a [WCJ] for permission to have the worker undergo an [IME].” NMSA 1978,
8 § 52-1-51(A) (2013). Additionally, “[i]f a [WCJ] believes that an [IME] will assist
9 the judge with the proper determination of any issue in the case, including the cause
10 of the injury, the [WCJ] may order an [IME] upon the judge’s own motion.” Id. It is
11 well settled that “where a conflict arises in the proof, with one or more experts
12 expressing an opinion one way, and others expressing a diametrically contrary
13 opinion, the trier of the facts must resolve the disagreement and determine what the
14 true facts are.” Yates v. Matthews, 1963-NMSC-038, ¶ 11, 71 N.M. 451, 379 P.2d
15 441. However, there must be a rational basis for the WCJ to reject a proposed finding
16 of causation. Cf. Chevron Res. v. N.M. Superintendent of Ins., 1992-NMCA-081, ¶ 8,
17 114 N.M. 371, 838 P.2d 988 (explaining that “[w]e must affirm the WCJ if there was
18 a rational basis for the WCJ to reject [the w]orker’s proposed finding that his lung
19 condition was aggravated during the course of his employment”). Expert testimony
30
1 that “fails to speak to the ultimate issue in the case” is not afforded substantial
2 weight. Trujillo, 2016-NMCA-041, ¶ 39. In cases involving a preexisting condition
3 where the worker has initially established causation through expert testimony, “the
4 burden of production should be upon an employer to show that the effects of the
5 preexisting condition are identifiably separate and unrelated.” Edmiston, 1997-
6 NMCA-085, ¶ 17.
7 C. Whether Worker Met His Burden Under Section 52-1-28
8 {31} Worker’s December 2014 complaint stated that his March 2014 accident
9 caused an aggravation of his preexisting condition, after which he became disabled.
10 Specifically, Worker described the issue as being “whether Worker’s preexisting
11 []arthritis and [AVN] was made worse by the fall at work on March 11, 2014.”
12 (Emphasis added.) Worker never contended that the March 2014 accident exclusively
13 caused his AVN or arthritis. Employer/Insurer’s response focused on establishing
14 what Worker had already conceded—that his AVN and arthritis were preexisting
15 conditions that were not causally related to the March 2014 accident—and challenged
16 Dr. Carothers’ opinion regarding causation. Employer failed to address the question
17 of aggravation or applicable law regarding aggravation of a preexisting condition. As
18 a result, the vast majority of expert testimony elicited focused on whether Worker’s
19 March 2014 accident caused Worker’s AVN and whether the accident itself caused
31
1 the need for Worker’s hip replacement surgery. Both inquiries were factually and
2 legally deficient. Exacerbating the analyses’ shortcomings were (1) the WCJ’s list of
3 questions to the IME panel, which advanced the same misunderstanding of the
4 applicable legal standards shared by Employer/Insurer, thereby devaluing testimony
5 elicited in response thereto; and (2) Worker’s own failure to clarify the basis for his
6 claim when questioning experts—i.e., that his claimed injury was “aggravation of a
7 preexisting right hip condition” rather than the contusion he suffered as a result of the
8 accident—and articulate the basis for each of the benefits he sought (TTD, PPD, and
9 medical).
10 {32} We review the record to determine (1) whether Worker established causation
11 under Section 52-1-28, specifically whether his March 2014 accident caused an
12 aggravation of his preexisting condition resulting in his disability or disabilities; and
13 (2) if so, whether the WCJ erred by failing to award Worker benefits related to his
14 aggravation injury.
15 1. Worker Met His Burden of Establishing, Through Expert Medical
16 Testimony, a Causal Connection Between His Work-Related Accident, His
17 Injury (Aggravation of His AVN), and His Inability to Work
18 {33} On July 17, 2014, Dr. Carothers noted that Worker experienced “pain prior to
19 his fall, and I believe that he had a well[-]compensated condition of the hip that was
20 allowing him to function with occasional and relatively minimal discomfort. I believe
32
1 that the fall disrupted [the] tenuous balance of the hip and has resulted in an
2 aggravation of the hip and more constant and more debilitating pain.” (Emphasis
3 added.) At his deposition, Dr. Carothers elaborated on this note: “So my assessment
4 of this is that the severity of his hip did not result from his fall in March. I believe that
5 . . . the downward spiral of his hip began with his trauma and fracture in 2002 and he
6 has likely been dealing with or coping with a bad hip for a longer period of time and
7 his symptoms worsened as a result of the fall.” (Emphasis added.) Dr. Carothers
8 further testified that he believed Worker “was coping—was able to cope with the hip
9 in its condition and that as a result of the fall, the pain worsened. He was no longer
10 able to cope” and that “the difficulty is [Worker has] been making due, he ha[d]
11 another fall at work, now he is not making due.” In other words, as a direct and
12 natural result of Worker’s March 2014 accident, Worker suffered debilitating pain
13 that caused him to no longer be able to work as of July 12, 2014.
14 {34} The record thus reveals that from early on, Dr. Carothers unequivocally
15 identified Worker’s injury as being an aggravation of his preexisting AVN, evidenced
16 by Worker’s increased pain and “inability to cope” following the fall. He causally
17 connected that injury to Worker’s March 2014 accident and further established that
18 Worker’s inability to work (i.e., his TTD) resulted from his increased pain post-
19 injury. Employer/Insurer’s effort to seize upon parts of Dr. Carothers’ testimony that
33
1 appear to equivocate as to causation between Worker’s accident and his need for
2 surgery—i.e., Dr. Carothers’ statement that “the need for hip replacement now may
3 be related to that fall from March”—is unavailing because that is not the relevant
4 inquiry. Cf. Trujillo, 2016-NMCA-041, ¶ 35 (explaining that a statement that accepts
5 a proffered premise and acknowledges something as a possibility “is not sufficient to
6 negate the clear assertions of causation previously [made]”). Importantly, Dr.
7 Carothers never opined that the March 2014 accident was the sole cause of Worker’s
8 inability to work. Rather, he readily and repeatedly acknowledged that Worker had
9 a severe preexisting condition and conceded that the severity of Worker’s condition
10 and his need for surgery are not solely attributable to the accident. Even assuming Dr.
11 Carothers’ testimony establishes nothing more than that Worker’s accident was a
12 minor factor contributing to his inability to work, that is sufficient to establish
13 causation. See Buchanan, 1995-NMCA-131, ¶ 23. We conclude that Dr. Carothers’
14 causation opinion meets the requirements of Section 52-1-28 because his testimony
15 establishes, first, that Worker’s March 2014 accident caused an aggravation injury
16 (aggravation of Worker’s preexisting AVN) and, second, that the aggravation injury
17 “more likely than not” caused Worker to become disabled. Buchanan, 1995-NMCA-
18 131, ¶ 23 (internal quotation marks and citation omitted).
34
1 {35} Because of the uncontradicted medical evidence rule, the question then
2 becomes whether Dr. Carothers’ testimony is itself inherently deficient and therefore
3 unable to serve as the basis for meeting the requirements of Section 52-1-28(B), or
4 alternatively, whether other medical expert testimony sufficiently contradicted Dr.
5 Carothers’ causation testimony, thus allowing the WCJ to reject Dr. Carothers’
6 testimony. See Banks, 2003-NMSC-026, ¶ 35. If not, the WCJ was bound by Dr.
7 Carothers’ causation opinion. Id. We address each of these questions in turn.
8 2. Employer/Insurer’s Niederstadt Argument Challenging the Competency
9 of Dr. Carothers’ Causation Opinion is Without Merit
10 {36} Throughout the proceedings, including on appeal, Employer/Insurer relies
11 heavily on Niederstadt and also Zanio’s Foods to undermine and lessen the weight
12 of Dr. Carothers’ medical testimony regarding causation. Employer/Insurer’s reliance
13 on Niederstadt and Zanio’s Foods is misplaced, particularly and critically as a means
14 to defeat Dr. Carothers’ testimony.
15 {37} In Niederstadt, this Court reversed a WCJ’s award of PPD benefits after
16 concluding that there was not substantial evidence to support the WCJ’s
17 determination that the worker had met his burden of proof as to causation. 1975-
18 NMCA-059, ¶¶ 11, 13. In that case, the worker had suffered an injury thirteen years
19 prior to his work-related injury. Id. ¶ 10. The doctor whose report was relied upon to
20 establish causation between the work-related accident and the worker’s disability had
35
1 no knowledge of the prior injury. This Court held that “since pertinent information
2 existed about which [the doctor] apparently had no knowledge, his opinion cannot
3 serve as the basis for compliance” with Section 52-1-28’s requirement that the worker
4 establish causation through medical expert testimony. Niederstadt, 1975-NMCA-059,
5 ¶ 11. As this Court more recently explained in Zanio’s Foods, “The essence of
6 Niederstadt is that a health[]care provider must be informed about a pertinent prior
7 injury before he or she can render an opinion as to the cause of a subsequent injury.”
8 Zanio’s Foods, 2005-NMCA-134, ¶ 14. In Zanio’s Foods, the worker had suffered
9 multiple prior back injuries that he failed to disclose to his health care providers
10 whose testimony as to causation was apparently credited by the WCJ over competing
11 expert testimony. Id. ¶¶ 16, 56. Notably, the worker in Zanio’s Foods did not argue
12 aggravation of a preexisting condition. Id. ¶ 7. Rather, he claimed his work-related
13 accident “was the sole cause of the degenerative disk condition of which he
14 complained” even though it appeared—and at times the worker even conceded—that
15 the degenerative disk condition was preexisting. Id. ¶¶ 51, 56. Unlike in Niederstadt,
16 where this Court reversed with instructions to enter judgment in favor of the
17 employer, 1975-NMCA-059, ¶ 13, in Zanio’s Foods, this Court remanded the case
18 to the WCJ for entry of “more detailed and explanatory findings of fact and
19 conclusions of law.” Zanio’s Foods, 2005-NMCA-134, ¶ 55. The Court made no
36
1 ultimate determination as to whether the worker had met his burden of establishing
2 causation.
3 {38} Here, the record evinces that Dr. Carothers possessed the pertinent information
4 regarding Worker’s preexisting condition as early as his first assessment of Worker
5 on July 8, 2014. On that date, Dr. Carothers noted in Worker’s chart the history of
6 Worker’s present illness: “[Worker] broke his hip back in 2002 and underwent open
7 reduction and internal fixation.” As to his observations based on his examination of
8 Worker’s right hip, Dr. Carothers noted, “there has been [AVN] of the femoral head
9 with severe collapse[,]” indicating he possessed the pertinent information that
10 Worker’s AVN was preexisting. In the notes from Worker’s follow-up visit on July
11 17, 2014, Dr. Carothers stated that “the changes in the hip are rather chronic and I
12 believe that the [AVN] has been long-standing and predated the injury[,]” further
13 reinforcing his awareness of Worker’s AVN prior to opining that the accident caused
14 an aggravation of Worker’s condition.
15 {39} Employer/Insurer argues that “[o]n cross-examination, Dr. Carothers’
16 testimony took a turn when confronted with Workers’ prior medical records” from
17 UNMH. However, we discern no material differences between Dr. Carothers’ direct
18 and cross-examination testimony. After being presented with and reviewing Worker’s
19 UNMH records from 2006-2011, Dr. Carothers maintained:
37
1 So like I attempted to make clear, I think [Worker’s] condition of his hip
2 relates to his initial fall in 2002. I would have expected him to have pain
3 long before the fall in March [2014] as is demonstrated by the notes
4 from UNM[H;] however, there is a [three]-year gap between the last
5 UNM[H] note and the New Mexico Orthopedic notes, so he obviously
6 didn’t have a total hip replacement [and] has been making due. So the
7 difficulty is [Worker has] been making due, he has another fall at work,
8 now he is not making due. So it’s reasonable to say that the fall could
9 have aggravated the condition of his hip, but by [and] large his
10 symptoms, his hip pain are stemming from the original injury.
11 This testimony largely mirrors Dr. Carothers’ earlier testimony—and his original
12 opinion—that Worker’s accident aggravated his AVN.
13 {40} Employer/Insurer also attempts to undermine the weight of Dr. Carothers’
14 testimony by pointing out that Worker was Dr. Carothers’ “sole source of information
15 as to the mechanism of his injury on March 11, 2014 as well as the progression of his
16 symptoms” and highlighting the WCJ’s finding that:
17 Dr. Carothers testified in deposition that he had not reviewed any
18 records from UNMH regarding Worker’s prior hip treatment, did not
19 review Worker’s medical records from Concentra, did not review
20 physical therapy records regarding Worker’s hip, and that Worker was
21 Dr. Carothers’ only source of Worker’s medical history. Dr. Carothers
22 was unaware Worker’s diagnosis of AVN dated back to at least 2008.
23 There are numerous problems with Employer/Insurer’s line of attack. First, neither
24 Niederstadt nor Zanio’s Foods imposes a requirement that a testifying expert have
25 reviewed all of a worker’s prior medical records in order to provide a competent
26 causation opinion. As acknowledged by Employer/Insurer, the requirement is simply
38
1 that “a health[]care provider must be informed about a pertinent prior injury before
2 he or she can render an opinion as to the cause of a subsequent injury.” Zanio’s
3 Foods, 2005-NMCA-134, ¶ 14 (emphasis added). The fact that Dr. Carothers had not
4 reviewed Worker’s UNMH records is not presumptively fatal given that Dr.
5 Carothers—unlike the experts in Niederstadt and Zanio’s Foods—had been informed
6 about Worker’s pertinent prior injury by Worker himself and had reviewed
7 radiographs that provided additional information, i.e., that the AVN was “long-
8 standing.” Second, the WCJ’s finding that Dr. Carothers did not know when Worker’s
9 AVN was first diagnosed is of no moment here. Dr. Carothers never opined that
10 Worker’s March 2014 accident caused his AVN, only that the accident worsened or
11 aggravated the AVN, thus hastening the need for hip replacement surgery. Even
12 Employer/Insurer fails to explain the significance of the fact that Dr. Carothers did
13 not know that Worker’s AVN had first been diagnosed in 2008.
14 {41} We conclude that this case is distinguishable from both Niederstadt and
15 Zanio’s Foods. The weight of Dr. Carothers’ testimony is not negatively impacted by
16 the fact that he had not reviewed Worker’s UNMH records prior to rendering his
17 causation opinion—which he affirmed even after reviewing them at his
18 deposition—because the record makes clear that he possessed pertinent information
39
1 about Worker’s prior injury when he gave his opinion.5 To the extent the WCJ
2 discounted the weight of—or outright rejected, as appears to be the case—Dr.
3 Carothers’ testimony based on Employer/Insurer’s Niederstadt challenge, we hold
4 that it was error to do so.
5 3. No Substantial or Competent Expert Medical Testimony Rebutted Dr.
6 Carothers’ Causation Opinion
7 {42} We next turn to whether other expert medical testimony contradicted Dr.
8 Carothers’ causation testimony, thereby permitting the WCJ to choose between
9 competing opinions. If not, Dr. Carothers’ testimony is binding on the WCJ and this
10 Court. See Banks, 2003-NMSC-026, ¶ 35. We note that while “causation” is the
11 ultimate issue that must be resolved, determining whether Worker’s disabilities (TTD
12 and PPD) resulted from his March 2014 accident hinges, in this case, on the narrower
13 question of what type of injury or injuries Worker suffered. According to Worker and
14 To the extent Employer/Insurer challenges the weight of the causation
5
15 opinions of Worker’s treating health care providers at Concentra, Steve Cardenas,
16 P.A., and Dr. David Lyman, we agree that Niederstadt may apply to their testimony
17 because both related Worker’s AVN—rather than an aggravation of his AVN—to the
18 March 2014 accident. However, Employer/Insurer’s attempts to discredit Cardenas’s
19 and Dr. Lyman’s opinions on the basis of Niederstadt ignore the fact that Worker
20 never claimed that his March 2014 accident caused his AVN and only serve to
21 unnecessarily confuse matters. As explained in the preceding section, given the
22 substance of and basis for Dr. Carothers’ causation testimony, no other expert
23 testimony was needed to establish causation, making it irrelevant whether Cardenas
24 and Dr. Lyman had all pertinent information in rendering their opinions.
40
1 Dr. Carothers, the injury Worker suffered was an aggravation of Worker’s preexisting
2 AVN. According to Employer/Insurer and the WCJ, Worker suffered only a contusion
3 to his right thigh, and Worker’s preexisting AVN was unaffected by the March 2014
4 accident. Having already concluded that Dr. Carothers’ testimony unequivocally and
5 competently established that Worker suffered an aggravation of his preexisting AVN,
6 and that the injury resulted in disability, we focus on whether substantial evidence
7 supports the WCJ’s express finding that “[t]he medical evidence . . . supports a
8 [f]inding that Worker suffered a contusion to his right thigh as a result of Worker’s
9 fall from a ladder on March 11, 2014[,]” and the concomitant implied finding that
10 Worker did not suffer an aggravation of his preexisting AVN. See Trujillo v. City of
11 Albuquerque, 1993-NMCA-114, ¶ 13, 116 N.M. 640, 866 P.2d 368 (explaining that
12 a reviewing court “examine[s] the record to ascertain whether the [WCJ’s] finding . . .
13 is supported by substantial evidence under a whole-record standard of review”);
14 Jones v. Beavers, 1993-NMCA-100, ¶ 18, 116 N.M. 634, 866 P.2d 362 (explaining
15 that “[t]he trial court’s refusal to adopt the requested findings of fact is tantamount
16 to a finding against [the requesting party] on each of the[] factual issues”). We review
17 the testimony of Drs. Ross and Legant, the IME panel members on whom the WCJ
18 appears to have most heavily relied in rendering his decision. We begin by noting that
19 the IME panel’s charge was to respond to the questions formulated by the WCJ,
41
1 which failed to inquire into the relevant ultimate issues in this case. As such, we must
2 examine not only the ultimate opinions of Drs. Ross and Legant but also the basis for
3 their opinions in order to determine whether they are sufficient as a matter of law to
4 contradict Dr. Carothers’ opinion that Worker suffered an aggravation injury. See
5 Trujillo, 1993-NMCA-114, ¶¶ 14-21 (explaining that it is improper for a WCJ to rely
6 upon opinion testimony when the basis for the opinion fails to comport with statutory
7 definitions and standards, rendering it “incorrect as a matter of law”).
8 Drs. Ross’s and Legant’s Testimony
9 {43} Worker directly questioned Dr. Ross about her opinion regarding whether
10 Worker sustained an aggravation of his preexisting AVN three times during her
11 deposition. First, when asked whether she agreed or disagreed with Dr. Carothers’
12 opinion that Worker “suffered an aggravation of his preexisting right hip condition
13 as a result of the fall at work in [March] 2014[,]” Dr. Ross responded:
14 I’m confused by the testimony you’re having me read. Because in one
15 part of it . . . [Dr. Carothers] says that he thinks the fall resulted in an
16 aggravation of the hip and more constant and debilitating pain, but then
17 [in] the second part he says that [the] severity of the pain is not a result
18 of the fall, that it’s a downward spiral that started from a fracture in
19 2002 and, quote, but I believe that his hip was in end-stage arthritis
20 related to [AVN] prior to the fall, end quote. So I find—I’m unable to
21 answer your question because I find what he says contradictory.
42
1 Next, when asked if it was her testimony that Worker’s “right hip symptoms did not
2 worsen as a result of the fall at work[,]” Dr. Ross never directly answered the
3 question. Instead she responded:
4 I think we’re confusing the term hip symptoms—or using the term ‘hip
5 symptoms’ very loosely. What I’m saying is that I think that the fall
6 caused him to have a contusion to his leg, his thigh, but I think that the
7 actual problem, his pain now and the resultant recommendation for
8 surgery, is due to the fact that he had end-stage [AVN]. . . . I do not
9 believe that the fall caused an end-stage problem to become worse
10 because he was already at end stage. I think that this is a natural
11 progression of his disease and of the diagnosis and that he was
12 ultimately going to need a hip replacement which was recommended as
13 far back as 2008.
14 Finally, when asked again to comment on Dr. Carothers’ opinion that “the fall
15 aggravated [Worker’s preexisting AVN] and worsened the pain,” Dr. Ross stated:
16 I do not agree with [that] . . . because the patient was already at end
17 stage. You can’t get any further than end stage. There’s no joint left. The
18 femoral head is gone. It just doesn’t happen. Actually, if you look at the
19 X-rays, you don’t see a change in the X-rays. The X-rays were bad
20 before the fall. They were the same after the fall.
21 Regarding whether Worker’s preexisting AVN could have been aggravated by the
22 March 2014 fall, Dr. Legant testified that “[y]ou can’t get really worse than ‘end-
23 stage arthritis.’ . . . It means you’re at the end of the line. The treatment is basically
24 a hip replacement, indicating that at some point in time prior to [Worker’s] fall it’s
25 as bad as it’s going to get.” We consider the effect of this testimony.
43
1 {44} Dr. Ross’s first response fails to unequivocally contradict Dr. Carothers’
2 testimony that Worker suffered an aggravation injury. Dr. Ross stated that she was
3 “unable to answer” Worker’s question whether she agreed or disagreed with Dr.
4 Carothers’ aggravation injury opinion because she found his statements contradictory.
5 Setting aside the fact that there is nothing inherently contradictory about Dr.
6 Carothers’ opinion that the severity of Worker’s preexisting condition could be traced
7 to his 2002 fall from a tree rather than his 2014 fall from a ladder, and at the same
8 time that Worker’s 2014 fall aggravated and worsened his already-severe condition,
9 Dr. Ross’s response to Worker’s first question fails to address the ultimate question
10 posed and thus may not be afforded substantial weight. See Trujillo, 2016-NMCA-
11 041, ¶ 39.
12 {45} We consider Dr. Ross’s second and third responses together with Dr. Legant’s
13 because doing so illuminates the fatal flaw in the reasoning that underpins both their
14 opinions. What is evident from Drs. Ross’s and Legant’s explanations is that they
15 applied an incorrect standard for determining whether Worker suffered an
16 “aggravation” of a preexisting injury under New Mexico workers’ compensation law.
17 Applying what appears to be the medical standard for determining “aggravation,” Dr.
18 Ross concluded that Worker’s end-stage arthritis could not “get any further” because
19 there was already “no joint left[,]” meaning that aggravation was a medical
44
1 impossibility, which opinion was echoed by Dr. Legant. Yet it is well established in
2 New Mexico law that experiencing increased pain is sufficient to constitute
3 aggravation of a preexisting condition and thus a compensable injury, Tom Growney,
4 2005-NMSC-015, ¶ 53, and that there need not be “physical tissue change for there
5 to be a compensable disability.” Schober, 1980-NMCA-113, ¶ 8. Additionally, this
6 Court made clear in Edmiston that even where a preexisting condition “cannot be
7 described as being worse because of the workplace injury”—as in the case of an
8 incurable disease—causation is not automatically defeated. 1997-NMCA-085, ¶ 23.
9 Contrary to Drs. Ross’s and Legant’s mistaken belief, Worker was not required to
10 show a medical aggravation—i.e., physiological deterioration—of his condition in
11 order to establish that he had suffered an aggravation-type injury, but only that the
12 “work-related accident aggravate[d] the preexisting condition by changing the course
13 of the ailment or its treatment[.]” Id. 1997-NMCA-085, ¶ 38 (Hartz, C. J., concurring
14 in part, dissenting in part). We next examine Drs. Ross’s and Legant’s testimony in
15 light of this correct standard.
16 {46} By Drs. Ross’s and Legant’s own admissions, the treatment of Worker’s
17 condition—and arguably also its course—had changed following the March 2014
18 accident. Specifically, Dr. Ross conceded that for three years preceding the accident,
19 Worker had not sought treatment or been prescribed pain medication for his hip; that
45
1 Worker’s complaints of pain in his hip only resurfaced after the March 2014 accident;
2 that Worker had never been prescribed the use of a cane or walker prior to the March
3 2014 accident; and that Worker’s mobility decreased after the March 2014 accident.
4 Dr. Ross also acknowledged that Worker’s preexisting condition had not prevented
5 him from working prior to March 2014 and that Worker had not missed any work
6 prior to the accident. Dr. Legant made similar concessions and also agreed that
7 Worker “had varying levels of functioning that he was performing despite the fact
8 that he had a degenerative right hip” and that Worker’s “functioning only declined
9 after the work accident in 2014[.]” Thus, the undisputed expert testimony established
10 that prior to the accident, Worker: (1) had not required use of prescription medication
11 to manage his pain in three years; (2) worked at full duty, never missing work because
12 of his preexisting condition; and (3) did not need to use a cane. It further established
13 that after the accident, Worker: (1) experienced worsening pain that required
14 prescription medication for management; (2) became unable to work within a short
15 period of time due to his increased pain; (3) required use of a cane; and (4)
16 experienced decreased mobility. In other words, as a natural and direct result of his
17 accident, both Worker’s medical treatment (prescription of pain medication and a
18 cane) and the course of his ailment (non-disabling AVN to disabling aggravated
19 AVN) changed.
46
1 The Evidence Does Not Support the WCJ’s Findings
2 {47} We conclude that Drs. Ross’s and Legant’s testimony fails to provide
3 substantial evidence to support the WCJ’s implicit finding that Worker did not suffer
4 an aggravation injury. Specifically, their testimony fails to establish either (1) that it
5 was “more likely than not” that Worker’s current disability resulted from his
6 preexisting condition, Molycorp, 1985-NMCA-067, ¶ 16, or (2) that the current
7 effects of Worker’s preexisting AVN are “identifiably separate and unrelated” to
8 Worker’s March 2014 accident. Edmiston, 1997-NMCA-085, ¶ 17. It also fails, as a
9 matter of law, to contradict Dr. Carothers’ opinion that Worker suffered an
10 aggravation injury because any seemingly contradictory causation testimony offered
11 by Drs. Ross and Legant is negated by their application of the wrong legal standard.
12 See Trujillo, 1993-NMCA-114, ¶ 15. In effect, to affirm we would have to conclude
13 that Worker would have become disabled on July 12, 2014, even if he had not fallen
14 from a ladder just four months before. There is no evidence whatsoever in the record
15 to support such a conclusion.
16 {48} Moreover, we observe that the standard by which Drs. Ross and Legant and the
17 WCJ would measure “aggravation” not only is contrary to well-established workers’
18 compensation law but also would frustrate the Legislature’s intent and our state’s goal
19 of encouraging workers to work and return to gainful employment following an
47
1 injury. See Perez v. Int’l Minerals & Chem. Corp., 1981-NMCA-022, ¶ 14, 95 N.M.
2 628, 624 P.2d 1025 (“We have often commended workmen who want to work, who
3 do not play the part of Rip Van Winkle. We support a workman who continues in his
4 employment or obtains other employment despite his disability.”). As evidenced by
5 this case, even workers with end-stage conditions and dismal medical diagnoses are
6 capable of maintaining gainful employment and contributing to New Mexico’s
7 workforce. Such workers should be commended for their perseverance and fully
8 compensated in accordance with the provisions of the Act when, as a result of their
9 choice to work rather than become dependent upon the public welfare, they suffer an
10 on-the-job injury resulting in the discernable worsening of a preexisting condition.
11 The prevailing rule in New Mexico that “the employer takes the employee as it finds
12 that employee” applies in full force here: Employer/Insurer “found” Worker with a
13 preexisting “bad hip” condition—which Worker forthrightly disclosed to Employer
14 in 2008—and nevertheless elected to keep him in its employ. Edmiston, 1997-
15 NMCA-085, ¶ 25 (internal quotation marks and citation omitted). Particularly in light
16 of Mr. Reetz’s testimony that he believed Worker to be an “honest individual” who
17 did “good work” and was “a dependable employee,” it hardly seems unfair to hold
18 Employer/Insurer to the long-standing rule that where “a person suffers an accidental
19 injury growing out of and in the course of his employment he is entitled to be
48
1 compensated for his disability as it thereafter existed, notwithstanding the disability
2 would not have been so great had he not been suffering from a pre[]existing condition
3 at the time of the injury.” Reynolds, 1961-NMSC-116, ¶ 31.
4 {49} Because we hold that there is not substantial evidence to support the WCJ’s
5 implicit finding that Worker did not suffer an aggravation injury, and because the
6 WCJ’s award of benefits was limited by his finding that Worker only suffered a
7 contusion injury, we remand this case in order for the WCJ to reconsider and
8 determine the benefits to which Worker may be entitled in light of our holding. As
9 this Court has previously cautioned, the WCJ and the parties must take “exceptional
10 care” to “adequately cover the questions raised” in cases such as this that involve
11 complicated questions of law regarding accidental injuries and possible aggravation
12 of preexisting conditions. Zanio’s Foods, 2005-NMCA-134, ¶¶ 54, 57. Failure to
13 differentiate such interwoven issues at the outset of litigation lends itself to the
14 possibility of flawed proceedings and misidentification of applicable analyses. On
15 remand, the WCJ is instructed to apply the distinct standards discussed herein to
16 determine whether Worker is entitled to additional benefits—both disability and
17 medical—and any costs and fees stemming from his aggravation injury.
49
1 II. Whether Employer/Insurer Prematurely Received Attorney Fees Contrary
2 to Section 52-1-54(M)
3 {50} Worker argues that Section 52-1-54(M) of the Act prohibits payment of
4 attorney fees before a case is adjudged and that there is evidence that
5 Employer/Insurer sought and was paid attorney fees on three occasions prior to the
6 filing of the WCJ’s compensation order in this case. Worker contends that a bad faith
7 penalty and/or an increase in Worker’s benefits is the proper way to cure this
8 violation. Worker explains that he “requested a separate hearing on the issue of bad
9 faith” and states that “[t]he WCJ declined to address this issue in the [c]ompensation
10 [o]rder.” But the joint pre-trial order issued by the WCJ and agreed to by the parties
11 clearly provides that Worker’s bad faith claim was to be addressed “[a]fter trial and
12 in a separate hearing[.]” Finding no indication in the record that a separate hearing
13 on Worker’s bad faith claim has been held or that a final order has issued therefrom,
14 we decline to reach the merits of this issue for lack of jurisdiction. See NMSA 1978,
15 § 52-5-8(A) (1989) (“Any party in interest may, within thirty days of mailing of the
16 final order of the [WCJ], file a notice of appeal with the court of appeals.”); cf. Capco
17 Acquisub, Inc. v. Greka Energy Corp., 2007-NMCA-011, ¶ 17, 140 N.M. 920, 149
18 P.3d 1017 (“[O]ur appellate jurisdiction is limited to review of any final judgment or
19 decision, any interlocutory order or decision which practically disposes of the merits
50
1 of the action, or any final order after entry of judgment which affects substantial
2 rights.” (alteration, internal quotation marks, and citation omitted)).
3 CONCLUSION
4 {51} For the foregoing reasons, we reverse and remand this case to the WCA for
5 additional evaluation of any benefits, costs, and fees to which Worker may be entitled
6 in light of this opinion.
7 {52} IT IS SO ORDERED.
8 _________________________________
9 J. MILES HANISEE, Judge
10 WE CONCUR:
11 _________________________________
12 JAMES J. WECHSLER, Judge
13 _________________________________
14 JONATHAN B. SUTIN, Judge
51
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-4742
___________
STEPHEN COREY JAMES,
Appellant
v.
SUTLIFF SATURN, INC.
_______________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Civil Action No. 09-cv-1081
(Honorable William W. Caldwell)
______________
Argued January 10, 2012
Before: SCIRICA, RENDELL and SMITH, Circuit Judges.
(Filed: March 15, 2012)
LISA JO FANELLI-GREER, ESQUIRE (ARGUED)
2806 Sunset Court
P.O. Box C
Grantham, Pennsylvania 17027
Attorney for Appellant
SCHAUN D. HENRY, ESQUIRE (ARGUED)
RICHARD L. ETTER, ESQUIRE
McNees, Wallace & Nurick
100 Pine Street
P.O. Box 1166
Harrisburg, Pennsylvania 17101
Attorneys for Appellee
ELIZABETH E. THERAN, ESQUIRE (ARGUED)
Equal Employment Opportunity Commission
131 M Street, N.E., 5th Floor
Washington, D.C. 20507
Attorney for Amicus-Appellant,
Equal Employment Opportunity Commission
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge.
Stephen Corey James appeals the District Court’s grant of summary judgment on
race and disability discrimination claims he brought against Sutliff Saturn, Inc., under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Americans with
Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq., and the Pennsylvania Human
Relations Act (PHRA), 43 Pa. Cons. Stat. § 951 et seq. We will affirm the District
Court’s judgment on the race discrimination claim but vacate and remand on the
disability claim.
I.
James, who is African-American, was hired in 1999 as an appearance technician at
Sutliff’s Carlisle Pike facility. Over the next five years, James was disciplined three
times. In 2005, he was transferred to Sutliff’s Harrisburg location. On November 7, 2005,
Sutliff granted James medical leave to undergo knee surgery. During his absence, Sutliff
promoted a white technician to fill James’s position. When James returned to work on
March 7, 2006, Sutliff terminated his employment.
2
As a result of his termination, James filed pro se a charge of race discrimination
with the Pennsylvania Human Relations Commission (PHRC) and the Equal
Employment Opportunity Commission (EEOC) on March 16, 2006. After obtaining
counsel, James sought to amend his charge to include a claim for disability
discrimination. On September 2, 2006, James contacted the PHRC through counsel to
request the amendment, which Randall R. Smedley, a Human Relations Representative,
acknowledged by letter on November 3, 2006. Smedley’s response directed James to
complete an intake questionnaire, which was not an official PHRC form, but rather a
printout from the PHRC’s internal case management system. James completed the form,
signing and dating each page. The completed printout and a cover letter were hand-
delivered to Smedley on December 22, 2006. In the letter, James’s counsel asked
Smedley to contact her if he required any further information.
James received no further communication from the PHRC or the EEOC until the
EEOC’s Philadelphia Office sent a letter, dated March 5, 2009, notifying James of the
dismissal of his discrimination charge and his right to sue in federal or state court. James
contacted the PHRC and was informed that his state charge had been dismissed in 2008.
James then obtained a copy of the PHRC’s 2008 Letter of Determination, which did not
state any grounds for the dismissal. Shortly thereafter, James learned that Smedley had
retired from the PHRC without processing his amendment. The disability charge had
never been added to his race discrimination charge.
James filed suit in federal court on June 6, 2009, alleging race and disability
discrimination. The District Court granted Sutliff’s motion for summary judgment on the
3
race discrimination claim, finding that James failed to show that Sutliff’s proffered
legitimate explanation for the discharge was a pretext for discrimination. The court also
granted summary judgment on the disability claim, reasoning that James failed to
properly verify the amendment as required by statute. 1
II.
A.
We analyze James’s discrimination claims according to the familiar burden-
shifting approach of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Stanziale v. Jargowsky, 200 F.3d 101, 105 (3d Cir. 2000). 2 Under this approach, the
plaintiff must first establish a prima facie case. The burden then shifts to the employer to
articulate a legitimate, nondiscriminatory reason for the discharge. If the defendant does
so, the presumption of intentional discrimination disappears, but the plaintiff can still
prevail by showing that the employer’s proffered reason is merely a pretext for
discrimination.
This appeal challenges the District Court’s application of the last stage of the
burden-shifting framework and requires us to determine whether James put forth
sufficient evidence of pretext. On summary judgment, James may meet his burden by
1
The District Court had original jurisdiction over the Title VII and ADA claims under 28
U.S.C. § 1331 and supplemental jurisdiction over the PHRA claims under 28 U.S.C. §
1367(a). We have appellate jurisdiction under 28 U.S.C. § 1291. We review a grant of
summary judgment de novo. Gonzalez v. AMR, 549 F.3d 219, 223 (3d Cir. 2008).
Summary judgment is appropriate where there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
2
We apply the McDonnell Douglas framework because, despite his claims to the
contrary, James offers no direct evidence of discrimination. See Sheridan v. E.I. DuPont
de Nemours & Co., 100 F.3d 1061, 1071 (3d Cir. 1996) (en banc).
4
“providing evidence that would allow a fact finder reasonably to (1) disbelieve the
employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory
reason was more likely than not the motivating or determinative cause of the employer’s
action.” Sarullo v. United States Postal Service, 352 F.3d 789, 799-800 (3d Cir. 2003)
(citations and internal quotations omitted). 3
Sutliff claims James’s employment was terminated because his position was ably
filled by another technician while he was absent on extended medical leave, and when
James returned from leave there was not enough work to support two appearance
technicians on staff. Sutliff claims it chose to retain James’s replacement because he was
an exemplary employee.
Disputing this proffered explanation, James points to evidence that he argues casts
doubt on Sutliff’s reasons. First, James asserts his own belief that he was fired on account
of his race. Second, James alleges that a previous disciplinary incident reflected racial
animus since he was disciplined for a mess in the detailing shop even though he had been
away on leave, while two white co-workers, who had been present, were not disciplined.
Third, James alleges that the General Sales Manager reprimanded him without cause
when he visited the facility five days before his discharge. Fourth, James claims the Vice
President of Sales and Marketing made light of his discharge and told him over the
phone, “You’re outta here.” Finally, James cites the circumstances of his discharge: that
he was one of only three African-American employees at the Harrisburg facility; that he
was discharged immediately upon his return from medical leave, while a white employee
3
To the extent the District Court said otherwise, this is the standard we apply on review.
5
was permitted to return to work after several months of leave; and that he, with six years
of experience, was replaced by a white employee with significantly less experience.
James’s evidence of pretext is insufficient. James’s unsupported belief that he was
fired for discriminatory reasons “falls far short of establishing pretext.” Sarullo, 352 F.3d
at 800. The comments made by members of management shortly before and after James’s
discharge may betray interpersonal tensions or insensitivity, but they carry no hint of
racial animus. Nor do the circumstances of James’s discharge discredit Sutliff’s
explanation. The bare fact that James’s replacement was white and had less experience
does not support an inference that race motivated the decision, particularly where James’s
disciplinary record does not compare favorably with that of his replacement. Likewise,
the contrast James draws between his experience and that of a white employee who
returned to work after a leave of absence does not support an inference of discrimination.
Because the white employee worked as an administrative assistant, not as an appearance
technician, her experience does not cast doubt on Sutliff’s explanation that there was not
enough appearance technician work to retain James. Finally, James’s own statements
undercut his claim that race was a motivating factor in his discharge. In his deposition,
James acknowledged that he believed the prior disciplinary incident was unfair because
he had been absent on leave, not because the discipline was based on race. Further, when
pressed to give a reason why he believed his manager fired him because of race, James
could only offer that his manager did not seem to like him.
Accordingly, we conclude that James submitted insufficient evidence to allow a
reasonable factfinder to conclude that Sutliff’s explanation of the discharge was a pretext
6
for discrimination. The District Court’s grant of summary judgment on the race
discrimination claim was proper.
B.
James also contends the District Court erred in granting summary judgment on his
disability claim. The court declined to consider the disability claim, finding that James
failed to follow the procedural requirements for prosecuting a charge of discrimination
under the ADA. To bring such a claim in court, an employee must first exhaust his
administrative remedies by filing the charge “in writing under oath or affirmation” with
the EEOC and equivalent state agency where appropriate. 42 U.S.C. § 2000e-5. The
regulations clarify that the charge must “be in writing and signed and verified,” defining
“verified” to require that the charge be sworn to under oath “or supported by an unsworn
declaration in writing under penalty of perjury.” 29 C.F.R. § 1601.9; 29 C.F.R §
1601.3(a). 4 James’s original race discrimination charge satisfied this verification
requirement. The intake questionnaire James filed to add a claim of disability
discrimination did not. 5
Our decision in Hicks v. ABT Associates, 572 F.2d 960 (3d Cir. 1978), presented
similar but not identical circumstances. There, we vacated the grant of summary
judgment, holding the case raised a genuine issue of whether the charging party had
reasonably attempted to file an amendment to his discrimination charge, which was
4
The PHRA similarly requires a charging party to file a “verified complaint, in writing,”
43 P.S. § 959(a).
5
The regulations do not specify whether an amendment to a verified discrimination
charge must itself be verified. See 29 C.F.R. § 1601.12(b); 16 Pa. Code § 42.35. For
purposes of this appeal, we assume without deciding that it must.
7
improperly rejected by the EEOC. Id. at 964. We reasoned that “[o]nce the charging party
has done all that he can reasonably do to amend his charge in accordance with the
Commission’s regulations, the statutory policy of providing the EEOC with an
opportunity to reconcile the grievance has been fulfilled.” Id. In short, “[t]he individual
employee should not be penalized by the improper conduct of the Commission.” Id. at
964-65. The District Court distinguished Hicks with respect to only one of its two
holdings, 6 indicating the decision was inapposite because in that case, unlike this one, the
initial discrimination charge was broad enough to encompass both theories of
discrimination alleged by the plaintiff. But this purported distinction has no bearing on
whether James made a reasonable attempt to amend his charge.
In September 2006, James contacted the PHRC through counsel, requesting an
amendment to his claim and asking Smedley, the PHRC case manager, how to proceed.
Instead of sending James the PHRC’s standard intake form, which includes language
intended to satisfy the verification requirement, Smedley sent a two page printout from
the agency’s internal case management software, which contained no verification
language, and directed James to answer the specified questions “in any format.” After
complying with these instructions, James reasonably believed that his amendment was
being processed. Our analysis in Hicks applies here. James only failed to verify his
6
In Hicks, we also considered the possibility that the plaintiff did not file any amendment
with the EEOC. Assuming this were the case, we held that if the additional charge was so
related to the acts that constituted the charge actually filed with the EEOC, such that the
EEOC’s investigation could reasonably be expected to encompass both bases of
discrimination, then the additional charge should be cognizable in a subsequent lawsuit.
Hicks, 572 F.2d at 965-67. In distinguishing Hicks, the District Court cited this portion of
the opinion.
8
amended charge because he was misdirected by the PHRC’s express filing instructions.
By complying with those instructions, James satisfied the statutory policy of providing
the PHRC with an opportunity to reconcile the grievance. He should not be penalized for
the PHRC’s error. On these facts, we conclude that James’s failure to verify the
amendment does not bar his disability discrimination claim.
III.
For the foregoing reasons, we will affirm the grant of summary judgment on
James’s race discrimination claim, vacate the grant of summary judgment on James’s
disability discrimination claim, and remand to the District Court to consider the merits of
that claim.
9
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261 F.2d 93
Gilberto Estrada PALMA, Appellant,v.UNITED STATES of America, Appellee.
No. 17120.
United States Court of Appeals Fifth Circuit.
Nov. 26, 1958.
Joseph A. Calamia, El Paso, Tex., for appellant.
Robert S. Pine, El Paso, Tex., Russell B. Wine, U.S. Atty., San Antonio, Tex., for appellee.
Before HUTCHESON, Chief Judge, and RIVES and WISDOM, Circuit Judges.
PER CURIAM.
1
Charged with a violation of 18 U.S.C. 1407, in that on or about April 19, 1957, in El Paso County, Texas, within the El Paso Division of the Western District of Texas, Gilberto Estrada Palma, being a citizen of the United States who is addicted to and used narcotic drugs, as defined by Section 4731 of Title 26 United States Code, entered into the United States of America at El Paso, Texas, which is a port of entry and border customs station, without registering with a customs official, agent or employee, in compliance with rules and rgulations as prescribed by the Secretary of the Treasury of the United States, defendant moved to dismiss the indictment, and, the motion denied, was tried by the Court sitting without a jury. At the conclusion of the evidence, which came in without dispute and which, if the statute is not subject to the attacks upon its constitutionality, authorized the judgment and sentence, appellant moved for a judgment of acquittal on the grounds1 contained in his motion to dismiss the indictment earlier filed.
2
The court overruled the motion and, finding appellant guilty as charged, sentenced him to serve a term of two years, and defendant is here seeking a reversal of the judgment upon the grounds urged below.
3
Citing United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754, the Government insists that, by failing to claim any constitutional privilege to which he may have been entitled at the time he was about to leave or enter the United States, appellant cannot now be heard to complain that he has been deprived thereof. In addition, pointing out that all of the grounds of attack upon the statute, which appellant makes here, were made and upon careful and full consideration rejected in the decision and opinion of the United States District Court for the Southern District of California, James M. Carter, Judge,2 and were again considered and rejected in the Court of Appeals for the Ninth Circuit in Reyes v. United States and Perez v. United States, 258 F.2d 774,3 insists that appellant's contentions are without merit and the judgment must be affirmed.
4
We agree with the United States that the statute and regulations are not subject to the attacks leveled against them and that the opinions above averted to correctly state and apply the governing principle. For the reasons and upon the considerations fully stated therein, the judgment in this case is affirmed.
1
These in substance are: that the statute and regulations made pursuant thereto are unconstitutional, null and void in that they (a) compel him to incriminate himself in violation of his constitutional rights under the Fifth Amendment to the United States Constitution; (b) subject him to unreasonable searches and seizures in violation of his rights under the Fourth Amendment to the United States Constitution; (c) unreasonably deprive him of his right to personal and civil liberty in violation of his rights under the Fifth Amendment to the United States Constitution; (d) are arbitrary and unreasonable in classification as to deprive him of due process of law guaranteed to him by the Fifth Amendment to the United States Constitution; (e) fail to define a proper standard of guilt by being vague and indefinite, and are in violation of his rights under the Fifth and Sixth Amendments to the United States Constitution; (f) in that they deprive the appellant of due process of law as applied to him, inasmuch as said statute does not afford appellant any notice of his duty to have to register as required by said statute; that under the stipulation entered into between counsel for appellant and counsel for the government, there is nothing to show that defendant knew or had the probability of knowing that he was required to register; and (g) that said statute violates the cruel and unusual punishment prohibition of the Federal Constitution and violates the due process clause in the Fifth Amendment of the United States Constitution, since there is entirely a cruelly disproportionate relation between what the law requires and the punishment for its disobedience
2
United States v. Eramdjian, 155 F.Supp. 914
3
Cf. United States v. Juzwiak, 2 Cir., 258 F.2d 844
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COURT
OF APPEALS
SECOND
DISTRICT OF TEXAS
FORT
WORTH
NO. 2-07-357-CV
JESSE F. REECE, SR. APPELLANT
V.
FOUNTAINGATE APARTMENTS APPELLEE
------------
FROM THE
89TH DISTRICT COURT OF WICHITA COUNTY
------------
MEMORANDUM OPINION[1]
------------
In this forcible entry and detainer proceeding,
Appellant Jesse F. Reece, Sr., pro se, appeals the district court=s order
dismissing for want of jurisdiction his appeal from the justice court. We likewise dismiss for want of jurisdiction.
Background
On May 15, 2007, Appellee Fountaingate Apartments
instituted eviction proceedings against Reece, its tenant, in a justice court
in Wichita County. On May 29, 2007,
after a hearing on the merits, the justice court rendered judgment granting
Fountaingate possession of the premises in question and unpaid rent of $151.57.
On June 4, Reece filed a declaration of inability
to pay costs under rule of civil procedure 749(a). See Tex.
R. Civ. P. 749(a). Fountaingate
filed an objection to Reece=s
declaration. On June 11, after a hearing
on the merits, the justice court disapproved Reece=s
declaration of inability to pay costs and ordered him to deposit with the court
a cash bond or surety bond payable to Fountaingate in the amount of $948 and to
pay a transcript fee of $10. Reece
appealed the justice court=s order
to the county court, and after another hearing on the merits, the county court
also disapproved his affidavit of inability to pay costs on July 2.
Reece filed an appeal bond on July 6, but the
purported bond was not approved by the justice court as required by rule 749
and was signed only by Reece, not any surety.
See Tex. R. Civ. P.
749. His appeal was filed in the 89th
District Court of Wichita County. Reece
filed a purported oath of surety on July 13, in which he listed himself as his
own surety.
Fountaingate filed a motion to dismiss the appeal
because Reece=s defective appeal bond failed
to confer jurisdiction on the district court.
The district court dismissed the appeal on September 7. Reece perfected an appeal to this court on October
4.
Discussion
In his first issue, Reece argues that A[t]he
circumstantial evidence is factually insufficient@ to
support the district court=s
dismissal of his appeal. Rule 749
provides that a party may appeal a justice court judgment in a forcible entry
and detainer case by filing with the justice, within five days after the
judgment is signed, a bond to be approved by said justice and payable to the
adverse party. Tex. R. Civ. P. 749.
Rule 750 sets out the form for the appeal bond authorized by rule 749,
and the form calls for execution of the bond by the principal and a
surety. Tex. R. Civ. P. 750. A
bond filed under rule 749 must substantially comply with the form set out in
rule 750. Pharis v. Culver, 677
S.W.2d 168, 170 (Tex. App.CHouston
[1st Dist.] 1984, no writ). The failure
to timely file a bond in accordance with rule 749 deprives the reviewing court
of jurisdiction. Wetsel v. Fort Worth
Brake, Clutch & Equip. Inc., 780 S.W.2d 952, 953B54 (Tex.
App.CFort
Worth 1989, no writ).
Reeces=s
purported appeal bond did not list any surety and was not executed by a surety
as required by rule 750. In his Aoath of
surety,@ he
listed himself as the purported surety.
To allow a judgment debtor to serve as his own surety would defeat the
purpose of an appeal bond, which is to guarantee the payment of judgment
damages, costs, and attorney=s fees
in the event of an unsuccessful appeal by the judgment debtor. See Tex.
R. Civ. P. 752. The undisputed
record shows that Reece failed to file a bond that substantially met the
requirements of rule 750; therefore, the evidence was factually sufficient to
support the district court=s
dismissal of his appeal.
In the latter part of his first issue and in his
second issue, Reece argues that when an appeal bond is defective, the court
should allow the bond to be amended rather than dismiss the appeal. In Pharis, the first court of appeals,
citing former rules of procedure 430 and 363a,[2]
held that a county court may permit a party to amend a defective bond upon
a timely request. 677 S.W.2d at 170
(quoting Woods Exploration & Producing Co. v. Arkla Equip. Co., 528
S.W.2d 568, 570 (Tex. 1975)). Reece made
no such request in the district court.
Moreover, to preserve a complaint for our review,
a party must have presented to the trial court a timely request, objection, or
motion that states the specific grounds for the desired ruling, if they are not
apparent from the context of the request, objection, or motion. Tex.
R. App. P. 33.1(a); see also Tex.
R. Evid. 103(a)(1). If a party
fails to do this, error is not preserved, and the complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712
(Tex. 1991) (op. on reh=g). Again, Reece did not request an opportunity to
amend the defective bond in the trial court; thus, he waived his complaint
concerning the trial court=s
refusal to allow him to do so. See Tex. R. App. P. 33.1(a). We overrule his first and second issues.
The gravamen of Reece=s third
issue is unclear, but he appears to argue that he should be allowed to serve as
his own surety. For the reasons stated
above, we overrule his third issue.
In his fourth issue, Reece apparently argues that
the justice court erred by issuing a writ of possession after the district
court dismissed his appeal. Part of this
argument relates back to his first through third issues; essentially, Reece
argues that the justice court erred by issuing a writ of possession because his
bond was sufficient to perfect an appeal to the district court and supercede
the justice court=s judgment. Having overruled his first through third
issues, we likewise overrule this part of his fourth issue for the same
reasons.
In the remainder of his fourth issue, he
apparently argues that the writ of possession violated rule 755 because the
subject premises were his principal residence.
Rule 755 provides that a writ of possession shall not be suspended or
superceded by an appeal from the justice court=s
judgment unless the premises in question are being used as the principal
residence of a party. Tex. R. Civ. P. 755. Because Reece=s
defective bond did not perfect his appeal under rule 749, he was not entitled
to suspension of the justice court=s
judgment under rule 755. See id. Therefore, we overrule the remainder of his
fourth issue.
Conclusion
Having overruled all of Reece=s
issues, we dismiss his appeal for want of jurisdiction. See Tex.
R. App. P. 43.2(f). We deny
Fountaingate=s AMotion
to Dismiss for Failure to Prosecute@ and its
AObjection
to Inclusion of Matters Outside the Record in Appeal.@
ANNE
GARDNER
JUSTICE
PANEL: CAYCE, C.J.; GARDNER and WALKER, JJ.
DELIVERED: August 26, 2008
[1]See Tex. R. App. P. 47.4.
[2]Former rules 430 and 363a concerned appeal bonds in
civil appeals, a subject now covered by rule of appellate procedure 24. Tex.
R. App. P. 24.
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-2829
___________________________
Marcus J. Hensley
lllllllllllllllllllll Plaintiff - Appellant
v.
Carolyn W. Colvin, Acting Commissioner of Social Security
lllllllllllllllllllll Defendant - Appellee
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
____________
Submitted: January 14, 2016
Filed: July 18, 2016
____________
Before LOKEN, GRUENDER, and KELLY, Circuit Judges.
____________
LOKEN, Circuit Judge.
Marcus Hensley suffered a serious knee injury while deployed by the United
States Army in Iraq combat in 2005. In September 2007, he underwent right knee
surgery, and the Department of Veterans Affairs (“VA”) awarded him benefits for
service-connected disability. He then applied for Social Security disability insurance
benefits, claiming as severe impairments: posttraumatic stress disorder (“PTSD”),
back pain, right knee pain, and facial twitching. The Commissioner denied the
application, ruling that Hensley was not disabled as of May 19, 2011. Hensley sought
judicial review; the denial was affirmed. Hensley v. Colvin, No. 4:12CV00352, Mem.
& Order (E.D. Ark. Aug. 23, 2013).
Hensley filed this second application for disability insurance benefits in August
2012, while his appeal from the first denial was pending. He alleged the same severe
impairments and a disability onset date of May 20, 2011. His earnings record limited
him to insurance coverage through September 30, 2011. See 20 C.F.R. § 404.131.
After an August 2013 hearing at which Hensley and a vocational expert (“VE”)
testified, the ALJ denied the application, concluding that Hensley’s impairments were
severe but he retained the residual functional capacity (“RFC”) to perform certain
sedentary work during the relevant period, May 20 to September 30, 2011. The
Appeals Council denied further review, the district court1 upheld the denial of
benefits, and Hensley appealed. It was established in the prior proceeding that
Hensley was not disabled prior to the alleged May 20 onset date. Thus, the question
is whether he met his burden to show that he became disabled during the four-month
period at issue. Concluding that substantial evidence on the administrative record as
a whole supports the ALJ’s contrary determination, we affirm. See Welsh v. Colvin,
765 F.3d 926, 927 (8th Cir. 2014) (standard of review).
I. Background
A. The Medical Evidence Relating to Physical Impairments. In May 2011,
Hensley saw his primary-care VA physician, Richard McKelvey, complaining of
worsening low back pain and pain in his left knee, reporting that his surgically
repaired right knee had improved. Dr. McKelvey observed that Hensley appeared
1
The Honorable Brian S. Miller, United States District Court for the Eastern
District of Arkansas, adopting the Recommended Disposition of the Honorable Joe
J. Volpe, United States Magistrate Judge for the Eastern District of Arkansas.
-2-
well, was in “no acute distress,” and had a “normal” knee exam and gait. Dr.
McKelvey ordered x-rays of the lumbar spine and left knee, and an MRI of the lumbar
spine. The spine x-ray showed “very mild spurring in the lower thoracic region” but
was “otherwise unremarkable.” The left knee x-ray was “normal.” X-rays of
Hensley’s right knee, taken in 2010, showed “small suprapateller joint fluid
collection,” but were otherwise “normal” and “unremarkable.”
On July 13, 2011, Jose Escarda, M.D., reviewed the MRI of Hensley’s lumber
spine. Dr. Escarda determined Hensley had “elements of strain from a pelvic
malignment” and recommended a home exercise program with physical therapy
(“PT”). He also noted that Hensley’s knee assessment was “normal,” he had “full
knee range, good lower limb and spinal flexibility,” and he was no longer using a
cane. Hensley received PT in July and August of 2011 and reported his pain fell from
seven or eight on a ten-point scale to four. He also used a “TENS” unit and heat pack
to manage his pain. At his final PT session, Hensley said his pain that morning was
“minimal” and he had no pain at times; the physical therapist concluded Hensley was
“in alignment.” In September 2011, Dr. McKelvey noted Hensley was “doing very
well,” had “full flexion” in his lower back, and his back pain was “stable” due to the
home exercises and PT. Dr. McKelvey also reported that Hensley’s facial tics were
“very well controlled” with medication.
At a May 2012 disability exam, Dr. McKelvey noted that Hensley was “well
appearing,” in “no acute distress,” “with no restriction in mobility,” and “[f]ully alert
and oriented.” Dr. McKelvey summarized his exam findings in a “To Whom It May
Concern” letter. The letter reported that Hensley’s back pain had “been stable for the
past year” though severe at times; he was no longer using a cane; and he had “full
forward flexion,” normal strength, and a normal gait. Dr. McKelvey reported that
Hensley’s right knee pain was “stable” and the knee was less painful on palpation, had
a full range of motion, flexion, and extension, and could bear weight without a brace
or crutch. Treatment of Hensley’s facial tics was continuing, thus far with “limited
-3-
results.” His symptoms of PTSD and depression were being treated with two
medications and were “stable,” though he complained of nightmares.
B. The Medical Evidence Relating to Mental Impairments. The VA first
diagnosed and treated Hensley for PTSD and depression between 2007 and 2009. In
July 2011, he returned to the VA’s mental health clinic for the first time since April
2009 and saw Sandra Ellis, M.D., complaining of “intrusive thoughts, nightmares,
hypervigilance and depression.” Dr. Ellis confirmed the prior diagnosis of PTSD and
major depressive disorder. She assessed a Global Assessment of Functioning
(“GAF”) score of 51, increased the dosage of an antidepressant, and referred Hensley
to outpatient PTSD group therapy. Hensley agreed with the referral and attended the
first therapy orientation session, where he “was attentive and asked questions.” When
he missed the last three sessions, the clinic notified him on September 20 that he was
being discontinued from the program.
Hensley returned to the VA Mental Health Management unit in late August
2012, meeting with Advanced Practice Nurse Penelope Pollock. Hensley reported that
he was sleeping five hours per night with fewer nightmares, was willing to decrease
the dosage of his antidepressant, and was “interested in enrolling in treatment
programming.” Nurse Pollock again scheduled him in the outpatient PTSD therapy
program. He cancelled the initial session, failed to show for the next session, and was
discontinued from the program for lack of attendance on October 2, 2012.
C. The Hearing Testimony. At the administrative hearings, Hensley testified
that depression and PTSD were the primary reasons he felt disabled. He explained
that those conditions made it difficult to “adapt to certain environments,” though he
had no problem functioning with supervisors or coworkers. He testified that
antidepressant medication provided stability, and he felt better and “more stable” after
the increased dosage in July 2011. He outlined his typical activities, which included
driving his children around town, helping with homework, running quick errands,
-4-
attending church twice a month, and assisting with family finances and chores such
as mowing the lawn. The ALJ asked:
Q. Tell me why you can’t get a job where it’s mostly sitting all
day and just do it.
A. My mental state. I used to be a very social guy. After the stuff
I’ve been through and I’ve seen, it’s hard for me to socialize with people.
Q. What about a job where I set you in the corner and let you look
at the wall? Your desk is up against the wall and you can do your work
there. Tell me why you can’t do that?
A. I would be up and down out of my chair with pain. The leg
starts hurting. My back kills me. I’ve got to have some type of support
in my chair. This chair isn’t helping. I would be embarrassing myself
due to my PTSD and anxiety and depression. I just can’t do it.
Prior to the hearing, the ALJ recognized that Hensley suffered from one or more
severe impairments and therefore testimony by a VE would be needed to complete
steps four and five of the well-established disability evaluation -- determining whether
Hensley had the RFC to perform his past relevant work or “other work [that] exists
in significant numbers in the national economy.” See 20 C.F.R. §§ 404.1520,
404.1560. At the hearing, after Hensley testified, the ALJ asked VE Elizabeth Clem
to assume that a person of Hensley’s age, education, and work experience was limited
to jobs at the sedentary exertional level with the following limitations: never climb
ladders, ropes, or scaffolds; occasionally climb ramps and stairs; occasionally balance,
stoop, kneel, crouch, or crawl; and with a simple routine, repetitive tasks, only
incidental interpersonal contact, and supervision that is simple, direct, and concrete.
Clem testified that this person could not do Hensley’s past relevant work but could
perform jobs that exist in significant numbers in the national or regional economies.
Clem cited two examples from the Dictionary of Occupational Titles (“DOT”) --
-5-
lamp-shade assembler, DOT 739.684-094, and stringing-machine tender, DOT
689.585-018.
D. The ALJ’s Decision. In a September 2013 decision, the ALJ found (i) that
Hensley had severe impairments -- degenerative disc disease of the lumbar spine,
PTSD, anxiety disorder, and status-post right knee arthroscopy – that “could
reasonably be expected to cause” his complained-of symptoms; (ii) that his
“statements concerning the intensity, persistence and limiting effects of [his]
symptoms are not entirely credible”; and (iii) that he had the RFC described in the
hypothetical to VE Clem, except that he was limited to no climbing. Based on this
RFC and the testimony of Clem, the ALJ concluded that Hensley was not disabled
because he retained the RFC to do certain unskilled sedentary jobs during the four-
month time period at issue. The ALJ acknowledged that the VA had awarded Hensley
disability payments but noted that “a finding of disability from another agency is not
binding on the Social Security Administration,” which must make an independent
determination of disability as defined by the Social Security Act.
II. Discussion
On appeal, Hensley argues that the ALJ erred in: (1) determining the RFC; (2)
partially discounting his credibility; and (3) addressing the VA disability finding.
“We review the district court’s decision upholding the denial of benefits de novo but,
like the district court, we must uphold the ALJ’s decision if it is supported by
substantial evidence on the administrative record as a whole.” Welsh, 765 F.3d at
927. “Substantial evidence is less than a preponderance, but enough that a reasonable
mind might accept it as adequate to support a decision.” Cox v. Astrue, 495 F.3d 614,
617 (8th Cir. 2007) (quotation omitted).
A. The RFC Determination. RFC is defined as the most a claimant can do
despite his limitations, including both physical and mental limitations. 20 C.F.R.
-6-
§ 404.1545(a). “The Commissioner must determine a claimant’s RFC based on all of
the relevant evidence, including the medical records, observations of treating
physicians and others, and an individual’s own description of [his] limitations.”
Myers v. Colvin, 721 F.3d 521, 527 (8th Cir. 2013) (quotation omitted). Where, as
here, the claimant proves he cannot perform his past relevant work, the Commissioner
has the burden of producing evidence that he has the RFC to perform other jobs. Golf
v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005). However, “the burden of persuasion
to prove disability and to demonstrate RFC remains on the claimant, even when the
burden of production shifts to the Commissioner at step five.” Id. (alteration and
quotation omitted).
Hensley argues that “reversal is warranted” because “no medical opinion
supports the ALJ’s RFC” determination, and the ALJ failed to order a consultative
examination (“CE”) to correct this lack of direct opinion evidence. We disagree.
“Because a claimant’s RFC is a medical question, an ALJ’s assessment of it must be
supported by some medical evidence of the claimant’s ability to function in the
workplace.” Cox, 495 F.3d at 619. However, there is no requirement that an RFC
finding be supported by a specific medical opinion. See Myers, 721 F.3d at 526-27
(affirming RFC without medical opinion evidence); Perks v. Astrue, 687 F.3d 1086,
1092-93 (8th Cir. 2012) (same).
In the typical Social Security disability case, the administrative record includes
one or more opinions by the claimant’s treating physician(s) as to the impact of
impairments on his RFC. In this case, after Hensley applied for Social Security
disability benefits, he asked “if Dr. McKelvey could complete an assessment of ability
to do work related activities.” The VA advised “that primary care providers at the VA
cannot complete those kinds of assessments.” Instead, Dr. McKelvey provided a “To
Whom It May Concern” letter summarizing his May 2012 disability exam that
addressed each of Hensley’s severe impairments. Together with the extensive VA
treatment records, this provided adequate medical evidence of Hensley’s ability to
-7-
function in the workplace. Accord Cox, 495 F.3d at 620 n.6. In the absence of
medical opinion evidence, “medical records prepared by the most relevant treating
physicians [can] provide affirmative medical evidence supporting the ALJ’s residual
functional capacity findings.” Johnson v. Astrue, 628 F.3d 991, 995 (8th Cir. 2011).
With the medical record adequately developed, the ALJ was not required to seek
additional information from Dr. McKelvey or order a CE. See KKC ex rel. Stoner v.
Colvin, 818 F.3d 364, 372-73 (8th Cir. 2016); 20 C.F.R. § 404.1519a(b).
Hensley’s remaining attacks on the ALJ’s RFC findings and determination fall
in the category of deficiencies in opinion writing. “[A]n arguable deficiency in
opinion writing that had no practical effect on the decision . . . is not a sufficient
reason to set aside the ALJ’s decision.” Welsh, 765 F.3d at 929.
Hensley first argues the ALJ “ignored” a November 2010 letter from Dr.
McKelvey stating that Hensley “needs a residence on the ground level with no stairs.”
This letter was written well prior to the time period at issue on a subject addressed by
the climbing restriction included in the RFC. The ALJ properly focused on Dr.
McKelvey’s later reports during the relevant period. “[A]n ALJ is not required to
discuss every piece of evidence submitted.” Black v. Apfel, 143 F.3d 383, 386 (8th
Cir. 1998). Relatedly, Hensley argues the ALJ erred in relying on the VE’s testimony
because the ALJ’s hypothetical to the VE assumed a worker who can occasionally
climb ramps and stairs, whereas the ALJ’s subsequent RFC finding limited him to no
climbing. However, this discrepancy was irrelevant to the ALJ’s RFC determination.
The two jobs the VE identified in response to the ALJ’s hypothetical -- lamp-shade
assembler and stringing-machine tender -- do not require climbing. See DOT
739.684-094 (lamp-shade assembler), 689.585-018 (stringing-machine tender); cf.
Van Vickle v. Astrue, 539 F.3d 825, 830 (8th Cir. 2008).
-8-
Hensley further argues the ALJ “essentially ignored” his alleged foot condition,
mild bilateral halux valgus2 deformities, which allegedly prevented him from doing
the standing and walking involved in sedentary work. Though Hensley did not list
this impairment in his application for disability benefits, the ALJ inquired about it at
the August 2013 hearing. Hensley testified he had the condition for as long as he
“could remember.” It caused some pain, but he had not yet agreed to surgery his VA
medical providers offered in March 2011. The ALJ was not required to address this
condition in his opinion. See Ostronski v. Chater, 94 F.3d 413, 419 (8th Cir. 1996)
(refusing surgery suggests condition is not disabling).
Finally, Hensley argues the ALJ failed to consider whether he could sustain his
ability to work over a full day in a real world work setting, as Social Security Ruling
96-8p required. However, Hensley “neither identifies evidence the ALJ failed to
consider nor specifies how the ALJ’s assessment was unrealistic.” Juszczyk v. Astrue,
542 F.3d 626, 633 (8th Cir. 2008). The ALJ explicitly considered the persistence and
limiting effects of Hensley’s symptoms and impairments, and the RFC took into
account the effect particular work environments would have on Hensley’s ability to
function by limiting the jobs he could perform to those with direct supervision and
incidental interpersonal contact. Thus, the ALJ properly “engaged in a realistic
assessment of [Hensley’s] abilities.” Id.
After careful review of the administrative record, like the district court we
conclude that substantial evidence supports the ALJ’s RFC determination. Regarding
Hensley’s mental impairments, the medical records reflect that Dr. Ellis assigned
2
Hallux valgus is an “angulation of the great toe away from the middle of the
body, or toward the other toes; the great toe may ride under or over the other toes.”
Dorland’s Illustrated Medical Dictionary 818 (32nd ed. 2012).
-9-
Hensley a GAF score of 51 in July 20113 and increased the dosage of an
antidepressant medication. Dr. McKelvey observed that Hensley was “doing very
well” and later reported that Hensley’s mental illness symptoms had stabilized.
Hensley testified that, after the increased dosage, he got “better” and felt “more
stable.” He also testified to having no problem functioning with coworkers or
supervisors. In August 2012, Nurse Pollock noted that Hensley was continuing with
the medications, agreed to a reduced antidepressant dosage, and was sleeping five
hours a night and having fewer nightmares. After both sessions, Hensley expressed
interest in attending a prescribed group therapy program but then failed to attend. The
ALJ found that Hensley’s mental impairments were controlled, or at least controllable,
during the relevant period. “If an impairment can be controlled by treatment or
medication, it cannot be considered disabling.” Brace v. Astue, 578 F.3d 882, 885
(8th Cir. 2009) (quotation omitted); see 20 C.F.R. § 404.1530(a) (“to get benefits, you
must follow treatment prescribed by your physician if this treatment can restore your
ability to work”). The ALJ’s RFC determination accounted for Hensley’s mental
impairments by limiting him to jobs that involve simple, repetitive tasks learned by
rote, with incidental interpersonal contact and simple, direct, concrete supervision.
Regarding Hensley’s physical impairments, the medical evidence during and
immediately after the time period in question showed that, after completing PT,
Hensley reported greatly reduced, sometimes nonexistent, back and knee pain. His
physical therapist determined he “was in alignment,” Dr. McKelvey confirmed his
3
This score indicates “moderate difficulty” in social and occupational
functioning. Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000).
GAF scores are not determinative of RFC, see Nowling v. Colvin, 813 F.3d 1110,
1116 n.3 (8th Cir. 2016), but they offer some evidence of a claimant’s ability to
function. See Myers, 721 F.3d at 525. Hensley notes that his GAF score was lower
in August 2012, but that assessment by Nurse Pollock occurred almost a year after the
relevant time period.
-10-
pain was “stable” as a result of the therapy, and both Dr. Escarda and Dr. McKelvey
reported that Hensley’s knee range, flexion of knee and spine, gait, and strength were
“normal.” Following the May 2012 disability exam, Dr. McKelvey confirmed
Hensley’s pain had “been stable for the past year,” he had “no restriction in mobility,”
was not using a cane, and could bear weight without a brace or crutch. Hensley
testified he no longer used a knee brace because of effective pain medication. Dr.
McKelvey also observed that Hensley’s facial tics were “very well controlled” with
medication. Hensley’s testimony regarding his daily activities supported the ALJ’s
finding that he had the RFC to perform a limited universe of sedentary jobs. The ALJ
accounted for Hensley’s physical impairments by limiting him to sedentary jobs that
do not require climbing of ladders, rails, or stairs and that require only occasional
balancing, stooping, kneeling, crouching, and crawling.4
B. Subjective Complaints. Hensley claims the ALJ erred in discounting his
complaints about the “intensity, persistence, and limiting effects” of his subjective
complaints. The ALJ properly cited and considered the factors enumerated in Polaski
v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984), before discounting Hensley’s
complaints of disabling pain and other subjective symptoms. The ALJ did not dispute
that Hensley experienced symptoms, but found those symptoms not to be as limiting
as Hensley claimed because, among other reasons, no treating physician had opined
that he was disabled; he did not follow the recommended course of treatment for
PTSD; his impairments were controlled by medication and treatment; and he
performed “a wide range of daily activities.” “We will defer to an ALJ’s credibility
finding as long as the ALJ explicitly discredits a claimant’s testimony and gives a
good reason for doing so.” Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007)
(quotations omitted).
4
Notably, the two state-agency physicians who reviewed Hensley’s medical
record found he had the RFC to do certain light work. See 20 C.F.R. § 404.1567(a)-
(b). The ALJ afforded Hensley a more restricted, sedentary-based RFC.
-11-
Hensley attacks each of these findings. Each is supported by substantial
evidence in the administrative record, and Hensley’s contentions that the ALJ should
have weighed these facts differently or drawn different conclusions do not warrant
relief under our deferential standard of review. “It is not the role of this court to
reweigh the evidence presented to the ALJ.” Cox, 495 F.3d at 617 (quotation
omitted). However, one contention deserves further discussion.
Hensley argues the ALJ erred in discounting his subjective complaints based
on his failure to attend prescribed group therapy to treat his PTSD, without inquiring
into the circumstances surrounding the alleged failure. Hensley relies on Pate-Fires
v. Astrue, 564 F.3d 935, 937, 945-46 (8th Cir. 2009), where the evidence
“overwhelmingly demonstrate[d]” that the failure of a claimant to take her prescribed
medication “was a medically-determinable symptom of her mental illness,” described
as “bipolar disorder I severe, with psychotic features.”
The Social Security Administration has recognized that there are circumstances
in which a claimant’s failure to follow prescribed treatment is justifiable and therefore
does not preclude a finding of disability. See Soc. Sec. Ruling 82-59. Whether severe
mental illness has resulted in justifiable noncompliance is a fact-intensive issue. Here,
Hensley accepted and completed PT that lessened his physical impairments. In the
relevant time period, he was prescribed and took medications that stabilized his mental
impairments, PTSD and depression. In July 2011 and again in August 2012, he was
prescribed and expressed interest in completing a group therapy program to treat his
PTSD. But after attending one session in 2011, he twice failed to attend and was
discontinued from that program.
When questioned at the hearing, Hensley testified that the VA mental health
providers failed to contact him about the sessions. The medical records suggest
otherwise, but in any event, there is no evidence that Hensley’s failure to attend “was
a medically-determinable symptom of [his] mental illness.” Therefore, the ALJ could
-12-
reasonably conclude that Hensley’s repeated failure to attend a prescribed course of
treatment was evidence that his mental impairment was less disabling than Hensley
claimed. See Bradly v. Astrue, 528 F.3d 1113, 1115 (8th Cir. 2008).
C. VA Disability Finding. Hensley’s final argument is that the ALJ did not
“properly evaluate and discuss” the VA finding that he is disabled. He relies on
Morrison v. Apfel, 146 F.3d 625, 628 (8th Cir. 1998), but in that case the ALJ did not
even mention a VA finding that the claimant was “permanently and totally disabled.”
Here, the ALJ explicitly acknowledged the VA’s disability finding, and correctly
noted that the disability finding of another agency like the VA was not binding on the
Social Security Administration. See 20 C.F.R. § 404.1504. There was no error. See
Pelkey v. Barnhart, 433 F.3d 575, 579-80 (8th Cir. 2006) (“the ALJ did not err
because he fully considered the evidence underlying the VA’s final conclusion that
Pelkey was . . . disabled”).
The judgment of the district court is affirmed.
KELLY, Circuit Judge, dissenting.
In my view, the ALJ did not adequately identify and take into account the
limitations imposed by the severe PTSD Hensley has suffered from since returning
from deployment in Iraq, where he experienced mortar attacks. I would therefore
remand this case to the district court with instructions to remand the case to the Social
Security Administration for further consideration of the evidence concerning
Hensley’s PTSD.
The court’s description of the medical evidence is accurate so far as it goes, but
some additional facts are needed to complete the picture. Initially, Hensley’s GAF
score, recorded at 51 in June 2011, had fallen to 41 as of August 2012. These
assessments suggest that Hensley’s GAF score was in the 40–50 range during the
-13-
disability period, a range that is generally incompatible with the ability to work. See
Pate-Fires v. Astrue, 564 F.3d 935, 944 (8th Cir. 2009) (collecting cases). Yet the
ALJ failed to even discuss these scores, much less explain how the limitations in
functioning they reflect were incorporated into the hypothetical he posed to the
vocational expert.5
It is certainly true that “an ALJ may afford greater weight to medical evidence
and testimony than to GAF scores when the evidence requires it.” Jones v. Astrue, 619
F.3d 963, 974 (8th Cir. 2010) (quotation omitted). But here the GAF scores are
consistent with the medical evidence and testimony, not belied by them. Hensley’s
wife reported in August 2012 that Hensley was unable to prepare meals because of his
nervousness and the fact that he would lose focus on what he was cooking. He was
unable to mow lawns without taking breaks every 10–15 minutes, resulting in his
taking nearly five hours to complete the entire lawn. He didn’t feel comfortable going
out alone without a family member, and according to his testimony before the ALJ,
he hadn’t been to a football game in about two years due to the discomfort he felt
around other people. He and his wife no longer went out to dinner together.6
5
The court correctly notes that the GAF of 41 postdates Hensley’s disability
period, see ante at 10 n.3, but Hensley’s condition following the disability period can
constitute evidence of his level of functioning during the disability period – which is
presumably why the court relies on other information gathered in August 2012 to
support its decision to deny disability benefits. See ante at 10; Pyland v. Apfel, 149
F.3d 873, 877 (8th Cir. 1998) (“Evidence of a disability subsequent to the expiration
of one’s insured status can be relevant, however, in helping to elucidate a medical
condition during the time for which benefits might be rewarded.”); Poe v. Harris, 644
F.2d 721, 723 n.2 (8th Cir. 1981) (“Evidence of an applicant’s condition ‘subsequent
to the date upon which the earning requirement was last met is pertinent evidence in
that it may disclose the severity and continuity of impairments existing before the
earning requirement date . . . .’” (citation omitted)).
6
The ALJ discounted Hensley’s testimony because he dropped out of therapy
sessions in 2010 and 2011, despite the fact that the testimony is consistent with his
-14-
None of these limitations were reflected in the ALJ’s hypothetical, which
simply asked the vocational expert to opine on a person “[l]imited to simple routine
and repetitive tasks with only incidental interpersonal contact in work where the
supervision is simple, direct, and concrete.” “When a hypothetical question does not
encompass all relevant impairments, the vocational expert’s testimony does not
constitute substantial evidence.” Hunt v. Massanari, 250 F.3d 622, 626 (8th Cir.
2001). In fact, when Hensley’s attorney modified the hypothetical to specify a person
who was significantly impaired in his ability to maintain concentration and focus,7 the
vocational expert testified that such a person would be unable to perform any of the
jobs she had listed in response to the ALJ’s hypothetical.
The court relies instead on a June 2012 assessment by Hensley’s primary-care
physician, Dr. Richard McKelvey, that Hensley’s symptoms of PTSD and depression
were “stable,” as well as testimony to the same effect from Hensley. See ante at 10.
low GAF scores. There are any number of reasons why a claimant might not take
advantage of treatment that do not bear on his credibility in addition to the specific
ground recognized in Pate-Fires, 564 F.3d at 945 – that the failure “was a medically-
determinable symptom of [the claimant’s] mental illness.” See Charles W. Hoge, et
al., PTSD Treatment for Soldiers after Combat Deployment: Low Utilization of
Mental Health Care and Reasons for Dropout, 16 Psychiatric Services 997, 997–98
(Aug. 2014), http://dx.doi.org/10.1176/appi.ps.201300307 (collecting evidence to
suggest that therapy is underutilized for reasons including distrust or negative
perceptions of care, perceptions of self-reliance, lack of availability, and stigma); Soc.
Sec. Ruling 96-7p, 1996 WL 374186, at *7–*8 (1996) (“[T]he adjudicator must not
draw any inferences about an individual’s symptoms and their functional effects from
a failure to seek or pursue regular medical treatment without first considering any
explanations that the individual may provide.”). The ALJ inquired only in the most
cursory fashion about Hensley’s reasons for not going to therapy, so it is not possible
to determine whether those reasons reflect badly on his credibility or not.
7
In his exact words, a person who “[c]ould not maintain concentration and focus
with a marked restriction which would significantly impair the ability to do so, but it
wouldn’t be precluded.”
-15-
But to describe symptoms as “stable” is simply to state that they are not getting any
better or worse; it says nothing about whether the symptoms are disabling. Cf. Cox
v. Barnhart, 345 F.3d 606, 609 (8th Cir. 2003) (“It is possible for a person’s health to
improve, and for the person to remain too disabled to work.”); Hutsell v. Massanari,
259 F.3d 707, 712 (8th Cir. 2001) (“[T]he Commissioner erroneously relied too
heavily on indications in the medical record that [the claimant] was ‘doing well,’
because doing well for the purposes of a treatment program has no necessary relation
to a claimant’s ability to work or to her work-related functional capacity.”); Gude v.
Sullivan, 956 F.2d 791, 794 (8th Cir. 1992) (holding that the fact that a physician
reported that the claimant was “doing well” could mean that they were “doing well for
someone with a kidney transplant,” not that they weren’t disabled). Indeed,
immediately after Hensley testified that the medications made his condition “more
stable,” he clarified that he didn’t feel he was getting any better. Nothing in Dr.
McKelvey’s assessment is inconsistent with Hensley’s GAF scores and testimony,
both of which point to his PTSD being disabling.
Accordingly, I would remand this case for further consideration.
______________________________
-16-
| {
"pile_set_name": "FreeLaw"
} |
In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-18-00046-CV
____________________
DANNY BURKETT, Appellant
V.
JESSIE FAVORS AND DEANA MILLER, Appellees
__________________________________________________________________
On Appeal from the 253rd District Court
Liberty County, Texas
Trial Cause No. CV1611135
__________________________________________________________________
MEMORANDUM OPINION
Danny Burkett appeals the trial court’s order granting permanent injunctive
relief to appellees, Jessie Favors and Deana Miller.1 In two appellate issues, Burkett
challenges the legal and factual sufficiency of the “pleadings and evidence”
supporting permanent injunctive relief and declaratory relief. We affirm the trial
court’s judgment.
1
Favors and Miller are married.
1
BACKGROUND
Appellees filed an application and affidavit for temporary restraining order
and temporary injunction against Burkett. Appellees asserted that the case involves
an easement on real property in Liberty County. Appellees pleaded that Burkett had
trespassed on their property, allowed his dogs to run free and chase appellees’
livestock, blocked access to their property to prevent them from cutting and bailing
their hay, and threatened to kill them. According to appellees, they lacked an
adequate remedy at law, and they would suffer immediate and irreparable injury,
loss, or damage unless Burkett was enjoined from interfering with their use of their
property. Appellees sought a temporary restraining order and, after a hearing, a
temporary injunction enjoining Burkett from threatening appellees with physical
injury, trespassing on their property, blocking their access, and allowing his dogs to
“chase and harass” their livestock. Appellees’ application mentioned declaratory
relief only in the section regarding attorney’s fees, in which appellees pleaded that
Burkett’s action had “made it necessary for [appellees] to employ the undersigned
attorney to file suit for a declaratory judgment to declare rights under the easement.”
Appellees’ pleading did not request a specific declaration from the trial court. The
trial judge signed a temporary restraining order, scheduled a hearing, and then set
the case for a final hearing.
2
At the hearing, which the court reporter entitled a hearing on the motion for
permanent injunction and declaratory judgment, counsel for Burkett stated, “I think
we have an agreement on the principal issue before the Court. I believe there are
some permanent injunctions that [appellees’ counsel] wants to proceed with that
we’re not in agreement on.” Appellees’ counsel stated that appellees wanted a
permanent injunction against Burkett to prevent him from threatening them, cursing,
and “attempting to incite them to do things.” The trial judge stated, “the threatening
I can see, but cursing is free speech[.]”
When appellees’ counsel stated that appellees sought an injunction to keep
Burkett’s dogs off their property, the trial court noted that the request was “a little
problematic.” Appellees’ counsel stated that appellees had also asked for a
declaratory judgment, but counsel did not say what declaration appellees desired.
Appellees’ counsel stated, “I believe we’ve been talking for the last couple of hours
and I believe that we have an understanding from the ruling of the Court that [the
easement is] not exclusive and that these folks have a right to go across it as well,
and they’re going to install their gates and furnish him with a lock and a key.”
When the trial judge stated that it “[s]ounds like we’ve got an
understanding[,]” Burkett’s counsel responded, “Yes, Your Honor.” Both Favors
and Miller stated on the record that (1) they purchased the property subject to a
3
twenty-foot non-exclusive ingress/egress easement to Burkett’s two-acre tract; (2)
they agreed that they would install gates, furnish Burkett with a key to the lock on
the gate, and will not lock the gate going into Burkett’s property; (3) they agreed to
ask the trial court to require Burkett to open and close the gates and not to destroy
the gates; (4) they agreed to ask the trial court to enjoin Burkett from blocking their
access to the easement. Burkett stated on the record that he agrees that the
ingress/egress easement is non-exclusive, and that he understood that Favors and
Miller have a right to use the road. Appellees offered several documents that were
admitted into evidence, including a letter from their counsel to Burkett, survey maps,
warranty deeds regarding the property, two surveyor’s invoices, surveys, and an
aerial photograph.
The trial court signed a final judgment, in which it found that appellees were
“entitled to a permanent injunction for a non-exclusive easement . . .[,]” found that
the twenty-foot easement was non-exclusive, and enjoined Burkett from impeding
access to the easement or blocking the use of the easement “to anyone else.” In
addition, the trial court ordered “that gates shall be placed on each end of the non-
exclusive easement and . . . the gates will be closed each time after Danny Burkett
enters or leaves the easement.” Burkett filed a motion for new trial, which was
apparently overruled by operation of law, and he then filed this appeal.
4
BURKETT’S ISSUES
In his first issue, Burkett challenges the legal and factual sufficiency of the
evidence supporting the trial court’s judgment granting permanent injunctive relief.
In his second issue, Burkett challenges the legal and factual sufficiency of the
evidence supporting the trial court’s judgment granting declaratory relief. We
address Burkett’s issues together.
The record reflects that although some exhibits were introduced into evidence,
the proceeding was not a trial on the merits; rather, it was a hearing at which the
parties’ agreement was memorialized on the record. 2 The parties were free to agree,
as the record indicates they did,3 to matters beyond the scope of the relief requested
by appellees in their pleadings. When parties settle a lawsuit, they are resolving the
dispute according to the terms of a private contract. See Montanaro v. Montanaro,
946 S.W.2d 428, 431 (Tex. App.—Corpus Christi 1997, no writ). Accordingly,
settlement agreements are governed by the law of contracts. Schlumberger Tech. v.
Swanson, 959 S.W.2d 171, 178 (Tex. 1997). To be enforceable, a settlement
agreement must comply with Rule 11 of the Texas Rules of Civil Procedure. Padilla
2
The trial court’s docket sheet noted that the parties agreement was “[e]ntered
on the [r]ecord[.]”
3
As noted above, appellees’ live pleadings at the time of the hearing did not
request permanent injunctive relief or specific declaratory relief.
5
v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995). Rule 11 requires that agreements
regarding any pending lawsuit will not be enforced unless such agreements are in
writing and filed as part of the record or “made in open court and entered of record.”
Tex. R. Civ. P. 11.
When the parties have reached a settlement agreement, the trial court may
render a judgment based on the agreement if no party has withdrawn consent.
Padilla, 907 S.W.2d at 461. A consent judgment is subject to the law of contracts.
Stewart v. Mathes, 528 S.W.2d 116, 118 (Tex. Civ. App.—Beaumont 1975, no writ).
A party cannot appeal from a judgment to which it has consented or agreed absent
an allegation and proof of fraud, collusion, or misrepresentation. In the Interest of
T.G., No. 09-16-00250-CV, 2016 WL 7157242, at *4 (Tex. App.—Beaumont Dec.
8, 2016, no pet.) (mem. op.). A party who consents to a trial court’s entry of
judgment waives any error in the judgment except jurisdictional error. Id. “A party
who consents to an agreed judgment and fails to convey any withdrawal of consent
thereby stipulates to the fact-findings contained in the agreed judgment and waives
[his] ability to challenge those findings for legal and factual sufficiency.” Id.
We conclude that the record indicates that the parties came to an agreement,
which the trial court memorialized in its judgment, and nothing in the record
demonstrates that Burkett withdrew his consent before the trial court signed the
6
judgment. See id. We therefore conclude that Burkett has waived the arguments he
seeks to raise on appeal. See id. Accordingly, we overrule issues one and two and
affirm the trial court’s judgment.
AFFIRMED.
______________________________
STEVE McKEITHEN
Chief Justice
Submitted on September 4, 2018
Opinion Delivered November 15, 2018
Before McKeithen, C.J., Kreger and Johnson, JJ.
7
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-054-CV
ROYCE ALLEN SANDERS APPELLANT
V.
THERESA ANN SANDERS APPELLEE
----------
FROM THE 360 TH DISTRICT COURT OF TARRANT COUNTY
------------
MEMORANDUM OPINION 1 AND JUDGMENT
----------
On April 14, 2008, we notified appellant that the trial court clerk
responsible for preparing the record in this appeal had informed this court that
arrangements had not been made to pay for the clerk’s record as required by
Texas Rule of Appellate Procedure 35.3(a)(2). See T EX. R. A PP. P. 35.3(a)(2).
We stated that we would dismiss the appeal for want of prosecution unless
appellant, within fifteen days, made arrangements to pay for the clerk’s record
1
… See T EX. R. A PP. P. 47.4.
and provided this court with proof of payment.
Because appellant has not made payment arrangements for the clerk’s
record, it is the opinion of the court that the appeal should be dismissed for
want of prosecution. Accordingly, we dismiss the appeal. See T EX. R. A PP.
P. 37.3(b), 42.3(b).
Appellant shall pay all costs of the appeal, for which let execution issue.
PER CURIAM
PANEL D: WALKER, J.; CAYCE, C.J.; and MCCOY, J.
DELIVERED: May 8, 2008
2
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536 F.2d 1183
Lawrence W. LAMBERT, Plaintiff-Appellant,v.David R. CONRAD and Martha Carlson, Defendants-Appellees.
No. 75-1639.
United States Court of Appeals,Seventh Circuit.
Argued Jan. 12, 1976.Decided June 24, 1976.Rehearing Denied July 21, 1976.
Edward F. Diedrich, DeKalb, Ill., for plaintiff-appellant.
John B. Angelo, Chicago, Ill., for defendants-appellees.
Before CASTLE, Senior Circuit Judge, and PELL and TONE, Circuit Judges.
PELL, Circuit Judge.
1
The crucial issue in this appeal is whether plaintiff's present civil rights action for damages is barred by the dismissal of a prior similar action for injunctive relief.
2
Plaintiff brings this action under 42 U.S.C. § 1983, alleging jurisdiction under 28 U.S.C. § 1343. He alleges that he was improperly denied a pre-termination hearing before his discharge from Northern Illinois University, where he was employed as a computer operator; that the post-termination hearing provided was inadequate; and that he was discriminated against because of his sex. Defendant Carlson was the assistant director of computer services for the University, and defendant Conrad was the assistant personnel director. The complaint also contained other allegations which are not relevant to the defendants on this appeal. The complaint prayed for punitive as well as actual damages.
3
The district court dismissed the action on the grounds that it was barred by res judicata. In an earlier action the plaintiff had sought injunctive relief against the Board of Regents of the University. Plaintiff argues that the present action is not barred by res judicata for several reasons: the dismissal of the prior action was on the ground of lack of jurisdiction and therefore not on the merits under Fed.R.Civ.P. 41(b), the district court did not have jurisdiction in the prior action, the present action is for damages and the prior action was for injunctive relief, and the defendants in this action are different from the defendant in the prior action. Plaintiff also argues that the defense of res judicata was not properly raised.
4
Plaintiff's prior action was dismissed by Judge Julius Hoffman of the Northern District of Illinois. After discussing from the bench the various allegations of plaintiff's complaint, Judge Hoffman indicated that 42 U.S.C. § 1981 was of no avail to plaintiff because he had made no allegations of racial discrimination. He also indicated that plaintiff was barred from invoking Title VII because he had failed to comply with the jurisdictional obligations in 42 U.S.C. § 2000e-5. He then turned to plaintiff's allegations under section 1983 and discussed an employee's due process rights. He indicated that plaintiff's interest did not approach the threshold level of a legitimate claim of entitlement which would give rise to a property interest. He stated that even if plaintiff's interest could be considered a protected one, the hearing provided to him was sufficient to satisfy due process requirements. He found that the facts alleged showed no denial of equal protection. Finally, he found that the court did not need to consider whether the Board of Regents was a proper person within the meaning of section 1983 since the plaintiff failed to state a claim in any event.
5
Plaintiff fails to distinguish properly between a dismissal for want of jurisdiction and a dismissal for failure to state a claim upon which relief can be granted. In Bell v. Hood, 327 U.S. 678, 682-88, 66 S.Ct. 773, 90 L.Ed. 939 (1946), the Supreme Court held that a court may dismiss a claim that is alleged under the Constitution or federal statutes for want of jurisdiction where the claim appears immaterial and made solely for the purpose of obtaining jurisdiction or where the claim is wholly insubstantial and frivolous. Otherwise, the court indicated, the failure to state a proper cause of action calls for a judgment on the merits and not a dismissal for want of jurisdiction. From the language of the district judge, we conclude that the dismissal by him was on the merits. See Rinehart v. Locke, 454 F.2d 313, 315 (7th Cir. 1971).
6
Plaintiff argues that in any event the action was not properly before Judge Hoffman because the Board of Regents was not a proper party within the meaning of section 1983. This court recently declined to take a position on that issue in Hill v. Trustees of Indiana University, --- F.2d ----, No. 75-1010 (7th Cir. April 5, 1976), although it is clear that if the Board were an improper party, the district court would have been without jurisdiction. City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). Nevertheless, a prior decision remains a bar to a future action even though it now appears that the court had no jurisdiction in the prior action. Des Moines Navigation and R.R. Co. v. Iowa Homestead Co., 123 U.S. 552, 8 S.Ct. 217, 31 L.Ed. 202 (1887); Lester v. McFaddon, 415 F.2d 1101, 1107 (4th Cir. 1969). This is true because a court has jurisdiction to determine its jurisdiction; and once it has made that determination, its decision is binding unless reversed on appeal. United States v. United Mine Workers, 330 U.S. 258, 292 n. 57, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Des Moines Navigation, supra, 123 U.S. at 559, 8 S.Ct. 217. This same result is reached even though the parties did not actually litigate the issue in the prior action because res judicata applies not only to matters actually litigated but also to matters which might have been presented to sustain or defeat the right asserted in the earlier proceeding. United States v. Eastport Steamship Corp., 255 F.2d 795, 803 (2d Cir. 1958); 13 C. Wright and A. Miller, Federal Practice and Procedure § 3536 at 333 (1975). Therefore, plaintiff cannot now collaterally attack the jurisdiction of the district court in the action except on the grounds of certain public policies which prevail over the doctrine of res judicata. See Wright and Miller, supra. No public policy exceptions have been shown.
7
That injunctive relief was sought in the first action and damages are sought in this action is insufficient to distinguish the two actions for purposes of res judicata. In Hennepin Paper Co. v. Fort Wayne Corrugated Paper Co., 153 F.2d 822 (7th Cir. 1946), this court held that an action for equitable reformation of a contract was barred by a prior action for damages. Though the court's theory is not completely clear, it appears to have been proceeding under an election of remedies theory. Professor Moore suggests that the same result should be reached today under the theory of res judicata. 1B J. Moore, Federal Practice P 0.405(7) at 764-65. We find Professor Moore's rationale persuasive:
8
(W)here law and equity have been united and a litigant can present all his grounds for relief, whether legal or equitable, inconsistent, alternative or hypothetical, in a single action he should be held to have but one cause of action and final judgment on the merits is res judicata as to all matters, legal and/or equitable, in support or defense of that cause of action. (Footnote omitted.) Moore, supra P 0.410 at 1156-57.
9
Since both suits pertain to the same disputed facts and arise out of the same operative facts, they clearly are the same cause of action. See Saylor v. Lindsley, 391 F.2d 965, 969 n. 6 (2d Cir. 1968); Moore, supra P 0.410(1) at 1157-58. Richards v. Smoltich, 359 F.Supp. 9 (N.D.Ill.1973), relied on by plaintiff, is inapposite. In that case the court held that the nature of relief sought determined whether a jury should be allowed in an action under section 1983; it did not concern the extent to which a party would be bound by a judgment in a section 1983 action.
10
The present defendants are employees of the Board which was the defendant in the prior action. In Spector v. El Ranco, Inc., 263 F.2d 143 (9th Cir. 1959), the Ninth Circuit held that a suit against an employee was barred by a judgment in favor of his employer. It stated:
11
Where, as here, the relations between two parties are analogous to that of principal and agent, the rule is that a judgment in favor of either, in an action brought by a third party, rendered upon a ground equally applicable to both, is to be accepted as conclusive against plaintiff's right of action against the other. Id. at 145.
12
Apparently there was no question that the employee had been acting within the scope of his employment at the time of his actions relating to the accident which occurred. See Lober v. Moore, 135 U.S.App.D.C. 146, 417 F.2d 714 (1969). Compare Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), in which the Supreme Court held that a person charged with patent infringement may raise as an estoppel a declaration of invalidity in a prior action even though he was not in any way connected with it. We hold that the difference in the identity of the defendants in the present action from those in the prior action is insufficient reason to prevent plaintiff from being bound.
13
Plaintiff argues that he has been denied his day in court and that it would therefore be unjust to apply res judicata against him. This is not the case. The courts have not permitted res judicata to be used against persons who have not had an opportunity to defend because they were not a party to a prior action. For example, in Markariw v. Rinard, 336 F.2d 333 (3d Cir. 1964), the court held that plaintiff was not barred by a judgment against his employer in a prior action because he had not had his day in court. In this case plaintiff has had his day in court and now seeks another. On June 29, 1973, plaintiff obtained a temporary restraining order against his termination. On July 2, 1973, Judge Frank McGarr vacated the restraining order on the grounds that the plaintiff had an adequate remedy at law because he could be adequately compensated by an award of damages. On March 29, 1974, nine months later, Judge Hoffman dismissed the action. During the interval plaintiff made no effort to amend his complaint to change the defendants or to seek damages. While the initial complaint seeking injunctive relief might have been hastily drafted, plaintiff had ample time to amend his complaint to seek more comprehensive relief; instead he allowed the action to be dismissed. After judgment was entered, plaintiff could have appealed on the grounds that the district court erred by dismissing on the merits rather than for want of jurisdiction, but he did not. There is no unfairness in not allowing the plaintiff collaterally to attack the prior judgment.
14
Plaintiff argues that it was not proper for the defendant to raise the issue of res judicata by a pre-answer motion because it is not one of the defenses enumerated in Fed.R.Civ.P. 12(b). This argument is without merit. We might properly disregard it, since it is raised for the first time on appeal, Hamilton Die Cast, Inc. v. United States Fidelity and Guaranty Co., 508 F.2d 417, 420 (7th Cir. 1975); but it is nevertheless clear that res judicata may be raised by pre-answer motion or at least that it is within the district court's discretion to allow it to be so raised. Connelly Foundation v. School District of Havenford Township, 461 F.2d 495 (3d Cir. 1972); Thomas v. Consolidation Coal Co., 380 F.2d 69, 75 (4th Cir. 1967), cert. denied, 389 U.S. 1004, 88 S.Ct. 562, 19 L.Ed.2d 599; Larter & Sons, Inc. v. Dinkler Hotels Co., Inc., 199 F.2d 854, 855 (5th Cir. 1952). See 2A J. Moore, Federal Practice P 8.28; 5 C. Wright and A. Miller, Federal Practice and Procedure § 1360 at 634 (1969).
15
For the foregoing reasons, the judgment of the district court dismissing plaintiff's complaint is
16
AFFIRMED.
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
6-9-2005
Lin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1519
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Lin v. Atty Gen USA" (2005). 2005 Decisions. Paper 1039.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1039
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 04-1519
____________
ZHENG YUN LIN,
Petitioner
v.
*ALBERTO GONZALES,
ATTORNEY GENERAL OF UNITED STATES AMERICA,
Respondent
*(Amended pursuant to Rule 43(c), Fed. R. App. Pro.)
____________________
ON PETITION FOR REVIEW OF ORDER OF THE
BOARD OF IMMIGRATION APPEALS
(No. A78-257-887)
______________
Submitted pursuant to LAR 34.1(a)
May 26, 2005
Before: SCIRICA, Chief Judge, and ALITO and GARTH, Circuit Judges
(Filed: June 9, 2005)
____________________
OPINION OF THE COURT
____________________
PER CURIAM:
Zheng Yun Lin (“Petitioner”) a native and citizen of the People’s Republic of
China (“the PRC”), seeks review of a decision by the Board of Immigration Appeals (“the
BIA”). The BIA affirmed the decision of the Immigration Judge (the “IJ”) denying
Petitioner’s applications for asylum, withholding of removal, and protection under the
Convention Against Torture. Petitoner claims that his family was persecuted by the PRC
for violating that government’s “one child” policy. As we write for the parties only, we
do not set out the facts separately. We conclude that the BIA’s decision was supported by
substantial evidence, and we deny the petition for review.
I.
Where, as here, the BIA affirms an immigration judge’s decision without issuing
its own separate opinion, this Court reviews the decision of the immigration judge.
Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001). The administrative findings of
fact supporting a final order of removal cannot be reversed unless the administrative
record was such that “a reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. §1252(b)(4)(A)-(B). This Court will affirm the IJ’s decision that
Petitioner was not eligible for withholding of removal or protection under the Torture
Convention if there is substantial evidence to support the decision. Yan Lan Wu v.
Ashcroft, 393 F.3d 418, 421 (3d Cir. 2005).
2
II.
Petitioner’s claim of past persecution turns upon whether his wife had been
forcibly sterilized. The primary evidence of record regarding this claim is a certificate,
issued by Changle City Hospital, stating that a Wei Hua Chen “underwent sterilization
operation” at that hospital on September 12, 1997.
In an attempt to determine the authenticity of the sterilization certificate, two
separate investigations were conducted through the United States consulate in Guang
Zhou, China. Both investigations concluded that the certificate was “fabricated.”
Petitioner argues that the IJ erred by considering the results of the investigations because
the conclusions were primarily based upon the Changle City Hospital’s denial of
authenticity. This was error, Petitioner contends, for two reasons. First, Changle City
Hospital is “funded and controlled by the [PRC],” and was therefore unlikely to provide
evidence of forced sterilization, which is disfavored by the international community.
Second, any hospital worker who verified the authenticity of the sterilization certificate
would have been fired. Pet. Br. 7-9. But Petitioner’s argument is supported only by his
own speculation. Although it is certainly plausible that the PRC would seek to minimize
the negative publicity that comes with the practice of forced sterilization, it is not clear
that Chinese hospitals typically deny the existence of forced sterilizations, or that hospital
workers are fired for failing to deny the existence of such procedures. Given the lenient
standard of review, Petitioner’s bare assertions are not sufficient evidence to compel a
3
conclusion different from the IJ’s determination. And given the IJ’s factual findings,
there is substantial evidence to support his conclusions.
III.
For the reasons given above, we deny Zheng Yun Lin’s petition.
4
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Filed 5/31/13 In re E.F. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re E.F., a Person Coming Under the
Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E057300
Plaintiff and Respondent, (Super.Ct.No. RIJ120646)
v. OPINION
D.L.et al.,
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and
Appellant D.L.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and
Appellant L.F.
1
Pamela J. Walls, County Counsel, and Julie Koons Jarvi, Deputy County Counsel,
for Plaintiff and Respondent.
D.L. (Mother) and L.F. (Father) appeal after the termination of their parental rights
to their daughter, E.F., at a Welfare and Institutions Code section 366.26 hearing.1
They claim on appeal as follows:
1. Father, joined by Mother, claims that the juvenile court erred by finding
that the beneficial parent-child exception of section 366.26, subdivision (c)(1)(B)(i) did
not apply.
2. Father, joined by Mother, contend that the juvenile court erred by finding
that the sibling exception pursuant to section 366.26, subdivision (c)(1)(B)(v) did not
apply.
We affirm the juvenile court‟s order terminating parental rights.
I
PROCEDURAL AND FACTUAL BACKGROUND
A. Detention
E. was born in April 2008. She had a brother, J.L., who was born in December
2005.2 Father was the biological father of E.; J. had a different biological father.
1 All further statutory references are to the Welfare and Institutions Code
unless otherwise indicated.
2 J. is not a subject of the instant appeal but will be referred to only as it
pertains to the detention of E. and the subsequent termination of parental rights.
2
On November 15, 2010, Riverside County Department of Public Social Services
(the Department) received a referral for allegations of physical abuse of J. J. had
disclosed to the reporting party that Mother had burned him on the face with a lighter
because she was mad at him. J. had an open wound on his lower right jaw. The injury
was in a perfect circle and resembled a cigarette burn.
A social worker talked to J. on November 15. J. did not appear to be able to
discern between the truth and a lie, but the social worker interviewed him anyway. J.
claimed that he was disciplined at home by being burned. The wound was the size of a
dime. J. mentioned that Father and Mother frequently argue.
The social worker interviewed Mother and Father. Both denied causing the injury
to J. J. had told Mother he received the injury when a friend had stabbed him with an
object. When the social worker confronted Mother with the accusation that she burned
him with a lighter, she responded, “If that‟s what [J.‟s] saying, then . . . I don‟t know . . .
what can I say?” J. told Father that a neighbor friend stabbed him with a knife. Mother
and Father did not investigate the incident.
Mother and Father had been involved in domestic violence in the past, but there
were no recent reports of violence. They initially denied any current drug or alcohol
abuse. When asked to take a drug test, Father admitted that he had used
methamphetamine two times in the previous two weeks. He claimed Mother did not use
methamphetamine. Mother later admitted that she and Father used methamphetamine
together on November 12, 2010. She admitted that she had spanked E. and J. with a
3
wooden spoon. Father disciplined by spanking them on the bottom. E. had no marks or
bruises.
E. and J. were placed with another family member. A child abuse neglect (CAN)
examination was conducted on J. The injury to his face was consistent with being burned
by a lighter. J. also had patterned scars on his back, abdomen, legs, and arms that were
consistent with being hit by a belt. It was concluded by the examining doctor that J. had
been physically abused. Mother and Father denied abusing J. Mother was cited for
misdemeanor child endangerment. E. and J. were detained and placed together in the
same foster home.
Father had some prior convictions, including possession of drug paraphernalia and
burglary.
On November 18, 2010, the Department filed a section 300 petition against
Mother and Father. It alleged under section 300, subdivision (b) for E. that the parents
engaged in domestic violence and abused methamphetamine, which impacted their ability
to parent her. In addition, it alleged under section 300, subdivision (j) that J. had been
abused and that E. faced a similar risk of harm.
At a detention hearing held on November 19, 2010, the juvenile court found a
prima facie case and ordered E. detained. A guardian ad litem was appointed for her.
Supervised visitation was ordered for one time a week for one hour.
4
B. Jurisdictional/Dispositional Report and Hearing
In a jurisdictional/dispositional report filed on December 9, 2010, the Department
recommended that E. remain in foster care and that Father and Mother be granted
reunification services.
On December 1, 2010, the social worker spoke with J., and he again claimed that
Mother burned his face with a lighter. E. refused to speak with the social worker. The
Department was not given authorization to interview Father and Mother. Father declined
to be interviewed, stating, “Just for the fact that we give up information and it will get
twisted and misused. That‟s what happened at the beginning of the case.” Mother stated,
“It‟s not in my favor. I hope and pray that the truth comes out.”
E. had no developmental delays. She was very shy. At a visit on December 1,
2010, Father was very nurturing toward E. Mother was more focused on talking about
her case with the social worker present than on visiting with E. Mother also spoke with
the foster mother rather than playing with E. and J.
Mother and Father were both referred to the Family Preservation Center (the FPC)
for substance abuse counseling, drug testing, counseling, and parenting. Mother
cancelled several appointments, and Father never called the FPC.
The jurisdictional/dispositional hearing was conducted on December 22, 2010.
Father and Mother objected to the petition but presented no affirmative evidence. The
juvenile court found the allegations in the petition true. Mother and Father were granted
six months of reunification services. E. and J. were declared a sibling set.
5
C. Review Reports and Hearings
In the six-month status review report filed on June 2, 2011, it was recommended
that reunification services continue for Father and Mother. E. and J. were placed in a
new home on April 14, 2011, due to a change in the prior family‟s circumstances. The
children had transitioned well into the new home.
Mother and Father were not married but had been together for four years. They
lived together. Both Mother and Father reported being unemployed and had no source of
income.
J. had been reported to exhibit aggressive outbursts and temper tantrums but was
otherwise developing normally. On February 14, 2011, J. was diagnosed with
oppositional defiant disorder.
E. was developmentally on target. She had good eating and sleeping habits.
Although she was shy, once she warmed up to a person, she was talkative.
Mother had attended only one counseling session. She had completed parenting
classes. She had failed to attend domestic violence classes. She had missed some of her
substance abuse classes but was participating. She tested positive for methamphetamine
on January 4, 2011. She was negative on the next three tests but failed to appear for a
test on May 18, 2011.
Father had attended only one counseling session. He completed a parenting class.
He had not attended domestic violence classes. He was attending some of his substance
abuse classes. He tested positive for methamphetamine on February 10, 2011. He tested
6
negative at one subsequent test, and results were pending for another subsequent test.
He, too, failed to appear for a test on May 18, 2011.
In January and February 2011, Father and Mother had been late to visits, brought
visitors, and discussed the case details with the children. The visits were moved to be
supervised by the Department. E. and J. looked forward to visiting their parents. Father
and Mother were loving and affectionate but also redirected the children when necessary.
However, they continued to be late to visits and missed one visit.
At the six-month review hearing conducted on July 7, 2011, reunification services
were continued for six months despite the juvenile court‟s concerns regarding the
parent‟s progress on the case plan. Both Mother and Father stated at the hearing that they
had been irresponsible but were willing to complete whatever services were necessary to
regain custody of the children. The juvenile court warned them that they must complete
their services before the 12-month review hearing.
On September 13, 2011, the Department brought an application for psychotropic
medication to be administered to J. J.‟s violent behavior was “disruptive,” and the foster
mother was unable to control him. She feared for the safety of E. and other children in
the home. The juvenile court ordered administration of the drugs.
The Department filed a 12-month status review report on December 8, 2011, and it
was recommended that reunification services be terminated. E. and J. remained together
in the same foster home.
7
Mother and Father were unemployed and homeless. They were having problems
with their relationship. Mother accused Father of having a romantic relationship with her
sister.
J. had behavioral problems. He had been suspended from school a number of
times. He got into disagreements over little things with E. and his foster siblings. He
told the foster mother he was acting this way in order to get returned to the care of his
parents. J. had been seen by a psychologist who stated J. demonstrated defiance, physical
aggression, and angry outbursts. His angry behavior had decreased somewhat since he
started taking medication. Despite the improvement, the foster mother wanted J.
removed from her home.
E. was developing normally and had no emotional issues. It was reported that J.
had acted sexually inappropriately with E. J. touched her private areas and made sexual
comments to her. He also had pushed her and yelled at her. The foster mother did not
leave them alone together. E. was needy and wanted attention due to J.‟s actions.
Mother‟s therapist had recommended that she be referred for possible
psychotropic medication due to her depression and behaviors. Mother had failed to get
evaluated for the medication. She was inconsistent in her attendance at therapy. She had
not completed her domestic violence/anger management course or her substance abuse
program. She failed to appear for random drug tests on nine occasions.
Father completed no individual counseling. He did complete some domestic
violence classes and some substance abuse counseling. He was eventually dismissed
8
from the substance abuse program for not following rules. Father also missed nine
random drug tests.
During the reporting period, Father and Mother had been more sporadic and
inconsistent in their visitation. They had fought in front of E. and J. during a visit. The
visits were changed so that Father and Mother attended separately. Unsupervised visits
were not possible. When visits did occur, they were appropriate, and the children were
happy to see Mother and Father.
The Department was concerned that Mother and Father continued to abuse illegal
substances. It was considering separate placement for J. and E. due to J.‟s behavior.
On December 22, 2011, the review hearing was held. Mother objected to anything
in the reports about her having mental health problems, as she had never been evaluated.
Father also objected and argued he was completing some services. The juvenile court
terminated reunification services. A section 366.26 hearing was set.
D. Separating the Sibling Set
On February 3, 2012, the Department filed an ex parte application to separate the
sibling set. J. had increased his sexualized behavior toward E. since the last hearing. In
November 2011, J. snuck into E.‟s room, but E. initially denied any sexual abuse. At the
end of December 2011, J. was found lying in bed next to E. E. told the foster mother that
J. touched her private area. E. reported that J. was “groping” her vagina on several
occasions, including the times he was found in her bed. E. reported that she was afraid of
J. The juvenile court issued an order granting the request.
9
E. Section 366.26 Reports and Hearing
On April 9, 2012, the Department filed a report for the section 366.26 hearing. E.
was moved to a prospective adoptive home on February 29, 2012, away from J.
Mother reported that she was attending Alcoholics Anonymous/Narcotics
Anonymous meetings and living with her sponsor. J. appeared to be less aggressive due
to his new foster home, the medication and counseling. However, J. had been sexually
inappropriate with his foster siblings.
E. was doing well in her new placement. She had bonded with her new family
and was happy. The family was willing to adopt E. The Department reported that it was
better to keep E. and J. separated.
During this reporting period, Father and Mother had been consistent in monthly
visitation, and it had been appropriate. Mother had arranged a birthday party for J. at one
visit. A continuance was requested and granted in order for an adoptive assessment to be
done for the family adopting E.
An addendum report was filed on August 9, 2012. The Department recommended
termination of parental rights to E. and adoption as the permanent plan. An adoptive
home had not been found for J. E. was in her prospective adoptive home and was
thriving.
Mother had missed one of the visitations. On another occasion she only showed
up for the last 10 minutes of a two-hour visit. Father had also missed one visit.
Moreover, Father had gotten angry with E. at a visit for calling the adoptive parents
10
“mom” and “dad.” Visitation between E. and J. was appropriate. E.‟s adoptive parents
were considering continuing visitation with J. after the adoption as long as he did not act
inappropriately.
E.‟s adoptive family provided a stable home environment and were a close-knit
family. They were open to sibling contact.
On September 13, 2012, the section 366.26 hearing was conducted, as will be set
forth in more detail, post. Mother‟s and Father‟s parental rights to E. were terminated,
and she was freed for adoption. E. was “emotional” during her final visit with Mother
and Father. Mother and Father thereafter appealed.
II
EXCEPTIONS TO TERMINATION OF PARENTAL RIGHTS
PURSUANT TO SECTION 366.26
Father, joined by Mother, argue that the beneficial parent exception of section
366.26, subdivision (c)(1)(B)(i) and that the sibling exception to adoption under section
366.26, subdivision (c)(1)(B)(v) applied. The juvenile court erred by terminating their
parental rights.
A. Additional Factual Background
At the section 366.26 hearing, Father testified. Father claimed when the visits
were two times per week, he was consistent with visitation and was on time. At the
visits, E. called Father “Papa” or “daddy,” she hugged him, and she was happy to see
him. She always asked him when she was going back to live with him. She told him that
11
she loved him. E. cried at the end of visitation. Father always brought activities and
snacks. He believed there was a strong parent/child bond. Father felt that E. would
benefit from continuing the relationship. He asked for legal guardianship.
Father also testified that E. and J. had a strong bond; ongoing contact between
them was in their best interests. Father thought it was hard for E. not to be with J. Father
insisted that he was consistent with the monthly visitation.
Father argued that the beneficial parental exception applied. He claimed that E.
cried at the end of visits and that he acted appropriately during the visits. E. would
benefit from continuing the relationship. E. had only been in her current placement for
six months, and the bond with Father outweighed the permanency of adoption. Father
also argued that the sibling exception applied. E. and J. were raised in the same home
and had common experiences. If the juvenile court terminated parental rights, there was
no guarantee of keeping up the relationship between E. and J. Mother also argued that
there was a parental/child bond and joined in Father‟s arguments.
The juvenile court found by clear and convincing evidence that “termination of
parental rights would not be detrimental to the minor in that none of the exceptions
contained in Welfare and Institutions Code Section 366.26 (c)(1), (a) or (b) are applicable
to this case . . . .” It was clear to the court that Father loved E. but could not complete the
services necessary to reunite him with her. E. had clearly bonded with the adoptive
family. The juvenile court also noted that “an important fact” as to the sibling issue was
that J. had sexually victimized E. and it was appropriate to keep them separate.
12
B. Standard of Review
At the section 366.26 hearing, the sole issue “„is whether there is clear and
convincing evidence that the child is adoptable.‟ [Citations.]” (In re Josue G. (2003) 106
Cal.App.4th 725, 733; see § 366.26, subd. (c).) “Adoption, where possible, is the
permanent plan preferred by the Legislature.” (In re Autumn H. (1994) 27 Cal.App.4th
567, 573.) If the court finds that a child may not be returned to his or her parents and is
likely to be adopted, it must select adoption as the permanent plan, unless it finds that
termination of parental rights would be detrimental to the child under one of the seven
exceptions set forth in section 366.26, subdivision (c)(1)(A) and (c)(1)(B)(i) through (v).
(See In re Jamie R. (2001) 90 Cal.App.4th 766, 773.)
C. Parental Benefit Exception
The parental benefit or “beneficial relationship” exception is set forth in section
366.26, subdivision (c)(1)(B)(i). The exception applies where “„[t]he parents . . . have
maintained regular visitation and contact with the minor and the minor would benefit
from continuing the relationship.‟” (In re Derek W. (1999) 73 Cal.App.4th 823, 826.)
“The parent must do more than demonstrate „frequent and loving contact[,]‟
[citation] an emotional bond with the child, or that parent and child find their visits
pleasant. [Citation.] Instead, the parent must show that he or she occupies a „parental
role‟ in the child‟s life.” (In re Derek W., supra, 73 Cal.App.4th at p. 827.) “The
„benefit‟ prong of the exception requires the parent to prove his or her relationship with
the child „promotes the well-being of the child to such a degree as to outweigh the well-
13
being the child would gain in a permanent home with new, adoptive parents.‟
[Citations.]” (In re K.P. (2012) 203 Cal.App.4th 614, 621.) “„The burden falls to the
parent to show that the termination of parental rights would be detrimental to the child
under one of the exceptions. [Citation.]‟ [Citations.]” (In re C.B. (2010) 190
Cal.App.4th 102, 122.)
“We review the trial court‟s findings for substantial evidence. [Citation.]” (In re
Dakota H. (2005) 132 Cal.App.4th 212, 228; see also In re Bailey J. (2010) 189
Cal.App.4th 1308, 1314.) “„On review of the sufficiency of the evidence, we presume in
favor of the order, considering the evidence in the light most favorable to the prevailing
party, giving the prevailing party the benefit of every reasonable inference and resolving
all conflicts in support of the order.‟ [Citation.]” (In re C.F. (2011) 193 Cal.App.4th
549, 553.) Thus, “a challenge to a juvenile court‟s finding that there is no beneficial
relationship amounts to a contention that the „undisputed facts lead to only one
conclusion.‟ [Citation.] Unless the undisputed facts established the existence of a
beneficial parental . . . relationship, a substantial evidence challenge to this component of
the juvenile court‟s determination cannot succeed.” (Bailey J., at p. 1314.)
The juvenile court here summarily denied that the exception applied. It is not
clear if it concluded that Father and Mother failed to maintain visitation or if it concluded
that there was not a beneficial relationship. The evidence supports both conclusions.
Throughout the proceedings, Mother and Father were inconsistent with visitation.
In the first six months, Mother and Father were consistently late to visitation. They
14
brought other visitors to visitations. They missed a visitation. In the 12-month review
hearing report, it was reported that they were sporadic and inconsistent in their visitation.
Mother and Father fought at a visit.
In the section 366.26 report, the Department noted that Mother and Father had
been more consistent in their monthly visits but still missed one visit. Since the visits
were monthly, this meant they did not see E. for two months. Mother had shown up for
only 10 minutes of one visit. Father had gotten angry at E. during a visit because she was
calling the foster parents “mom” and “dad.”
While some of the visits were appropriate and E. looked forward to them, the
record establishes that Mother and Father missed several visitations and had been late to
many visits. They argued at visits. The juvenile court certainly could have concluded
that Father and Mother had not maintained consistent visitation.
Moreover, even if the juvenile court found that Father and Mother maintained
consistent visitation, they cannot prove their relationship with E. benefitted her to such a
degree as to outweigh the well-being she would gain in a permanent home with adoptive
parents. (In re K.P., supra, 203 Cal.App.4th at p. 621.) “The factors to be considered
when looking for whether a relationship is important and beneficial are: (1) the age of
the child, (2) the portion of the child‟s life spent in the parent‟s custody, (3) the positive
or negative effect of interaction between the parent and the child, and (4) the child‟s
particular needs.” (In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted.) Mother
and Father did not show that their relationship with E. was important and beneficial.
15
Father and Mother came to the attention of the Department due to serious injuries
on J. from where Mother burned him with a lighter. He had other marks that were
evidence of past physical abuse. E. faced the potential of being physically abused if she
remained in the custody of Father and Mother. Mother was abusive, and Father
apparently did nothing to stop her.
Additionally, Mother and Father had tested positive for methamphetamine once
during the proceedings, and they each missed nine drug tests. The juvenile court could
reasonably be concerned that Father and Mother were using methamphetamine. If they
were using drugs, they could not provide a stable home environment for E.
The record certainly shows that E. had an emotional attachment with her parents,
and especially Father. Nevertheless, this attachment did not meet her needs, and she
faced harm by remaining in the care of Father and Mother.
Moreover, even if Mother and Father could establish a beneficial relationship, they
cannot show that termination of the parental relationship was detrimental to E. (In re
Bailey J., supra, 189 Cal.App.4th at p. 1315.) We review this determination under an
abuse of discretion standard. (Ibid.)
E. was thriving in her adoptive home. She no longer was being sexually abused
by J. and did not face the threat of being abused by Mother. Father and Mother certainly
could be continuing to abuse drugs as they failed to drug test. Based on the foregoing,
the juvenile court did abuse its discretion by finding that the parental benefit exception
did not apply in this case.
16
D. Sibling Exception
Father, joined by Mother contend that the juvenile court erred by finding that the
sibling exception to adoption pursuant to section 366.26 subdivision (c)(1)(B)(v) did not
apply.
Section 366.26, subdivision (c)(1)(B)(v) provides an exception to the termination
of parental rights if the court finds a compelling reason for determining that termination
would be detrimental to the child due to a “substantial interference with a child‟s sibling
relationship, taking into consideration the nature and extent of the relationship, including,
but not limited to, whether the child was raised with a sibling in the same home, whether
the child shared significant common experiences or has existing close and strong bonds
with a sibling, and whether ongoing contact is in the child‟s best interest, including the
child‟s long-term emotional interest, as compared to the benefit of legal permanence
through adoption.” (§ 366.26, subd. (c)(1)(B)(v).)
The juvenile court undertakes a two-step analysis in evaluating the applicability of
the sibling relationship exception. First, the court is directed “to determine whether
terminating parental rights would substantially interfere with the sibling relationship by
evaluating the nature and extent of the relationship, including whether the child and
sibling were raised in the same house, shared significant common experiences or have
existing close and strong bonds. [Citation.] If the court determines terminating parental
rights would substantially interfere with the sibling relationship, the court is then directed
to weigh the child‟s best interest in continuing that sibling relationship against the benefit
17
the child would receive by the permanency of adoption.” (In re L.Y.L. (2002) 101
Cal.App.4th 942, 951-952.) “[T]he concern is the best interests of the child being
considered for adoption, not the interests of that child‟s siblings.” (In re Naomi P. (2005)
132 Cal.App.4th 808, 822.)
“Indeed, even if adoption would interfere with a strong sibling relationship, the
court must nevertheless weigh the benefit to the child of continuing the sibling
relationship against the benefit the child would receive by gaining a permanent home
through adoption. [Citation.]” (In re Celine R. (2003) 31 Cal.4th 45, 61.) We review the
court‟s finding on this issue for substantial evidence. (In re L.Y.L., supra, 101
Cal.App.4th at p. 953.)
The evidence establishes that E.‟s need for a permanent, stable home away from
J.‟s explosive and sexual behaviors outweighed any sibling relationship.
Here, J. and E. did initially live in the same home together until they were detained
when E. was two years old and J. was five years old. They were also initially placed in
the same foster home and declared a sibling set. However, they had to be separated and
the sibling set was dissolved because J. was sexually inappropriate with E. J. would
sneak into E.‟s room and touch her vagina. He also made sexual comments to her. J.
pushed E. and yelled at her. E. was afraid of J. Although there was some bond between
J. and E., the damage to E. was immeasurable if she remained with J.
Father contends that J. never touched E. at the visitations. However, these visits
were supervised. Moreover, when J. touched E., he snuck into her room in the middle of
18
the night. The juvenile court could reasonably conclude that J. had acted inappropriately
with E.
In addition to the sexually inappropriate behavior, J. continued to escalate his
violent behavior throughout the dependency proceeding. J. had trouble with his various
foster parents who could not control him. Even after termination of parental rights to E.,
J. had to be moved out of his placement due to aggressive behavior. He left bruises on
the foster mother‟s arm, and the foster parents called law enforcement because they could
not control J. E. was becoming needy due to J.‟s violent behavior. Once E. was moved
to the adoptive home away from J., she began to thrive.
Finally, the adoptive parents of E. agreed to maintain some sort of sibling
relationship between E. and J. assuming that he did not act inappropriately with her. As
such, some sibling relationship would be maintained.
Based on the foregoing, we conclude substantial evidence supports the juvenile
court‟s decision not to apply the sibling exception to the termination of parental rights in
this case.3 The juvenile court properly terminated parental rights for Father and Mother.
3 Mother makes an additional claim that if we reverse the termination of
Father‟s parental rights, we must reverse the termination of her parental rights. Since we
uphold the juvenile court‟s order, we need not address the issue.
19
III
DISPOSITION
The juvenile court‟s orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P. J.
HOLLENHORST
J.
20
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371 F.Supp.2d 1170 (2005)
NEWPORT-MESA UNIFIED SCHOOL DISTRICT, Plaintiff,
v.
STATE OF CALIFORNIA DEPARTMENT OF EDUCATION et al., Defendants.
No. SACV 04-512-GLT (ES).
United States District Court, C.D. California, Southern Division.
May 24, 2005.
*1171 *1172 *1173 John E. Hayashida, Parker & Covert, Tustin, Cynthia J. Larsen, Orrick Herrington & Sutcliffe (Intervenor Plaintiff), Sacramento, CA, for plaintiff.
Jack H. Anthony, Law Offices, Newport Beach, Rebecca Phillips Freie, Esq., (California Dept. Of Education), Sacramento, CA, for defendants.
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
TAYLOR, District Judge.
On apparent first impression, and contrary to the body of law on competitive admission testing, the Court holds a state statute requiring copies of test protocols to be provided to parents of special education students falls within acceptable "fair use" under federal copyright law, and the federal copyright law does not preempt the state statute.
I. BACKGROUND
California Education Code section 56504 provides parents of special education students may have copies of their child's test protocols.[1] Defendant Jack Anthony's son is a seven-year-old with special education needs who lives in Plaintiff Newport-Mesa Unified School District. Mr. Anthony requested copies of his son's test protocols before a scheduled Individualized Education Program ("IEP") meeting. The District declined to provide him with the copyrighted test protocol for the Woodcock-Johnson Test of Achievement III.
Mr. Anthony filed a complaint with Defendant California Department of Education, which found the District out of compliance with California Education Code section 56504 by failing to provide Mr. Anthony with records within five days of his request. The Department ordered the District to revise its policies and procedures on student record requests to comply with section 56504 and to send it a copy of the new written policy within sixty days. The Department denied a request for reconsideration of this compliance report. Plaintiff brought the matter to this Court, contending United States copyright law prevents it from providing copies of copyrighted test protocols.
The District requested a declaration of its rights under copyright law and an injunction to prevent the Department from enforcing its compliance report. At the Court's invitation, Harcourt Assessment, *1174 Inc., the publisher and copyright owner of the Weschler Intelligence Scale for Children-III, and Riverside Publishing Co., the publisher and copyright owner of the Woodcock-Johnson III, intervened in the case to assert the copyright interest.[2]
After an early hearing, the parties held lengthy conferences to create a plan accommodating both interests: providing adequate information to special education parents under the state's section 56504, while safeguarding protected works under federal copyright law. Ultimately, the parties failed to work out a plan, and the Court now rules on all parties' cross-motions for summary judgment.
II. DISCUSSION
A. School District's Standing
Defendants challenge the District's standing to sue for a claimed copyright violation. The District sues in its own right as a party that fears violating the copyright law by distributing another party's copyrighted material. The Court is satisfied the District has standing to assert its own interest in avoiding civil liability for copyright infringement.[3]
To have standing to bring a declaratory relief action, the plaintiff must show "under all the circumstances of the case, there is a substantial controversy between parties having adverse legal interests, and the controversy is of sufficient immediacy and reality to warrant declaratory relief." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 (9th Cir.1989). For copyright matters, this requirement is satisfied if the plaintiff has a "`real and reasonable apprehension'" it will be subject to liability if it continues to engage in allegedly infringing conduct. Id. at 1555-56 (quoting a patent case, Societe de Conditionnement v. Hunter Eng'g Co., 655 F.2d 938, 944 (9th Cir.1981), and applying it in the copyright context). The District has made this showing here.
The threat to the District of future injury is both "`real and immediate.'" Am.-Arab Anti-Discrimination Comm. v. Thornburgh, 970 F.2d 501, 507 (9th Cir.1991) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). If the Department enforces its compliance report, the District will have to give a copy of the test protocol to Mr. Anthony or lose state funding. If it distributes a copy, it risks being a copyright infringer, liable to the copyright owner for actual or statutory damages. 17 U.S.C. §§ 501, 504 (1996 & Supp.2005).
The damage threat is real and immediate, not merely hypothetical or conjectural. See Thornburgh, 970 F.2d at 507 (quoting O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)). The test publishers have intervened in this action and have asserted that giving a copy of test protocols to parents of special education students is not fair use. They have sent a letter to the District stating they would consider any failure to maintain confidentiality of their test materials as a contractual violation subjecting the District to liability. By intervening, the publishers have shown their willingness to litigate to protect their interests. See Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 392, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988) (plaintiffs identified a sufficient threatened or actual injury when the challenged law was "aimed directly at plaintiffs, who, if their interpretation of the *1175 statute is correct, will have to take significant and costly compliance measures or risk criminal prosecution").
To have standing, the District need not first copy and distribute the test protocols and wait for the publishers to sue. Thornburgh, 970 F.2d at 508 ("It is not necessary that [it] currently be subject to the challenged provisions in order to have standing; nor need [it] actually commit the forbidden provisions" to establish standing). The District has standing now.
B. Fair Use
California Education Code section 56504 states, in the context of special education, "[t]he parent shall have the right and opportunity to examine all school records of the child and to receive copies pursuant to this section ... within five days after such request is made by the parent, either orally or in writing."[4] At the same time, federal copyright law grants copyright owners the exclusive right to copy and distribute copies of copyrighted works. 17 U.S.C. § 106(1), (3) (1996). This case presents a clash of those two valid but competing interests. The central issue is whether the doctrine of "fair use" avoids preemption of California Education Code section 56504 by the federal copyright law.
The parties agree the test protocols sought by Mr. Anthony are "school records" under section 56504 because, after students write answers on the test protocols, they are identifiable with the students.[5] The parties do not dispute the test protocols, other than the students' answers, are copyrighted works.
The small body of law on the topic of fair use of tests has uniformly indicated copying or distribution of copyrighted standardized tests is not "fair use" under federal copyright law. See Chicago Bd. of Educ. v. Substance, Inc., 354 F.3d 624 (7th Cir.2003) (six Chicago Academic Standards Exams published in newspaper); Ass'n of Am. Med. Colleges v. Cuomo, 928 F.2d 519 (2d Cir.1991) (state statute required providing copy of standardized Medical College Admission Test ("MCAT"), a competitive admission test); Educ. Testing Services v. Katzman, 793 F.2d 533 (3d Cir.1986) (test preparation company copied tests to prepare students); Educ. Testing Service v. Simon, 95 F.Supp.2d 1081 (C.D.Cal.1999) (test preparation company copied tests to prepare students); Coll. Entrance Examination Bd. v. Pataki, 889 F.Supp. 554 (N.D.N.Y.1995) (state statute required providing copy of standardized competitive admissions tests); Ass'n of Am. Med. Colleges v. Mikaelian, 571 F.Supp. 144 (E.D.Pa.1983) (test preparation company copied tests to prepare students).
However, these cases involved standardized competitive admission testing where future test-takers were given access to the tests before taking them. For this and other reasons, the situation presented in this case is quite different, and this line of cases is not applicable here.
*1176 The Court finds giving a copy of the test protocols to parents of special education students falls within 17 U.S.C. § 107, commonly referred to as the "fair use doctrine."
Fair use is a mixed question of law and fact that may be decided on summary judgment. Worldwide Church of God v. Phila. Church of God, Inc., 227 F.3d 1110, 1115 (9th Cir.2000).
If there are no genuine issues of material fact, or if, even after resolving all issues in favor of the opposing party, a reasonable trier of fact can reach only one conclusion, a court may conclude as a matter of law whether the challenged use qualifies as a fair use of the copyrighted work.
Id. (citing Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1150-51 (9th Cir.1986)).
Under the fair use doctrine, copying a copyrighted work "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research," is a fair use of the copyrighted work and is not a copyright infringement. 17 U.S.C. § 107 (1996). The doctrine is necessary "to fulfill copyright's very purpose, `[t]o promote the Progress of Science and useful Arts ....'" Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994) (alterations in original) (quoting U.S. Const. art. I, § 8, cl. 8); see also Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 545, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (stating "copyright is intended to increase and not to impede the harvest of knowledge").
The fair use doctrine "`is an equitable rule of reason.'" Harper & Row, 471 U.S. at 560, 105 S.Ct. 2218 (quoting House Report, at 65, U.S.Code Cong. & Admin. News 1976, p. 5678). It "`permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.'" Campbell, 510 U.S. at 577, 114 S.Ct. 1164 (alteration in original) (quoting Stewart v. Abend, 495 U.S. 207, 236, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990)). Factors to be considered include, but are not limited to:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
17 U.S.C. § 107. These and other elements are not considered in isolation from each other, but are weighed together in light of the purposes of copyright. Campbell, 510 U.S. at 577-78, 114 S.Ct. 1164. The fair use analysis "is not to be simplified with bright-line rules" and requires a case-by-case analysis. Id. at 577, 114 S.Ct. 1164.
1. Purpose and Character of Use
Mr. Anthony's purpose is an independent educational evaluation of his son's special education needs and abilities to place him in an appropriate educational program. This is a nonprofit educational use not for commercial gain. Unlike commercial use of copyrighted standardized test questions, Mr. Anthony's purpose weighs in favor of finding fair use. See Katzman, 793 F.2d at 543 (finding Princeton Review's use of copyrighted Scholastic Aptitude Test ("SAT") questions to prepare students for the test in exchange for a fee was "highly commercial" and weighed against fair use).
*1177 Noncommercial uses to broaden a person's understanding of an issue can be fair use. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 455 n. 40, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984) (stating "a teacher who copies for the sake of broadening his personal understanding of his specialty[; o]r a legislator who copies for the sake of broadening her understanding of what her constituents are watching; or a constituent who copies a news program to help make a decision on how to vote" are examples of fair use). Here, Mr. Anthony seeks to broaden his understanding, and the understanding of experts he may consult, of his son's special educational needs.
"[C]ommercial or nonprofit educational purpose of a work is only one element of the first factor enquiry into its purpose and character." Campbell, 510 U.S. at 584, 114 S.Ct. 1164. The Court also considers whether use of the work is transformative. Id. at 578-79, 114 S.Ct. 1164. A work is transformative if it "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." Id. at 579, 114 S.Ct. 1164. Transformative works "lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." Id.
Here, copies of test protocols with answers are transformative. Section 56504 does not permit parents to have copies of the test protocols before the children have taken the tests. Such copies would not be transformative because they would be identical reproductions of the copyrighted test material. See Pataki, 889 F.Supp. at 568 (finding disclosure of standardized admissions test questions was non-transformative). The only copies implicated by section 56504, and the only copies at issue in this case, are those identifiable with a student after the student has taken the test. The copies, containing the students' answers, have a different character than the copyrighted material standing alone.
Even if not transformative, copying can be fair use when it is in the public interest. See, e.g., Sony, 464 U.S. at 454, 455 n. 40, 104 S.Ct. 774 (holding time-shifting by taping a television broadcast for later viewing was fair use, in part because it "yields societal benefits," and stating "[m]aking a copy of a copyrighted work for the convenience of a blind person is ... an example of fair use"); Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 922 (2d Cir.1994) ("[C]ourts are more willing to find a secondary use fair when it produces a value that benefits the broader public interest."); Key Maps, Inc. v. Pruitt, 470 F.Supp. 33, 37-38 (S.D.Tex.1978) (ruling a county fire marshal's copying of fire zone maps was fair use in light of the public interest in fire prevention). Here, there is a legislated public interest in the appropriate education of special education students. This interest is advanced by providing copies of completed test protocols to parents to ensure their effective involvement in their children's education.[6]
2. Nature of Copyrighted Work
Under the second fair use factor, the nature of the copyrighted work is creative rather than informational. "[D]evelopment of the test questions as well as their compilation in a particular test form *1178 is a `creative, imaginative, and original' process." Pataki, 889 F.Supp. at 569 (quoting Cuomo, 928 F.2d at 524). This ordinarily would weigh against finding fair use. See A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1016 (9th Cir.2001). But, with the addition of a student's answers, the questions and answers are informational in nature, which weighs in favor of fair use.
The distinction between published and unpublished works, often analyzed under the second fair use factor, see Harper & Row, 471 U.S. at 564, 105 S.Ct. 2218, is not particularly useful here. The test protocols are "published" in the sense that the public has access to them. Students use them to take the tests, and parents are allowed to examine the original completed test protocols. But, they are "unpublished" in the sense that the test publishers take steps to ensure their secrecy. Test protocols do not fit the "published/unpublished" framework. Cf. Robert A. Kreiss, Copyright Fair Use of Standardized Tests, 48 Rutgers L.Rev. 1043, 1071-72 (1996) (arguing for standardized tests, "the appropriate issue is whether the copyright owner is commercializing the work, not whether the work is published").
3. Amount Used
Only part of the entire copyrighted test portions identifiable with a student is copied for parents under section 56504. This weighs in favor of fair use. The test publishers argue the copies include a large portion of, or all of, the copyrighted test material because test answers are integrated with the questions on test protocols. Even so, the copying of an entire work would not necessarily preclude fair use. Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1155 (9th Cir.1986); see also Sony, 464 U.S. at 456, 104 S.Ct. 774 (finding copying entire television broadcasts for later viewing is fair use). The amount copied of the copyrighted test material is no more than necessary to see the students' answers and determine whether they were evaluated properly. The amount copied is "reasonable in relation to the purpose of the copying," to assess the students' educational needs. Campbell, 510 U.S. at 586, 114 S.Ct. 1164.
4. Market Effect
It is important to consider whether the potential market for the tests will be substantially affected if parents of special education students receive copies of their child's test protocol. Campbell, 510 U.S. at 590, 114 S.Ct. 1164 (considering" `whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would result in a substantially adverse impact on the potential market' for the original") (omission in original) (quoting 3 M. Nimmer & D. Nimmer, Nimmer on Copyright § 13.05[A][4], at 13-102.61 (1993)). The parties agree widespread public access to the test protocols, if it existed, could have a detrimental effect on the tests' market value.
No evidence has been presented indicating there is a substantial risk of widespread public access or an adverse market effect. In fact, the showing is to the contrary. Section 56504 does not provide widespread public access, or access by future test-taking students, but only authorizes receipt of copies by parents of special education students. Since at least 1983 it has been the Department's policy that parents may receive copies of their student's test protocols as fair use under 17 U.S.C. § 107. There is no indication that, during that time, parents have taken improper advantage of the protocols' availability or a publisher has had to re-standardize the protocols because of public access.
Concerns of a compromised market, or potential distribution to competitors or parents of children who have not yet taken *1179 the tests, are conclusory and not supported by evidence. The Court concludes there is a showing of no "meaningful likelihood" of an adverse market effect if parents continue to receive test protocols under section 56504. Sony, 464 U.S. at 451, 104 S.Ct. 774 (test is meaningful likelihood of future harm). If, in the future, an adverse market effect materializes, the fair use analysis can be reviewed.
5. Other Factors
Consideration of other fair use factors further supports a finding of fair use. Parents such as Mr. Anthony already may examine the test protocols in the presence of a school official. Providing a copy is more like the time-shifting found permissible in Sony than the disclosure of secure test information found impermissible in Pataki. Compare Sony, 464 U.S. at 449, 104 S.Ct. 774 (stating time-shifting enables a viewer to see a work "he had been invited to witness in its entirety free of charge"), with Pataki, 889 F.Supp. at 571 (comparing Sony to a case in which the test publishers "have done everything they can to ensure that the test-taking public not gain access to ... copyrighted materials").
6. Conclusion
The Court concludes a school giving parents of special education students copies of their children's test protocols when requested under California Education Code section 56504 is a fair use under 17 U.S.C. § 107. In order to minimize the risk of improper use, the District may choose to use appropriate safeguards, such as requiring a review by parents of the original test protocols before obtaining a copy, a written request for a copy, a nondisclosure or confidentiality agreement, or other reasonable measures.
The more appropriate outcome of this case is apparent to all. In order to avoid a "fair use" analysis whenever a district releases documents, and to protect California's school districts from fear of violating federal law, the California legislature should update section 56504 with appropriate standards to protect legitimate copyright concerns, while affording the important disclosure protections for parents of special education students the legislature intended. This should not be a difficult task.
III. DISPOSITION
Plaintiff's and Plaintiffs-Interveners' motion for summary judgment is DENIED. Defendants' motion for summary judgment is GRANTED.
NOTES
[1] All statutory references are to the California Education Code unless otherwise stated.
[2] Plaintiff and Plaintiffs-Interveners also assert a trade secret interest in the test protocols under state law and common law. That interest is not part of these cross-motions.
[3] The Court would be concerned about deciding copyright issues unless the copyright owner was also a party to the case. Here, the owner has intervened.
[4] Federal regulations implementing the Individuals with Disabilities Education Act have a similar provision. Parents are permitted "to inspect and review any education records relating to their children." 34 C.F.R. § 300.562(a) (2004). The federal right to inspect and review includes "[t]he right to request that the agency provide copies of the records containing the information if failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records." Id. § 300.562(b)(2).
[5] Test protocols generally include score sheets on which students mark their answers and tables on which examiners calculate the students' scores. Test protocols also can include the "prompts" of the test questions and instructions for the test administrators.
[6] Under section 56504, parents also may examine the original test protocols. The federal Family Educational Rights and Privacy Act of 1974 similarly allows parents to inspect and review education records "directly related to a student," including test protocols. 20 U.S.C. § 1232g(a)(1)(A), (a)(4)(A) (2000).
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239 F.Supp.2d 397 (2002)
James Lee ROSS, and Sakee Ali Nasir-Bey, Plaintiffs,
v.
Robert E. SNYDER, and Marlene Lichtenstandter, Defendants.
No. CIV.A.01-346-SLR.
United States District Court, D. Delaware.
October 22, 2002.
*398 James Lee Ross, Smyrna, DE, pro se.
Sakee Ali Nasir-Bey, Smyrna, DE, pro se.
MEMORANDUM ORDER
SUE L. ROBINSON, District Judge.
Plaintiffs James Lee Ross, SBI # 174077, and Sakee Ali Nasir-Bey, SBI # 077915, pro se litigants, are presently incarcerated at the Delaware Correctional Center ("DCC") located in Smyrna, Delaware. Plaintiffs filed this action pursuant *399 to 42 U.S.C. § 1983 and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
I. STANDARD OF REVIEW
The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. Reviewing complaints filed pursuant to 28 U.S.C. § 1915 is a two-step process. First, the court must determine whether each plaintiff is eligible for pauper status. On May 24, 2001, the court granted each plaintiff leave to proceed in forma pauperis and ordered each plaintiff to file a certified copy of his trust account summary within thirty days from the date the order was sent. On August 6, 2001, the court ordered plaintiff Ross to pay $7.66 as an initial partial filing fee and plaintiff Nasir-Bey to pay $7.81 as an initial partial filing fee. Plaintiff Nasir-Bey paid $7.81 on August 23, 2001. On September 20, 2001, the court granted plaintiff Ross a thirty day extension of time to pay the $7.66 initial partial filing fee. Plaintiff Ross paid the $7.66 on September 28, 2001.
Once the pauper determination is made, the court must then determine whether the action is frivolous, malicious, fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant immune from such relief pursuant to 28 U.S.C. §§ 1915(e)(2)(B)-1915A(b)(l).[1] If the court finds plaintiffs complaint falls under any of the exclusions listed in the statutes, then the court must dismiss the complaint.
When reviewing complaints pursuant to 28 U.S.C. §§ 1915(e)(2)(B)-1915A(b)(l), the court must apply the standard of review set forth in Fed.R.Civ.P. 12(b)(6). See Neal v. Pennsylvania Bd. of Probation and Parole, No. 96-7923, 1997 WL 338838 (E.D.Pa. June 19,1997) (applying Rule 12(b)(6) standard as appropriate standard for dismissing claim under § 1915A). Accordingly, the court must "accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom." Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996). Pro se complaints are held to "less stringent standards than formal pleadings drafted by lawyers and can only be dismissed for failure to state a claim if it appears `beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
The standard for determining whether an action is frivolous is well established. The Supreme Court has explained that a complaint is frivolous "where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).[2] As discussed below, plaintiffs's *400 claims have no arguable basis in law or in fact, and shall be dismissed as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)-1915A(b)(l).
II. DISCUSSION
A. The Complaint
Plaintiffs allege that the 1992 changes to the State of Delaware parole procedures violate their right to due process and equal protection under the Fourteenth Amendment. (D.I. 3 at 2) Plaintiffs also allege that the challenged parole procedures violate the Ex Post Facto Clause. (Id.) Finally, plaintiff Ross individually alleges that both defendants violated his civil rights by failing to allow him to appear before the Delaware Board of Pardons and Parole ("the Board") in October 1995. (Id. at 6)
Plaintiffs request that this court issue a declaratory judgment finding the challenged parole procedures unconstitutional. They also request that each plaintiff be awarded compensatory damages in the amount of $20,000, nominal damages in the amount of $10,000 and any other relief the court deems appropriate. In the alternative, the plaintiffs request that the court order their immediate release. (Id. at 6-8)
On January 2, 2002, plaintiff Ross filed a letter motion requesting that the court intervene on his behalf and direct the DCC business office to lift a "freeze" placed on his trust account. (D.I. 19) On September 30, 2002, the court issued an order denying the motion as moot because it appeared that the freeze had been lifted from his trust account. (D.I.21) October 8, 2002, plaintiff Ross filed a letter motion requesting reconsideration and arguing that his complaint should not be dismissed because he has not paid the full filing fee. (D.I. 23 at 2-3) Clearly, plaintiff Ross does not understand the court's order dated September 30, 2002. The court merely denied plaintiffs motion for intervention and did not rule on the merits of the complaint. However, because the court finds that the complaint is frivolous, plaintiffs motion shall be denied as moot.
B. Analysis
"The line between claims which must initially be pressed by writ of habeas corpus and those cognizable under § 1983 is a blurry one." Cook v. Texas Dep't of Criminal Justice Transitional Planning Dep't., 37 F.3d 166, 168 (5th Cir.1994). In this case, plaintiffs have confused the line between the writ of habeas corpus and a civil rights claim under § 1983 by requesting both damages and release from confinement. Clearly, both plaintiffs are challenging a change in parole procedures. Section 1983 is the appropriate legal vehicle to attack unconstitutional parole procedures or conditions of confinement. See Preiser v. Rodriguez, 411 U.S. 475, 498, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Dotson v. Wilkinson, 300 F.3d 661 (6th Cir.2002); Moran v. Sondalle, 218 F.3d 647 (7th Cir. 2000); Herrera v. Harkins, 949 F.2d 1096 (10th Cir.1991); Johnson v. Pfeiffer, 821 F.2d 1120, 1123 (5th Cir.1987).
1. Plaintiffs' Due Process Claims
Plaintiffs allege that the 1992 amendment to the Delaware parole statute violates their right to due process because the amendment extends the time between parol reconsideration hearings. (D.I. 3 at 4) The mere existence of a parole system does not create a liberty interest protected by the Due Process Clause. See Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 4, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). "Liberty interests protected by the Fourteenth Amendment may arise from two sources the Due Process Clause itself and the laws of the States." Hewitt v. Helms, 459 U.S. *401 460, 466, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). The Supreme Court has explained that liberty interests protected by the Due Process Clause are limited to "freedom from restraint" which imposes an "atypical and significant hardship in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. at 483-84, 115 S.Ct. 2293. Being required to wait a longer period of time between parole hearings does not create an "atypical and significant hardship in relation to the ordinary incidents of prison life." Id.
Furthermore, the Delaware parole statute does not create a liberty interest in parole. Rather, the statute authorizes the Board to reduce a prisoner's minimum term of parole eligibility, "when the Board is satisfied that the best interests of the public and the welfare of the person will be served by such reduction." 11 Del. C. Ann. § 4346(b). Clearly, the Board has broad discretion in granting or denying parole. Plaintiffs have, at most, an expectation that they may at some time be released on parole if the Board determines that their release is in the best interests of society, as well as the best interests of the individual plaintiff.
Neither the Fourteenth Amendment Due Process Clause, nor the Delaware parole statute grant plaintiffs a protected liberty interest. Consequently, plaintiffs' Fourteenth Amendment due process claim has no arguable basis in law or in fact. Therefore, the court shall dismiss this claim as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)-1915A(b)(l).
2. Plaintiffs's Equal Protection Claims
Plaintiffs allege that the 1992 amendment to the Delaware parole statute violates their right to equal protection under the Fourteenth Amendment. (D.I. 3 at 3) However, prisoners are not a protected class, and their claims under the Equal Protection Clause are analyzed under the less strict rational relationship standard. See Abdid-Akbar v. McKelvie, 239 F.3d 307, 317 (3d Cir.2001). Furthermore, plaintiffs do not allege differential treatment between themselves and some other group of prisoners. Nor do they allege that the Board has drawn any distinctions between different groups of prisoners. In fact, all Delaware prisoners are subject to the same standards for parole as plaintiffs. Consequently, plaintiffs' Fourteenth Amendment equal protection claim has no arguable basis in law or in fact. Therefore, the court shall dismiss this claim as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)-1915A(b)(1).
3. Plaintiffs's Ex Post Facto Claims
Plaintiffs argue that the 1992 amendment to the parole statute violates the Ex Post Facto Clause. In order to violate the Ex Post Facto Clause, a change in the law must increase an individual's punishment beyond what was prescribed when the crime was committed and lack fair notice to the individual regarding the change. Weaver v. Graham, 450 U.S. 24, 29-30, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). Nothing in the Delaware parole statute increases the punishment prescribed for an offense. Consequently, plaintiffs' claim that the 1992 changes to the Delaware parole statute violate the Ex Post Facto Clause has no arguable basis in law or in fact. Therefore, the court shall dismiss this claim as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)-1915A(b)(1).
4. Plaintiff Ross's Requested Habeas Corpus Relief
Finally, plaintiff Ross alleges that the defendants denied him a parole hearing in 1995. It appears that plaintiff Ross is actually challenging his denial of parole *402 in 1995. To the extent that plaintiff Ross is challenging the duration of his sentence, his sole federal remedy is by way of habeas corpus. See Preiser v. Rodriguez, 411 U.S. at 475, 93 S.Ct. 1827. Furthermore, plaintiff Ross cannot request relief under § 1983, unless he proves that the sentence he is challenging has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus. See Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In this case, plaintiff Ross has not proved that his sentence was reversed or invalidated by any means required under Heck. Therefore, to the extent that plaintiff Ross is challenging the duration of his sentence, the court shall dismiss his claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)-1915A(b)(1). However, such dismissal shall be without prejudice to plaintiffs filing a petition for writ of habeas corpus.
NOW THEREFORE, at Wilmington this 22nd day of October, 2002, IT IS HEREBY ORDERED that:
1. Plaintiff Ross's "Motion for Reconsideration" (D.I.23) is DENIED as moot.
2. Plaintiffs's Fourteenth Amendment due process claim is DISMISSED as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)-1915A(b)(1).
3. Plaintiffs's Fourteenth Amendment equal protection claim is DISMISSED as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)-1915A(b)(1).
4. Plaintiffs's claim that the 1992 amendment to the Delaware parole statute violates the Ex Post Facto Clause is DIMISSED as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)-1915A(b)(1).
5. To the extent that plaintiff Ross is challenging the duration of his sentence, the claim is DISMISSED without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)-1915A(b)(1).
NOTES
[1] These two statutes work in conjunction. Section 1915(e)(2)(B) authorizes the court to dismiss an in forma pauperis complaint at any time, if the court finds the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant immune from such relief. Section 1915A(a) requires the court to screen prisoner complaints seeking redress from governmental entities, officers or employees before docketing, if feasible and to dismiss those complaints falling under the categories listed in § 1915A(b)(1).
[2] Neitzke applied § 1915(d) prior to the enactment of the Prisoner Litigation Reform Act of 1995 (PLRA). Section 1915(e)(2)(B) is the redesignation of the former § 1915(d) under the PLRA. Therefore, cases addressing the meaning of frivolousness under the prior section remain applicable. See § 804 of the PLRA, Pub.L.No. 14-134, 110 Stat. 1321 (April 26, 1996).
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96 F.3d 246
UNITED STATES of America, Plaintiff-Appellee,v.Corey T. ROBINSON and Michael Scott, Jr., Defendants-Appellants.
Nos. 95-3254, 95-3361.
United States Court of Appeals,Seventh Circuit.
Argued June 7, 1996.Decided Sept. 13, 1996.
Bruce E. Reppert (argued in No. 95-3254 and submitted in No. 95-3361), Office of United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.
Paul M. Storment, Jr., (argued), Belleville, IL, for Corey T. Robinson.
John J. O'Gara, Jr., Trentman & O'Gara, Belleville, IL, for Michael Scott.
Michael Scott, Littleton, CO, Pro Se.
Before POSNER, Chief Judge, and FLAUM and RIPPLE, Circuit Judges.
FLAUM, Circuit Judge.
1
Corey Robinson, Michael Scott, Jr., and Andre Monroe1 were indicted in a two-count indictment for conspiring to possess with intent to distribute cocaine base (crack cocaine), in violation of 21 U.S.C. §§ 841(a)(1) and 846, and for using or carrying a firearm in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1). Scott pled guilty to both counts and testified against Robinson at trial. Robinson was convicted by a jury of both counts. He appeals his conviction for using or carrying a firearm, the district court's refusal to give a "mere presence" instruction, and the court's calculation of the amount of drugs he was responsible for at sentencing. We reverse and remand Robinson's conviction for using or carrying a firearm, but affirm the court's rejection of the mere presence instruction and calculation of the drugs attributable to him. Scott also appeals, but we dismiss his appeal and grant his counsel's motion to withdraw.
I. Facts
2
During the summer of 1993, Michael Scott, Jr., and his brother, Andre Monroe, moved from East St. Louis to Murphysboro, Illinois and set up a crack cocaine distribution business there. The two made periodic trips back to East St. Louis to buy drugs and operated their business out of various homes in Murphysboro. For a while Scott and Monroe lived with Scott's girlfriend and her baby and established a thriving drug trade in the home. One witness described the drug-selling activity at this home saying, "It was like a supermarket. It was--it was a crazy place. It was constantly 24 hours a day. Crack was always being sold out of there."
3
During the fall of 1993, Monroe left town after being robbed and beaten up in the home. Corey Robinson, who went by the name "E," essentially took Monroe's place in Scott's drug business, and Scott and Robinson began selling together in the Murphysboro area. Scott acknowledged at trial that he had sold crack with Robinson out of the Murphysboro home of a woman named Jeri Branch.2 Several other witnesses also testified to observing Scott and Robinson selling crack together. Specifically, Timothy Robinson,3 another local drug dealer and a friend of Michael Scott and Corey Robinson, testified that he once picked up Scott and Robinson in East St. Louis and that each of them brought back one ounce of crack cocaine. Timothy Robinson testified to observing Corey Robinson and Michael Scott regularly selling crack together for a period of five weeks out of Jeri Branch's home. He described their business as going "seven days a week" with "[a] constant flow everyday." Timothy Robinson also stated that he would conservatively estimate that Corey Robinson sold approximately five ounces of crack during this period. Martin Alexander likewise testified that he observed Corey Robinson and Michael Scott selling together at that location and that he had purchased cocaine from Robinson there, though he couldn't say how many times.4 Alexander stated that he once picked up Robinson and Scott at a home in East St. Louis and that while driving home he observed a couple of bags of golf-ball size chunks of crack in the back seat of the car. Alexander stated that Timothy Robinson, who also came along for the trip, had one of the bags, but he was not sure if Corey Robinson had the other one or not. Terrell Kempfer testified to buying crack from Corey Robinson two or three times.5 And Charlene Branch, who was in the federal witness protection program at the time of trial, testified that she observed Corey Robinson and Michael Scott selling crack together from her sister Jeri's home on more than 50 occasions and that she herself purchased crack from them as many as 50 times, though "sometimes" both men were not present.
4
The government also presented substantial evidence at trial regarding the use and possession of numerous firearms by Corey Robinson and Michael Scott. Scott himself admitted to owning two guns, a Glock 40 and a Ruger 40, for "protection" and testified that he had observed Robinson with guns while selling crack cocaine.6 Timothy Robinson testified to seeing Scott with a .40 caliber Ruger while Scott was selling crack and also to seeing him in possession of an "AK 47" assault rifle. Timothy Robinson further recounted observing Corey Robinson with a Glock 40 while Corey was dealing drugs. Dee Ann Hudson described seeing assorted guns at the home shared by Michael Scott and his girlfriend, including a .38 revolver that was generally left on the coffee table and what looked like an assault rifle in a closet. Hudson also related an episode where Scott became afraid that the cops were watching his home and gave Hudson a gun to keep for him for a day. Martin Alexander testified that when he picked up Robinson and Scott in East St. Louis, one of them had a 9 millimeter and the other had a Glock, though he was not sure who had which gun. Alexander also stated that both men were always "armed" when they sold drugs. Charlene Branch likewise testified that she had seen Scott and Robinson with guns and that, as far as she knew, they were always "armed" when they were selling crack cocaine together.
5
Two other witnesses described incidents in which a firearm was used in connection with collection of a debt. Terrell Kempfer testified to an incident in which he saw Robinson walking a man named Demetrius Johnson across a yard with a gun pointed at his chest; Robinson was threatening to shoot Johnson over $40 that was owed. Issac Bratcher, a special agent with the F.B.I., testified that in August of 1994, while questioning Robinson in connection with an armed robbery in Carbondale, Illinois, Robinson admitted that he been in Carbondale with Michael Scott to "make some money" and collect on a debt. According to Bratcher, Robinson admitted during this questioning that he had brought a 9 millimeter assault pistol, while Scott had come with a Glock .40 caliber handgun. Robinson recounted to Bratcher that he and Scott travelled to a housing project area known as "Crack Alley," broke up a dice game that the "debtor" was involved in by displaying their guns, and then took the money left behind when everyone scattered. Robinson also stated that he then fired his gun into the air two or three times before he and Scott left the scene.7 The government maintains that the Scott/Robinson crack cocaine conspiracy ended with Robinson's arrest for the armed robbery in August 1994.
6
Robinson was tried on June 12-13, 1995. He was convicted by a jury, in approximately seventeen minutes, of both counts charged in the indictment: conspiracy to possess with intent to distribute cocaine base and using or carrying a firearm in relation to a drug trafficking offense. Robinson was sentenced to 151 months on the conspiracy count, an additional 60 months on the firearms count, and five years of supervised release. In addition, the court ordered him to pay a $3000 fine and a $100 special assessment.
II. Robinson
A. 18 U.S.C. § 924(c)(1)
7
We begin with Robinson's appeal of his conviction for using or carrying a firearm in relation to a drug trafficking offense. The statute reads as follows: "Whoever, during and in relation to any crime of violence or drug trafficking crime ..., uses or carries a firearm, shall, in addition to the punishment provided for such a crime of violence or drug trafficking crime, be sentenced to imprisonment for five years...." 18 U.S.C. § 924(c)(1). Robinson challenges the sufficiency of the evidence presented at trial on this charge, in light of the Supreme Court's recent decision in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Such Bailey appeals are often framed as challenges to the jury instructions given at trial. The instructions given at trial included the following statement:
8
The term "uses or carries a firearm" means having a firearm, or firearms, available to assist or aid in the commission of the crime alleged in Count 1 of the indictment [the conspiracy count].
9
A firearm is used or carried during and in relation to a drug-trafficking crime if the circumstances of the case show that the firearm facilitated or had a role in the crime by providing a person with the security and confidence to undertake a transaction or series of transactions involving illegal drugs. "Using" a firearm includes the possession of a firearm which in any manner facilitates the crime.
10
....
11
The government is not required to show that the defendant actually displayed or fired the weapon. The government is required, however, to prove beyond a reasonable doubt that the firearm was in the defendant's possession or under the defendant's control at the time that a crime of violence or drug-trafficking crime was committed.8
12
Prior to Bailey this circuit had defined the word "use" in § 924(c) quite broadly,9 and we have little doubt that this instruction and the conviction that followed would have passed muster under our old law. Bailey, however, has changed our frame of reference.
13
The Supreme Court held in Bailey that a conviction for "use" of a firearm under § 924(c)(1) "requires evidence to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense." --- U.S. at ----, 116 S.Ct. at 505 (emphasis in original). The Court noted that " 'use' must connote more than mere possession of a firearm by a person who commits a drug offense." Id. at ----, 116 S.Ct. at 506. Thus while the placement of firearms near drugs or drug proceeds and the "emboldening" effect an individual may gain from having a firearm at the ready do not constitute "use," id. at ---- - ----, 116 S.Ct. at 507-08, "[t]he active-employment understanding of 'use' certainly includes brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm." Id. at ----, 116 S.Ct. at 508. The instructions set forth above are clearly improper under the dictates of Bailey.
14
While Robinson casts his § 924(c)(1) appeal as a sufficiency of the evidence claim, in United States v. Gonzalez, 93 F.3d 311 (7th Cir. 1996), we have recently noted that our analysis of such sufficiency challenges under Bailey "must also be informed ... by the rules that govern our assessment of erroneous jury instructions." Id. at 320. We cited United States v. Holmes, 93 F.3d 289 (7th Cir. 1996), a case in which the Bailey appeal was cast as a jury instruction challenge, and found that "the principles set forth in that opinion are just as relevant when the litigant chooses to cast his submission to the court in terms of sufficiency of the evidence rather than instructional error." Gonzalez, 93 F.3d at 320; cf. United States v. Miller, 84 F.3d 1244, 1256-61 (10th Cir.1996). In cases such as this one, where the jury instruction on "use" was clearly flawed, whether a § 924(c)(1) conviction will be affirmed outright, reversed outright, or reversed and remanded depends upon the nature of the evidence presented at trial. The essential framework is as follows: 1) if all the firearms evidence presented qualifies as either active-employment "use" or "carry," we will affirm the conviction despite the bad instruction, see, e.g., United States v. Baker, 78 F.3d 1241, 1245-47 (7th Cir.1996); 2) if none of the evidence presented qualifies as either active-employment "use" or "carry," we will reverse the conviction outright, see, e.g., United States v. Monroe, 73 F.3d 129, 132-33 (7th Cir.1995); and 3) if some of the evidence presented could qualify as either active-employment "use" or as "carry," but other firearms evidence presented exemplifies only possession or some other type of now-defunct, inactive "use," we will reverse the conviction and remand for a new trial, since we cannot be sure whether the jury convicted on the proper basis or the improper basis, see, e.g., United States v. Thomas, 86 F.3d 647, 650-51 (7th Cir.1996). See generally Gonzalez, 93 F.3d at 320-22; Holmes, 93 F.3d at 294-95.
15
The government presented a wealth of evidence at trial that Robinson, along with his co-conspirator Scott, actively used and carried firearms during and in relation to their drug trafficking conspiracy. Unfortunately, from the government's current perspective, it also put on a substantial amount of firearms evidence that merely established that Robinson and Scott possessed guns at various times and that they were known to carry them outside the context of actual drug dealing. For example, Scott testified to owning guns for protection; Dee Ann Hudson described seeing assorted guns in the home Scott shared with his girlfriend; and both men were seen with guns on occasions that were not clearly drug related. The presentation of this evidence, when combined with the instruction allowing for conviction if the firearms were merely "available to assist or aid in the commission of the crime alleged" or if they gave the conspirators "the security and confidence to undertake a transaction or series of transactions involving illegal drugs," leave open the possibility that the jury's guilty verdict rested on a basis now soundly rejected by the Supreme Court. We cannot be sure that the jury did not base its verdict completely on "mere possession" evidence, even though it certainly could have accepted and relied on the active use or carry evidence. Thus we must reverse and remand Robinson's conviction under § 924(c). While the reversal of such convictions may well result in a windfall for defendants like Robinson, it is the established price of what our justice system is willing to pay for a greater measure of certainty that a defendant was not unlawfully convicted. In this situation, the government maintains the right to re-pursue the conviction before a properly instructed jury.
B. Mere Presence Instruction
16
Robinson also appeals the district court's refusal to give a "mere presence" jury instruction--an instruction informing the jury that "presence at the scene of the crime and knowledge that a crime is being committed are not sufficient to establish the defendant's guilt." The government objected to the proposed instruction, stating that there was no evidence presented at trial that would indicate that Robinson was merely present at the scene of drug transactions. After hearing argument from defense counsel, the court ruled as follows:
17
The Court's heard the evidence and does not believe there's been any evidence at all, basically, that would warrant the giving of this proposed instruction. And the Court agrees with the government's position that there's been no position asserted, either through cross examination or through the defense case, that would warrant the giving of this instruction. And I think it would be error for the Court to give it. So the Court is going to deny and refuse Defendant's Instruction No. 1.
18
Robinson's counsel did not object to the court's refusal to give this instruction.
19
A defendant is indeed entitled to have the jury instructed on his theory of defense, so long as he can demonstrate that his theory is supported by evidence presented at trial, is not covered by other instructions, and does not misstate the law. United States v. Baker, 40 F.3d 154, 162 (7th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1383, 131 L.Ed.2d 237 (1995); see also United States v. Douglas, 818 F.2d 1317, 1320-21 (7th Cir.1987). A defendant must, however, object to a court's refusal to give a tendered instruction in order to preserve the issue for appeal. FED. R. CRIM. P. 30; Baker, 40 F.3d at 162. Because Robinson did not object to the court's refusal to give the mere presence instruction, we will review the refusal only for plain error. Id.
20
Upon reviewing the record in this case, we agree with the district court that the mere presence theory was never presented to the jury during the course of the trial, either through the submission of specific evidence or testimony, or through cross examination and the arguments of defense counsel. In fact, defense counsel stated in closing arguments, "I'm telling you, ladies and gentlemen, that this is not a conspiracy. This is perhaps a possession, perhaps a distribution of guns or drugs. And whether it involves my client is questionable, but this is not a conspiracy." Such a statement hardly reflects a mere presence theory. Defense counsel's focus throughout the trial was on deriding the credibility and character of the government's witnesses and denying that Robinson was involved in their "conspiracy." He did not argue, however, that Robinson was an innocent who just happened to be hanging around while all sorts of drug dealings went on around him. And Robinson did not put on evidence that would support such a theory.
21
Furthermore, other instructions that were given adequately informed the jury that Robinson could not be convicted if he was merely present at the scene of criminal activity. For example, the jury was instructed that in order to convict on the conspiracy count, it had to find "[t]hat the defendant knowingly and intentionally became a member of the conspiracy." The court also instructed the jury that
22
[t]o be a member of the conspiracy, the defendant need not join at the beginning or know all the other members or the means by which the purpose was to be accomplished. The government must prove beyond a reasonable doubt, from the defendant's own acts and statements, that he was aware of the common purpose and was a willing participant.
23
These and similar instructions made it clear to the jury that Robinson could only be convicted if he consciously and willfully joined the conspiracy. Thus the jury was informed that it could not base its conspiracy conviction on Robinson's "mere presence" at the scene of drug transactions. As we did in United States v. Tringali, 71 F.3d 1375, 1380 (7th Cir.1995), we conclude that it was not plain error for the court to refuse to give the proposed instruction.
C. Calculation of Quantity of Drugs
24
Robinson also challenges the district court's calculation of the quantity of cocaine base involved in the conspiracy. Robinson was indicted under 21 U.S.C. §§ 841(a) and 846 for conspiring to possess with intent to distribute cocaine base, i.e., crack cocaine. Thus his base offense level at sentencing was determined according to the Drug Quantity Table in § 2D1.1 of the Sentencing Guidelines. The district court found that Robinson's drug trafficking activities involved between 150 and 500 grams of cocaine base,10 giving him a base offense level of 34 on his conspiracy conviction. U.S.S.G. § 2D1.1(c)(3). The sentencing court determines the quantities of drugs involved in an offense by a preponderance of evidence; and we review such findings only for clear error. United States v. Berchiolly, 67 F.3d 634, 639 (7th Cir.1995). Hence we will reverse the court's calculation of the amount of drugs involved in an offense only if we are left with a "firm and definite conviction that a mistake has been made." Id. (quoting United States v. Corral-Ibarra, 25 F.3d 430, 437 (7th Cir.1994)).
25
By the time of the sentencing hearing, the district court had before it all the trial testimony, a presentence investigation report prepared by a probation officer, and a chart and report prepared by F.B.I. Special Agent Gregory Holston. Holston conducted interviews with seven persons and summarized these interviews in chart form, outlining the quantity of drugs that each witness attributed to Corey Robinson, Michael Scott, and Andre Monroe, respectively, based on his or her interactions with and observations of the men.11 The government submitted both Holston's chart and his comprehensive summaries of the interviews to the district court at sentencing. At the sentencing hearing, Robinson's counsel acknowledged that Holston's report was "a culmination of previous information ... provided in discovery and does track the information listed in the presentence report."
26
Holston's chart included the following information in regard to Corey Robinson: 1) 50 buys by Charlene Branch, usually of three $20 rocks, which was estimated to be equivalent to 15 grams of crack; 2) Timothy Robinson's estimate that Corey Robinson sold approximately 5 ounces (over 140 grams) of crack during the period Robinson was seen working with Michael Scott12; 3) 4 buys of $20 rocks by Mark Sherrill; 4) 7 buys of $20 rocks and one buy of 1/16 ounce by Lyle M. Bulliner; 5) Martin Alexander's observation of three golf-ball size crack rocks in Robinson's possession13; and 6) Carl Blackmon's observations of Robinson selling one-half to one ounce quantities of crack, which was (conservatively) estimated to amount to one-half to one ounce of crack (about 14-28 grams). As noted earlier, Charlene Branch, Timothy Robinson, and Martin Alexander were witnesses at trial, giving the district court the opportunity to observe their testimony and evaluate their credibility. In addition, Gregory Holston attended the sentencing hearing and was available for questioning, but defense counsel declined to cross examine him about the contents of his interview memoranda and summary chart.
27
Robinson's fundamental argument, both at the sentencing hearing and here on appeal, has been that the people providing the drug quantity information are patently unbelievable and that these individuals did not provide adequate information regarding the dates, times, and places where the alleged transactions occurred. After hearing the arguments of counsel at sentencing, the court noted that the quick verdict, which it described as "one of the quickest verdicts this Court's presided over, guilty or not guilty," indicated that the jury must have found the witnesses credible. The court continued, "And this Court, hearing their testimony, too, believed them to be credible witnesses." Regarding Robinson's criticism of the lack of specific details regarding dates of sales, drug amounts, etc., the court noted that it was not in the nature of this "illegal business" to keep records. The court also spoke of being impressed by the certainty with which the witnesses testified about the amounts of drugs involved. As we have regularly recognized, such credibility judgments are best left "to the sound discretion of the district court, which has the advantage of having observed the demeanor of the witnesses as they testified." United States v. Campbell, 985 F.2d 341, 347 (7th Cir.1993).
28
The district court was certainly entitled to conclude, based on the evidence presented at trial and brought before it at sentencing, that Robinson's involvement in the drug conspiracy made him responsible for at least 150 grams of cocaine base. The statements of Timothy Robinson and Charlene Branch alone, both of whom the court observed at trial, could place Corey Robinson in the 150-500 gram range. The court's calculation of the amount of crack cocaine attributable to Corey Robinson was not clearly erroneous.
III. Scott
29
Michael Scott pled guilty to both conspiring to possess with intent to distribute cocaine base, 21 U.S.C. §§ 841(a)(1) and 846, and using or carrying a firearm in relation to a drug trafficking offense, 18 U.S.C. § 924(c)(1). The district court sentenced Scott to 121 months on the conspiracy count and an additional 60 months on the firearms count, with five years of supervised release; the court also ordered him to pay a $1500 fine and a special assessment of $100. His counsel filed a timely notice of appeal.
30
On appeal, however, his counsel has filed an Anders brief, stating that there are no non-frivolous issues for appeal, and a motion to withdraw. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Pursuant to Circuit Rule 51(a), Scott was informed of his counsel's actions and his right to respond. Scott has filed no response to either the motion to withdraw or the Anders brief.
31
At his sentencing, Scott did not dispute the amount of cocaine base attributed to him by the pre-sentence report (150-500 grams, for a base offense level of 34). U.S.S.G. § 2D1.1(c)(3). Scott challenged only the constitutionality of the Sentencing Guideline's drug quantity tables for cocaine base, relative to the treatment of other drugs. As his counsel acknowledges on appeal, we have previously rejected this argument, see, e.g., United States v. Lawrence, 951 F.2d 751, 754-55 (7th Cir.1991); United States v. Scott, 19 F.3d 1238, 1246 (7th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 163, 130 L.Ed.2d 101 (1994). We see no reason to revisit the question here and agree with Scott's counsel that any appeal on this issue would be "groundless in light of legal principles and decisions." United States v. Eggen, 984 F.2d 848, 850 (7th Cir.1993). On the other hand, we are not convinced of counsel's submission that Scott's guilty plea as to his 924(c) conviction was unquestionably taken in compliance with Rule 11. The government's proffer of proof on this count consisted only of the fact that "in connection with the conspiracy alleged in the indictment" Scott "possessed numerous firearms." In light of the holding in Bailey, this may well be an insufficient factual basis and additionally not an accurate statement of what the government must prove in order to obtain a 924(c) conviction. Therefore we are unable to conclude that it would be frivolous to argue that Scott's 924(c) plea was not entered into knowingly. Accordingly, we grant present counsel's motion to withdraw, but direct that new appellate counsel be appointed to address the validity of Scott's 924(c) plea.
IV.
32
For the foregoing reasons, we reverse and remand Corey Robinson's conviction under 18 U.S.C. § 924(c)(1), but affirm his conviction under 21 U.S.C. §§ 841(a)(1) and 846, as well as the district court's calculation of the quantity of cocaine base involved in the offense. In addition, we dismiss Michael Scott's appeal as to the constitutionality of the guideline drug quantity tables and appoint new counsel for his 924(c) plea challenge.
1
Andre Monroe, sometimes referred to as Andre Scott, is Michael Scott's brother; he is not involved in this appeal
2
After pleading guilty to both counts in the indictment on the morning of trial, Scott testified against Robinson under a compulsion order. Scott was granted immunity for the substance of his testimony
3
It does not appear from the record that Corey Robinson and Timothy Robinson are related. Timothy Robinson was incarcerated at the time of the trial, after pleading guilty to distribution of crack cocaine. He acknowledged at trial that he was testifying as part of his plea agreement and was hoping that his sentence would be reduced due to his cooperation
4
Martin Alexander had previously pled guilty to conspiring to distribute crack cocaine and was incarcerated at the time of trial
5
Kempfer admitted at trial that he was convicted in 1988 for possession of one ounce of marijuana and was then in custody in Illinois on a residential burglary charge
6
The government's firearms expert at trial, Donald Gunnell, identified the two guns recovered in this case, see infra note 7, and specifically named in the indictment as a 9 millimeter semi-automatic pistol (also known as a Ruger model "Tec 9") and a .40 caliber semi-automatic Glock pistol
7
According to Robinson's statement to Bratcher, when the police attempted to pull over Scott and Robinson (in connection with the robbery), they ditched their car in a trailer park in Murphysboro and fled on foot. After apprehending Robinson, the police recovered the .40 caliber Glock from the car that Robinson and Scott had been travelling in, and Robinson himself led Bratcher to the place where he had stashed the assault weapon, a 9 millimeter Ruger model Tech 9
8
A separate instruction informed the jury that if the defendant's co-conspirator (i.e., Scott) used or carried a firearm in furtherance of their drug conspiracy and as a natural consequence of that conspiracy, the defendant could be convicted of the firearms count on that basis
9
See, e.g., United States v. Woods, 995 F.2d 713, 718 (7th Cir.1993) ("Dealers who keep drugs 'in strategic proximity' to their drugs or transactions 'use them in relation to' their drug trafficking for purposes of [18 U.S.C. § 924(c) ].") (citing United States v. Malin, 908 F.2d 163, 168 (7th Cir.), cert. denied, 498 U.S. 991, 111 S.Ct. 534, 112 L.Ed.2d 544 (1990))
10
One ounce is equivalent to 28.35 grams, thus 150-500 grams equals approximately 5.29-17.64 ounces
11
A sentencing court can make its drug quantity calculation based on such hearsay evidence, as long as the evidence is "reliable" and the defendant is given a reasonable opportunity to rebut it. See United States v. Francis, 39 F.3d 803, 809-10 (7th Cir.1994)
12
Timothy Robinson provided a detailed account of his observations of and dealings with the conspiracy members, including the amounts of crack that were typically sold, during his interview with Holston. A summary of this information was included in Holston's report
13
Alexander provided extensive information to Holston regarding the operations of the conspiracy, which was summarized in Holston's report
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168 F.2d 957 (1948)
FAHS, Collector of Internal Revenue,
v.
FLORIDA MACHINE & FOUNDRY CO.
No. 12212.
Circuit Court of Appeals, Fifth Circuit.
July 6, 1948.
Leland T. Atherton and George A. Stinson, Sp. Assts. to Atty. Gen., Theron L. Caudle, Asst. Atty. Gen., and Edith House, Asst. U. S. Atty., of Jacksonville, Fla., for appellant.
John W. Donahoo and William T. Rogers, both of Jacksonville, Fla., for appellee.
Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.
McCORD, Circuit Judge.
Appellee, Florida Machine and Foundry Company, filed suit to recover additional income and excess profits taxes, aggregating $19,089.44, paid for the years 1941 and 1942 under protest. From a judgment for appellee taxpayer, the Collector takes this appeal.
The only question presented is the proper cost basis to be used by taxpayer in computing gain or loss on the sale of certain land it owned in 1941, and in determining taxpayer's equity invested capital for the years 1941 and 1942.
Title 26 U.S.C.A.Int.Rev.Code, § 112(b) (5), provides:
*958 "Sec. 112. Recognition of gain or loss * * *
"(b) Exchanges solely in kind * * *
"(5) Transfer to corporation controlled by transferor.
"No gain or loss shall be recognized if property is transferred to a corporation by one or more persons solely in exchange for stock or securities in such corporation, and immediately after the exchange such person or persons are in control of the corporation; * * *."
Section 112(h) defines the term "control", as used in the above quoted provision, as follows:
"* * * Definition of control. As used in this section the term `control' means the ownership of stock possessing at least 80 per centum of the total combined voting power of all classes of stock entitled to vote and at least 80 per centum of the total number of shares of all other classes of stock of the corporation. * * *"
Section 718(a) (2) of the Code, 26 U.S. C.A.Int.Rev.Code, § 718(a) (2), requires that property paid in for stock be included in equity invested capital in the amount of its basis for determining loss upon sale or exchange. The basis to be used for property acquired by a corporation after December 31, 1920, through the issuance of its stock for property in accordance with Section 112(b) (5), above, is the same as it would be in the hands of the transferor. Section 113(a) (8), Internal Revenue Code, Title 26 U.S.C.A.Int.Rev.Code, § 113(a) (8). If, however, the issuance of the stock for property is not governed by Section 112(b) (5), the taxpayer's basis is the cost to it of such property, or the fair market value of the property on the date of acquisition. Section 113(a), 26 U.S.C.A. Int.Rev.Code, § 113(a).
The evidence reveals that for some years prior to 1912, Franklin G. Russell, Senior, as sole owner, operated a business known as Florida Machine Works on Riverside Avenue in Jacksonville, Florida. On May 31, 1912, he purchased a tract of land bordering on West Church Street in Jacksonville, to which location the plant was later moved.
About the year 1920, it was shown that the Senior Mr. Russell, who had little technical education for foundry and machine shop work, discussed with his son, Franklin G. Russell, Junior, the possibility of the son eventually succeeding him in the business. The son had graduated from college in 1916 with a degree in mechanical engineering and, with the exception of about two years spent as a soldier in World War I, had served since that time as an apprentice in the various departments of his father's plant, later becoming assistant manager. When the location of the business was changed from Riverside Avenue to West Church Street, the son himself had planned and laid out the new plant installations. In 1921 the father and son entered into an agreement whereby the son would eventually receive a one-half interest in the business, if he remained with it and continued to operate the plant. In pursuance of this agreement, the Florida Machine and Foundry Company, taxpayer, was organized and incorporated on July 16, 1924. At the organization meeting on that date, the Senior Russell conveyed to the corporation all of the assets of the business which he then owned individually, including the tract of land in question, for stock in the corporation, with the shares thereof to be issued directly to himself, his son, and one share each to three other persons. The father received 1181 shares and his son 1176 shares, the father thereby retaining only a bare majority of the stock issued.
In 1941, the corporation sold a parcel of the land on West Church Street for $15,000. The March 1, 1913, value of this tract was $7,522.60. On July 16, 1924, the date taxpayer corporation was organized, the fair market value of the tract sold was $13,164.55.
In its 1941 return, the taxpayer claimed a loss on the above sale in the sum of $11,270, using as its basis of value for the land sold, the amount of $26,270, which was the proportionate fair market value of the land sold as compared with the fair market value of the entire tract as of July 16, 1924, the date of organization of the corporation and acquisition of the land by taxpayer. The Commissioner denied the validity of the basis used, on the ground that the transfer to the corporation on *959 July 16, 1924, was really a non-taxable exchange of property for stock, as described in Section 112(b) (5) of the Code, and ruled that, for the purpose of computing taxpayer's gain or loss under Sec. 113(a) (8), the proper basis of value was the March 1, 1913 value in the hands of the transferor, Franklin G. Russell, Senior, or $7,824.53, so that instead of a loss of $11,270, as claimed by taxpayer, there was a taxable gain of $7,175.47; he further required the use of the same basis in computing taxpayer's equity invested capital under Sec. 718(a) (2), for the years 1941 and 1942.
We are of opinion the district court's finding that Franklin Russell, Senior, was not in "control" of taxpayer corporation "immediately after the transfer" on July 16, 1924, and therefore, that Section 112(b) (5) did not apply, is abundantly supported by the evidence.[1] 26 U.S.C.A. Int.Rev.Code, §§ 112(b) (5), 112 (h); Heberlein v. U. S., 2 Cir., 105 F.2d 965; Bassick v. Commissioner, 2 Cir., 85 F.2d 8; Hazeltine Corporation v. Commissioner, 3 Cir., 89 F.2d 513.
Appellant's contention that the son, Franklin Russell, Junior, by virtue of the agreement with his father in 1921, acquired an equitable one-half interest in the land involved, which thereafter placed him and his father, as joint transferors, in "control" of taxpayer immediately after the transfer, is not borne out by the evidence. We further find no merit in the argument that taxpayer should be required to use the basis of its transferor, Franklin G. Russell, Senior, because of the latter's failure to report the transfer in 1924. There can be no estoppel against taxpayer for the act of its transferor, who was not in control of taxpayer corporation immediately after the transfer, and who was shown to have acted in good faith. Cf. Portland Oil Co. v. Commissioner, 1 Cir., 109 F.2d 479; Orange Securities Corporation v. Commissioner, 5 Cir., 131 F. 2d 662.
It follows that the proper basis for the land in question is its fair market value when acquired by taxpayer corporation on July 16, 1924.
We find no reversible error in the record, and the judgment is therefore affirmed.
NOTES
[1] The district court found:
"* * * Obviously, Mr. Russell, Senior, owned far less than 80% of taxpayer's capital stock according to the stock register. There is no basis in the evidence to find that the issue of stock on July 16, 1924, and the interests in the corporation thereby represented, were other than bona fide. There is no evidence of subterfuge or evasion, no evidence that Mr. Russell sought to conceal a personal control of the corporation by formally placing one-half of the capital stock in his son's name. To the contrary, it appears that the entire transaction was regular and in good faith, for the declared purpose of bringing his son into the business as a one-half owner, so that the son could and would carry on this long-standing family business after the retirement of his father, who was then getting along in years. At the time of this transaction, the son was a mature and experienced man, 31 years old, fully competent by education and experience to take over and manage the responsibilities of the business, which he did. The uncontradicted evidence is that the son was the absolute owner of the stock issued to him; that he exercised all the privileges of ownership thereof, and paid income tax on the dividends therefrom. * * *"
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NUMBER 13-16-00436-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOSE GUADALUPE HINOJOSA AND
SANDRA SALINAS HINOJOSA, Appellants,
v.
DANIEL SANDOVAL AND
ABIGAIL SANDOVAL, Appellees.
On appeal from the 139th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Benavides
By five issues, appellants Jose and Sandra Hinojosa appeal from a no-evidence
summary judgment in favor of appellees Daniel and Abigail Sandoval. Appellees respond
that appellants’ appeal is frivolous and ask this Court to issue sanctions. We find it to be
a frivolous appeal and affirm.
I. BACKGROUND
In 1988, appellants and appellees entered into a contract to purchase real estate.
Appellees agreed to pay appellants $64,000 to purchase a home, with $56,000 to be
owner-financed by appellants over thirty years. The calculated mortgage payment did not
include property taxes.
In November 2011, the appellants filed suit alleging “the Plaintiff’s have fully paid
for the property and all conditions precedent to the Plaintiff’s performance of the contract
have been completed and Defendants refuses to convey the land to Plaintiff’s as
promised.” The appellants requested a declaratory judgment to “establish rights under the
contract.”
Appellees filed an answer and special exception stating that under the contract,
appellants were required to make mortgage payments through August 2018, but
appellants had made no payments since 2003. Appellees also protested that the
appellants did not plead any elements necessary to support their causes of action for
breach of contract or declaratory relief. The appellees also filed a counter-petition and
later a motion for a no-evidence summary judgment. Following a short hearing, the trial
court granted appellees’ motion for summary judgment. This appeal followed.
II. APPEAL IS FRIVOLOUS
By what they present as five issues, appellants ask the following: 1) why did the
appellees not fix mold damage in the home; 2) why did the appellees not pay property
taxes on the rental property that appellants were renting from them; 3) why were the
appellants led to believe that $61,000 given by the insurance company for mold would be
credited to mortgage payments; 4) why did one of the appellants have to die based on
2
living conditions in the home; and 5) there was a breach of contract when the appellees
failed to fix the mold by law.
A. Applicable Law and Discussion
The issues raised by appellants on appeal have no relation to their motion for
declaratory judgment filed in the trial court. In the trial court, appellants attached the
following exhibit to their petition: an earnest money contract relating to the sale of a home
at 1605 John Avenue in Edinburg, Texas between appellants and appellees. According
to the contract, appellants were identified as the buyers and were responsible for the
monthly mortgage payments in the amount of $491.45 for a term of thirty years. The
earnest money contract also contained a provision that stated the “Deed of Trust to be
executed by Buyer shall provide for the payment of Buyer of taxes and insurance
premiums on the property.”
Although the appellants’ petition referenced an insurance check for mold damage,
evidence relating to the importance of the document was not presented before the trial
court. The reporter’s record submitted to this Court was from a hearing titled “Motion for
Summary Judgment Proceedings” and was a total of five pages of transcript testimony.
The trial court’s order granting the motion for no-evidence summary judgment stated:
The Court finds that the Plaintiffs and Defendants entered into a written
contract for the sale of property on August 1988. Pursuant to the written
terms of the contact [sic], Defendants agreed to owner-finance the home for
a 30-year term. Plaintiffs were to remit monthly mortgage payments in the
amount of $491.44 beginning September 1988 for 30 years. Plaintiffs own
affidavit states that they stopped paying in January 2003. Hence, Plaintiffs
breached the terms of the written agreement and are in default in the sum of
$46,685.06. Furthermore, Plaintiffs stopped paying the property taxes also
in January 2003. The taxing bodies have filed suit to foreclose on the
property.
3
Now for the first time on appeal, appellants allege the trial court erred in granting
summary judgment against them because they were tenants of the property. The record
before this Court must show that the “complaint was made to the trial court by a timely
request, objection, or motion” and was ruled on by the trial court in order to preserve an
issue for appellate review. TEX. R. APP. P. 33.1. Therefore, we conclude that no issues
raised on appeal were presented before the trial court, and we further find this appeal to
be frivolous. We overrule appellants’ issues.1
III. CONCLUSION
We affirm the judgment of the trial court.
GINA M. BENAVIDES,
Justice
Delivered and filed the
28th day of June, 2018.
1 Appellees had requested this Court issue sanctions against appellants for a frivolous appeal. See
TEX. R. APP. P. 45. We exercise discretion in imposing sanctions and therefore, we deny appellees’ motion
for sanctions against appellants. See Glassman v. Goodfriend, 347 S.W.3d 772, 782 (Tex. App.—Houston
[14th Dist.] 2011, pet. denied) (en banc).
4
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-3703
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
William Jennings Bryant Axsom, II
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
____________
Submitted: January 17, 2014
Filed: August 4, 2014
____________
Before GRUENDER, BENTON, and KELLY, Circuit Judges.
____________
KELLY, Circuit Judge.
William Jennings Bryant Axsom, II was convicted after a jury trial of
possessing and distributing child pornography. On appeal, Axsom asserts the district
court erred by finding Federal Rule of Evidence 414 constitutional; misapplying Rule
414 in admitting into evidence his prior conviction for trafficking in child
pornography; denying his motion for a mistrial; and denying his motion for a new
trial. Having jurisdiction under 28 U.S.C. § 1291, we affirm the district court.1
I. Background
On February 2, 2010, Detective Thomas Brennan, a Denver, Colorado, police
detective, was working with the Federal Bureau of Investigation’s (FBI) Innocent
Images Task Force. Using peer-to-peer file-sharing software called Limewire,
Brennan browsed an Internet Protocol (IP) address that responded to a search term
indicative of child pornography. Brennan determined the IP address belonged to a
W.J.B. Axsom in Pine Bluff, Arkansas. Brennan discovered Axsom had 189 files
available for sharing. Brennan downloaded 20 files from Axsom’s computer, 15 of
which contained images of child pornography. Brennan forwarded his downloads to
the FBI in Little Rock, Arkansas. Special Agent Brandon McNab obtained a search
warrant for Axsom’s residence. Axsom, who was present during the search, waived
his Miranda rights and admitted he subscribed to the IP address for the computer. He
denied downloading child pornography, claiming he put in a search for “nylons” and
Limewire downloaded the child pornography overnight without his knowledge.
Axsom was indicted for distribution of child pornography, in violation of 18
U.S.C. § 2252(a)(2) (Count 1), and possession of child pornography, in violation of
18 U.S.C. § 2252(a)(4)(B) (Count 2). He had a prior 2003 federal conviction for
trafficking in material involving the sexual exploitation of children, in violation of
18 U.S.C. § 2252(a)(1). In that case, he pled guilty and served 26 months in federal
prison. Because of the 2003 conviction, if convicted of the distribution and
possession charges, he faced statutory mandatory minimum sentences of 180 months
in prison on Count 1 and 120 months in prison on Count 2. He pled not guilty, and
1
The Honorable D. P. Marshall Jr., United States District Judge for the Eastern
District of Arkansas.
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a jury convicted him on both charges. His sentencing guideline range was 188–235
months, but the district court granted a downward departure to the statutory minimum
of 180 months imprisonment.
II. Discussion
A. Federal Rule of Evidence 414
Axsom asserts the district court erred in admitting evidence of his 2003 child
pornography conviction, contending Federal Rule of Evidence 414 is
unconstitutional. We review de novo a challenge to the constitutionality of a rule of
evidence. United States v. Coutentos, 651 F.3d 809, 819 (8th Cir. 2011). Rule 414(a)
provides: “In a criminal case in which a defendant is accused of child molestation, the
court may admit evidence that the defendant committed any other child molestation.
The evidence may be considered on any matter to which it is relevant.” This type of
evidence “is admissible unless its probative value is substantially outweighed by one
or more of the factors enumerated in [Fed. R. Evid.] 403, including the danger of
unfair prejudice.” Coutentos, 651 F.3d at 819 (quotation omitted).
In the court below, Axsom objected to the introduction of his prior conviction
as a violation of his Fifth Amendment rights to due process and to remain silent. On
appeal, Axsom abandons this argument, recognizing we have “rejected other attacks
on the facial constitutionality of Rule 414.” See Coutentos, 651 F.3d at 819 (Rule
414 meets “the due process test of fundamental fairness” (quotation omitted)).
Instead, he now asserts Rule 414 is unconstitutional because it is “based on the over-
inclusion of possession of illegal images within the same class as actual assaults upon
children.” He suggests we analyze its constitutionality under the framework set forth
in Chambers v. United States, 555 U.S. 122 (2009), and Begay v. United States, 553
-3-
U.S. 137 (2008). Chambers and Begay, however, involve issues of statutory
interpretation, not constitutional questions, and offer no basis on which to find Rule
414 unconstitutional.
Axsom next argues the district court nonetheless misapplied Rule 414 in
admitting evidence of his 2003 child pornography conviction. “We review the
district court’s evidentiary rulings for abuse of discretion.” Coutentos, 651 F.3d at
819. Axsom concedes the district court followed the proper procedure in ruling on
the admissibility of the 2003 conviction, see United States v. Gabe, 237 F.3d 954, 959
(8th Cir. 2001), but argues the district court erred in finding the evidence probative.
“Rule 414 evidence is probative when the prior bad acts were similar to those with
which the defendant was charged.” Coutentos, 651 F.3d at 819 (citing Gabe, 237
F.3d at 959–60). The district court found in both cases Axsom used a computer, a
file-sharing program, and similar search terms, and he downloaded images of children
of approximately the same age.
Axsom argues the cases are too dissimilar for the 2003 conviction to be
probative of the current charges. He notes in the 2003 case, he downloaded and
posted images on a newsgroup website, while here, he used Limewire. In the 2003
case, he pled guilty; in this case, he went to trial. In addition, in the 2003 case, he
saved the images; here, he deleted, or attempted to delete, the images. Finally,
Axsom asserts the search term used this time was for “nylons,” rather than a term
associated with child pornography.
We do not find the alleged differences cited by Axsom convincing. First, in
the prior case, he used a file sharing medium, albeit not a peer-to-peer application
such as Limewire. Second, how the 2003 case was resolved does not address the
similarity of that conviction to these charges. Finally, to the extent deleting the
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images or conducting an internet search using different terms are distinguishing
factors, they are not sufficient to show the court abused its discretion in admitting the
evidence of his prior conviction.
B. Motion for Mistrial
Axsom next asserts the district court erred in denying his motion for a mistrial,
which was based on two incidents involving jurors. We review the denial of a motion
for mistrial for an abuse of discretion. United States v. Garrett, 648 F.3d 618, 624
(8th Cir. 2011). The first incident occurred during jury selection. A prospective juror
reported that banter between a Court Security Officer and an FBI case agent in the
courtroom, while the judge and attorneys were in the jury room conducting individual
voir dire, may have affected her outlook about the trial. At the time, Axsom remained
in the courtroom. Defense counsel asked that the entire panel be struck, which would
have resulted in a mistrial. Instead, the court proposed questioning each juror when
they came into the jury room about whether they were bothered by anything
happening in the courtroom. The court also agreed to recall the jurors who had
already been questioned as part of voir dire to ask them the same question. Axsom’s
defense counsel agreed to this procedure and withdrew his motion for a mistrial. No
other juror reported being bothered by anything that happened in the courtroom.
The second incident occurred later in the trial when an alternate juror reported
overhearing two other jurors discussing the case while the jury was lining up to enter
the courtroom that morning. The court separately questioned, under oath, the
alternate juror and the two jurors who made the comments and allowed the attorneys
to ask questions.2 The court characterized the interchange between the jurors as
2
The alternate juror stated she heard one juror say: “It looks like this is going
to be a long day today and tomorrow. Today may be the bulk of it,” and the other
juror reply: “Yeah . . . But I don’t know how much more they could say. It looks like
we already know where it’s headed.” When questioned by the court, the two jurors
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“premature deliberations.” Defense counsel asked for a mistrial based on the
cumulative effect of the first incident—which counsel characterized as an extrinsic
influence upon the jury—and the second incident, the premature deliberations
between the two jurors. After a short recess, the court denied the motion. Following
the break, the court again admonished the jury to keep an open mind and not form an
opinion until they heard all the evidence. On appeal, Axsom asserts the district court
abused its discretion in denying his motion for mistrial based on the combination of
the two incidents. We disagree.
“In order to protect a defendant’s Sixth Amendment right to a fair trial as well
as his or her due process right to place the burden on the government to prove its case
beyond a reasonable doubt, a jury must refrain from premature deliberations in a
criminal case.” United States v. Gianakos, 415 F.3d 912, 921 (8th Cir. 2005) (citation
omitted). Trial courts customarily admonish jurors not to discuss the merits of a case
among themselves prior to submission of the case, and a jury’s failure to abide by that
instruction is “not a light matter.” Id. “A legitimate concern that a juror’s
impartiality is suspect cannot be ignored.” Id.
Axsom’s claim fails because he has not demonstrated that there were, in fact,
premature jury deliberations. In denying his motion for a mistrial, the district court
found “both of these jurors have indicated that they have not formed any final opinion
on the case.” We agree with the district court that the comments made were
“innocent grist-of-the-mill comments . . . wondering about how long things are going
to take . . . [and] a regrettable, but a general comment about . . . where things are
going.” We also credit, as did the court, the “context of the comments”—the jurors
were lining up at the time and focused on making sure everyone line up correctly,
confirmed their side of the conversation but denied hearing the other juror’s response.
Each stated they had not formed a final opinion about the case and agreed to have no
further conversations about the case until it was over.
-6-
making it unlikely the comments affected anyone else. We do not believe this rises
to the level of premature deliberations. Because Axsom has not shown there were
premature deliberations, we need not address whether the bantering during voir dire
constituted an extrinsic influence on the jury. We note, however, Axsom acquiesced
in the court’s handling of the matter, making it difficult for him to now allege it was
an “extrinsic influence” on the jury that is sufficient to warrant a mistrial. The district
court did not abuse its discretion in denying Axsom’s motion for mistrial.
C. Motion for New Trial
Finally, Axsom argues the district court should have granted his motion for
new trial after his sister, a person with “extensive experience in the field of
computers,” submitted what he characterizes as “new evidence” concerning the
operation of Limewire and how it can lead to accidental downloading of child
pornography. “We review the district court’s denial of a motion for a new trial based
on newly discovered evidence for a clear abuse of discretion, a rigorous standard.”
United States v. Stroud, 673 F.3d 854, 863 (8th Cir. 2012) (quotation omitted). A
defendant will not receive a new trial “unless the evidence weighs heavily enough
against the verdict that a miscarriage of justice may have occurred.” United States
v. Meeks, 742 F.3d 838, 840 (8th Cir. 2014) (quotation omitted). To receive a new
trial, Axsom must demonstrate “(1) the evidence was unknown or unavailable at the
time of trial; (2) [he] was duly diligent in attempting to uncover the evidence; (3) the
newly discovered evidence is material; and (4) the newly discovered evidence is such
its emergence probably will result in an acquittal upon retrial.” Id. (citations
omitted).
We agree with the district court Axsom did not meet the first requirement: none
of the evidence Axsom describes as “newly discovered” was unknown or unavailable
to the defense at the time of trial. During the hearing on the motion for new trial,
Axsom’s sister testified she provided 1500 pages of material to Axsom’s first attorney
-7-
prior to trial outlining how Limewire could lead to accidental downloads of child
pornography. She further testified she provided information regarding Congressional
hearings pertaining to Limewire to Axsom’s second attorney before trial. These
hearings were held over a year before Axsom’s September 2010 indictment on these
charges. Finally, pursuant to 18 U.S.C. § 3600A(e), Axsom was granted funds to
retain a computer expert to assist him in his defense. This expert testified at trial
about accidental downloads from Limewire—Axsom’s “newly discovered”
evidence—and defense counsel referenced the expert’s testimony during closing
argument.
The district court stated, “[W]hat I believe based on everything that I have seen
and heard is that we’re not confronting newly discovered evidence, that much of this
was known at the time to the defense, that is to [Axsom’s expert, attorney and sister],
and what was unknown was not unavailable; that is, it was out there either on the
internet or in the literature or in the computers and the computer materials that were
in the case as evidence.” The district court did not abuse its discretion in concluding
the proposed evidence was not “newly discovered” and denying Axsom’s motion for
new trial.
III. Conclusion
Based on the foregoing, we affirm.
____________________________
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35 U.S. 647
10 Pet. 647
9 L.Ed. 567
ALPHONSO WETMORE, PLAINTIFF IN ERRORv.THE UNITED STATES.
January Term, 1836
IN error from the district court of the United States for the district of Missouri.
An action of indebitatus assumpsit was instituted at September term 1832, by the United States, in the district court of the United States for the Missouri district, against Alphonso Wetmore, upon an account regularly adjusted, settled and certified at the treasury of the United States on the 18th of November 1831. The account charged the defendant with the sum of 3388 dollars and 18 cents, 'for difference of pay and forage, between a major of cavalry and a major of infantry, improperly received by him, and now brought to his debit.' At the foot of the account there is a statement by the second auditor of the treasury, as follows: 'the same being the difference of pay and forage claimed by him, between a major of cavalry and a major of infantry, to which he is considered as not entitled by the accounting officers of the treasury of the United States.'
The cause was tried by a jury on the 6th of September 1832, and a verdict was found for the United States.
The United States produced and read in evidence, the duly certified transcript from the treasury showing the amount of the claim against the defendant.
It was admitted on the trial, that the defendant had served as a paymaster (duly appointed as such) in the army of the United States, from the said 24th day of April 1816 to the said 31st day of May 1831; and that the amount stated in said account and transcript to be due from the defendant to the United States consists solely of the difference between the pay and emoluments allowed by the accounting officers to the defendant, and the pay and emoluments retained and claimed by him during the period of service aforesaid.
The defendant claimed to be allowed for his service during the period aforesaid, the pay and emoluments allowed, by law, to other officers of the general staff of the army of the rank of major; and who are entitled to the pay and emoluments of majors of cavalry.
He offered in evidence an army register, prepared and published by the adjutant and inspector-general of the United States in 1816, which register was delivered to the defendant, and other officers of the army; in the register the officers of the pay department, created by the act of congress of the 24th of April 1816, are arranged as belonging to the general staff of the army; which evidence was, on motion of the plaintiffs, rejected by the court, to which opinion of the court, the defendant, by his counsel, excepted.
The defendant also offered in evidence the register of the army of the United States for the year 1831, propared, published and subscribed by the adjutant-general; in which register the officers of the pay department are arranged under the head, and as appertaining to the general staff of the army; which evidence, as offered, was rejected by the court, and the defendant, by his counsel, excepted to the said decision rejecting said testimony. The defendant then offered to read to the jury a general order, dated, 'head quarters of the army, adjutant-general's office, Washington, 11th of June 1832;' order No. 50, signed by the adjutant-general; and purporting to have been issued by command of major-general Alexander Macomb, commander-in-chief; which order prescribes the dress of the officers, non-commissioned officers, musicians, and privates of the army, and other regulations of the government of the army; and contains, among other things, the following, to wit: 'the general staff is to include the adjutant-general, the inspectors-general, the aids-de-camp, the officers of the quartermasters' department, the officers of the subsistence department, the officers of the pay department, the officers of the medical department, the commissary-general of purchases.' To the reading which general order, the plaintiffs, by their counsel, objected; and the court sustained the objection, and rejected the evidence so offered: to which opinion of the court, the defendant, by his counsel, excepts. No further evidence being offered, the defendant moved the court to instruct the jury as follows:
1. That the defendant is entitled to the pay and emoluments allowed by law to the officers of the general staff of the army, of the rank of major; that is to say, the pay and emoluments allowed to majors of light dragoons, by the act of congress of the 12th of April 1808.
2. That if the jury find from the evidence that the defendant was, from the 24th of April 1816, to the time of the statement of the account read in evidence, an officer in the general staff of the army, he is entitled, for the time he has so served, to the pay and emoluments allowed by law to the officers of the general staff of the rank of major.
Which instructions were by the court refused; and the court instructed the jury that the defendant, in virtue of his office, was entitled only to receive the pay and emoluments of a major of infantry: to which opinions of the court in refusing the instructions prayed for by the defendant, and also to the instructions given; the defendant, by his counsel, excepted. The court sealed a bill of exceptions.
The district court gave judgment on the verdict in favour of the United States; and the defendant prosecuted this writ of error.
The case was argued by Mr Jones, for the plaintiff in error; and by Mr Butler, attorney-general, for the United States.
'It was agreed that the following documents, facts and circumstances, omitted in the statement contained in the bill of exceptions, shall be supplied by consent, and considered on the argument and decision of this writ of error as part of the case, in like manner as if they had been annexed to and stated in said bill of exceptions, and had formed part of the original record, to wit:
'1. That the two army registers referred to in the bill of exceptions, as printed and published by order of the secretary of war, in the years 1816 and 1831, be annexed to this case and considered as part thereof, and of the record: and it is admitted that such registers were prepared, and were issued and published to the army, by the direction of the secretary of war, in the exercise of his authority as such secretary.
'2. That the general order, No. 50, of the 11th of June 1832, referred to in said bill of exceptions, be in like manner annexed to this case and considered as part thereof, and of the record: and it is admitted to be an authentic general order, such as it purports to be, and was regularly published and issued to the army.
'3. That the 'General Regulations for the Army,' printed and published by the war department in the year 1825, be in like manner annexed to this case, and considered as part thereof, and of the record: and it is admitted that the same are the regulations established by the president of the United States for the government of the army, and were published as such by his authority.
'4. That the custom and usage of the army has always been to class the officers of the pay department among the officers of the general staff of the army.
'5. That since the act of the 24th of April 1816 (6 Laws U. S. 79), for the organization of the general staff, &c., it has been the invariable usage and practice of the treasury department, and of the proper accounting officers, to allow the pay and emoluments of majors of cavalry to the assistant adjutants-general, to the assistant inspectors-general, to the deputy quartermasters-general, and to the topographical engineers; and since the act of the 2d of March 1824 (6 Laws U. S. 553), to majors on ordnance duty, and to the quartermasters.'
Mr Justice WAYNE delivered the opinion of the Court.
1
This is a writ of error from the district court of the United States for the district of Missouri, to have a judgment reversed, which was rendered for the United States, against the plaintiff in error.
2
It was admitted on the trial, that the defendant had served as paymaster of the army, duly appointed as such, from the 24th April 1816, to the 31st May 1831. That the amount claimed from him by the United States was the difference between the pay and emoluments allowed by the accounting officers of the treasury to the defendant, and the amount claimed and retained by him during the period of his service. The defendant had retained the pay and emoluments allowed by law to officers of the general staff of the army, of the rank of major. Upon the trial, the defendant offered as evidence two army registers; one published by the adjutant and inspector-general of the army in August 1816, the other published in 1831, which had been delivered to himself and other officers of the army. In both, the officers of the pay department are arranged as belonging to or appertaining to the general staff of the army. He also offered as evidence a general order, issued by the major-general commanding in chief, dated at head quarters of the army, adjutant-general's office, Washington, the 11th June 1832; which directs, that the general staff is to include the officers of the pay department. These registers, and the general order, the court refused to allow to be read as evidence to the jury; and no further evidence being offered by the defendant, he moved the court to instruct the jury:
3
1st. That the defendant is entitled to the pay and emoluments allowed by law to the officers of the general staff of the army, of the rank of major; that is to say, the pay and emoluments allowed to majors of light dragoons by the act of congress of the 12th April 1808.
4
2d. That if the jury find, from the evidence, that the defendant was, from the 24th April 1816 to the time of the statement of the account read in evidence, an officer of the general staff of the army; he is entitled, for the time he has served, to the pay and emoluments allowed by law to the officers of the general staff of the rank of major.
5
The court refused to give the instructions; and instructed the jury that the defendant, in virtue of his office, was entitled only to receive the pay and emoluments of a major of infantry.
6
These registers, however, and the general order of the major-general, with the general regulations of the army printed and published by the war department in the year 1825, have, since the writ of error was sued out, been admitted, by the consent of the attorney-general, to be a part of the original record, as if they had been referred to and stated in the bill of exceptions, and had been proved on the trial. And it is further admitted by the attorney-general and the defendant's counsel, that the custom and usage of the army have always been, to class the officers of the pay department among the officers of the general staff of the army; and that since the act of the 24th April 1816, for the organization of the general staff, &c., it has been the invariable usage and practice of the treasury department, and of the proper accounting officers, to allow the pay and emoluments of a major of cavalry to the assistant adjutants-general, to the assistant inspectors-general, to the deputy quartermasters-general, and to the topographical engineers; and since the act of the 2d March 1821, to majors on ordnance duty, and to the quartermasters.
7
It is but proper, however, to remark, that the court did right in rejecting the registers and general order, when the defendant offered them as evidence on the trial. The registers are compilations issued and published to the army by the direction of the secretary at war, in the exercise of his official authority; and when authenticated by him, would be evidence of the facts, strictly so, they may contain; such as the names of officers, date of commissions, promotions, resignations, and regimental rank, brevet and other rank, or the department of the army to which officers belong: but from none of these can an inference be drawn by a jury to establish the pay and emoluments of officers; as they are provided for by law, and must be determined by the court when they are doubtful, and the subject of dispute in a suit between an officer and the United States. Nor can such registers be evidence of the correctness of any classification of the officers of departments into a general staff of the army: for though they are probably correct, being prepared by persons whose professional duty it is to be well informed upon the subject, and who, from their familiarity with military science and the general arrangement of armies, are supposed to be expert interpreters of the acts of congress for the organization of our army; still, what officers are of the staff, or general staff, depends upon acts of congress, which are to be expounded by the courts, when an officer claims a judicial determination of his rights as to pay and emoluments, from his having been arranged as belonging to the staff.
8
However, we are not now called on to say what officers make up the general staff, or what departments of the army may be assigned to it, or are comprehended in it by the acts of congress; nor is it necessary for the decision of this case, to deny that paymasters may not be arranged as of the staff, under the act of the 2d March 1821. Considering the staff as a central point of military operations, whence should proceed all general orders for the army, the orders of detail, of instruction, of movement, all general measures for subsisting, paying and clothing the army; and as the administrative organ of all supplies for the military service and land defence of the country: it seems to us, that paymasters, from their duties and responsibilities, should be classed with the general staff; and we presume it has been done under the act of the 2d March 1821, which, without being express upon the point, has rendered indeterminate the previous acts of congress fixing with certainty the officers composing the staff. Conceding, then, for the purposes of this argument, that paymasters are of the staff; does it strengthen the claim of the defendant to the pay and emoluments of a major of cavalry?
9
The position taken in favour of cavalry pay is, that paymasters, being of the general staff, are entitled, by the third section of the act of the 24th April 1816, to the pay and emoluments allowed by law to the officers of the general staff of the rank of major. The third section declares, 'that regimental and battalion paymasters shall receive the pay and emoluments of majors,' without the additional words of cavalry or infantry. The ninth section of the came act secures to the several officers of the staff the privileges, pay and emoluments of the act of the 3d March 1813. By the third section of that act, the assistant adjutants-general, assistant inspectors-general, deputy quartermasters-general, and assistant topographical engineers, are declared to have the brevet rank and the pay and emoluments of a major of cavalry. These are the officers of the staff, upon an equality with whom, in regard to pay and emoluments, it is contended that paymasters are placed by the act of the 24th April 1816. The question depends entirely upon the construction of the acts of congress. Having examined them, we are of opinion, that congress meant, by the words 'the pay and emoluments of major,' those of a major of infantry.
10
It was urged, however, in the argument, against this conclusion, that congress, in referring to the pay of major to fix that of paymasters, when there are different amounts of pay allowed to majors, according to the nature of the service, had reference to those whose duties are most analogous to that of paymasters, and who belong to the same branch of service. That paymasters belong to the staff of the army; and all officers of the staff who receive the pay of major, are allowed cavalry pay. That there was a strong analogy between deputy quartermasters and paymasters, both being of the staff and disbursing officers, which raised a fair and strong presumption that congress intended paymasters should receive the same pay and emoluments as deputy quartermasters, or majors of the staff.
11
Upon these suggestions of analogy, we remark; it will not be pretended, before the act of 1816 was passed, that any relation existed between paymasters and the officers of the staff receiving the pay of a major of cavalry, to enable the former to have their pay graduated by that standard. In all the acts of congress, providing for the appointment of paymasters, whether they were regimental or district paymasters, or whether they were to be selected from the line of the army, or from citizens not of the army; the pay was fixed in reference to the duties and responsibilities of the appointment, without reference to any connexion of paymasters with the staff, and without regard to any analogy of duty between paymasters and any officer of the staff. In truth, the only analogy existing between paymasters and any officer of the staff, is that to deputy quartermasters; both being disbursing officers. The want of general analogy, then, shows that congress could not have been influenced in fixing the pay of paymasters by any such consideration; and the particular analogy between them and a single class of officers, in a single point, is insufficient to sustain such a presumption. Besides, the act relied upon to establish the equality contended for, makes a difference between paymasters and the officers of the staff, in regard to rank; enough of itself to account for the larger pay and emoluments allowed to the latter. They have the brevet rank of majors of cavalry, which is not given to paymasters; and to the latter the law allows no rank. The language of the act of 1813, referred to in the ninth section of the act of 1816, is, that the assistant adjutants-general, assistant inspectors-general, deputy quartermasters-general, and topographical engineers, shall have the 'brevet rank,' and the pay and emoluments of a major of cavalry. The section of the act of 1816, fixing the pay of paymasters, omits the words 'brevet rank.' As well might it be contended that they should have it, as that the words of cavalry should be added to the word major. One would do no more violence to rules for the construction of statutes than the other; but both would be in harmony with the principle applied in this instance, to give the paymasters cavalry pay. Rank of itself, in every service, is a good ground for a distinction in pay: and though it has not been followed, or has rather been abandoned in ours, in favour of the brevet rank of officers in the line and staff, it should be presumed to apply to persons having rank, and those who have none. Cavalry pay, then, having been claimed on the ground of equal grade in the staff, the fact being otherwise; nothing is left to sustain the claim.
12
But it will be asked, by what considerations is it determined that the pay and emoluments of paymasters are those of a major of infantry? We answer: first, that all the previous legislation of congress, from the earliest period of the government, and its practice, give a rule which should be decisive of this question. The acts, from 1792 to the 2d March 1821, (the last upon the subject) show that congress, in determining at different times, the pay of paymasters, have always fixed it with reference to the pay of an officer in the line, with such additional compensation as was deemed to be a remuneration for increased duty and responsibility; whether the selection was to be made from subalterns of the army, or from citizens; and when the latter, where there was a deviation, it has been by giving a fixed monthly compensation. This uniformity of practice certainly outweighs any presumption that can be raised from the ninth section of the act of 1816, that there was to be a sudden change of it in favour of staff pay: especially so, when the ninth section can only be received as providing for a certain officer, officially designated in the act of 1813, and entirely independent of the third section of the act of 1816, which had already fixed the pay of paymasters. It would be very difficult to connect the two sections, the third and ninth, in any way, to bear upon each other; and the mistake in doing it has arisen from going out of the statute, and engrafting upon the intention of congress the exterior consideration that paymasters had been arranged under the general staff.
13
Again, when the acts speak of regimental and battalion paymasters, these laws must necessarily refer to the existing composition of the army, whether it be made up of all, or one, of the different arms of defence; and cannot, without great violence, be supposed to mean one of them not comprehended in the existing military establishments of the country. So also, when the law speaks of a major, the term is most naturally considered as having been used in reference to such officers of that rank, and of such regiments actually being of the army, or to the army as it exists; and when it is used without regimental designation, implies a major of infantry; this arm of defence having been made the main body of modern armies. We think military men must so understand it; because, in this, as in all other cases where distinct parts form the minor portion, the larger or main body is understood without particular designation, and the minor requires it, to ascertain with certainty what part is referred to as spoken of. So that where the ninth section of the act of the 2d of March 1821, declares that there shall be fourteen paymasters, with the pay and emoluments of regimental paymasters; and when to ascertain what the pay and emoluments are, we have to resort to the third section of the act of 1816, and there find it to be those of a major: the law must mean a regimental and not a staff major, a major of infantry. Certainly it should not be tortured to mean a major of one of the arms of defence or kinds of regiment, of which there is none in the army. When the act of 1816 was passed, cavalry did not form a part of the army; consequently no such rank as major of cavalry existed, by which the pay of paymasters could have been graduated. But it was urged in argument, that there was such a thing as the pay of a major of cavalry, subsisting in legal contemplation. There was; but for no other purpose than as giving the standard of pay to certain staff officers. It is not probable that congress, when fixing the pay of paymasters, referred to what only existed in contemplation of law; in preference to what existed in fact, to guide its determination.
14
But another, and the only remaining consideration to which we shall allude, as decisive of the interpretation here given to the third section of the act of 1816, is the contemporaneous exposition and practice under it, by the accounting officers of the treasury, and acted upon by congress, when five years afterwards it re-organized the pay department of the army. The ninth section of the act of the 2d of March 1821, to reduce and fix the military peace establishment, declares that there shall be one paymaster-general, with the present compensation, and fourteen paymasters with the pay, &c. of regimental paymasters. This act, in reference to the paymaster-general, is positive in continuing the existing compensation; and the term regimental, applied to the paymaster, is to be taken in the sense in which it is used in the act fixing the peace establishment, or to the kinds of regiment of which the army was to be composed; and as continuing the paymasters upon the footing they actually were, and had been for five years, in regard to pay and emoluments. Congress knew what these were, and cannot be supposed to have intended to re-enact the law of 1816, with the construction of it here contended for; in opposition to the practice of the treasury department under it.
15
Judgment affirmed.
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Filed 5/22/14 P. v. Financial Casualty & Surety CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B247264
Respondent, (Los Angeles County
Super. Ct. No. BA383044)
v.
FINANCIAL CASUALTY & SURETY,
INC.,
Appellant.
APPEAL from an order of the Superior Court of Los Angeles County. Jose I.
Sandoval, Judge. Affirmed.
John M. Rorabaugh for Appellant.
John F. Krattli, County Counsel, Ruben Baeza, Jr., Assistant County Counsel,
Debbie C. Carlos, Associate County Counsel, for Respondent.
_______________________________
Financial Casualty & Surety, Inc. (FCS) appeals from the trial court’s order
denying its motion to vacate forfeiture and exonerate bail. We affirm.
BACKGROUND
On or about April 3, 2011, Roderick Lee Govan was arrested for carrying a loaded
1
firearm in violation of former Penal Code section 12031, subdivision (a)(1), and placed
in custody. On April 6, 2011, FCS, through its agent, posted a bail bond in the amount of
$35,000 to secure Govan’s release from custody. In an information filed in this case on
May 3, 2011, Govan was charged with one felony count under former section 12031,
subdivision (a)(1).
On August 30, 2011, Govan appeared at a pretrial conference/trial setting hearing.
The trial court heard and denied his motion to reduce the charge to a misdemeanor under
section 17, subdivision (b). During a recess, the parties reached a plea deal under which
Govan would plead no contest to the felony charge, be placed on probation for three
years with credit for time served, and be required to perform 45 days of community labor
with the California Department of Transportation (Caltrans). As the prosecutor stated on
the record at the hearing, the parties also agreed to “put sentencing over for 18 months.”
If, at that time, Govan completed the 45 days of Caltrans and had “not picked up any
other new offenses,” the charge would be reduced to a misdemeanor at the sentencing
hearing. The trial court clarified that Govan would “remain on misdemeanor probation
for the remaining time at that point.” The prosecutor informed Govan on the record: “If
you have not completed 45 days of Caltrans, or if you have picked up any new cases,
then you’ll be sentenced on this charge as a felony to three years felony probation with
credit for time served and 45 days Caltrans.”
The prosecutor further informed Govan on the record: “If you are sentenced on
this case as a felony and you violate any of the terms and conditions of your probation,
then the court will have the option of reinstating you on probation and sentencing you to
the remainder of time up to a year in county jail or to the state prison for either 16
1
Further statutory references are to the Penal Code.
2
months, two or three years. [¶] . . . [¶] If you are sentenced on this case as a
misdemeanor, and you violate any of the terms and conditions of probation, the
maximum time the court could sentence you to is a year in the county jail.”
Govan pleaded no contest to the felony charge at the August 30, 2011 pretrial
conference/trial setting hearing. He gave up his right to be sentenced within 28 days, and
agreed the sentencing could be continued for 18 months until February 28, 2013. He also
waived his rights under People v. Arbunkle (1978) 22 Cal.3d 749, agreeing he could be
sentenced on February 28, 2013 by a different judge than the one who took the plea. The
court ordered Govan to return to court in five months, on January 30, 2012, “with proof
of enrollment and participation in the Cal trans [sic] program.” The court also ordered
Govan’s “bail to stand.”
Govan failed to appear at the hearing on January 30, 2012 to show proof of
enrollment and participation in the Caltrans program. The trial court commented: “He’s
not on probation yet because he hasn’t been sentenced.” The trial court issued a bench
warrant for Govan, ordered bail forfeited, and issued a bail forfeiture notice which the
court sent to FCS and its agent who posted the bail bond.
On October 2, 2012, FCS filed a motion to vacate forfeiture and exonerate bail and
a supporting memorandum of points and authorities. FCS contended the bond was
exonerated by operation of law on August 30, 2011 because the trial court placed Govan
on probation on that date. The prosecution did not file a written opposition.
The trial court held a hearing on FCS’s motion on October 19, 2012. Counsel for
FCS and the prosecutor appeared. After hearing oral argument, the court took the matter
under submission. On October 23, 2012, the court issued a minute order denying FCS’s
motion, stating in pertinent part: “Here, because this court has yet to sentence defendant,
there can be no statutory exoneration on the bond. Counsel for the moving party [FCS]
argues that the defendant was effectively on probation given the pre-conditions set by the
court (45 days Cal trans [sic]) for his sentencing. Moving party cites neither case law nor
statutory authority in support of that position.”
3
FCS filed a timely appeal from the order denying its motion to vacate forfeiture
and exonerate bail.
On August 8, 2013, while this appeal was pending, the trial court recalled the
bench warrant. On August 28, 2013, the trial court suspended imposition of sentence on
the felony count and placed Govan on probation for three years with terms and
conditions, including the performance of 45 days of Caltrans.
DISCUSSION
FCS contends the trial court erred in denying its motion to vacate forfeiture and
exonerate bail. FCS argues the bond was exonerated by operation of law under section
1195 on August 30, 2011 because Govan “was released on probation” on that date.
County Counsel responds, arguing the trial court did not err in denying FCS’s motion
because Govan was not sentenced or placed on probation on August 30, 2011, therefore
section 1195 was “not triggered,” bail was not exonerated, and the court properly
forfeited bail on January 30, 2012 when Govan failed to appear.
“Ordinarily, appellate courts review an order denying a motion to vacate the
forfeiture of a bail bond under an abuse of discretion standard. [Citation.] When the
appellate court is deciding only legal issues, however, such as jurisdictional questions and
matters of statutory interpretation, the abuse of discretion standard does not apply.
[Citation.] When the facts are undisputed and only legal issues are involved, appellate
courts conduct an independent review.” (People v. International Fidelity Ins. Co. (2012)
204 Cal.App.4th 588, 592.) County Counsel, on behalf of the People, asserts the abuse of
discretion standard applies. FCS argues “[t]here are no disputed factual issues” and
“[t]herefore the de novo standard of review applies.” We need not decide this issue
because the outcome would be the same regardless of which standard we apply.
Pursuant to the terms of the bail bond at issue here, FCS undertook that Govan
would appear in court at all times through pronouncement of judgment or grant of
probation, and if Govan did not appear, FCS would pay the People $35,000.
Under section 1305, if a defendant fails to appear on an “occasion prior to the
pronouncement of judgment” when “the defendant’s presence in court is lawfully
4
required,” the “court shall in open court declare forfeited the undertaking of bail . . . .” (§
1305, subd. (a)(4).) Section 1195 provides, in pertinent part, “If the defendant, who is on
bail, does appear for judgment and judgment is pronounced upon him or probation is
granted to him, then the bail shall be exonerated . . . .”
At the August 30, 2011 hearing during which the trial court took Govan’s no
contest plea, the court did not pronounce judgment or place Govan on probation within
the meaning of section 1195. The court ordered Govan to complete 45 days of Caltrans
service, and continued the sentencing hearing for 18 months. Govan personally waived
his rights to be sentenced within 28 days and to be sentenced by the same judge who took
his plea. The court further ordered bail to stand and Govan to appear in five months on
January 30, 2012 to show proof of enrollment and participation in Caltrans. The court
did not place Govan under the supervision of a probation officer.
FCS cites no authority indicating bail is exonerated under the circumstances
presented in this case at the August 30, 2011 hearing. Instead, FCS cites a case in which
the defendant failed to surrender after being sentenced to prison and granted a three-day
stay of execution (see People v. North Beach Bonding Co. (1974) 36 Cal.App.3d 663),
and cases in which the defendants failed to comply with terms and conditions after being
formally placed on probation (see, e.g., People v. Safety National Casualty Corp. (2007)
150 Cal.App.4th 11, 13, 17; People v. Doe (1959) 172 Cal.App.2d Supp. 812, 814).
FCS also compares this case to drug diversion/deferred entry of judgment cases
under section 1000 et seq., in which criminal proceedings are suspended and bail is
exonerated when the trial court orders diversion. (See, e.g., People v. Ormiston (2003)
105 Cal.App.4th 676, 690.) “Diversion, however, does not constitute a special custodial
status or other form of release of the defendant with a promise to appear at further
proceedings, but rather a guilty plea and resolution of the case in the nature of ‘“a
specialized form of probation . . .”’ for a particular class of defendants.” (Id. at p. 692;
People v. Orihuela (2004) 122 Cal.App.4th 70, 73 [same].) The circumstances of this
case are not analogous to drug diversion/deferred entry of judgment cases. Here,
criminal proceedings were not suspended on August 30, 2011. The trial court ordered
5
Govan to appear five months later on January 30, 2011, in advance of the sentencing
hearing, and ordered bail to stand.
The trial court did not err in denying FCS’s motion to vacate forfeiture and
exonerate bail. At the August 30, 2011 hearing at which the trial court took Govan’s no
contest plea, bail was not exonerated under section 1195 because judgment had not been
pronounced and Govan had not been placed on probation. Criminal proceedings were not
suspended. The court ordered Govan to appear five months later. Accordingly, the court
ordered bail to stand. When Govan failed to appear at the January 30, 2012 hearing, the
court properly ordered bail forfeited.
DISPOSITION
The order is affirmed. Respondent is entitled to costs on appeal.
NOT TO BE PUBLISHED.
CHANEY, J.
We concur:
ROTHSCHILD, Acting P. J.
JOHNSON, J.
6
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957 N.E.2d 596 (2008)
379 Ill. App.3d 1092
354 Ill. Dec. 276
PEOPLE
v.
WILLIAMS.
No. 4-07-0967.
Appellate Court of Illinois, Fourth District.
April 4, 2008.
Remanded.
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632 F.2d 96
2 ITRD 1452
CORNET STORES et al., Plaintiffs/Appellants,v.Azie Taylor MORTON, Treasurer of the United States, et al.,Defendants/Appellees.
No. 78-3183.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted May 6, 1980.Decided Nov. 6, 1980.
1
Robert Glenn White, Glad, Tuttle & White, Los Angeles, Cal., for plaintiffs/appellants.
2
Bruno A. Ristau, U. S. Dept. of Justice, Washington, D. C., for defendants/appellees.
3
Appeal from the United States District Court for the Central District of California.
4
Before SCHROEDER and FERGUSON, Circuit Judges, and MacBRIDE,* District Judge.
5
MacBRIDE, District Judge.
6
Between August 16, 1971 and December 20, 1971, pursuant to Presidential Proclamation No. 4074, plaintiffs were required to pay an additional 10 percent ad valorem duty on the dutiable merchandise they imported into the United States. The validity of that Proclamation was tested in United States v. Yoshida International, Inc., 526 F.2d 560 (C.C.P.A.1975), and Alcan Sales v. United States, 534 F.2d 920 (C.C.P.A.), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976). The Court of Customs and Patent Appeals upheld the imposition of this import duty surcharge as an exercise of the power delegated to the President by section 5(b) of the Trading with the Enemy Act, 50 U.S.C. App. § 5(b).1 In the wake of Yoshida and Alcan, plaintiffs sued in the district court for recovery of the import surcharges they had paid, relying primarily on the jurisdictional provisions of section 9 of that Act. The district court held that the matter was within the exclusive jurisdiction of the Customs Court. Plaintiffs appeal; we affirm. This court finds itself in accord with the conclusion reached by the only other court to address the precise issue presented. Henry Pollak, Inc. v. Blumenthal, 444 F.Supp. 56 (D.D.C.1977), aff'd mem., 593 F.2d 1371 (D.C.Cir.), cert. denied, 444 U.S. 836, 100 S.Ct. 70, 62 L.Ed.2d 46 (1979).
7
Originally enacted as a war measure during the First World War, Act of Oct. 6, 1917, ch. 106, 40 Stat. 415, section 5(b) of the Act was amended during the Depression to accord comprehensive power in connection with foreign trade and commerce to the President during peacetime emergencies. Act of Mar. 9, 1933, ch. 1, § 2, 48 Stat. 1. The authority granted in the 1933 amendment to section 5(b) was not limited in scope to circumstances involving enemies or allies of enemies. Instead, the powers granted in amended section 5(b) were intended to be exercised in peacetime to enable the President to engage in extensive regulation of international economic transactions when a national emergency so required. In fact, whatever Congress may have contemplated in 1933, section 5(b) became the foundation for far-ranging and long-term executive regulatory activity between 1933 and the late 1970s. The national banking emergency declared by President Roosevelt in 1933, Executive Order No. 6260, reprinted following 12 U.S.C. § 95a, and a number of subsequently declared national emergencies were terminated only by operation of the National Emergencies Act of 1976, 50 U.S.C. § 1601 et seq. As a result of the continuing state of national emergency, the powers granted in section 5(b) remained available to the President for more than 40 years without interruption.
8
Although section 5(b) was significantly amended in 1933, other sections of the Trading with the Enemy Act were not concurrently amended and, for that reason, retain original limitations. In particular, the claims procedures and judicial review accorded under section 9 of the Act to persons who are not enemies or allies of enemies have no application to those purely peacetime powers created when section 5(b) was amended. Section 9(a) sets forth an administrative scheme through which eligible persons may seek recovery of property seized under the Act; if relief is initially denied, the claimant is accorded the right to sue in district court. The section 9(a) remedy is available for persons
9
claiming any interest, right, or title in any money or other property which may have been conveyed, transferred, assigned, delivered, or paid to the Alien Property Custodian or seized by him hereunder and held by him or by the Treasurer of the United States ....
10
50 U.S.C. App. § 9(a).
11
Although the language of section 9(a) could, with some difficulty, be construed to grant jurisdiction to the district courts to hear actions for recovery of import and export duties imposed pursuant to the peacetime powers of section 5(a),2 such a construction would violate the congressionally designated allocation of judicial responsibility over customs matters. Pursuant to 28 U.S.C. § 1582, the Customs Court is granted exclusive jurisdiction over customs matters. The clear congressional intent to place such jurisdiction solely in the Customs Court is reinforced by 28 U.S.C. § 1340 which expressly denies to the district courts jurisdiction over "matters within the jurisdiction of the Customs Court." Jerlian Watch Co. v. United States Department of Commerce, 597 F.2d 687, 690 (9th Cir. 1979).
12
Published opinions reveal a number of instances in which creative arguments have been presented in hopes of avoiding the exclusivity of Customs Court jurisdiction. E. g., id.; Fritz v. United States, 535 F.2d 1192 (9th Cir. 1976); J.C. Penney Co. v. United States Treasury Department, 439 F.2d 63 (2d Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 60, 30 L.Ed.2d 113 (1971); Riccomini v. United States, 69 F.2d 480 (9th Cir. 1934). These arguments have been rejected with exceptions only for unusual circumstances as, for example, when activities outside the United States created a situation in which the events triggering Customs Court jurisdiction under section 1582 would not occur. E. g., Sneaker Circus, Inc. v. Carter, 566 F.2d 396 (2d Cir. 1977); Timken Co. v. Simon, 539 F.2d 221 (D.C.Cir.1976); Consumers Union of U.S., Inc. v. Kissinger, 506 F.2d 136 (D.C.Cir.), cert. denied, 421 U.S. 1004, 95 S.Ct. 2406, 44 L.Ed.2d 673 (1974). The rule repeatedly applied in the Ninth Circuit is that "(c)onflicts between the broad grants of jurisdiction to the district courts and the grant of exclusive jurisdiction to the Customs Court are to be resolved by upholding the exclusivity of the Customs Court jurisdiction." Fritz v. United States, supra at 1194.
13
The recent decision in Jerlian Watch Co. v. United States Department of Commerce, supra, is most directly applicable to the arguments raised by plaintiffs herein. In Jerlian, plaintiff-watch manufacturers sought to challenge the validity of allocation rules governing the entry of duty-free watches from the insular possessions of the United States. They urged that jurisdiction might properly lie in the district courts because the challenged rules and the statute under which they were promulgated primarily served "a traditionally noncustoms purpose, promoting economic stimulation in the insular possessions," and because the absence of an adequate remedy, namely, injunctive and declaratory relief, in the Customs Court necessitated recognition of district court jurisdiction. This court flatly rejected those arguments. Although Jerlian acknowledged that exclusive jurisdiction will not lie in the Customs Court when "the purposes of the challenged statutes (are) other than customs purposes, and the statutes (are) found not to be a part of the customs laws," the court held that the allocation rules had a substantial relation to traditional customs purposes, namely, "protection of domestic industry from foreign competition and the raising of revenues." Id. at 691. Under these circumstances, congressional intent mandated that the action be brought in the Customs Court:
14
In enacting 28 U.S.C. § 1582, Congress intended that matters involving customs laws should be heard by one tribunal so that uniformity of decision would result. If the district court should have jurisdiction over this type of action, inconsistent district and circuit court opinions on both jurisdictional and substantive revenue and protection claims would result. Moreover the Customs Court would be denied jurisdiction in the greatest area of its expertise. We do not believe that Congress intended these results.
15
Id. (citations omitted). This policy of uniform administration of customs laws also defeated the plaintiffs' contention that financial impossibility precluded obtaining an adequate remedy in the Customs Court. As the Jerlian court noted, an "adequate remedy" exception to the exclusive jurisdiction of the Customs Court does exist in instances of factual impossibility, but the court declined to expand the exception to include financial impossibility. Although injunctive and declaratory relief might be more desirable remedies, " 'the mere fact that more desirable remedies are unavailable does not mean that existing remedies are inadequate.' " Id. at 692, quoting J.C. Penney Co. v. United States Treasury Department, supra at 68.
16
Jerlian controls the resolution of this appeal. There, as here, plaintiffs sought to define too narrowly the scope of the customs matters within the exclusive jurisdiction of the Customs Court and to label legally inadequate a Customs Court remedy that is merely undesirable or inconvenient.
17
The preamble to Proclamation 4074 sets forth as grounds for the surcharge the declarations that
18
there has been a prolonged decline in the international monetary reserves of the United States, and our trade and international competitive position is seriously threatened and, as a result, our continued ability to assure our security could be impaired; (and) the balance of payments position of the United States requires the imposition of a surcharge on dutiable imports ....
19
As the Court of Customs and Patent Appeals concluded in United States v. Yoshida International, Inc., supra, the principal purpose of the surcharge was the regulation of imports.
20
What was sought was an offset to actions of our foreign trading partners which had led to loss of our favorable balance of trade and to a serious negative balance .... Pressure exerted by the surcharge contributed to achievement of a multilateral agreement of major nations, which included a realignment of currency exchange rates.
21
Id. at 579 (footnote omitted). Appellants contend that the duty imposed by Proclamation 4074 differs significantly from traditional customs duties whose purposes are, in appellants' view, to raise revenue or to protect American industry. Viewed liberally, of course, Proclamation 4074 was significantly founded on the need to protect American industry as a whole from the unsatisfactory trade and international competitive position created by the decline in international monetary reserves. The Proclamation clearly furthered multiple purposes, with national security and customs purposes standing out as the most prominent. Customs Court jurisdiction is not defeated because a statute or regulation serves other ends in addition to recognized customs purposes, so long as there exists "a substantial relation to traditional customs purposes." Jerlian Watch Co. v. United States Department of Commerce, supra at 691. Proclamation 4074 was intended to be a customs regulation at the time of its promulgation, as evidenced by its references to the Tariff Act of 1930 and the Trade Expansion Act of 1962, and its directives were fulfilled through the existing scheme for the collection of customs duties.3 As in Jerlian, the presence of a substantial relation to the traditional customs purposes mandates that jurisdiction rest in the Customs Court pursuant to 28 U.S.C. § 1582.
22
Plaintiffs seek to avoid exclusive Customs Court jurisdiction by arguing that the Customs Court cannot provide equitable remedies such as injunctive and declaratory relief and cannot afford litigants the benefit of such equitable doctrines as the tolling of the statute of limitations. The fact that Congress has not chosen to empower the Customs Court to grant the full measure of equitable relief available in the district courts is not a basis for abrogating the exclusivity of Customs Court jurisdiction. Jerlian Watch Co. v. United States Department of Commerce, supra at 692. Recognition of an exception based on the inconvenience or undesirability of litigation in a court lacking full equitable powers would defeat congressional intent to ensure uniform administration and application of the customs laws embodied in 28 U.S.C. § 1582 and other statutes allocating jurisdiction between the district courts and the Customs Court. Accordingly, we reject plaintiffs' argument that the Customs Court cannot provide a legally adequate remedy.
23
The decision of the district court is AFFIRMED.
*
Honorable Thomas J. MacBride, United States District Judge for the Eastern District of California, sitting by designation
1
During 1971 when Presidential Proclamation No. 4074 was in effect and for some years thereafter, section 5(b) provided in part:
(1) During the time of war or during any other period of national emergency declared by the President, the President may, through any agency that he may designate, or otherwise, and under such rules and regulations as he may prescribe, by means of instructions, licenses, or otherwise-
(B) investigate, regulate, ... prevent or prohibit, any ... importation or exportation of ... any property in which an foreign country or a national thereof has any interest,
by any person, or with respect to any property, subject to the jurisdiction of the United States ....
Section 5(b) was amended in 1977, Act of Dec. 28, 1977, Pub.L. No. 95-223, tit. I, §§ 101(a), 102, 103(b), 91 Stat. 1625, 1626, but the amendment is not pertinent to the issues presented in this litigation.
2
Two obvious impediments to an attempt to construe section 9(a) as a grant of peacetime jurisdiction in a case such as is before this court appear in the grant of jurisdiction to "(a)ny person not an enemy or ally of enemy" and in the type of property at issue, namely, property in the hands of the Alien Property Custodian. Neither of these references in the language of the section can be readily deemed applicable to circumstances in which the plaintiffs are importers of dutiable merchandise who were required to pay an import surcharge. See generally Henry Pollak, Inc. v. Blumenthal, supra
3
Customs duties have historically been imposed in furtherance of a wide variety of economic and other purposes. For example, 19 U.S.C. § 128, enacted in 1913, imposes a discriminating 10 percent ad valorem surcharge on all goods imported into the United States on the flag vessels of other nations unless a treaty permits entry not subject to the duty, unless the vessel is owned by United States citizens and is reregistered under the United States flag before leaving port, or unless the goods are imported from a country contiguous to the United States in the usual course of strictly retail trade. The exception granted to goods transported in a flag vessel of a foreign nation which is owned by United States citizens and reregistered in this country serves no traditional customs purpose in the limited definition of the traditional customs purposes cited by plaintiffs. It did, however, encourage an increase in the United States merchant fleet in the worsening international climate prior to World War I. See also 19 U.S.C. § 1338 (authorizing imposition of additional duties on articles imported from countries found by the President to have placed a burden or disadvantage upon the commerce of the United States); 19 U.S.C. § 2561 et seq. (authorizing the President to provide duty-free treatment for eligible articles from certain developing nations in furtherance of their economic development)
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In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00317-CV
___________________________
RAY ALLEN ROGERS, SCOTT MITCHELL SUDDATH, AND JEFFREY
ALLEN ROGERS, Appellants
V.
KIMBERLY ANNETTE COSLETT AND POINTBANK, Appellees
On Appeal from the 462nd District Court
Denton County, Texas
Trial Court No. 18-10743-211
Before Wallach, J.; Sudderth, C.J.; and Gabriel, J.
Per Curiam Memorandum Opinion
MEMORANDUM OPINION AND JUDGMENT
We have considered “Appellants’ Unopposed Voluntary Motion to Dismiss
Appeal.” We grant the motion and dismiss the appeal.1 See Tex. R. App. P. 42.1(a)(1),
43.2(f).
Appellants must pay all costs of this appeal. See Tex. R. App. P. 42.1(d), 43.4.
Per Curiam
Delivered: January 9, 2020
1
The trial court dismissed Appellants’ claims after they failed to comply with the
court’s order to either join Ralph Milton Suddath and the United States of America by
the Director of Internal Revenue (the IRS) in the suit or obtain a release of Suddath’s
and the IRS’s respective interests in certain property. Appellants filed this appeal from
that dismissal. In their notice of appeal, they included Suddath’s name in the style of
the case, and in their docketing statement, they named Suddath as an appellee. However,
they did not conference with Suddath, who is pro se, about their motion to dismiss. In
Appellants’ response to our request that they file an amended certificate of conference
reflecting that they had conferenced with Suddath, see Tex. R. App. P. 42.1(a)(1),
Appellants asserted that Suddath was never joined in this suit and is therefore not a
party to this appeal and that, consequently, conferencing with him is not required. We
accept Appellants’ acknowledgement that Suddath is not a party to this appeal, see R&M
Mixed Beverage Consultants, Inc. v. Safe Harbor Benefits, Inc., 578 S.W.3d 218, 223 n.1 (Tex.
App.—El Paso 2019, no pet.), and we modify the style of the case to omit Suddath as
an appellee. Likewise, because the IRS was also never joined in this suit and is therefore
not a party to this appeal, we modify the style to omit the IRS as an appellee.
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745 F.2d 1305
UNITED STATES of America, Plaintiff-Appellee,v.Maria Asuncion Martinez DE HERNANDEZ, BaldomeroHernandez-Gonzales, Carmen Perea, Carlos Perea,Salvador Pineda-Vergara, Defendants-Appellants.
Nos. 83-1008, 83-1009, 83-1062, 83-1063 and 83-1074.
United States Court of Appeals,Tenth Circuit.
Sept. 28, 1984.
Reber Boult, Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellant Maria Asuncion Martinez de Hernandez.
Patrick H. Kennedy, Albuquerque, N.M., for defendant-appellant Baldomero Hernandez-Gonzales.
Alfred M. Carvajal of Alfred M. Carvajal, P.A., Albuquerque, N.M. (Torrence B. Harrison, with him on the brief), Albuquerque, N.M., for defendants-appellants Carlos Perea and Carmen Perea.
Victor R. Ortega of Montgomery & Andrews, P.A., Santa Fe, N.M. (Wesley B. Howard, Santa Fe, N.M., with him on the brief), for defendant-appellant Salvador Pineda-Vergara.
William L. Lutz, U.S. Atty., Albuquerque, N.M. (Don J. Svet, First Asst. U.S. Atty., Albuquerque, N.M., with him on the brief), for plaintiff-appellee.
Before HOLLOWAY, SETH, and DOYLE, Circuit Judges.
SETH, Chief Judge.
1
This is a consolidated appeal taken by five defendants from their convictions on various charges relating to the unlawful transportation of illegal aliens. 8 U.S.C. Sec. 1324; 18 U.S.C. Secs. 2, 371.
2
The Government established at trial that numerous Mexican and El Salvadoran citizens who wished to enter the United States contacted the defendant Pineda-Vergara. Pineda-Vergara owned a sort of rooming house at Ciudad Juarez to which the persons would come. Apparently he would then arrange for them to cross the Rio Grande and illegally enter the United States through the city of El Paso. The aliens would enter by way of a hole cut in the fence on the American side of the Rio Grande. They would then be immediately taken to a house owned by the defendants Martinez de Hernandez and Hernandez-Gonzales. The aliens would then be hidden there until they could be transported. That transportation was effected by the defendants Carlos and Carmen Perea. The Pereas would then take the aliens by car or motor home to Belen or Lamy, New Mexico and then put them on a train headed to the Midwest. A jury convicted the defendants after a lengthy trial on all charges. These counts related to the transportation of illegal aliens. 8 U.S.C. Sec. 1324; 18 U.S.C. Secs. 2, 371.
3
On appeal, the defendants have raised numerous assignments of error. The two most serious points are that the trial court communicated with the jury during its deliberations at which neither the defendants nor their attorneys were present in response to questions from the jury; and secondly, issue is taken with the instruction given as to the consequences of defendants not testifying.
4
The trial judge received a question from the foreman of the jury during its deliberations. The question was:
5
"Do all decisions have to be unanimous?"
6
The judge did not advise the parties or the attorneys of the question and responded:
7
"Members of the Jury: All verdicts you return have to be unanimous one way or the other. If you cannot agree as to any then you do not return a verdict as to it."
8
The question was whether "decisions" have to be unanimous and the answer was that "verdicts" have to be unanimous. This would not ordinarily be significant but verdict forms had been provided to the jury. There was a sheet for each defendant and the sheet was headed "Verdict". Below the heading "Verdict" there were spaces opposite each count for the finding of the jury. With the response of the judge to "decisions," it is apparent that the jury could well have believed that its question as to decisions with the answer of the court meant that the "decisions" as to each count had to be the same to make the "verdict" unanimous.
9
The court's answer to the unanimous decision question was confusing and created a definite possibility for prejudice. The answer was in substance a reinstruction on the point and departed from the instructions originally given.
10
The Government did not show the communication as to "decisions" to be harmless error. The trial court's response to the jury is by no means in "strict and exact conformity," see United States v. Arriagada, 51 F.2d 487 (4th Cir.), with the charges previously given in the defendants' presence. Rather, it is susceptible to various interpretations. "A conviction ought not to rest on an equivocal direction to the jury on a basic issue." Bollenbach v. United States, 326 U.S. 607, 613, 66 S.Ct. 402, 405, 90 L.Ed. 350. The trial court's instruction, delivered ex parte, deprived the defendants of any opportunity of clarifying the ambiguity created by the supplemental instruction. That deprivation constitutes reversible error. United States v. Schor, 418 F.2d 26 (2d Cir.).
11
Another communication was in response to a request from the jury for: (1) all photographs; (2) video tape; (3) money orders; and (4) Exhibit 79. The trial court sent the video tape and money orders to the jury, but did not allow the jury to view Exhibit 79 as it had not been admitted. The record does not clearly indicate if the jury was permitted to view the photographs. All the decisions as to whether to send material to the jury were made without benefit of argument by counsel and outside the presence of the defendants.
12
The jury also sent a note to the trial court inquiring:
13
"Do overt acts deal only with Count I, or do they also deal with the other counts of transporting? Also could we have an instruction of 8 U.S.C. 1324(a)(2). I can't seem to find the specific sheet on this in the instructions."
The trial court responded, ex parte:
14
"Members of the Jury:
15
"The overt acts pertain to Count I and no other."
16
The trial court did not furnish an additional instruction regarding 8 U.S.C. Sec. 1324(a)(2). The "overt acts" communication was a clear, correct statement of the law and repeated information already transmitted to the jury. See United States v. Arriagada, 451 F.2d 487 (4th Cir.). However, the statement from the foreman which was included in the message to the judge causes speculation. It said:
17
"Also could we have an instruction of 8 U.S.C. 1324(a)(2). I can't seem to find the specific sheet on this in the instructions."
18
The court, as mentioned, did not further instruct nor respond, but the statement was a flag which should have led to an inquiry including a hearing with counsel as to whether some instructions did not get to the jury room or whether more instructions were needed. This could very well have been one so omitted, as we now know that the instruction on inferences from a failure of a defendant to testify apparently did not get to the jury room. The jury indicated that it needed some guidance as apparently it did not have the written instruction it needed although it had others.
19
We must hold that the several communications with the jury by the trial judge constituted error.
20
The transmittal of exhibits to the jury is ordinarily a matter within the discretion of the trial court and will not be reversed in the absence of clear prejudice to the defendants. United States v. Hines, 696 F.2d 722 (10th Cir.); United States v. Riebold, 557 F.2d 697 (10th Cir.). The trial court may send all or part of the exhibits admitted into evidence to the jury before or after it has begun its deliberations. Riebold; United States v. Downen, 496 F.2d 314 (10th Cir.). In Downen we added a condition that submission of exhibits should be "accompanied by careful cautionary instructions." The court should take particular care if it chooses to submit only a portion of the exhibits that in so doing undue emphasis is not placed on that evidence. United States v. Thomas, 521 F.2d 76 (8th Cir.); United States v. Downen, 496 F.2d 314 (10th Cir.). See United States v. Medina, 552 F.2d 181 (7th Cir.). The trial court may send the exhibits to the jury ex parte without running afoul of Fed.R.Crim.P. 43. Dallago v. United States, 427 F.2d 546, 553 (D.C.Cir.). In the case before us the record is not clear as to what exhibits did go to the jury room, and it is not known whether a selection was made in response to the request of the jury.
21
An issue remains concerning an instruction to the jury which was directed to the fact that a defendant or defendants did not testify. The appellants urge that the instruction given was a variation from some accepted instructions on the point and was error.
22
The instruction given orally as to the consequences of a defendant not testifying was included in the following:
23
"The indictment or a formal charge against a defendant is not evidence of guilt. The defendant is presumed by the law, to be innocent. The law does not require a defendant to prove his innocence or produce any evidence at all, and no inference whatever may be drawn from the election of a defendant not to testify."
24
The objection to this instruction by defendants was adequate under Fed.R.Crim.P. 30.
25
The defendants had at the instruction conference apparently been advised that the instruction would include a statement that the law does not compel a defendant to testify or that the defendant has a right to remain silent or not to testify. Such an instruction was not given. The defendants Perea requested the following:
26
"The law does not compel a defendant in a criminal case to take the witness stand and testify, no presumption of guilt may be raised, no inference of any kind may be drawn, from the failure of a defendant to testify."
27
(R. Vol. II, 311, 476.)
28
The defendants on the instruction issue urge that the instruction given was insufficient and incomplete for the reason that a statement should have been included more in the language of the Constitution to indicate that the defendant cannot be compelled to testify, or that he has the right not to testify in order that the source or nature of the right is indicated. Most stock instructions include such a phrase, and in our view it is important for an adequate description of defendants' rights and must be included should this case be retried.
29
The negative element or nature of the right in such an instruction was not discussed in Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241, although it arose from a state court trial wherein the defendant requested the following instruction:
30
"The [defendant] is not compelled to testify and the fact that he does not cannot be used as an inference of guilt and should not prejudice him in any way."
31
The Supreme Court reversed on the trial court's refusal to give this instruction, but again discussed only the "inference" aspect, and thus see Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, and Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257. We do not take the holding in Carter that the instruction requested should have been given to include necessarily the "not compelled to testify" element. The Court did not comment on it, but it did not distinguish between the elements of compulsion and inference. The opinion does discuss as did Lakeside the compulsion aspect on the question whether an inference instruction must be given. We however are of the view, as indicated, that for an instruction on this point to be complete it should include the compulsion aspect.
32
There was an additional problem involved in this instruction issue. It appears that the above instruction given orally by the court was not included in the written instructions which went to the jury room. This presents a substantial question as to what emphasis in the jury's examination of the written instructions may have been given to the issue. This is an additional factor which leads us to the conclusion that this case must be reversed.
33
A separate issue is raised as to the court's granting of permission to the jury to take notes. The court early in the trial had an ex parte "discussion" with the jury concerning note taking by the jurors. The attorneys for defendants were not present and were not advised as to what took place. It is not known what admonitions the judge gave to the jury. We considered the handling of note taking in United States v. Riebold, 557 F.2d 697 (10th Cir.). This had special reference to the discussion of notes taken before the case was submitted to the jury and general admonitions. We there emphasized the importance and need for the court to advise the jury on how note taking was to be done. The requirements in Riebold are described and there is no indication that they were followed.
34
The ex parte communications concern the right of the accused to be present during all stages of the trial. This is a fundamental right and "[o]ne of the most basic of the rights guaranteed by the Confrontation Clause." Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353. See Lewis v. United States, 146 U.S. 370, 371, 372, 13 S.Ct. 136, 36 L.Ed. 1011. That right has been codified as Fed.R.Crim.P. 43, which provides that "[t]he defendant shall be present ... at every stage of the trial including the impaneling of the jury and the return of the verdict ...."
35
An ex parte communication by the trial judge with the jury in violation of Rule 43 may, of course, be harmless error. Rogers v. United States, 422 U.S. 35, 40, 95 S.Ct. 2091, 2095, 45 L.Ed.2d 1; Fed.R.Crim.P. 52(a). Whether the harmless error exception applies is a question to be determined case by case as to whether a defendant's "substantial rights" have been adversely affected. Courts have found the harmless error exception to apply when the trial judge has merely repeated an instruction that he had given in the defendant's presence. United States v. Freed, 460 F.2d 75 (10th Cir.); Jones v. United States, 299 F.2d 661 (10th Cir.). A reply to a legal question in "strict and exact conformity" with the charge previously given in the presence of the defendant and counsel has been held harmless error. United States v. Arriagada, 451 F.2d 487 (4th Cir.).
36
When the jury's request is tantamount to a request to be reinstructed courts have held that any communication between judge and jury must be held in open court with the defendant present. United States v. Marken, 457 F.2d 186 (9th Cir.); United States v. Schor, 418 F.2d 26 (2d Cir.); Evans v. United States, 284 F.2d 393 (6th Cir.). Cf. Bustamante v. Eyman, 456 F.2d 269 (9th Cir.).
37
In any event, the burden is on the prosecution to show the ex parte communication with the jury harmless error. As we said in Jones v. United States, 299 F.2d 661 (10th Cir.), "unless the record completely negatives any reasonable possibility of prejudice arising from such error," the conviction must be reversed. United States v. Glick, 463 F.2d 491 (2d Cir.); United States v. Arriagada, 451 F.2d 487 (4th Cir.); Ware v. United States, 376 F.2d 717 (7th Cir.). We have considered the proceedings leading to the recusal of a juror under the Confrontation Clause in United States v. Baca, 494 F.2d 424 (10th Cir.), and in Ellis v. State of Oklahoma, 430 F.2d 1352 (10th Cir.), and found no showing of prejudice. Here, as we have mentioned, the prosecution has not demonstrated under Jones v. United States, 299 F.2d 661 (10th Cir.), that the "record completely negatives any reasonable possibility of prejudice."
38
We need mention one other issue in this appeal. One of the defendants, Pineda-Vergara, had appointed counsel but on a motion by the prosecution the appointment was terminated on the grounds that he was "not ... indigent." Without commenting on the evidence supporting this finding, we note that 18 U.S.C. Sec. 3006A(b) looks not to the indigency of the accused but whether he is "financially unable to obtain counsel." This standard was not applied by the magistrate nor at trial as it should have been. The trial judge did not conduct an inquiry on the point and the magistrate had applied the wrong standard.
39
For these reasons the judgment of the trial court as to each defendant is set aside and the cases are remanded to the trial court.
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277 Wis.2d 295 (2005)
2005 WI 2
691 N.W.2d 634
IN the MATTER OF DISCIPLINARY PROCEEDINGS AGAINST Lynn MORRISSEY, Attorney at Law:
OFFICE OF LAWYER REGULATION, Complainant,
v.
Lynn MORRISSEY, Respondent.
No. 04-1869-D.
Supreme Court of Wisconsin.
Decided January 14, 2005.
*296 ¶ 1. PER CURIAM.
We review the recommendation of the referee, John A. Fiorenza, that Attorney Lynn Morrissey's license to practice law in Wisconsin be suspended for 60 days for professional misconduct. The misconduct at issue consisted of Attorney Morrissey's handling of two client matters. In the first case the misconduct involved representing that a satisfaction of lien would not be filed until payment of the lien amount was mailed to the person entitled to the money and by receiving and filing the satisfaction of lien prior to remitting payment. In the second case the misconduct involved failing to file acceptable findings of fact, conclusions of law and a judgment in a divorce action with reasonable promptness. The referee recommended that Attorney Morrissey's license be suspended for 60 days.
¶ 2. We determine that the seriousness of Attorney Morrissey's professional misconduct warrants a suspension of her license to practice law for 60 days. We further agree with the referee that Attorney Morrissey should pay the costs of this proceeding.
¶ 3. Attorney Morrissey was admitted to practice law in Wisconsin in 1995. On October 19, 2004, her license to practice law was temporarily suspended due to her failure to respond or cooperate with the Office of Lawyer Regulation's (OLR) investigation into grievances *297 that had been filed against her. Those grievances do not involve the conduct at issue here. Her license remains suspended.
¶ 4. The complaint filed by the OLR in this action alleged that in March of 2001 Attorney Morrissey was retained to represent a client in the sale of real estate in Washington County. The real estate was subject to division in a Colorado divorce action. The divorce order provided that the client's former wife had a lien of $60,000 and a 50 percent interest in any value in excess of $100,000 in real estate the couple owned in Wisconsin.
¶ 5. Attorney Morrissey wrote to the client's former wife arranging for the closing and the sale of the real estate. In June 2001 Attorney Morrissey wrote to the former wife's attorney proposing that Attorney Morrissey prepare a satisfaction of lien for $60,000. Attorney Morrissey advised the other attorney that after he obtained his client's signature on the satisfaction of lien he should forward it to the title company to hold until the closing, at which time the title company could mail his client her check.
¶ 6. In July 2001 Attorney Morrissey sent the draft satisfaction of lien to her client's former wife and requested she sign it and return it. Attorney Morrissey assured the client's former wife that the satisfaction would not be recorded until the $60,000 check had been sent. The client's former wife signed the satisfaction and sent it to Attorney Morrissey in reliance on the representation that the satisfaction would not be filed until payment had been made.
¶ 7. Attorney Morrissey recorded the satisfaction on April 16, 2002. On May 16, 2002, Attorney Morrissey's client signed a land contract for the sale of the property. On June 18, 2002, Attorney Morrissey's *298 client signed a closing statement which indicated a disbursement to him of $92,580.39 and no disbursement to his former wife. The land contract was recorded on July 3, 2002. On July 16, 2002, the bank disbursed proceeds of the sale by way of a check to Attorney Morrissey's law office in the amount of $2,807.20 and a check to Attorney Morrissey's client in the amount of $89,773.19.
¶ 8. On August 6, 2002, the attorney representing Attorney Morrissey's client's former wife requested a copy of the closing statement, which Attorney Morrissey provided. On March 5, 2003, the attorney for the client's former wife wrote to Attorney Morrissey requesting the $60,000.
¶ 9. On October 16, 2003, the OLR requested Attorney Morrissey's response to a grievance filed by her client's former wife. Attorney Morrissey failed to respond to that request and two other requests.
¶ 10. The OLR's complaint also alleged that Attorney Morrissey engaged in professional misconduct with respect to her handling of a divorce action for a client. The second client retained Attorney Morrissey on April 8, 2002. The final hearing was held in the divorce on May 5, 2003. At the time of the hearing the court directed Attorney Morrissey to file findings of fact, conclusions of law and a judgment. The findings filed were deemed insufficient and on July 15, 2003, a family court commissioner clerk faxed Attorney Morrissey a list of provisions for inclusion in the findings. On September 18, 2003, Attorney Morrissey was again faxed a list of mandatory provisions to be included in the findings. On November 1, 2003, because Attorney Morrissey had failed to file the findings, the clerk forwarded the file to the court to calendar an order to show cause hearing.
*299 ¶ 11. On November 5, 2003, the guardian ad litem in the case wrote a letter to the court, with a copy to Attorney Morrissey, regarding Attorney Morrissey's failure to have signed findings, conclusions and a judgment on file. In her letter the guardian ad litem said the failure to file these documents was exacerbating disputes between the parties.
¶ 12. The trial court set the order to show cause hearing for December 1, 2003. Attorney Morrissey failed to appear. The court continued the hearing to December 12, 2003, and had Attorney Morrissey served with notice of the hearing. Although Attorney Morrissey again failed to appear at the December 12 hearing, she did call the court to advise she was ill and could not attend. The court continued the hearing until December 22, 2003.
¶ 13. Attorney Morrissey submitted the completed findings on December 22, 2003, more than seven months after the final divorce hearing and five months after the clerk had first faxed her a list of the missing provisions. The court signed the findings, conclusion and judgment on January 7, 2004.
¶ 14. In early January 2004 the OLR requested Attorney Morrissey to respond to questions relating to the second client's grievance. Attorney Morrissey failed to respond. In March of 2004, after ordering Attorney Morrissey to show cause in the matter and after her failure to do so, this court temporarily suspended her license. Her license was subsequently reinstated after she belatedly filed a written response to the second client's grievance. As noted above, her license to practice law was again temporarily suspended on October 19, 2004, when she failed to respond to the OLR's inquiries about other grievances.
*300 ¶ 15. Attorney Morrissey did not file an answer to the OLR's complaint or otherwise make any appearance in the case. The OLR filed a notice of motion and motion for default judgment. Attorney Morrissey filed no response to the motion. On October 12, 2004, the referee granted the OLR's motion for default judgment and issued a decision in the case.
¶ 16. The referee found that by representing to the first client's former wife that the satisfaction of lien would not be filed until payment of the lien amount was mailed and by receiving and filing the satisfaction of lien prior to remitting payment and by failing to include or provide for payment of the lien from the proceeds of the sale Attorney Morrissey engaged in conduct involving dishonesty, fraud, deceit and misrepresentation, in violation of SCR 20:8.4(c).[1]
¶ 17. The referee also found that by failing to file acceptable findings of fact, conclusions of law and a judgment in the second client's divorce with reasonable promptness, Attorney Morrissey violated SCR 20:1.3.[2] In addition, the referee found that by willfully failing to respond to the OLR's request for written responses to the two grievances, Attorney Morrissey violated SCR 22.03(2)[3], *301 SCR 22.03(6)[4] and SCR 20:8.4(f)[5]. The referee recommended that Attorney Morrissey's license be suspended for 60 days and that she be assessed the costs of the proceeding.
¶ 18. A referee's findings of fact on a disciplinary matter will not be set aside unless they are clearly erroneous. In re Disciplinary Proceedings Against Sosnay, 209 Wis. 2d 241, 243, 562 N.W.2d 137 (1997). Conclusions of law are reviewed de novo. In re Disciplinary Proceedings Against Carroll, 2000 WI 130, ¶ 29, 248 Wis. 2d 662, 636 N.W.2d 718. Since the referee's findings of fact have not been shown to be clearly erroneous, we adopt them.
¶ 19. We also conclude, as did the referee, that the seriousness of Attorney Morrissey's misconduct warrants the suspension of her license to practice law in Wisconsin for 60 days. Finally, we agree with the referee that Attorney Morrissey should be required to pay the costs of this proceeding.
*302 ¶ 20. IT IS ORDERED that the license of Attorney Lynn Morrissey to practice law in Wisconsin is suspended for 60 days, effective the date of this order.
¶ 21. IT IS FURTHER ORDERED that within 60 days of the date of this order, Attorney Lynn Morrissey pay to the Office of Lawyer Regulation the costs of this proceeding. If the costs are not paid with the time specified and absent a showing to this court of her inability to pay the costs within that time, the license of Attorney Lynn Morrissey to practice law in Wisconsin shall remain suspended until further order of the court.
NOTES
[1] SCR 20:8.4(c) provides: "It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation."
[2] SCR 20:1.3 provides: "A lawyer shall act with reasonable diligence and promptness in representing a client."
[3] SCR 22.03(2) provides:
(2) Upon commencing an investigation, the director shall notify the respondent of the matter being investigated unless in the opinion of the director the investigation of the matter requires otherwise. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct within 20 days after being served by ordinary mail a request for a written response. The director may allow additional time to respond. Following receipt of the response, the director may conduct further investigation and may compel the respondent to answer questions, furnish documents, and present any information deemed relevant to the investigation.
[4] SCR 22.03(6) provides: "(6) In the course of the investigation, the respondent's wilful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance."
[5] SCR 20:8.4(f) provides: "It is professional misconduct for a lawyer to: (f) violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers."
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Corrigan v New York City Tr. Auth. (2016 NY Slip Op 07594)
Corrigan v New York City Tr. Auth.
2016 NY Slip Op 07594
Decided on November 15, 2016
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 November 15, 2016
Renwick, J.P., Moskowitz, Kapnick, Kahn, Gesmer, JJ.
2196N 106473/11
[*1]Sean Mark Corrigan, et al., Plaintiffs-Appellants,
vNew York City Transit Authority, et al., Defendants-Respondents.
Bernadette Panzella, P.C., New York (Bernadette Panzella of counsel), for appellants.
Lawrence Heisler, Brooklyn, for respondents.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered August 15, 2014, which granted plaintiffs' motion to strike the answer and for sanctions pursuant to 22 NYCRR 130-1.1 or, in the alternative, to dismiss the affirmative defenses, preclude defendants from offering evidence, and grant summary judgment in plaintiffs' favor, only to the extent of directing defendants to produce certain discovery items within 90 days and granting plaintiffs a missing witness or evidence charge in the event defendants fail to do so, unanimously affirmed, without costs.
While defendants failed to respond to certain discovery requests and to comply with certain aspects of discovery orders, upon our review of the record, we agree with the motion court's conclusion that these failures were not wilful or contumacious or in bad faith and therefore did not warrant the drastic sanction of striking the answer or precluding defendants from offering evidence at trial (see Cespedes v Mike & Jac Trucking Corp. , 305 AD2d 222 [1st Dept 2003]). In response to plaintiffs' discovery demands, defendants produced, inter alia, photographs, reports, and correspondence prepared by both their employees and police officers who responded to the scene, maintenance and repair records and employee logs for 14 months preceding the accident, and 10 employees for depositions.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: NOVEMBER 15, 2016
DEPUTY CLERK
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UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
BROOKHART, SALUSSOLIA, and SCHASBERGER
Appellate Military Judges
UNITED STATES, Appellee
Vv.
Sergeant JEFFREY R. ARNOLD
United States Army, Appellant
ARMY 20180418
Headquarters, III Corps and Fort Hood
G. Bret Batdorff, Military Judge
Colonel Joseph M. Fairfield, Staff Judge Advocate
For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Major Timothy G.
Burroughs, JA (on brief).
For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Hannah E. Kaufman, JA; Captain Christopher T. Leighton, JA
(on brief).
17 December 2019
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
SCHASBERGER, Judge:
Sergeant Jeffrey R. Arnold contends that the conditions of his confinement
unlawfully increased his sentence. Specifically, that the confinement facility’s
policy regarding contact with his biological children violates his constitutional right
to association, and this violation effectively increased his sentence. We disagree.
A military judge sitting as a general court-martial convicted appellant,
consistent with his pleas, of one specification of sexual assault of a child and one
specification of sexual abuse of a child, in violation of Article 120b, Uniform Code
of Military Justice, 10 U.S.C. § 920b [UCMJ]. The military judge sentenced
appellant to a dishonorable discharge, confinement for ten years, and reduction to
the grade of E-1. In accordance with a pretrial agreement, the convening authority
ARNOLD—ARMY 20180418
approved a sentence of a dishonorable discharge, confinement for seven years, and
reduction to the grade of E-1. The convening authority also credited appellant with
two days against his sentence to confinement. Appellant’s case is now before us for
review under Article 66, UCMJ.
BACKGROUND
The Offense
In 2016, AA, appellant’s daughter from a previous relationship, came to live
with appellant. She quickly became friends with the neighbors’ eleven-year-old
daughter, KP. The two girls spent a considerable amount of time together, to
include KP frequently spending the night at appellant’s house. On several occasions
while the two girls were laying on AA’s bed, appellant laid down next to KP and
touched her breast and genitalia over her clothing. Eventually, he touched her under
her clothing, to include penetrating KP’s vagina with his fingers. In total, appellant
molested KP with AA in the same room on several occasions.
Appellant pleaded guilty to sexually assaulting and sexually abusing KP on
multiple occasions. He admitted to the offenses and described how his daughter was
in the room, on the same bed, watching anime or movies while the assaults and
abuses occurred. Though appellant admitted his guilt and described his actions,
AA’s mother testified to appellant’s great parenting skills and proclaimed his
innocence.
Conditions of Confinement
On 29 August 2018, appellant began to serve his sentence to confinement at
the Joint Regional Confinement Facility (JRCF) at Fort Leavenworth, Kansas.
Pursuant to the JRCF policy on visitation and communication in effect at the time,
appellant was forbidden from having any contact with his daughters! upon his
arrival. Appellant requested an exception to the JRCF policy in September 2018 and
again in December 2018; both of which were denied. In June 2019, appellant
received permission from the JRCF to write letters to AA, with any further contact
conditioned on his showing progress on his sex offender treatment.”
' After appellant molested KP but before trial, appellant got married and had a
second daughter. Appellant’s younger daughter was approximately eight-months-old
when he first arrived at the JRCF.
? Appellant has sought sex offender treatment, but due to a waiting list for treatment,
he will not be able to begin or complete the treatment for several years.
ARNOLD—ARMY 20180418
LAW AND DISCUSSION
Appellant alleges that the JRCF visitation and communication policy
unlawfully increased his sentence in violation of his First Amendment right to
association.? We disagree with appellant’s contention.
Appellant urges us to look to the dissent in United States v. Jessie, No.
ARMY 20160187, 2018 CCA LEXIS 609 (Army Ct. Crim. App. 28 Dec. 2018), and
conclude that appellant’s sentence was unlawfully increased. This argument fails
because appellant’s case is distinguishable from Jessie in meaningful ways.
First, in Jessie, the visitation issue was intertwined with an excessive delay in
post-trial processing. 2018 CCA LEXIS 609, at *35-37 (Schasberger, J., dissenting).
Second, unlike in Jessie, where Chief Warrant Officer Two (CW2) Jessie’s
biological children were in no way involved in his crimes, that is not the case with
appellant. Jd. at 3-4 Though appellant’s daughter, AA, was not the charged victim
of his crimes, he perpetrated those crimes—that is sexually assaulting and sexually
abusing a child—in the same bed where his daughter was laying. Finally, CW2
Jessie went years with no contact with his biological children with no end in sight.
Id. at 4-5. By contrast, within nine months of incarceration, appellant was able to
send letters to AA.
There is no question that some right to association for prisoners survives
incarceration.* However, that right is not absolute. See generally Turner v. Safley,
482 U.S. 78 (1987). We apply the factors articulated in Turner to determine if a
prison policy is unconstitutional. Those factors are: “{1] whether the regulation has
a ‘valid, rational connection’ to a legitimate governmental interest; [2] whether
alternative means are open to inmates to exercise the asserted right; [3] what impact
an accommodation of the right would have on guards and inmates and prison
resources; and [4] whether there are ‘ready alternatives’ to the regulation.” Overton,
539 U.S. at 132 (quoting Turner, 482 U.S. at 89-91).
3 In his brief, appellant states his Fifth Amendment rights were also violated, but
does not provide a basis for the alleged violation. Accordingly, we find no merit in
appellant’s claim related to the alleged violation of his Fifth Amendment rights.
4 The Supreme Court addressed this issue in Overton v. Bazzetta, holding that though
“Ts]Jome curtailment of [the freedom of association] must be expected in the prison
context,” “[w]e do not hold, and we do not imply, that any right to intimate
association is altogether terminated by incarceration or is always irrelevant to claims
made by prisoners.” 539 U.S. 126, 131 (2003).
ARNOLD—ARMY 20180418
After considering the evidence provided by appellant in his submissions to the
convening authority and this court, we find the current JRCF policy satisfies the
Turner factors. Specifically, we find the ability to send letters is a sufficient
alternative to visitation, and rationally related to a legitimate governmental
objective. Accordingly, we find that a nine-month delay in contact with his daughter
did not increase appellant’s sentence.
CONCLUSION
Upon consideration of the entire record, the findings of guilty and the
sentence are AFFIRMED.
Senior Judge BROOKHART and Judge SALUSSOLIA concur.
FOR THE COURT:
MALCOLM H. SQUIRES;
Clerk of Court
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
BROOKHART, SALUSSOLIA, and SCHASBERGER
Appellate Military Judges
UNITED STATES, Appellee
Vv.
Sergeant JEFFREY R. ARNOLD
United States Army, Appellant
ARMY 20180418
IT IS ORDERED THAT, to reflect the true proceedings at the trial of the
above-captioned case,
GENERAL COURT-MARTIAL ORDER NUMBER 1, HEADQUARTERS, III
CORPS AND FORT HOOD, FORT HOOD, TEXAS 76544, dated 17 January 2019,
IS CORRECTED AS FOLLOWS:
BY reflecting “Charge I” as “The Charge” and by
reflecting the Plea to this charge as “Guilty.”
DATE: 17 December 2019
FOR THE COURT:
obo
MALCOLM H. SOUIR
Clerk of Court
| {
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Case: 19-12257 Date Filed: 03/12/2020 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12257
Non-Argument Calendar
________________________
D.C. Docket No. 9:17-cv-80213-KAM
MT. HAWLEY INSURANCE COMPANY,
Plaintiff - Counter Defendant - Appellant,
versus
ARTHUR R. ROEBUCK, III,
PATRICIA R. SWINDLE,
Trustee, d.b.a. Jupiter West Plaza,
SCRIBE ENTERPRISES, INC.,
d.b.a. Jupiter West Plaza,
RIVIERA TRADING AND MARKETING, INC.,
d.b.a. Jupiter West Plaza,
Defendants - Counter Claimants - Appellees,
LESLIE J. FRYE, II,
Defendant - Appellee.
Case: 19-12257 Date Filed: 03/12/2020 Page: 2 of 4
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 12, 2020)
Before ED CARNES, Chief Judge, WILSON, and ANDERSON, Circuit Judges.
PER CURIAM:
Mt. Hawley Insurance Company appeals the district court’s grant of partial
summary judgment to Arthur Roebuck, Patricia Swindle, Scribe Enterprises, Inc.,
and Riviera Trading and Marketing, Inc. Mt. Hawley provided all of them with an
insurance policy on a shopping center that they jointly owned. After the insureds
were sued by a man who was stabbed in the parking lot of their shopping center,
Mt. Hawley initiated this declaratory action asking the district court to hold that it
did not have to defend or indemnify them in the underlying lawsuit. Mt. Hawley
and the insureds filed cross-motions for summary judgment.
Mt. Hawley argues that it had no duty to defend because the underlying
claims fall under an endorsement to the policy, and the endorsement requires the
insureds to meet conditions precedent to receive coverage. Because it is
undisputed that they did not meet the conditions precedent, Mt. Hawley argues, it
owes no duty to defend. The defendants argue that the endorsement does not
apply.
2
Case: 19-12257 Date Filed: 03/12/2020 Page: 3 of 4
The district court found that, under Florida law,1 a duty to defend “depends
solely on the facts and legal theories alleged in the pleadings and claims against the
insured.” Dist. Ct. Order at 18 (April 12, 2019) (quoting Stephens v. Mid-
Continent Cas. Co., 749 F.3d 1318, 1323 (11th Cir. 2014)). And it found that “an
insurer is obligated to defend a claim even if it is uncertain whether coverage exists
under the policy.” Id. Finally, the court found that it was unclear from the
underlying complaint — that is, the complaint that the man who was stabbed made
against the insureds — whether those claims triggered the endorsement requiring
the conditions precedent, which would mean coverage did not exist, or whether the
claims fell under the regular personal injury policy, which would mean coverage
did exist. Because it was uncertain whether coverage existed under the policy, the
court granted the insured’s motion for partial summary judgment and held that Mt.
Hawley had a continuing duty to defend. 2
Mt. Hawley appeals, asserting the same arguments that it did below. After a
de novo review, see Whatley v. CNA Ins. Cos., 189 F.3d 1310, 1313 (11th Cir.
1999), we agree with the district court that it is unclear whether, based on the facts
1
It is undisputed that Florida law controls.
2
The district court also found that it would be premature to decide whether Mt. Hawley
had a duty to indemnify the insureds until after the underlying claims were finally resolved. It
ordered the case closed for administrative purposes and instructed the parties to move to reopen
the case “when the issue of a duty to indemnify becomes ripe.” Mt. Hawley does not contest that
part of the decision.
3
Case: 19-12257 Date Filed: 03/12/2020 Page: 4 of 4
alleged in the underlying complaint, coverage exists. We therefore affirm based on
the well-reasoned opinion of the district court.
AFFIRMED.
4
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507 So.2d 841 (1987)
STATE of Louisiana
v.
Ronald WILEY.
No. 87-KA-52.
Court of Appeal of Louisiana, Fifth Circuit.
May 1, 1987.
Rehearing Denied June 17, 1987.
*842 John M. Mamoulides, Dist. Atty., John Lee, Dorothy Pendergast, Asst. Dist. Attys., Gretna, for plaintiff-appellee.
Anthony R. Crouse, Lawrence & Lawrence, New Orleans, for defendant-appellant.
Before KLIEBERT, BOWES and GAUDIN, JJ.
KLIEBERT, Judge.
The defendant, Ronald Wiley, and a codefendant, Bobby Jefferson, were charged by bill of information with possession with intent to distribute cocaine in violation of La.R.S. 40:967. Prior to trial the defendants filed separate motions to suppress physical evidence seized pursuant to their arrest. Jefferson's motion was granted; Wiley's denied.[1] Wiley thereafter entered a guilty plea but reserved his right under State v. Crosby, 338 So.2d 584 (La.1976) to seek appellate review of the ruling on his motion to suppress. He was sentenced to five years at hard labor with credit for time served.
Upon lodging of the record this court noted sua sponte that the appeal appeared untimely and requested briefs on the issue. In response defense counsel called our attention to the fact that the trial court granted defendant an out-of-time appeal as authorized by State v. Counterman, 475 So.2d 336 (La.1985). Accordingly, we will maintain the appeal and address the issues raised by defendant.
On July 31, 1985 Ronald Wiley and Bobby Jefferson arrived at New Orleans International *843 Airport on flight 532 from Miami, Florida. Detective Sergeant McClay and Agent Whitehead[2] of the Jefferson Parish Sheriff's Office were conducting a routine surveillance of the passengers disembarking from flight 532 because Miami is considered a source city for drug trafficking into the New Orleans metropolitan area. Plain-clothes narcotics agents are routinely assigned to the airport to detect and apprehend drug traffickers by identifying persons who fit a "drug courier profile," which is in essence the collective experiences and observations of narcotics officers regarding common characteristics of drug couriers. The agents observed Wiley and Jefferson as they walked up the concourse. Wiley was carrying a black leather purse; Jefferson, a garment bag which appeared virtually empty. Wiley and Jefferson looked around "apprehensively" before entering a restroom at the top of the concourse. According to the agents, since Wiley and Jefferson's arrival from a source city and their actions were consistent with the drug courier profile, the agents maintained Wiley and Jefferson under surveillance when they exited the restroom.
Thereafter Wiley and Jefferson entered three gift shops in quick succession, remaining only seconds in the first two shops. Wiley remained in the third shop while Jefferson looked around the terminal lobby and re-entered the shop.[3] Wiley and Jefferson then walked past the stairs leading to the baggage claim area. According to the agents this led them to believe they had no additional baggage.
Wiley and Jefferson exited the terminal and proceeded past the passenger pick-up zone and into the adjacent short-term parking lot, leading the agents to believe they had parked a car in the short-term lot, made a "quick trip" to Miami, and were returning to the car. When Wiley and Jefferson were halfway across the lot the agents approached and identified themselves as police officers. Agent Whitehead advised them that "you don't have to, but would you mind answering questions." According to the agents' testimony, both Wiley and Jefferson agreed to answer questions; neither attempted to walk away, although Wiley paced about "nervously". In response to a request for identification, Wiley produced a military discharge form DE244 from his purse. Jefferson was unable to produce any identification documents. When removing the discharge form from the purse Wiley held the purse close to his body as if to conceal its contents, and his hand shook as he handed the form to Agent Whitehead. When questioned as to who was going to drive the car if neither had a license, Wiley and Jefferson responded that they didn't have a car and were waiting for a friend to pick them up. They did not respond when asked why they were not waiting in the passenger zone instead of walking around the shortterm parking lot. Upon request Wiley produced from his purse two airline tickets in his and Jefferson's names. Again he appeared anxious to conceal the contents of the purse, and his hand shook as he handed the tickets to the agents.[4] On further questioning Wiley and Jefferson related that they lived in Miami, were in New Orleans for a short visit to Wiley's mother, and had no baggage other than what they were carrying.
At that point the agents strongly suspected Wiley and Jefferson were carrying drugs into New Orleans from Miami. They *844 identified themselves as narcotics agents conducting an investigation and voiced their suspicion that Wiley and Jefferson were concealing narcotics in the purse or garment bag. According to the agents, Jefferson immediately replied "we don't have anything" and held out the garment bag. Agent Whitehead then advised "you don't have to if you don't want to but may I examine the contents of your luggage and [person]",[5] to which Jefferson replied "go ahead" and Wiley replied "alright". Jefferson handed the garment bag to Agent McClay, who found that it contained only a shirt, a pair of pants, and a pair of shoes. Agent Whitehead asked Wiley and Jefferson whether they were carrying anything on their person. Jefferson raised his pants legs, said "No, I don't have nothing", and started patting himself down. Agent Whitehead then asked Wiley to raise his pants legs. He quickly raised the right pants leg, whereupon Agent Whitehead observed through Wiley's sheer black sock a white object near the middle of his calf. Agent Whitehead retrieved the object, which was subsequently revealed to be a white envelope containing a white powder ultimately identified as cocaine.
Wiley and Jefferson were then arrested and escorted to the Narcotics Office at the airport. A search of their persons pursuant to the arrests revealed four more clear plastic bags of cocaine in envelopes in Wiley's pockets and two clear plastic bags of cocaine in an envelope concealed in the crotch of Jefferson's pants. Wiley's black purse contained an envelope of cocaine, a set of car keys, and a work order on a Jaquar registered to an Erma Wiley with the Miami address given by Wiley. The car was subsequently located in the shortterm parking lot where Wiley and Jefferson were apprehended.
Wiley testified that after disembarking from flight 532 until they were arrested they stopped at three different gift shops before finding one that sold Winston "hard box" cigarettes. He and Jefferson then walked across the parking lot looking for his brother who was to pick them up. He agreed that the agents approached and asked to see identification and plane tickets which he produced. However, from this point Wiley's version of the events differed substantially from the agents'. Wiley testified that after handing the tickets to the agent:
"... He [one of the agents] said, `Oh, you are from Miami?' and I said, `Yes.' and he said, `You wouldn't have any drugs on you?', and I said, `No, I wouldn't have any drugs on me.' He said, `Where were you going at?' and I said, `I was waiting for my brother, I'm looking for my brother to come pick me up.', so he asked me, he said, he kept saying `You wouldn't have any drugs?' and I said, `No, I don't have any drugs." We went to walk away and I say, `I don't have nothing to say, am I under arrest or whatever it is?' he said, `No, I just want to ask you a couple of question.', and then we went to walk off and Whitehead came behind us and McClay got in front so he say, `Let me ask you a couple of questions?', and I said, `What?', and he said, `Who owns that?', and I said, `That is not mine.'___________he asked about the satchel whith (sic) the clothes in it so after that he asked me, he say, `Do you have any drugs?' and he kept saying, `I like them boots you got on but you wouldn't have any drugs stuck in there?' and I said, `No, nothing.', and so Whitehead came around and he say, `Boy, them some nice boots, they must have cost a lot of money?' and he went patting them down and he felt the bulge so he say, `What's that in your boots, man?' and he pulled my leg up and he pulled it out my boots and that is when he said, `You are under arrest.'.
Q. Mr. Wiley, did you attempt to walk away from these Officers prior to this pat down?
*845 A. Yes, three or four times, I told him I didn't have anything and I don't know why he stopped me.
Q. Where was Officer Whitehead when he felt your boots, what position was he in?
A. Well, first he was behind me because McClay was here and Whitehead came around when he started talking about them boots and did I have anything in them, he reached down and that is when he patted my boots.
Q. Did you ever consent to be searched?
A. No.
Q. Did he ever ask you if you could be searched?
A. No.
Q. Did you ever talk about being searched?
A. No.
Q. Did you ever discuss being searched?
A. No.
Q. Did he ever ask you if you could be searched?
A. Yes and I said, `No', I said, `Search me for what, I don't have anything."
Q. The boots that you had on, do you have them on now?[6]
* * * * * *
A. Yes
Q. Where were the drugs?
A. Inside the boots.
Q. Zip them down, let me see. Were they in both boots?
A. No.
Q. And these are the pants that you had on?
A. Exactly
Q. Did you ever lift you pants legs up?
A. No. I didn't." (Footnote added)
Jefferson testified that when the agents approached:
"A. I told Ronald that we didn't have to say anything. We was walking on and all of a sudden, Officer Whitehead the one that was up here, he got in the front like this (Witness indicating.) and we was like in between a car here. And one was here and one was there and we was walking onto the parking and McClay was standing here and so he said we were under some kind of narcotics project that he was doing at the airport and then he said, `Do you all have any I.D.?'
Q. And did you have any identification?
A. I didn't, no, sir, I left mine prior to changing to come up here.
Q. Do you remember what happened then, do you remember when the drugs were found, can you tell us about that?
A. Well, he asked can he search us and we didn't say nothing. He didn't say nothing so all of a sudden McClay grabbed my luggage bag and started going through my luggage bag and he told me to turn around and I turned around on the car and he searched me, he searched me down, he say he didn't but he searched me down and Officer Whitehead told Ronald that those were nice boots he got on and he asked him did he have any I.D.?
Q. Did Ronald pull his pants leg up?
A. Not that I can recall.
Q. Did you pull your pants leg up?
A. No, sir.
Q. Did you tell these Officers that they could search you?
A. No, sir.
Q. Did you hear Ronald Wiley tell the Officers that they could search you?
A. No.
Q. Did you all attempt to get away from these Officers at any time?
*846 A. Well, we tried to walk away, one was to the left and one was to the right.
Q. Was it impossible for you to walk away from Officers at that point?
A. Well, I'm quite sure that they would have stopped us if we did."
Wiley's motion to suppress was heard, argued and submitted on December 6, 1985. The court took the matter under advisement in order to research the latest jurisprudence on the issue and subsequently denied the motion, giving the following reasons:
"... the Court concludes as to the threeprong tests was met in connection with his arrest. He did warrant being stopped by the profile presented to police officers.
The Court believes that he voluntarily submitted to a cursory search to his person. At the time of the search, contrabandillegal contraband was discovered..."
On appeal Wiley raises the following issues as related to the denial of his motion:
1. Whether a citizen is seized within the meaning of the Fourth Amendment, and Article I, Section 5 of the Louisiana Constitution when police officers inform the citizen that they are narcotics officers and suspect the citizen of transporting narcotics?
2. Whether Ronald Wiley, who initially consented to the stop, was "seized" thereafter once the officers exhibited an intent to effect his extended restraint?
3. Whether the officers had reasonable suspicion or probable cause to effect an extended restraint of Ronald Wiley?
4. Whether Ronald Wiley's "consent" to a search of his person was tainted by his unlawful detention, dictating the suppression of the evidence?
The validity of airport detentions and searches on facts similar to the facts of the instant case has been addressed by the United States Supreme Court in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) and Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), by the Louisiana Supreme Court in State v. Ossey, 446 So.2d 280 (La.1984) and State v. Jackson, 457 So.2d 660 (La.1984), and most recently by this court in State v. Thomas, 482 So.2d 32 (5th Cir.1986). In Royer, supra, the United States Supreme Court noted at 460 U.S. 498-99; 103 S.Ct. 1324:
"... law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. See Dunaway v. New York, supra, 442 U.S. [200] at 210, n. 12, 99 S.Ct. [2248] at 2255, n. 12 [60 L.Ed.2d 824 (1979)]; Terry v. Ohio, 392 U.S. [1] at 31, 32-33, 88 S.Ct. [1868] at 1885-1886 [20 L.Ed.2d 889 (1968)] (Harlan, J., concurring); id., at 34, 88 S.Ct., at 1886 (WHITE, J., concurring). Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.). The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. Terry v. Ohio, 392 U.S., at 32-33, 88 S.Ct., at 1885-1886 (Harlan, J., concurring); id., at 34, 88 S.Ct. at 1886 (WHITE, J., concurring). He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. United States v. Mendenhall, supra, 446 U.S., at 556, 100 S.Ct., at 1878 (opinion of Stewart, J.). If there is no detentionno seizure within the meaning of the Fourth Amendmentthen no constitutional rights have been infringed."
The court in Mendenhall stated at 446 U.S. 554, 100 S.Ct. 1877:
*847 "We conclude that a person has been `seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."
In the instant case, as in Ossey, supra, the two crucial issues are whether the defendant was being illegally detained at the time of his consent to the search and whether he freely consented to the search. The initial encounter between the defendant, Jefferson and the agents in the parking lot was not a "seizure" as contemplated by the Fourth Amendment. The purpose of the Fourth Amendment is not to eliminate all contact between law enforcement officers and citizens, and as long as a reasonable person would feel free to disregard the encounter and walk away, there has been no "seizure". State v. Ossey, supra; State v. Jackson, supra; Florida v. Royer, supra; United States v. Mendenhall, supra.
Moreover, although the defendant is "seized" for Fourth Amendment purposes, law enforcement officers have the right to stop and interrogate persons reasonably suspected of criminal conduct. La.C.Cr.P. art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Ossey, supra; State v. Belton, 441 So.2d 1195 (La.1983). "Reasonable cause" for such an investigatory detention is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual's right to be free from governmental interference. State v. Ossey, supra; State v. Belton, supra.[7]
Defendant contends that when the "seizure" occurred there did not exist sufficient articulable facts to justify a Terry-type stop. We disagree.
In this case, the following circumstances existed to support a belief that the defendant was engaging in criminal activity: 1) he and his companion were arriving from a source city; 2) the defendant appeared nervous; 3) the two men delayed exiting the airport, stopping at a bathroom and three gift shops; 4) they were carrying a minimal amount of luggage, consisting of one suiter which appeared empty and a purse; 5) they did not claim any luggage from the baggage area; 6) when approached by the officers, the defendant became visibly nervous and started pacing; 7) although they alleged that someone was picking them up at the airport, they were walking in the short-term parking lot instead of waiting at the pick-up area; 8) neither man was in possession of a driver's license; Jefferson had no indentification whatsoever; and, 9) both times the defendant removed papers from the purse, he held it as though trying to hide its contents, he was visibly nervous and his hands were shaking. These were clearly adequate grounds for a reasonable belief that the defendant and Jefferson were carrying drugs; hence, the "seizure" was a permissible Terrytype detention. See and compare State v. Ossey, supra; State v. Salazar, 389 So.2d 1295 (La.1980); State v. Thomas, supra.
The agents' conduct during this "seizure" did not, as contended by defendant, exceed the scope of a lawful Terry-type stop. Unlike the factual scenarios in Ossey, Jackson and Thomas, the agents did not escort the defendant and Jefferson to a squad room for questioning. Rather, they remained in the parking lot and asked the defendants to consent to a search of their baggage and persons. Having concluded the agents had a reasonable belief the defendant and Jefferson were carrying drugs, our next inquiry is whether the search in the parking lot was with the consent of the defendant, Wiley. The agents testified that Wiley and Jefferson consented; whereas, the defendant avers they did not. The trial judge was thus faced with a credibility choice, and in finding *848 that the searches were voluntary, apparently concluded the agents' testimony to be more credible than that of the defendant. Voluntariness is a question of fact to be determined by the trial judge under the facts and circumstances surrounding each case, and factual determinations of the trial judge are entitled to great weight on appellate review. State v. Ossey, supra; State v. Edwards, 434 So.2d 395 (La.1983); State v. Thomas, supra. Based on our review of the record, we cannot say the trial judge erred in finding that the defendant and Jefferson consented to the search. As the consent search was permissible, the trial judge correctly denied the motion to suppress the drugs seized from the defendant's sock.
Once the cocaine was seized from the defendant's sock, the officers had probable cause to arrest the defendant.[8] Once a lawful arrest has been made, a warrantless search of the arrestee's person and of the area within his immediate control is permissible in order to remove any weapons from the defendant and to prevent evidence from being destroyed. State v. Andrishok, 434 So.2d 389 (La.1983). Thus, the officers could search the defendant's purse and coat, and the six packets of cocaine found pursuant to that search were lawfully seized.
Accordingly, for the reasons assigned the ruling of the trial judge denying the motion to suppress is affirmed, as is the defendant's conviction and sentence.
AFFIRMED.
NOTES
[1] The charge as against Jefferson was dismissed in light of the ruling on his motion to suppress. The basis for the ruling on Jefferson's motion was that the initial cache of drugs was discovered on Wiley's person; no contraband was found on Jefferson's person until after he was arrested.
[2] Agent Whitehead participated in the arrests of Frederick Ossey in State v. Ossey, 446 So.2d 280 (La. 1984); Charles Jackson in State v. Jackson, 457 So.2d 660 (La.1984), and Walter Thomas in State v. Thomas, 482 So.2d 32 (5th Cir.1986). The issues raised in the cited cases are likewise raised in the present case.
[3] In their testimony during the motion to suppress the agents did not indicate whether they observed the defendants in the shops. However, when testifying at a previous preliminary examination Agent McClay related the subjects did not purchase anything in the first two shops; he lost sight of them in the third shop. The defendants testified they were searching for Winston cigarettes in a box. The first shop had none, the second did not sell cigarettes, and they purchased a pack at the third shop.
[4] The record is unclear as to whether the agents retained the discharge form and tickets or immediately returned them to Wiley.
[5] At the preliminary hearing Agent McClay related that Agent Whitehead asked for permission to search "your bag and person". At the motion to suppress McClay said "luggage and purse"; Whitehead said "person and their luggage".
[6] Defendant sought to prove that the boots he was wearing on the day of the arrest were too tall for the agents to have been able to see his calves. Agent McClay related that Wiley was wearing lace-up shoes when arrested; when pressed, he admitted he really didn't remember. The bondsman who posted bail for Wiley testified he was wearing ankle high "fruit boots". Agent Whitehead testified Wiley was wearing ankle high boots which were not as tall as the ones he was wearing in court.
[7] In Terry v. Ohio, the court defined the grounds for a limited seizure as an "articulable suspicion" of criminal activity.
[8] Probable cause to arrest without a warrant exists when the facts and circumstances within the arresting officer's knowledge, or of which he has reasonably trustworthy information, are sufficient to justify a person of ordinary caution in beleiving that the person to be arrested has committed or is committing a crime. State v. Ruffin, 448 So.2d 1274 (La.1984).
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193 Ill. App.3d 1073 (1989)
550 N.E.2d 1023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
ALEXANDER HEREDIA, Defendant-Appellant.
No. 1-86-2017.
Illinois Appellate Court First District (3rd Division).
Opinion filed December 28, 1989.
Rehearing denied February 27, 1990.
*1074 *1075 Dennis A. Giovannini and Herbert L. Goldberg, both of Giovannini & Goldberg, of Chicago, for appellant.
Cecil A. Partee, State's Attorney, of Chicago (Thomas V. Gainer, Jr., John A. Gasiorowski, and Christine C. Perille, Assistant State's Attorneys, of counsel), for the People.
Judgment affirmed.
JUSTICE RIZZI delivered the opinion of the court:
Defendant-appellant, Alexander Heredia (Heredia), was charged with murder and armed violence in connection with his wife's death. After a bench trial, Heredia was found guilty of voluntary manslaughter and sentenced to 24 years' imprisonment. Heredia appeals the conviction and sentence.
On appeal, Heredia argues that (1) the court abused its discretion in sentencing him to 24 years where the court considered improper materials in the presentence report, made findings which were inconsistent with the facts presented at trial and considered improper testimony during the hearing in aggravation; (2) the court erred in finding him guilty of voluntary manslaughter where the State failed to negate theories that the death was a result of an accident or reckless conduct; and (3) the prosecution committed reversible error by questioning him about an alleged aggravated assault of his wife and by allowing the admission of evidence regarding his prior conviction of taking indecent liberties with his daughter. We disagree and affirm.
At trial the following facts were revealed. Laura Heredia died on December 16, 1984, at the age of 29. Thirteen-year-old Lisa Heredia testified that on that date, she, her brother, David, sister, Laura, and mother resided at 7148 South Fairfield in Chicago. Heredia, her father, had not resided at the home on a consistent basis for the preceding two to three weeks.
According to Lisa, on the evening of December 16, she, David and Laura were in the living room while her parents argued for approximately one-half hour in their second-floor bedroom. Heredia insisted upon returning to the home while her mother stated that she did not want him to live there. Thereafter, her father walked out the *1076 front door, and her mother went into the kitchen and looked out the window while she smoked a cigarette.
Lisa recalled that she went upstairs and telephoned her grandmother from her mother's bedroom. Moments later, her mother came upstairs and Heredia approached, crying and carrying a gun, which he later pointed at his temple. Lisa watched her mother attempt to hold Heredia back by placing her hands on his shoulders. Her mother did not have a weapon and did not hit or strike Heredia. Heredia pushed Laura and caused her to fall backwards on the floor. They were now out of Lisa's sight.
After informing her grandmother that her parents were fighting, Lisa concluded her conversation and called the police.
Lisa testified that she heard a struggle from inside the room and a door open and close. In addition, she heard her mother say, "Alex, don't." Lisa heard shots "right after the other," but could not recall the exact number fired. Heredia came out of Lisa's room, dropped the gun, and knelt on the floor. Lisa ran to Heredia, knelt down and held him. She got up, saw her mother lying on the floor, grabbed her little sister, and ran down the stairs and out of the house.
According to Lisa, Heredia moved out of the house in June and November of 1984. He returned to visit his children, and occasionally, they went with him to his mother's home, where he resided. On December 15, 1984, Heredia spent the night at their home on Fairfield, and the family went shopping on December 15 and 16.
Twelve-year-old David Heredia similarly testified that on December 16, 1984, he resided at 7148 South Fairfield with his mother, Laura, and two sisters and that his father would visit the home "once in a while." Heredia moved out of the home two weeks prior to December 16. David recalled his parents' 30-minute argument and saw Heredia come down the stairs and leave the house. He also observed his mother come downstairs, enter the kitchen for two minutes and then return upstairs empty-handed, followed by Lisa.
According to David, Heredia returned in five to eight minutes and climbed the stairs followed by three-year-old Laura. David heard his mother exclaim, "Why Alex?" followed by "a lot of noise and screaming." Baby Laura started to cry, and then his sisters screamed, "Daddy, no." David ran into the kitchen and remained there for 10 seconds before running out of the house. Once outside David heard five shots. He heard one shot followed by two shots, "a lot of screaming and yelling," and two additional shots. Thereafter, David ran to a neighbor's house and asked them to call the police because his parents were arguing and his father had a gun.
*1077 David testified that his father normally kept a gun in his car and that on December 16, 1984, he parked his car directly in front of the house. On December 15, 1984, his father stayed overnight at their home on Fairfield, and the family went shopping on the 15th and 16th.
On cross-examination David testified that immediately after the shooting, he told the police that Heredia returned from his car within one minute and that the five scattered shots rang out within 5 to 10 seconds.
Chicago police officer Walter Wronski testified that on December 16, 1984, at approximately 7:30 p.m., he and his partner, Cathy Branigan, responded to a call of a man with a gun at 7148 South Fairfield. Upon arrival he spoke with Lisa Heredia, who stated that her father was in the house with a gun and that she heard him shoot the gun. Once in the house Wronski heard someone crying and called out "come to the stairs and show me your hands." Heredia responded, "I can't, I hurt my wife real bad, help her."
Officer Wronski testified that after Heredia came downstairs, he handcuffed him, arrested him and advised him of his Miranda rights from a preprinted card. Heredia acknowledged that he understood his rights. Officer Wronski investigated the scene, recovered an automatic handgun from the second-floor hallway and observed bullet casings and a pool of blood on the floor in one of the bedrooms. At the police station, Wronski readvised Heredia of his rights.
Chicago police detective John Smith also investigated the scene and observed blood on the floor just inside the door, a number of shell casings strewn on the floor, and two spent bullets. Smith found a bullet in the bedroom closet. There was no blood on the closet floor.
Detective Smith was present when Assistant State's Attorney Dawn Overend spoke with Heredia. Overend advised him of his rights and explained her role in the investigation. Heredia stated that he understood the rights and agreed to make a statement. Detective Smith related the following:
"[Heredia] informed Miss Overend at that time him [sic] and his wife had been separated, that he had gone over to the house that evening to talk to her, that an argument had ensued between them at which time she laughed at him, called him a bum. He left the house, went out to his car, got his gun, returned to the house, went upstairs to the bedroom at which time she continued laughing. He fired the gun, she ran into the closet, he fired into the closet, she came out of the closet *1078 and he fired the gun again. He could not remember how many times he fired."
Assistant State's Attorney Overend related that on December 16, 1984, after having spoken with Lisa, David, and the police officers and read the police reports, she spoke with Heredia at approximately 11 p.m. She advised Heredia of his Miranda rights, and Officer Smith informed him of his wife's death. Thereafter, he gave the following oral statement:
"He (Heredia) told me that he was separated from his wife so he wasn't living with her but had gone to the house that night and that they had begun arguing, that he had wanted to move back into the house with his wife and that she said no and he said that she was laughing at him and he said that he felt like he must mean [sic] nothing to her if she could laugh at him like that and he then said he left the house and he went out to his car and he got a gun that he keeps [sic] and I asked him at that point what kind of a gun it was and he told me a .25 caliber and it was silver and I asked him what he did then and he said he went back in the house and he went upstairs with the gun and he said that he again said something to his wife and then he shot her. * * * He said that she ran into the closet and that he chased her and that he pulled her back out and then he shot her and I asked him if he knew how many times he had shot her and he said no, that he couldn't remember. * * * After he shot her and he said that she fell to the ground and that he got down and tried to hold her and he said that his daughter had been upstairs when this happened."
According to Detective Smith and Assistant State's Attorney Overend, Heredia agreed to give a written statement and read the statement aloud and signed it. Overend testified that she informed Heredia that she could write down what he told her on a felony review statement form or a court reporter could come and transcribe verbatim what he would say. Heredia preferred not to have anyone else in the room and elected to have her write his statement. Overend left the room and transcribed Heredia's statement on a felony review form. At approximately 11:45 p.m., in Smith's presence, Overend showed Heredia the statement, and he read it aloud as she pointed to each word with her pen.
Overend testified that when Heredia finished reading the statement she asked him if it was the truth. He responded affirmatively and declined to make any changes. Heredia, Detective Smith and Assistant State's Attorney Overend then signed the statement.
*1079 The parties stipulated to Dr. Kirschner's postmortem examination of Laura Heredia. The cause of death was multiple gunshot wounds to the head and trunk. Specifically, there were one gunshot wound to the head, two wounds to the back, and two wounds to the abdomen. Dr. Kirschner found severe cerebral injury, in addition to injuries to the right lung, liver and small intestine. Dr. Kirschner recovered five copper-jacketed bullets of approximately .25 caliber size from the victim's body.
One wound was located in the top of Laura's head, one-half inch to the left of the midline, in the superior parietal region. The bullet entered the skull in a downward direction, passing through the medial portion of the left parietal lobe and lodged within the brain stem.
The second wound was located on the right side of her back, 10 1/4 inches from the top of her head, five inches to the right of the midline. The path of the bullet causing this injury was in an anterior direction downward and toward the left.
The third injury, also a back injury, was located on the left side of the back 14 1/4 inches from the top of her head and 2 1/2 inches to the left of the midline. The bullet's path was downward to the left and in a slightly anterior direction.
The fourth gunshot was located on the abdomen, 25 inches from the top of her head and 2 1/2 inches to the left of the midline. The bullet's path was slightly downward, in a posterior direction and toward the midline.
The fifth wound was located in the left lower quadrant of the abdomen, 26 inches from the top of her head and 2 1/2 inches from the left of the midline. The bullet's path was slightly downward and toward the midline of the posterior direction. With respect to all of the wounds, the doctor noted no evidence of close-range firing. The doctor noted abrasions to both knees and found no evidence of ethanol or opiates in the bloodstream. Also, the parties stipulated that the bullets originated from the gun Officer Wronski obtained in the hall of the Heredia home.
Heredia's family members, residing in his mother's home on North Oakley in Chicago, testified that since December 1984 Heredia lived in the basement apartment, appeared tired, constantly smoked cigarettes, and drank coffee.
Heredia's co-workers at Fabricated Air Systems similarly testified that in December 1984 Heredia drank a lot of coffee, smoked more and looked tired. They described him as a hardworking, nice guy. John Peterman, the company partner and shareholder, testified *1080 that he hired Heredia in 1982 as a sheet metal worker and that within one year he advanced to the position of shop foreman. Peterman described Heredia as an excellent employee, but noted that Heredia's performance declined in December 1984. Peterman's partner, William Sterm, Jr., characterized Heredia as congenial, mild and accurate.
Heredia testified that he resided at his mother's home on North Oakley and that he had three children, Lisa, David, and Laura Rosemaria. At the time of trial, the children lived with his sister-in-law, Alma Alvarado, and Heredia was still employed by Fabricated Air Systems.
Heredia married Laura Alvarado on July 26, 1972. They purchased the home on Fairfield in early 1984. In June 1984, Heredia moved out of the home for approximately one week and a half. Heredia testified that in 1978 Laura told him that she was seeing another man.
According to Heredia, in November and December 1984 when he came home at night Laura was not there. Specifically, one evening after Thanksgiving, Laura did not come home until 6:30 a.m. the next morning. Heredia had locked the doors, and when Laura rang the door bell, he asked her where she had been. Laura responded, "none of your business." Approximately two weeks later he moved out of the house. After Thanksgiving, until December 9 or 10, Heredia stated that he experienced difficulty sleeping, averaging about four hours of sleep per night, smoked more and drank 10 cups of coffee per day.
Heredia recalled that on December 9 or 10 he bought a Christmas tree and decorated it at their home on Fairfield. Thereafter, his wife asked him to leave the house and inquired whether he was going to secure an apartment. When he refused to leave, Laura said that she would take the children and leave.
The following day, Heredia arrived at the house after work and Laura told him that she was going out. Heredia took the youngest daughter to his mother's house. Heredia testified that when he returned their daughter the following morning, Laura told him that she had been seeing another man, asked for his forgiveness and promised to stop seeing him. Heredia forgave her, and she asked him to spend the night. The next day she asked him to leave.
Early Friday morning, December 14, 1984, Heredia arrived at the Fairfield home and Laura informed him that he would have to care for the children because she was going out. Heredia asked her not to go. After work he returned, and Laura left the children under *1081 his supervision. Heredia took the children to his mother's home.
At midnight Heredia returned to the Fairfield house, unlocked the door and waited approximately 30 minutes for Laura to arrive. Thereafter, Heredia went back to his mother's home and telephoned the Fairfield house to no avail. At 1:45 a.m., Heredia drove back to the Fairfield house and waited an hour for Laura's return.
Saturday, December 15, 1984, at 5 a.m., Heredia again went to the Fairfield house to determine if Laura had returned. He found no one home and subsequently reported to work for a half day. At 3 p.m., Laura telephoned Heredia and asked him to bring the children home. After they arrived, Heredia, Laura and the children went shopping. According to Heredia, Laura asked him to stay overnight and he agreed.
On Sunday, December 16, 1984, the family went shopping again. When they returned home, Heredia asked Laura why he had to leave and told her that he loved her. According to Heredia, Laura said that she was still seeing and had slept with another man. Laura stated that everything was Heredia's fault, she had been involved with other men and that David and Laura were not his children.
Heredia asked Laura why she was hurting him that way. She laughed and called him a faggot. Heredia replied that he wanted out, did not want to see her or anyone and left the house crying. Heredia recounted that he got his gun out of his car and returned to the house. He wanted his wife to witness his suicide. As he put the gun to his head, Laura struck him. He did not point the gun at Laura. When the gun fired, it stunned him. Laura hit him again, and he fell over the bed as the gun kept firing. Heredia had no intention of shooting his wife, but intended to kill himself in her presence. He did not recall signing his written confession.
The court found that Heredia had deliberately killed Laura, and given the circumstances, had committed voluntary manslaughter.
At the sentencing hearing, the court remarked that it had received and read numerous letters regarding the case. Defense counsel objected to the presentence investigation which contained numerous letters, arguing that the letters were not properly before the court. One of the letters, captioned "Justice for Laura Heredia," summarized the case and urged community members to write the judge and complain of the miscarriage of justice. The court ruled that the letters would be considered for what they were worth.
At the hearing in aggravation, Alma Alvarado, Laura's sister and legal guardian of her children, testified to the following. Heredia verbally abused Laura and his violence led to their repeated separations *1082 during the 12-year marriage. In 1984, Heredia sexually abused their daughter. Also in 1984, he hit his wife with an ash tray, causing a head laceration. On cross-examination, Alvarado could not recall observing any marks, cuts or bruises on her sister.
Lisa Heredia expressed guilt regarding her mother's death since she had informed her mother of the sexual abuse. Lisa experienced difficulty concentrating in school and on school assignments. In addition, Lisa described Heredia as a "very, very, violent person," frequently hitting the children on their ears and head, using foul language and threatening to knock them "through walls." Lisa pleaded that the court sentence Heredia to the maximum term of 30 years.
On cross-examination, Lisa acknowledged that she never saw Heredia hit her mother. Lisa further testified that she gave Heredia a plaque with the inscription, "To the best daddy in the world, I love you. Merry Christmas, 1982. Lisa," and that after her mother's death when packing she put the plaque in Heredia's suitcase.
In response, Heredia testified that he threw the ash tray during an argument after Laura hit him with a pan of hot oil. In addition, Heredia asserted that he did not beat Laura or hit the children in a manner so as to hurt them. Heredia apologized to everyone for his actions, asked for his children's forgiveness and said that he loved his children and his wife.
The trial court noted that Heredia had no prior convictions for violent offenses and that he had been a hard-working man. The court found, nonetheless, that under the circumstances an extended term was appropriate since this was the second crime he had committed against a family member and sentenced him to a 24-year term of imprisonment.
On appeal, Heredia first argues that the trial court abused its discretion in sentencing him to 24 years of imprisonment upon the conviction of voluntary manslaughter where the court considered improper materials contained in the presentence report, made findings during sentencing that were inconsistent with the facts presented at trial and considered improper testimony during the hearing in aggravation. We disagree.
1 The purpose of a presentence investigation is to insure that the trial judge will have all the necessary information concerning the defendant before the court, prior to the time that sentence is imposed. (People v. Youngbey (1980), 82 Ill.2d 556, 564, 413 N.E.2d 416, 420-21.) A sentencing judge may look at facts of the crime and may search anywhere within reasonable grounds for other facts which would tend to aggravate or mitigate the offense, without being *1083 strictly bound by rules of evidence which apply to findings of guilt. People v. Ramsey (1975), 24 Ill. App.3d 1038, 1041, 322 N.E.2d 547, 549.
2, 3 Factors from which an appropriate sentence may be deduced include defendant's credibility, demeanor, general moral character, mentality, social environment, habits and age. (People v. Perruquet (1977), 68 Ill.2d 149, 154, 368 N.E.2d 882, 884.) Other considerations include abnormal or subnormal tendencies, natural inclination or aversion to commit crime, the stimuli which motivate his conduct, and something of his life, family, occupation, and criminal record. (People v. Gaines (1974), 21 Ill. App.3d 839, 847, 316 N.E.2d 14, 21.) An important factor is the seriousness of defendant's crime. (People v. Morgan (1974), 59 Ill.2d 276, 282, 319 N.E.2d 764, 768.) Moreover, sentencing is a matter of judicial discretion, and absent a showing of abuse of that discretion, the sentence of the trial court may not be altered upon review. People v. Perruquet (1977), 68 Ill.2d 149, 153, 368 N.E.2d 882, 883.
Appellant argues that the letters to the court expressing outrage at its finding of not guilty on the murder charge and demanding the imposition of the maximum extended term violated his right to an impartial sentencing hearing. We disagree.
4 When considering a presentence report, the court must exercise care to insure the accuracy of the information considered and to shield itself from the potentially prejudicial effect of improper material. (People v. Peacock (1982), 109 Ill. App.3d 684, 685-86, 440 N.E.2d 1260, 1262.) Here, the court shielded itself from the potentially prejudicial effect of the letters by its consideration of the letters "for what they [were] worth disregard[ing] general hearsay allegations of abuse."
5, 6 Appellant additionally argues that the court considered unfounded accusations of wife abuse of the witnesses who testified during the aggravation hearing. Generally, when reviewing a bench trial, a court of review presumes that the judge considered only competent evidence. (People v. White (1980), 84 Ill. App.3d 1044, 1049, 406 N.E.2d 7, 11.) As previously stated, the court announced that it would disregard hearsay allegations of abuse in the letters. Under these circumstances, we find that during the hearing in aggravation, the judge considered only competent evidence and disregarded any unfounded accusations of abuse.
7 Statutory authority provides that an extended-term sentence may be imposed when a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater *1084 class felony when such conviction occurred within 10 years after the previous conviction excluding time spent in custody, and such charges are separately brought and tried and arise out of a different series of acts. (Ill. Rev. Stat. 1987, ch. 38, par. 1005-5-3.2(b)(1).) The presence of a single factor in section 5-5-3.2 is sufficient to support the imposition of an extended-term sentence. People v. Ferguson (1989), 132 Ill.2d 86, 95.
8 Specifically, a second conviction of a Class 1 felony within 10 years is sufficient in itself to support an extended-term sentence. (People v. Timmons (1984), 127 Ill. App.3d 679, 687, 469 N.E.2d 646, 652.) The crime of taking indecent liberties with a child is a Class 1 felony. (Ill. Rev. Stat. 1979, ch. 38, par. 11-4(e) (repealed July 1, 1984).) The extended-term range for voluntary manslaughter, a Class 1 felony, is from 15 to 30 years. (Ill. Rev. Stat. 1987, ch. 38, pars. 1005-8-2(a)(3), 9-2(c).) Thus Heredia's 24-year sentence is within the statutory guidelines. When imposing the extended-term provisions, the court should look at the nature of the offense committed as well as the defendant's prior criminal record. (People v. Sias (1980), 91 Ill. App.3d 1095, 1103, 415 N.E.2d 618, 624.) Here, the court articulated that the sentence was based upon the nature of the crime committed, the intentional firing of five gunshots after a heated argument, in addition to the prior crime of taking indecent liberties with a child, perpetrated against another family member, their child, Lisa. We find no abuse of discretion by the court's application of the extended-term sentencing provisions to the case at bar.
Heredia further contends that the court's findings during the sentencing hearing were inconsistent with the facts presented at trial. We disagree. The court weighed the aforementioned factors, including factors in mitigation, and considered the competent evidence presented at trial. We hold that the findings made during sentencing were consistent with the manifest weight of the evidence presented at trial and that the 24-year sentence was not an abuse of discretion.
Heredia argues that the court erred in finding him guilty of voluntary manslaughter because the State failed to negate his theory that the death was caused by either recklessness or accidentally. We disagree.
9 Voluntary manslaughter occurs when a person kills an individual without lawful justification when at the time of the killing he acts under a sudden and intense passion resulting from serious provocation by the person killed. Serious provocation is conduct sufficient to excite an intense passion in a reasonable person. Ill. Rev. Stat. 1985, ch. 38, par. 9-2(a).
*1085 10 Our review of the record indicates that the trial court's ruling that Heredia's acts were intentional, not accidental or reckless, was proper and not against the manifest weight of the evidence. This is so particularly given the nature of the five gunshot wounds, Heredia's statement that he chased Laura, shot her, pulled her out of the closet and shot her again, and Lisa's testimony that she heard the opening and closing of the closet door, corroborating that Laura tried to escape his attack.
Lastly, Heredia argues that the court erred in allowing the admission of testimony regarding his alleged prior assault of his wife and conviction for taking indecent liberties with his daughter. We disagree.
During cross-examination of Heredia, the following questions were asked by the assistant State's Attorney and answered as follows:
"Q. During that period of time [1973-1978] did you ever physically abuse her [your wife]?
A. No.
Q. Did you in that period ever threaten your wife with a weapon?
A. No.
Q. Isn't it true that in 1977 you were arrested by the police for aggravated assault on a complaint signed by your wife?"
Defense counsel objected and the objection was sustained.
"Q. Do you recall being arrested in 1977?
A. Probably, but for aggravated assault?
Q. Did it concern a weapon?
A. I was arrested for what they call U.U.W. [unlawful use of a weapon].
Q. Did your wife sign a complaint?"
Defense counsel objected.
"A. I don't know. There was no charge. You want to go on with it?
Q. I will take it one step further. And the charges were subsequently dismissed in court. Isn't that correct?
A. A night in jail I guess if you want to look at it that way, yes. * * *
Q. When you were arrested for that gun, your wife was the complaining witness, wasn't she?"
Defense counsel objected.
11 Evidence of a defendant's prior misconduct may be admitted, *1086 in an appropriate case, if it is offered for a purpose other than to show the defendant's propensity to commit crime. Specifically, evidence of a defendant's prior acts of violence toward a victim has been admitted as proof of the defendant's intent at the time of the commission of the offense charged. People v. McCarthy (1989), 132 Ill.2d 331.
12 We find these questions appropriate because they were relevant to Heredia's disposition toward and relationship with his wife. Heredia argued that his actions were accidental or reckless. His testimony depicts Laura's actions during the marriage and culminating on December 16 as just provocation for his actions. The testimony as to his violence toward her is relevant to a determination of whether her death was more likely the result of an accident or violence. Accordingly, we find that the probative value of this evidence outweighed any prejudicial effect.
On cross-examination, Heredia was asked why he left the home in May 1984 and responded that he had pled guilty to taking indecent liberties with his child. In May 1984 Heredia was sentenced to four years of probation for taking indecent liberties with his daughter during the time period when she was 9 to 11 years old.
The subject matter of the charge was elicited on direct examination and the parties stipulated to the admission of a certified copy of the conviction. In addition, we conclude that these family circumstances shed light on the tension between the decedent and Heredia as well as her reasons for asking him to leave the home. Thus, the evidence was properly admitted.
Accordingly, we affirm the conviction and sentence of the circuit court.
Affirmed.
FREEMAN, P.J., and CERDA, J., concur.
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No. 12730
I N THE S P E E COURT O THE STATE O M N A A
URM F F OTN
1975
L L N J. FRANK,
EA D
P l a i n t i f f and Respondent,
-vs -
BURLINGTON NORTHERN, INC.,
Defendant and Appellant.
Appeal from: D i s t r i c t Court of t h e Thirteenth J u d i c i a l D i s t r i c t ,
Honorable Charles Luedke, Judge presiding.
Counsel of Record:
For Appellant :
Crowley, Kilbourne, Haughey, Hanson & Gallagher,
B i l l i n g s , Montana
Jack Ramirez argued, B i l l i n g s , Montana
For Respondent :
Michael J. Whalen argued, B i l l i n g s , Montana
Submitted: May 8, 1975
Decided J ~ 1L
8
- I sys
'tic
'975
Filed:. ~- -
M r . J u s t i c e Wesley C a s t l e s d e l i v e r e d t h e Opinion of t h e c o u r t .
This i s a n a p p e a l from a judgment f o r p l a i n t i f f Leland
J. Frank e n t e r e d i n t h e d i s t r i c t c o u r t , Yellowstone County, on
a j u r y v e r d i c t i n t h e amount of $20,000. P l a i n t i f f brought t h e
a c t i o n t o r e c o v e r damages f o r p e r s o n a l i n j u r i e s and p r o p e r t y damage
s u s t a i n e d when he drove h i s 1964 pickup t r u c k i n t o t h e s i d e of
t h e 24th c a r of a f r e i g h t t r a i n . P l a i n t i f f a l l e g e d negligence on
t h e p a r t of t h e r a i l r o a d and t h e r a i l r o a d r a i s e d t h e d e f e n s e of
c o n t r i b u t o r y negligence.
A t t h e c l o s e of p l a i n t i f f ' s c a s e , and a t t h e c l o s e of a l l
evidence, defendant moved f o r a d i r e c t e d v e r d i c t on t h e grounds
t h a t : ( a ) a s a matter of l a w negligence had n o t been proven, and
(b) a s a m a t t e r of law p l a i n t i f f was c o n t r i b u t o r i l y n e g l i g e n t .
Motions f o r a new t r i a l and judgment n o t w i t h s t a n d i n g t h e v e r d i c t ,
were denied.
The a c c i d e n t occurred a t a r a i l r o a d c r o s s i n g on R a i l r o a d
S t r e e t i n t h e c i t y of L a u r e l , Montana. I t occurred on a b i t t e r l y
c o l d e a r l y morning o f December 9, 1972, sometime between 12:30
and 2:00 a.m. Railroad S t r e e t runs e a s t and west, w h i l e t h e r a i l -
road t r a c k i n t e r s e c t s a t a northeast-southwest a n g l e . The t r a i n
was moving n o r t h e r l y ; t h e p l a i n t i f f ' s v e h i c l e n o r t h e a s t e r l y .
Railroad S t r e e t i n t h e v i c i n i t y of t h e c r o s s i n g h a s a
s l i g h t , g r a d u a l i n c l i n e s t a r t i n g approximately 400 f e e t west of
the crossing. The speed l i m i t i s 25 m i l e s p e r hour. The s t r e e t
a t t h a t time was covered w i t h packed snow and i c e . The f i e l d s on
e i t h e r s i d e of t h e s t r e e t were a l s o snow covered.
I n t h e l a s t 600 f e e t west of t h e c r o s s i n g , two s t r e e t
l i g h t s a r e l o c a t e d along t h e n o r t h s i d e of Railroad S t r e e t . A
mercury vapor l i g h t i s l o c a t e d a t t h e e a s t end of Railroad S t r e e t .
Another s t r e e t l i g h t i s l o c a t e d on a telephone p o l e approximately
t e n t o f i f t e e n f e e t from t h e n o r t h e a s t c o m e r of t h e c r o s s i n g . That
l i g h t was high enough t o be v i s i b l e t o a m o t o r i s t . It was l i g h t e d
t h e n i g h t of t h e a c c i d e n t .
A s t o o b s t r u c t i o n s , p l a i n t i f f t e s t i f i e d t h e r e were s o many
o b s t a c l e s t h a t he could n o t s e e t h e t r a i n u n t i l he g o t r i g h t t o i t .
However, t h i s testimony i s t o t a l l y r e f u t e d by evidence and t h e e x h i b i t s
On t h e a f t e r n o o n preceding t h e a c c i d e n t p l a i n t i f f had
d r i v e n t o B i l l i n g s w i t h h i s brother-in-law; he t e s t i f i e d he s p e n t
two hours i n ~ i n y ' sTavern and had two g l a s s e s of b e e r . He r e t u r n e d
t o h i s farm n e a r Park C i t y a t about 6:00 p.m. He l e f t h i s farm a t
about 7:30 p.m. and went t o h i s f a t h e r - i n - l a w ' s t a v e r n where he
s t a y e d u n t i l 11:30 p.m.; d u r i n g which time he admitted d r i n k i n g
seven g l a s s e s of b e e r . He then r e t u r n e d t o t h e home of h i s b r o t h e r -
in-law i n L a u r e l , where he remained f o r a p e r i o d of time b e f o r e
l e a v i n g t o d r i v e t o t h e O w l Cafe.
P l a i n t i f f t u r n e d onto Railroad S t r e e t from Yellowstone
Avenue about 600 f e e t west of t h e c r o s s i n g and proceeded towards
t h e c r o s s i n g a t 15 t o 25 m i l e s per hour w i t h h i s h e a d l i g h t s on
low beam. He d i d n o t observe t h e t r a i n c r o s s i n g i n f r o n t of him
u n t i l he was 30 f e e t from i t . He a p p l i e d h i s b r a k e s , b u t h i t a
yellow f r e i g h t c a r which was t h e 24th c a r from t h e f r o n t of t h e
train. A f t e r t h e a c c i d e n t , p l a i n t i f f walked t o t h e home of h i s
brother-in-law and r e p o r t e d i t t o t h e p o l i c e a t 2:00 a.m.
The Railroad a p p e a l s and s e t s f o r t h f o u r i s s u e s , b u t only
one combined i s s u e i s n e c e s s a r y f o r d i s p o s i t i o n of t h e c a s e . That
i s s u e is--- Was t h e r e any c r e d i b l e evidence t o s u s t a i n t h e v e r d i c t
t h a t defendant was n e g l i g e n t and whether, i n any e v e n t , p l a i n t i f f
was c o n t r i b u t o r i l y n e g l i g e n t a s a m a t t e r of law?
This Court has c o n s i s t e n t l y h e l d t h a t o r d i n a r i l y a t r a i n
moving over a c r o s s i n g i s e f f e c t i v e and adequate warning of i t s
presence, i n and of i t s e l f , without a d d i t i o n a l warning s i g n a l s .
J a w e l l a v. Northern P a c i f i c Ry. Co., 101 Mont. 102, 113, 53 P.2d 446;
I n c r e t v. Chicago, M.St.P. & P.R.Co., 107 Mont. 394, 86 P.2d 12;
Broberg v. Nor.Pac.Ry.Co., 120 Mont. 280, 289, 182 P.2d 851;
Dimich v. Northern Pac. Ry., 136 Mont. 485, 348 P.2d
786; Hernandez v. C.B. & Q. RR.Co., 144 Mont. 585, 398 P.2d 953.
I n Montana t h e only exception t o t h e g e n e r a l r u l e recognized
by t h e s e c a s e s i s t h a t a t a c r o s s i n g where, because of p e c u l i a r and
unusual f a c t s and circumstances and owing t o some p e c u l i a r environ-
ment r e n d e r i n g t h e s i t u a t i o n u n u s u a l l y hazardous, t h e r a i l r o a d
company may b e n e g l i g e n t i n f a i l i n g t o provide a d d i t i o n a l s a f e -
guards o r warnings o t h e r than t h e presence of t h e t r a i n s t a n d i n g on
o r p a s s i n g over t h e c r o s s i n g .
I n Broberg t h e Court d e s c r i b e d t h e exception i n t h i s
language :
''While i t i s t h e g e n e r a l r u l e t h a t i t i s n o t
negligence on t h e p a r t of a r a i l w a y company
i n f a i l i n g t o blow t h e locomotive w h i s t l e , r i n g
t h e b e l l , o r t o p l a c e warning l i g h t s along t h e
t r a i n where i t has stopped on an o r d i n a r y c r o s s i n g
o r where i t i s slowly moving t h e r e o v e r , o r t o
provide a flagman t o warn t h e t r a f f i c . such f a i l u r e
ky,under p e c u l i a r f a c t s and circumsfances o r under
e c u l i a r environments r e n d e r i n g t h e s i t u a t i o n u n u s u a l l y
f a z a r d o u s , r e n d e r t h e company l i a b l e f o r negligence. ***
11
The q u e s t i o n a s t o whether o r n o t t h e c r o s s i n g
involved i n t h i s a c t i o n was extrahazardous r e s o l v e s
i t s e l f , under t h e r u l e approved by t h i s c o u r t i n
t h e J a r v e l l a c a s e t o t h i s : Were t h e r e p r e s e n t f o r
t h e determination of t h e j u r y any p e c u l i a r o r unusual
f a c t s and circumstances o r any p e c u l i a r environment
r e n d e r i n g t h e s i t u a t i o n u n u s u a l l y hazardous. I I
Here, t h e q u e s t i o n i s r e a l l y whether t h e r e was any sub-
s t a n t i a l c r e d i b l e evidence of any p e c u l i a r environment r e n d e r i n g
t h e s i t u a t i o n u n u s u a l l y hazardous.
I n Graham v. Rolandson, 150 Mont. 270, 283, 435 P.2d 263,
t h i s Court explained s u b s t a n t i a l c r e d i b l e evidence i n t h i s language:
II
S u b s t a n t i a l c r e d i b l e evidence s u f f i c i e n t
t o warrant submission of t h e i s s u e of c o n t r i b u t o r y
negligence t o t h e j u r y i s governed by t h e same
r u l e s t h a t a r e used i n determining t h e s u f f i c i e n c y
of t h e evidence t o support a v e r d i c t on t h a t i s s u e .
S u b s t a n t i a l c r e d i b l e evidence i n t h a t r e g a r d simply
means such evidence a s w i l l convince r e a s o n a b l e men
and on which such men may n o t reasonably d i f f e r
as t o whether i t e s t a b l i s h e s t h e v e r d i c t on t h a t
i s s u e ; i f a l l r e a s o n a b l e men must conclude t h a t t h e
evidence does n o t e s t a b l i s h t h e v e r d i c t on t h a t i s s u e ,
then i t i s n o t A s u b s t a n t i a levidence..
. [Citing cases) A coroi
s t o r y of a w i t n e s s h i g h l y improbable o r i n c r e d i b l e , o r
A s i n d i c a t e d i n Graham, whenever t h e surrounding circum-
s t a n c e s make t h e s t o r y of w i t n e s s e s h i g h l y improbable o r i n c r e d i b l e ,
o r whenever t h e i r testimony i s i n h e r e n t l y impossible, such evidence
i s not "substantial1'. The l e a d i n g c a s e supporting t h i s p r i n c i p l e
i s Casey v. Northern P a c i f i c Ry. Co., 60 Mont. 56, 66-69, 198 P. 141,
followed and c i t e d i n numerous d e c i s i o n s of t h i s Court. I t s language
i s p a r t i c u l a r l y appropriate here:
"Counsel f o r p l a i n t i f f i n s i s t t h a t t h e evidence
i s c o n f l i c t i n g , and, s i n c e t h e j u r y found upon
t h e i s s u e s and t h e lower c o u r t denied a new t r i a l ,
t h i s c o u r t i s without a u t h o r i t y t o i n t e r f e r e b u t t h e
p r i n c i p a l c o n f l i c t s a r i s e upon t h e p l a i n t i f f 1 s own
testimony, r a t h e r than i n t h e testimony of opposing
w i t n e s s e s . Of t h e testimony of t h e w i t n e s s e s f o r
defendant i t i s s u f f i c i e n t t o s a y t h a t i t i s harmonious,
and reasonable and c o n s i s t e n t w i t h p h y s i c a l f a c t s , b u t
t h e j u r y d i s r e g a r d e d i t a l t o g e t h e r and must have based
t h e v e r d i c t s o l e l y upon t h e surmises, t h e guesses and
e s t i m a t e s of t h e p l a i n t i f f .
"It i s t h e g e n e r a l r u l e t h a t an o r d e r denying a
new t r i a l upon t h e ground t h a t t h e evidence i s i n -
s u f f i c i e n t t o s u s t a i n t h e v e r d i c t w i l l n o t be r e v e r s e d
where t h e evidence i s c o n f l i c t i n g , i f t h e r e i s some
evidence t o support t h e v e r d i c t ; b u t t h e r u l e has i t s
foundation i n t h e assumption t h a t t h e c o n f l i c t i s r e a l
and t h e s u p p o r t i n g evidence i s s u b s t a n t i a l .
"1n D r i s c o l l v. Market S t r e e t Cable Ry. Co., 97 Cal.
553, 33 Am.St.Rep.2031 32 Pac. 591, t h e supreme c o u r t
of C a l i f o r n i a s a i d : When a j u r y c a t c h e s a t a semblance
o r p r e t e n s e of evidence f o r t h e purpose of somewhat
e q u a l i z i n g f i n a n c i a l c o n d i t i o n s by t a k i n g money away
from one p a r t y and g i v i n g i t t o t h e o t h e r without l e g a l
c a u s e , t h e t r i a l judge should,without h e s i t a t i o n , s e t
t h e v e r d i c t a s i d e ; and i n t h e event of h i s n o t doing s o ,
t h i s c o u r t w i l l g r a n t a new t r i a l . 1
11
P r i m a r i l y , i t i s t h e province of t h e j u r y t o pass upon
t h e c r e d i b i l i t y of t h e w i t n e s s e s and t h e weight t o be
given t o t h e i r testimony, b u t t h e determination of t h e
j u r y i s n o t c o n c l u s i v e . I n s u f f i c i e n c y of t h e evidence
i s a s t a t u t o r y ground f o r a motion f o r a new t r i a l
*** and i n p a s s i n g upon t h e motion i t i s t h e duty
of t h e t r i a l c o u r t t o weigh t h e evidence, and, i f i t
i s n o t s u f f i c i e n t t o s u s t a i n t h e v e r d i c t , a new t r i a l
should b e ordered (Mullen v. C i t y o f B u t t e , 37 Mont.
183, 95 Pac. 597), and, i f i t i s n o t , t h e a p p e l l a t e
c o u r t must then determine whether t h e r e i s s u b s t a n t i a l
evidence t o warrant t h e v e r d i c t and w i l l n o t a b d i c a t e i t s
a u t h o r i t y i n f a v o r of t h e j u r y ' s f i n d i n g s . J u r o r s a r e
s u b j e c t t o t h e o r d i n a r y i n f i r m i t i e s of human n a t u r e , and
c a s e s a r e sometimes presented wherein j u s t i c e would be
denied i f t h e c o u r t s f a i l e d t o i n t e r f e r e .
" e a r e n o t unmindful of t h e advantageous p o s i t i o n
W
occupied by t h e j u r y and t h e lower c o u r t i n having
t h e w,tnesses b e f o r e them, i n h e a r i n g them t e s t i f y ,
and observing t h e i r demeanor; b u t , though t h e appear-
ance of a w i t n e s s i s an a i d i n judging h i s c r e d i b i l i t y ,
i t i s n o t an i n f a l l i b l e one. Dissimulation i s o f t e n
d i f f i c u l t t o d e t e c t , and falsehood i s o f t e n c l o t h e d i n
t h e garb of t r u t h . Whenever t h e surrounding circum-
s t a n c e s make t h e s t o r y of a w i t n e s s h i g h l y improbable
o r i n c r e d i b l e , o r whenever t h e testimony i s i n h e r e n t l y
impossible, a new t r i a l should b e ordered. P h y s i c a l
c o n d i t i o n s may p o i n t so u n e r r i n g l y t o t h e t r u t h a s t o
l e a v e no room f o r a c o n t r a r y conclusion based on
reason o r common s e n s e , and under such circumstances
t h e p h y s i c a l f a c t s a r e n o t a f f e c t e d by sworn testimony
which i n mere words c o n f l i c t s w i t h them. ***
"The c o r o l l a r y of t h e f i r s t r u l e above i s s t a t e d
c o g e n t l y i n McAllister v. McDonald, 40 Mont. 375,
106 Pac. 882. It was t h e r e h e l d t h a t t h e supreme
c o u r t i s n o t a u t h o r i z e d t o a f f i r m an o r d e r denying
a new t r i a l : ( a ) Where t h e evidence tending t o support
t h e v e r d i c t i s an i s o l a t e d statement of a w i t n e s s
which i s i n c o n f l i c t w i t h h i s o t h e r s t a t e m e n t s ; o r
(b) when t h e v e r d i c t i s c o n t r a r y t o t h e g r e a t weight
of t h e evidence, and t h e evidence which t e n d s t o
s u s t a i n t h e v e r d i c t i s impeached o r rendered i m -
probable by conceded f a c t s , o r i s a g a i n s t a l l reason-
a b l e i n f e r e n c e s o r p r o b a b i l i t i e s of t h e c a s e ; o r ( c )
when t h e v e r d i c t , though supported by some evidence,
i s s o u t t e r l y a t v a r i a n c e w i t h t h e r e a l and unex-
p l a i n e d f a c t s t h a t t h e c o u r t can s a y t h a t i t i s c l e a r l y
wrong.
"The r u l e has been s t a t e d r e p e a t e d l y i n t h i s j u r i s -
d i c t i o n t h a t a c o u r t may r e j e c t t h e most p o s i t i v e
testimony, though t h e w i t n e s s be n o t d i s c r e d i t e d by
d i r e c t evidence impeaching him o r c o n t r a d i c t i n g h i s
s t a t e m e n t s . The i n h e r e n t i m p r o b a b i l i t y of h i s s t o r y
may deny a l l c l a i m s t o r e s p e c t . * * * The c r e d u l i t y
of c o u r t s i s n o t t o be deemed commensurate w i t h t h e
f a c i l i t y o r vehemence w i t h which a w i t n e s s swears.
I
It i s a wild c o n c e i t t h a t any c o u r t of j u s t i c e i s
bound by mere swearing. I t i s swearing c r e d i t a b l y
t h a t i s t o conclude i t s judgment. I [ C i t a t i o n s o m i t t e d ] .
I1
In his testimony given upon the trial of this case
the plaintiff contradicted himself repeatedly; con-
tradicted the allegations of his verified complaint; was
contradicted by his previous statements, by the physical
facts, by every one of defendant's witnesses, and by
his own witness, Marchington. Some of his declarations
are toq transparent to be entitled to credence, are
improbable upon any supposition short of actual mental
imbecility.
"Plaintiff contented himself with giving estimates
and demonstrated that he was without capacity for
judging distances, or deliberately colored his testi-
mony to meet the supposed exigencies of his case. I I
(Emphasis supplied.)
The most recent case concerning the subject of extra-
hazardous crossings is Hernandez v. C.B.& Q. RR.Co., 144 Mont.
585, 398 P.2d 953. That case is controlling here. In Hernandez
the Court impliedly criticized its previous decisions in Broberg
and Dimich, indicating that some of the factors considered in
those cases would not necessarily be considered again in deter-
mining whether an extrahazardous crossing existed. In Hernandez,
the plaintiff's decedent was a passenger in an automobile which
struck the side of a moving freight train at a railroad crossing
near Hardin. The crossing was a spur line which was used season-
ally during the sugar beet harvest. The train was made up of
thirty dark colored, rust-red cars; the automobile struck the
27th car of the train. The accident occurred on an 11unusually
dark'' night. The train was moving about ten miles per hour,
at the time of the accident and the driver of decedent's car
observed the train at a distance of about 200 yards but was un-
able to stop. At the conclusion of evidence, the district court
granted defendant's motion for dismissal and this Court affirmed.
In Hernandez, the speed limit for traffic approaching
the crossing was 55 miles per hour. Here, the speed limit was
25 miles per hour. The distances required for unobstructed view
of the tracks can be reduced accordingly. Photographs show,
without question, that the view of the crossbuck, the crossing,
and t h e t r a c k , was completely unobstructed f o r t h e l a s t s e v e r a l
hundred f e e t f o r eastbound t r a f f i c approaching t h e c r o s s i n g .
I n a d d i t i o n , Railroad S t r e e t i s p r a c t i c a l l y l e v e l , and t h e s l i g h t
i n c l i n e s t a r t s approximately 400 f e e t west of t h e c r o s s i n g . Once
p l a i n t i f f ' s v e h i c l e was w i t h i n 400 f e e t of t h e c r o s s i n g , h i s
v e h i c l e was on t h e i n c l i n e and h i s l i g h t s would show along t h e
i n c l i n e i n t h e same manner a s i f t h e s t r e e t was p e r f e c t l y l e v e l .
Furthermore, t h e r e i s even more reason i n t h i s c a s e than i n
Hernandez f o r a f i n d i n g a s a m a t t e r of law t h a t an extrahazardous
crossing did not e x i s t . I n Hernandez, t h e s u r f a c e of t h e road
w a s b l a c k t o p and t h e p l a i n t i f f s t r u c k a d a r k , r u s t c o l o r e d b e e t
car. I n a d d i t i o n , t h e r e was n o t a s t r e e t l i g h t a t t h e c r o s s i n g
i n Hernandez, a s i n t h e i n s t a n t case.
Thus, t h e r e was n o t s u b s t a n t i a l c r e d i b l e evidence t o
support t h e j u r y v e r d i c t .
A d d i t i o n a l l y , h e r e t h e p l a i n t i f f was c o n t r i b u t o r i l y neg-
l i g e n t a s a m a t t e r of law. He d i d n o t observe t h e t r a i n u n t i l
he was 30 f e e t away, although he t e s t i f i e d h i s l i g h t s were i n
good c o n d i t i o n . He d i d n o t observe t h e crossbuck, although h i s
view was completely unobstructed. He c l e a r l y f a i l e d t o keep a
proper lookout. The c o n d i t i o n of t h e s t r e e t , t h e time of day,
and o t h e r f a c t o r s show c l e a r l y t h a t p l a i n t i f f was n o t d r i v i n g
i n a prudent manner. He was c i t e d f o r d r i v i n g too f a s t f o r e x i s t i n g
conditions. Although he denied having e n t e r e d a g u i l t y p l e a t o
t h a t charge, t h e r e c o r d s r e v e a l t h a t a p l e a of g u i l t y was made.
But, even without t h a t , t h e f a c t s r e v e a l p l a i n t i f f g u i l t y of
c o n t r i b u t o r y negligence a s a m a t t e r of law. Monforton v. Northern
P a c i f i c Ry., 138 Mont. 191, 355 P.2d 501.
The judgment of t h e d i s t r i c t c o u r t i s r e v e r s e d and t h e
cause dismissed.
/-
-- W e concur: ,
Justices. 1
| {
"pile_set_name": "FreeLaw"
} |
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1208V
Filed: October 16, 2018
UNPUBLISHED
MICHAEL NAPOLITANO,
Special Processing Unit (SPU);
Petitioner, Damages Decision Based on Proffer;
v. Influenza (Flu) Vaccine; Guillain-
Barre Syndrome (GBS)
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Brenton Aaron Elswick, Maglio Christopher & Toale, PA, Washington, DC, for petitioner.
Jennifer Leigh Reynaud, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On September 7, 2017, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the
“Vaccine Act”). Petitioner alleges that he suffered Guillain-Barré Syndrome (“GBS”) as
a result of an influenza (“flu”) vaccine he received on September 22, 2016. Petition at 1.
The case was assigned to the Special Processing Unit of the Office of Special Masters.
On August 6, 2018, a ruling on entitlement was issued, finding petitioner entitled
to compensation for his GBS injury. On October 12, 2018, respondent filed a proffer on
award of compensation (“Proffer”) indicating petitioner should be awarded $152,417.48,
including $150,000.00 in actual and projected pain and suffering and $2,417.48 in past
unreimbursable expenses. Proffer at 1-2. In the Proffer, respondent represented that
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to
identify and move to redact medical or other information, the disclosure of which would constitute an
unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
petitioner agrees with the proffered award. Based on the record as a whole, the
undersigned finds that petitioner is entitled to an award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, the undersigned awards
petitioner a lump sum payment of $152,417.48 in the form of a check payable to
petitioner, Michael Napolitano. This amount represents compensation for all
damages that would be available under § 300aa-15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision.3
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
MICHAEL NAPOLITANO,
Petitioner, No. 17-1208V
v. Chief Special Master Dorsey
ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
PROFFER ON AWARD OF DAMAGES
On September 7, 2017, Michael Napolitano (“petitioner”) filed a petition for compensation
(“Petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34
(“Vaccine Act” or “Act”), as amended. Respondent conceded petitioner’s entitlement to compensation
in his Rule 4(c) Report filed on August 3, 2018. Based on Respondent’s Rule 4(c) Report the Chief
Special Master found petitioner entitled to compensation.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that petitioner should be awarded $150,000.00 in actual and projected pain
and suffering. This amount reflects that any award for projected pain and suffering has been reduced to
net present value. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.
B. Past Unreimbursable Expenses
Evidence supplied by petitioner documents his expenditure of past unreimbursable expenses
related to his vaccine-related injury. Respondent proffers that petitioner should be awarded past
unreimbursable expenses in the amount of $2,417.48. Petitioner agrees.
1
II. Form of the Award
Respondent recommends that the compensation provided to petitioner should be made through a
lump sum payment of $152,417.48, in the form of a check made payable to petitioner. 1 This lump sum
payment represents all elements of compensation to which petitioner would be entitled under 42 U.S.C.
§ 300aa-15(a). Petitioner agrees.
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Assistant Director
Torts Branch, Civil Division
s/Jennifer L. Reynaud
JENNIFER L. REYNAUD
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel: (202) 305-1586
Date: October 12, 2018
1
Should petitioner die prior to the entry of judgment, the parties reserve the right to move the Court for
appropriate relief. In particular, respondent would oppose any award for future medical expenses, future
lost earnings, and future pain and suffering.
2
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67 Cal.Rptr.3d 347 (2007)
156 Cal.App.4th 359
Gary LEWIS, as Personal Representative, etc., Plaintiff and Appellant,
v.
ROBINSON FORD SALES, INC., Defendant and Respondent.
No. D049315.
Court of Appeal of California, Fourth District, Division One.
September 28, 2007.
*348 Rosner & Mansfield, Hallen D. Rosner and Christopher P. Barry, San Diego, for Plaintiff and Appellant.
Winet, Patrick & Weaver and Catherine A. Gayer, Palm Springs, for Defendant and Respondent.
HUFFMAN, J.
Plaintiff and appellant Robert Cornell (plaintiff) brought this action against Robinson Ford (defendant), alleging violation of California's Automobile Sales Finance Act (ASFA; Civ.Code, § 2981 et seq.; all further statutory references are to this code unless otherwise stated).[1] Additionally, he claims the Consumer Legal Remedies Act (CLRA; § 1750 et seq.) and the Unfair Competition Law (UCL; Bus. & Prof.Code, § 17200 et seq.) were violated by way of the predicate ASFA nondisclosure violations. Plaintiffs vehicle purchase contract from defendant allegedly misrepresented the actual purchase/financed price of the new vehicle, by improperly calculating it with respect to the actual cash value of his other vehicle that was traded in as part of the transaction, but on which he still owed a larger loan balance. (In such case, the existing loan value on the vehicle that was traded in exceeds its current cash value; see Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 50 Cal.Rptr.3d 273.) The purpose of such a practice is allegedly to make the purchase contract more attractive to lenders who may consider taking assignment of the contract, or to achieve a certain monthly payment for the customer.
Plaintiff brought a motion for certification of the proposed class, which he defined as including "All persons who, since December 28, 2000, purchased a vehicle from ... Robinson Ford Sales by entering into a Retail Installment Sales Contract (`RISC') and had the cash price of the vehicle being purchased increased on line 1.A.1 of the RISC to cover some or all of the over-allowance (`the difference in the amount owed and the actual cash value of a trade-in vehicle') and Robinson Ford failed to properly disclose the prior credit or lease balance owing on [the trade-in on] line l.G of the RISC." Plaintiff argued this proposed class was sufficiently ascertainable, there was a well-defined community of interest, and there were common questions of law and fact among the members of the class. (CRLA, § 1781, subd. (b); Code Civ. Proc, § 382.)
Defendant opposed the motion on all grounds, chiefly arguing that the class was not ascertainable, there was no community of interest among class members, nor any sufficient evidence as to numerosity, plaintiff Cornell was not typical of the class members, and his successor Lewis could not adequately represent the class.
The trial court denied the motion on the basis that there was no ascertainable class. At oral argument, it commented, "I do think that each case would have to be litigated separately with regard to areas of fraud and punitive damages." (§§ 1780, *349 subd. (a)(2), 1781(a) [permitting punitive damages awards under the CRLA].)
Plaintiff appeals, contending the subject statutory schemes amount to strict liability provisions for certain nondisclosures, such that any consideration of individualized common law fraud or punitive damages issues was inappropriate in the class certification decision. He contends all of the criteria for class certification were satisfied, and no superior method to obtain complete relief for the class was available outside of a class-wide basis. Discovery has shown there are approximately 450 putative class members who were all involved in similar transactions involving adjusted cash prices, and those transactions could be generally analyzed through the available sales documentation in defendant's records.
We agree that plaintiff has made an adequate showing for certification of the proposed class, and the trial court erred in concluding otherwise. The order is reversed with directions to grant the motion to certify the class and to conduct appropriate further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
A
Transactions and Participants
On August 14, 2003, Cornell purchased a new Ford truck at defendant's automobile dealership in Calexico, California. At that time, he traded in a 2002 Honda vehicle on which he still owed $24,305, although the cash value of the Honda was only $16,000. The seller credited the buyer with $26,305 for the trade-in value of the Honda, and increased the cash price of the vehicle being purchased accordingly in the purchase contract. (There were other terms that are not relevant here, such as an additional down payment/trade-in.) Cornell had mechanical difficulties with the new truck and pursued Lemon Law remedies, and eventually returned it to defendant.
Based on the trade-in of the Honda, the cash price charged to Cornell for his new truck was not the cash price that would have been put on his contract if he were a cash buyer pursuant to the ASFA, section 2982, subdivision (e). He took possession of the Ford truck in Arizona and was not required to pay any sales tax on the vehicle. He registered it in his home state of Oregon, where residents pay a flat rate for registration of a vehicle, such that the expense of registration was not calculated on the cash price of the vehicle.
B
Complaint and Motion: Proposed Class Defendants
Plaintiffs action was filed in November 2004 against defendant dealer and also Ford Motor Company, and pled statutory causes of action for inadequate disclosures under the ASFA, and related claims under the CLRA and the UCL (unlawful or unfair business practices). The CRLA allegations referred to deceptive practices through the selling of vehicles over the advertised price. (§§ 1770, subd. (a); 1710.) Various forms of relief were sought, including actual and consequential damages, rescission and restitution, and further, punitive damages under the CRLA only.[2] The class allegations were added after the original plaintiff died in 2005, his personal representative was substituted, *350 and an existing trial date was vacated.
Before summarizing plaintiffs statutory arguments, we look to the definitions of the relevant terms as explained by this court in Thompson v. 10,000 RV Sales, Inc. (2005) 130 Cal.App.4th 950, 958, 966-972, 977, 31 Cal.Rptr.3d 18 (Thompson). An over-allowance in this context is the difference between the appraised or actual cash value of a trade-in, and the amount put on the RISC as the agreed-upon value of the vehicle. "Negative equity in a sales transaction involving a trade-in vehicle results when the loan balance on the buyer's trade-in vehicle is greater than its value." (Ibid.)
The operative complaint is the second amended complaint (the complaint), alleging that defendant commonly entered into RISCs with consumers in which defendant rolled some or all of the over-allowance from a trade-in into the cash price of the vehicle being purchased.[3] This practice usually took the form of failure to disclose prior credit or lease balances on the tradein vehicles. Plaintiff contends that where, as here, the buyer's negative equity is concealed in the cash price by the inclusion of an over-allowance for a trade-in, the proper statutory disclosures of the actual cash price were not made, the buyer/consumer may potentially pay higher amounts of sales tax and higher registration fees because of the "rolled" negative equity, and the contract may be unenforceable by statute. (§§ 2983, 2983.1.)[4] Plaintiff contends defendant "misrepresented and misstated the `cash price'" of the new vehicle, which was a violation of ASFA disclosure requirements in several respects, and therefore was also a violation of the CLRA and/or UCL.
Plaintiff (through the representative for Cornell) brought a motion for class certification, proposing a class of those persons who, since December 28, 2000, had entered into a RISC with defendant, which included the following components: (1) the cash price of the vehicle being purchased was increased in the RISC to cover some or all of the over-allowance ("the difference in the amount owed and the actual cash value of a trade-in vehicle"), and (2) the prior credit or lease balance owing on the tradein was not properly disclosed on the RISC. Plaintiff argued the claims in the complaint could be appropriately litigated in a class action under the ASFA, and in accordance with the class action criteria set forth in the CRLA. (§ 1781, subd. (b).)
In plaintiffs attorney's supporting declarations, deposition excerpts from defendant's sales manager and employees were incorporated to demonstrate that pursuant to defendant's records, there were approximately *351 450 purchase contracts that might represent potential class members. Such transactions were documented in deal jackets that normally included a RISC, a "recap deal" sheet, the vehicle invoice, or related documents, from which the overallowance could be calculated. Plaintiff submitted a proposed notice of pendency of class action, defining the class as outlined above.
Defendant opposed the motion, arguing that even though it had processed numerous purchase transactions in this manner, a class action was nevertheless inappropriate, because the proposed class was not ascertainable and the necessary community of interest among class members was lacking. Defendant referred to the individualized negotiations that each potential class member must have conducted in purchasing a vehicle and arranging for a trade-in, and claimed proper disclosures had been made orally in some cases. Defendant also argued there was insufficient evidence as to numerosity, Cornell was not typical of the class members, his successor Lewis could not adequately represent the class, and the motion should have been brought earlier in the proceedings. In reply, plaintiff maintained that all of the elements for class certification were satisfied.
C
Ruling
At oral argument before the trial court, the parties discussed the criteria to be used in deciding a motion for class certification. Defendant contended that even if there were common issues regarding potential statutory violations under the ASFA, there were still reasons to deny the class certification because each potential plaintiffs case would have to be litigated separately with regard to how the deal was negotiated, particularly with regard to potential violations of CLRA, which could result in punitive damages awards. In response, plaintiff argued the various form contracts could be analyzed in like manner for whether they properly disclosed the negative equity represented by a trade-in vehicle, as opposed to inflating the supposed sale price. Plaintiff contended there was no fraud or tort cause of action pled, but rather allegations of deceptive business practices under the standards of the ASFA, which did not involve any punitive damages claims. Even though punitive damages were potentially available under the CRLA, that should not preclude class treatment because the merits of the underlying statutory violations alleged had not yet been resolved.
The court based its tentative ruling primarily on a finding that the class was not ascertainable. Although the court questioned whether plaintiff, the personal representative of Cornell, would be an adequate representative of the class (since the facts of Cornell's particular transaction had not required him to pay any increased sales tax or registration fees that were based on an inflated sale price), the court did not consider that to be a dispositive factor. Rather, the court stated, "each case would have to be litigated separately with regard to areas of fraud and punitive damages." The court concluded by stating, "I think you would have testimony forthcoming to a jury, particularly in the area of punitive damages, and under those circumstances I just don't find that we have an ascertainable class that would be represented by Mr. Cornell's factual situation. ..."
The trial court issued an order denying class certification. The ruling states "Court finds there is no ascertainable class. Motion for class certification is denied." Plaintiff appeals.
*352 DISCUSSION
We first set out the standard of review and principles governing class certification rulings. We then consider the merits of the ruling with respect to the different statutory schemes pled.
I
STANDARD OF REVIEW AND GENERAL CLASS ACTION RULES
Trial courts are normally afforded great discretion in granting or denying certification. (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1106, 131 Cal.Rptr.2d 1, 63 P.3d 913 (Lockheed Martin).) If a trial court ruling is supported by substantial evidence, it normally will not be overturned "`"unless (1) improper criteria were used [citation]; or (2) erroneous legal assumptions were made [citation]" [citation].... "Any valid pertinent reason stated will be sufficient to uphold the order.'" [Citation.]" (Sav-on Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 327, 17 Cal.Rptr.3d 906, 96 P.3d 194 (Sav-On Drug.))
In determining class certification questions, the courts do not decide the merits of the case, but must focus on whether common or individual questions are likely to arise in the action. "[I]n determining whether there is substantial evidence to support a trial court's certification order, we consider whether the theory of recovery advanced by the proponents of certification is, as an analytical matter, likely to prove amenable to class treatment." (Sav-on Drug, supra, 34 Cal.4th at p. 327, 17 Cal.Rptr.3d 906, 96 P.3d 194.) "`Reviewing courts consistently look to the allegations of the complaint and the declarations of attorneys representing the plaintiff class to resolve: this question.'" (Id. at p. 327, 17 Cal.Rptr.3d 906, 96 P.3d 194.)
The criteria for class certification are well established. `"Section 382 of the Code of Civil Procedure authorizes class suits in California when "the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court." The burden is on the party seeking certification to establish the existence of both an ascertainable class and a well-defined community of interest among the class members.' [Citation.]" (Lockheed Martin, supra, 29 Cal.4th at pp. 1103-1104, 131 Cal.Rptr.2d 1, 63 P.3d 913.)
Also as outlined in Lockheed Martin, "`The community of interest requirement [for class certification] embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.' [Citation.] Plaintiffs acknowledge it is their burden to establish the requisite community of interest and that `the proponent of certification must show, inter alia, that questions of law or fact common to the class predominate over the questions affecting the individual members.' [Citation.]" (Lockheed Martin, supra, 29 Cal.4th at p. 1104, 131 Cal.Rptr.2d 1, 63 P.3d 913.)
In addition to demonstrating the necessary community of interest among class members, the proponent of the class must show that the predominant common issues of law and fact can be effectively managed in a class action:
"We long ago recognized `that each class member might be required ultimately to justify an individual claim does not necessarily preclude maintenance of a class action.' [Citation.] Predominance is a comparative concept, and `the necessity *353 for class members to individually establish eligibility and damages does not mean individual fact questions predominate.' [Citations.] Individual issues do not render class certification inappropriate so long as such issues may effectively be managed. [Citations.] [¶] Nor is it a bar to certification that individual class members may ultimately need to itemize their damages. We have recognized that the need for individualized proof of damages is not per se an obstacle to class treatment. [Citations.]" (Sav-on Drug, supra, 34 Cal.4th at pp. 334-335, 17 Cal.Rptr.3d 906, 96 P.3d 194.)
Such practical considerations are left to the discretion of the trial courts, which are "`ideally situated to evaluate the efficiencies and practicalities of permitting group action....'" (Lockheed Martin, supra, 29 Cal.4th at p. 1106, 131 Cal.Rptr.2d 1, 63 P.3d 913.) For example, trial courts can fashion methods to manage individual questions that are "`procedurally innovative' [citation]." (Sav-on Drug, supra, 34 Cal.4th at p. 339, 17 Cal.Rptr.3d 906, 96 P.3d 194; see also In re Cipro Cases I & II (2004) 121 Cal.App.4th 402, 410, 17 Cal. Rptr.3d 1 ["`The ultimate question in every case of this type is whether ... the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants'. The trial court must `carefully weigh respective benefits and burdens and ... allow maintenance of the class action only where substantial benefits accrue both to litigants and the courts'"].)
In Feitelberg v. Credit Suisse First Boston, LLC (2005) 134 Cal.App.4th 997, 1015, 36 Cal.Rptr.3d 592, the court clarified that a UCL claim may be properly subject to treatment as a class action "`when the statutory requirements of section 382 of the Code of Civil Procedure are met.' [Citation.] That authority is now explicit in the amended statute, which authorizes the pursuit of `representative claims or relief on behalf of others' provided that the claimant `complies with Section 382 of the Code of Civil Procedure....'" (Ibid, [of the three varieties of unfair competition established by section 17200, plaintiff mainly asserts the unlawful prong, based on the other alleged statutory violations].)
II
STATUTORY SCHEMES FOR RECOVERY; ANALYSIS
We next consider whether the theories of recovery that plaintiff is pursuing are analytically appropriate for class treatment. (Sav-on Drug Stores, supra, 34 Cal.4th at p. 328, 17 Cal.Rptr.3d 906, 96 P.3d 194.) Both an ascertainable class and a well-defined community of interest among the class members are required, including predominant common legal and factual questions, as well as adequate representation of typical claims by the class representative. (Lockheed Martin, supra, 29 Cal.4th at pp. 1103-1104, 131 Cal. Rptr.2d 1, 63 P.3d 913.) If such statutory causes of action could properly be handled in a class format, we also must examine the trial court ruling to determine whether the court relied on improper criteria or made erroneous legal assumptions. (Sav-On Drug Stores, supra, at pp. 326-327, 17 Cal.Rptr.3d 906, 96 P.3d 194.)
In Thompson, supra, 130 Cal.App.4th at p. 971, 31 Cal.Rptr.3d 18, this court found violations of the ASFA where the dealer had utilized an over-allowance on a tradein vehicle in a credit transaction in order to increase the cash price over that which would have been paid by a cash customer, *354 but without the proper disclosures. This court held that inclusion of this over-allowance was a condition of credit requiring disclosure.
Here, the trial court's ruling focused on the ascertainable class issue, by apparently giving undue credit, to the defense argument that since various customers had engaged in individual negotiations, regarding the purchase price and trade-in value, individual fraud issues must be predominant, along with punitive damages questions. To the extent the trial court was concerned with punitive damages, that reasoning could only apply to the CLRA claim (§§ 1780, subd. (a)(2), 1781, subd. (a)), and would have no application to the ASFA or UCL theories. In any case, those were not appropriate considerations for determining ascertainability of the class regarding the issues raised on statutory disclosure standards. Rather, to determine the identity of potential class members, the court will look to whether there are any objective criteria to describe them and whether they can be found without unreasonable expense or effort through business or official records. (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 706, 63 Cal.Rptr. 724, 433 P.2d 732; Rose v. City of Hayward (1981) 126 Cal.App.3d 926, 932, 179 Cal.Rptr. 287.)
Also, the other major class criteria regarding community of interest (predominant common questions of law and fact), referred to at the trial court hearing were discussed in terms only of potentially different damages for different customers from increased sales tax or registration fees. At that time, plaintiff was arguing any such problems could be dealt with through subclasses, although on appeal, that issue is not discussed by the parties.
In any case, the record supports a conclusion that plaintiffs proposed class definition was workable in light of the common issues. Plaintiffs theory is that the mandatory disclosures required by the ASFA regarding the purchase price of the subject vehicle are analogous to a strict liability provision, and individualized proof of reliance or financial harm to the customer is therefore not required for liability. (§ 2983; Thompson, supra, 130 Cal. App.4th at pp. 966-967, 978, 31 Cal. Rptr.3d 18.) The core factual issues are whether the cash price of the vehicle being purchased included an over-allowance for a trade-in or leased vehicle, without adequate written disclosures. The resulting legal questions to be resolved are whether this failure to disclose negative equity on the RISC violates the ASFA, as a matter of statutory interpretation and contract construction. If plaintiffs prevail, under sections 2983 and 2983.1, remedies are provided that can be calculated for each class member. (See fn. 4, ante.)
These chief allegations are properly amenable to class treatment, due to predominant common questions of law and fact, because the existence of any statutory violations may be determined by examining the face of the records provided by defendant, with regard to the 450 potentially subject transactions identified through discovery. Each of those transactions can be evaluated through the deal jacket, which includes the RISC, the "recap deal" sheet for each transaction, and sometimes the vehicle invoice or other documents. That evidence was undisputed. Under Thompson, supra, 130 Cal.App.4th at pages 966-967, 969-972, 977-978, 31 Cal.Rptr.3d 18, the subject ASFA disclosure requirements are mandatory, and an otherwise proper class certification should not be defeated through arguments that some customers were verbally told about the adjusted cash prices for the vehicle. (§§ 2982, subd. (a), 2983.) Contrary to the apparent view of the trial court, plaintiff is not seeking to prove common law fraud in the individual transactions. (See Massachusetts *355 Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th 1282, 1292, 119 Cal.Rptr.2d 190 [CRLA claims do not require individualized proof of causation of injury from a deceptive practice].)
Likewise, any related UCL allegations are not dependent on a finding of separate instances of fraud, because the business transactions here could still qualify as unlawful or likely to deceive the public, through any proven violations of the ASFA. (Bus. & Prof.Code, § 17200.)
Regarding the possibility of punitive damages awards under CRLA, it was premature for the trial court to consider that issue with respect to class certification, because the merits of the statutory claims had not yet been resolved. (§§ 1780, subd. (a)(2), 1781, subd. (a).) Also, the fact that punitive damages are pled will not i alone bar class certification. (Richmond v. Bart Industries, Inc. (1981) 29 Cal.3d 462, 477,174 Cal.Rptr. 515, 629 P.2d 23.) Even though defendant was denying the existence of any fraudulent intent, those equitable considerations are not dispositive of the statutory claims at the class certification stage of the proceedings. (See Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 179, 96 Cal.Rptr.2d 518, 999 P.2d 706; Under v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436, 97 Cal. Rptr.2d 179, 2 P.3d 27.)
Thus, the facts that different customers arrived at different deals, based on their trade-in or lease values compared to the purchased vehicle cost, can be accounted for in a class action context through the use of formulas or other means of implementing the underlying legal findings. "Individual issues do not render class certification inappropriate so long as such issues may effectively be managed. [Citations.] [11] Nor is it a bar to certification that individual class members may ultimately need to itemize their damages. We have recognized that the need for individualized proof of damages is not per se an obstacle to class treatment. [Citations.]" (Sav-on Drug, supra, 34 Cal.4th at pp. 334-335, 17 Cal.Rptr.3d 906, 96 P.3d 194.) Plaintiff, the personal representative of Cornell, has not been shown to be an inadequate representative of the class, nor did the court actually include a ruling on that issue in its order. There will be no need for each potential class member to make an individualized showing of liability or entitlement to relief, except for variations regarding damages that can be addressed through categories such as customers who paid increased sales tax or increased registration fees based on an inflated sales price. Such practical issues can properly be left to the trial court in administering the class action. (Lockheed Martin, supra, 29 Cal.4th at p. 1106, 131 Cal.Rptr.2d 1, 63 P.3d 913.)
For all of these reasons, we conclude the trial court erroneously denied class certification, because the record shows there is a class that can be ascertained on the statutory violations alleged, without undue interference from individualized fraud or punitive damages issues. Plaintiff has carried his burden of showing the required community of interest in the current class definition, such that the maintenance of a class action would be advantageous to the judicial process and to the litigants. (In re Cipro, supra, 121 Cal. App.4th at p. 410, 17 Cal.Rptr.3d 1.)
DISPOSITION
The order is reversed with directions to grant class certification and to conduct appropriate further proceedings. Costs are awarded to appellant.
WE CONCUR: BENKE, Acting P.J., and NARES, J.
NOTES
[1] Robert Cornell, the original purchaser and named representative of the class, died in 2005, and the trial court allowed Gary Lewis, as personal representative of Robert Cornell, to maintain and continue this action as representative of the class.
[2] Other statutory causes of action against the manufacturer were previously voluntarily dismissed by plaintiff, for violation of the Song-Beverly Consumer Warranty Act (§ 1790 et seq.) and the Magnuson-Moss Warranty Act (15 U.S.C. § 2301(3)).
[3] RISCs are conditional sales contracts that are subject to the: provisions of the ASFA. Federal Regulation Z (regulations that interpret and explain the Truth-in-Lending Act), are incorporated into the ASFA. (§ 2982.)
[4] Section 2983 provides for relief to an aggrieved buyer as follows: "If the seller, except as the result of an accidental or bona fide error in computation, violates any provision of Section 2981.9 [format of contract] or of subdivision (a), (j), or (k) of Section 2982 [requiring certain disclosures], the conditional sale contract shall not be enforceable, except by a bona fide purchaser ... or until after the violation is corrected as provided in Section 2984, and if the violation is not corrected the buyer may recover from the seller the total amount paid, pursuant to the terms of the contract, by the buyer to the seller or his assignee. The amount recoverable for property traded in as all or part of the downpayment shall be equal to the agreed cash value of such property as the value appears on the conditional sale contract or the fair market value of such property as of the time the contract is made, whichever is greater." (Italics added.) Section 2983.1 is a similar provision applicable to finance charges.
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300 S.W.3d 542 (2009)
Lester LOPEZ, Movant-Appellant
v.
STATE of Missouri, Respondent.
No. SD 29463.
Missouri Court of Appeals, Southern District, Division Two.
December 8, 2009.
*543 Mark A. Grothoff, Columbia, MO, for Appellant.
*544 Chris Koster, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
MICHAEL O. HENDRICKSON, Special Judge.
Lester Lopez (movant) appeals the judgment denying his Rule 29.15[1] motion for post-conviction relief on his conviction for the class A felony of murder in the second degree under § 565.021.[2] In his direct appeal, this court affirmed movant's conviction. See, State v. Lopez, 128 S.W.3d 195 (Mo.App.2004). The motion court's order denying movant relief found movant's direct appeal counsel was not ineffective for not challenging the trial court's refusal to submit instructions for voluntary manslaughter and for not challenging the trial court's refusal to allow the testimony of one of movant's witnesses. We affirm the motion court's denial of post-conviction relief.
I. STANDARD OF REVIEW
Our review of the denial of post-conviction relief pursuant to Rule 29.15 is limited to a determination of whether the motion court's findings of fact and conclusions of law issued in support thereof are clearly erroneous. Rule 29.15(k); Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009). Findings and conclusions are clearly erroneous if, after a review of the entire record, the appellate court is left with the definite impression that a mistake has been made. Moss v. State, 10 S.W.3d 508, 511 (Mo.banc 2000). Only in cases where we are left with a definite impression that a mistake has been made will we reverse the motion court's determination. Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006).
II. FACTUAL AND PROCEDURAL BACKGROUND
Movant was charged with murder in the first degree for the beating death of his girlfriend, Sherri Westfall (victim). At trial, the jury was instructed on first degree murder, second degree murder, and involuntary manslaughter. Following the jury trial, he was convicted of murder in the second degree under § 565.021. He was sentenced to a term of life imprisonment. The judgment of conviction and sentence was affirmed by this court on movant's direct appeal. See, State v. Lopez, supra. After we entered our mandate affirming movant's conviction, he timely fled a pro se motion for post-conviction relief pursuant to Rule 29.15, counsel was appointed, and an amended motion was filed. The motion court denied movant's motion after an evidentiary hearing.
In his amended motion and in this appeal, movant alleged that his appellate counsel was ineffective for failing to raise on direct appeal the trial court's refusals to give instructions for voluntary manslaughter and to allow movant to present the testimony of one witness. The facts underlying movant's conviction have been taken, in relevant part, from this court's opinion in State v. Lopez, supra, and supplemented by the record on appeal.
Movant and victim resided together in Springfield, Missouri. At about 6:00 p.m. on April 6, 2001, Larry Carver, a neighbor, was sitting in the front yard of his home. He saw victim leave her house and hide behind a shed for about 30 minutes. During that time, Mr. Carver saw movant exit the house, walk around it as if he were looking for victim, and then reenter the house. Ten minutes later, Mr. Carver saw *545 victim come from behind the shed and go to another neighbor's residence. Victim left that residence after a few minutes and returned to her hiding place behind the shed. Mr. Carver later saw victim lying on the back porch of her house. On the same date at about 10:30 or 11:00 p.m., Terry Swineberg observed victim run past her bedroom window. Shortly thereafter, Ms. Swineberg saw movant walk past her window. Ms. Swineberg then observed movant dragging victim back to their house. As movant was dragging victim home, Ms. Swineberg saw movant pick up a large stick and strike victim on the back, shoulders and neck area.
At 4:18 a.m. on April 7, 2001, movant placed a 911 call asking for a medical response to his house. During this telephone call, movant stated he had just awakened and found victim unresponsive on the floor. Although movant thought victim was dead, he asked the 911 dispatcher to send an ambulance. After police and emergency response personnel arrived, rigor mortis of victim had already set in and she was pronounced dead.
Shortly after 5:00 a.m., movant was transported to the Springfield Police Station and twice interviewed by Detective Scott Kamykowski. Although movant did not testify at trial, each videotaped interview was played for the jury and the jury also received a transcript of each interview.
During the evening of April 6 and the early morning hours of April 7, movant and victim engaged in two different fights that were each verbal and physical. The first was about victim being drunk and movant arriving home late from work. The second fight was about movant's whereabouts after work, victim's whereabouts during an absence of several hours from their home after the first fight, and victim not wearing pants when she woke movant while he slept after the first fight.
The first interview took place at approximately 7:20 a.m. During this interview, movant made incriminating admissions. Movant admitted he was very upset and angry. Movant admitted he slapped victim's face and neck with his open hand five or six times while arguing with her until she fell to the ground. He admitted he struck victim in the face and chest with his fists and repeatedly hit victim and kicked victim. He stated that he tore victim's clothes off during the fight and victim might have hit her head on a shelf while they were fighting. Movant said he had intercourse with victim after the fighting stopped. Movant said at about 1:00 a.m., he noted victim's body was cold and since he did not know what to do, he spent the next 30 to 45 minutes smoking a cigarette and drinking two beers. Movant indicated when he tried to pick victim up and flip her over, he heard fluids gurgling inside her. He indicated when he flipped victim on her side to check her breathing, a large amount of bloody fluid came out of her mouth, which he wiped from her face with a sock. He admitted that after doing so he saw that her face was bruised and she had a black eye. Movant said he performed CPR for 30 minutes and that he did not call 911 because he knew that if he called, they would put him in jail. Movant acknowledged that by 2:30 a.m., he knew victim was dead. He said he called his sister-in-law, a nurse, and when he asked her what to do, she told him to call 911. He also said that during the telephone conversation, he told his sister-in-law that he would probably go to jail because the police might say that he did this to victim. Movant admitted he called 911 and put clothes on victim who was lying naked on the floor. He acknowledged there was no one else at the residence that night and that victim's death was his responsibility. *546 Movant admitted that his altercation with victim caused her death.
Following the first interview, Detective Kamykowski went to movant's house to examine the scene and victim's body. The following items were seized as evidence: (1) a torn white T-shirt; (2) a pair of torn women's panties; (3) a bra with the cups torn out of it; (4) a bloody sock; (5) clumps of hair gathered from various locations in the house; (6) one pair of square-jawed pliers; (7) one pair of needle-nosed pliers; and (8) a carpenter's tool belt. Detective Kamykowski witnessed bruises all over victim's body, including her face, chest, shoulders, arms, back, and abdomen.
A subsequent autopsy of victim catalogued her massive injuries. The injuries included: (1) a one-half inch scalp laceration; (2) a fractured check bone; (3) a compound fracture of the nose, probably caused by an upward kick to the face, that was so severe the entire nose was essentially torn loose from the face; (4) defensive injuries in the form of large bruises to the left hand and arm and a broken right ulna and radius to the right arm; (5) injuries to both breasts caused by squeezing of tissue by needle-nosed and square-jawed pliers; (6) bruising to the external genitalia caused by either blows or twisting; (7) 24 separate fractures in the rib cage; (8) hemorrhaging and collapse of the lungs; (9) a laceration to the liver; (10) a punctured diaphragm; (11) a ruptured spleen; (12) bruised kidneys; (13) bruising of the intestines; (14) internal bleeding; (15) a subdural hematoma; and (16) swelling of the brain. The medical examiner opined the time required to inflict victim's injuries was a minimum of one hour.
Detective Kamykowski returned to the police station and conducted a second interview of movant. The detective told movant the injuries found to victim's body were not consistent with movant's account of what had happened. Detective Kamykowski showed movant pictures of victim's body. Movant acknowledged that he caused all of the injuries; that no one else but him could have caused the injuries. Movant stated that he had been "so damn drunk" and just did not remember. He admitted that he must have hit victim multiple times to cause the degree of injuries she suffered. Movant admitted slapping victim, hitting her with his fists, and kicking her. He admitted kicking victim while she was lying on the floor. Movant admitted ripping her clothes off while they were fighting. He acknowledged that he had intercourse with victim after the fighting stopped. Movant stated victim was scared for her life. Movant asked Detective Kamykowski if he should plead guilty to murder. Movant stated that he was guilty because they were fighting. He then stated, "What I done to her, they should give that to me."
At trial, movant sought to call Brian Hanson, but the court sustained the state's objection to Mr. Hanson's testimony and did not allow it. According to movant, Mr. Hanson's testimony would provide evidence that the victim was intoxicated and had propositioned Mr. Hanson, and that such evidence would provide a basis for a voluntary manslaughter instruction. Once the trial court refused to allow Mr. Hanson's testimony, movant's trial counsel admitted Mr. Hanson's deposition testimony as an offer of proof but read into the record only six questions and six answers that, in this record on appeal, demonstrate Mr. Hanson would testify that the victim sexually propositioned him. After the offer of proof, the court again disallowed Mr. Hanson's testimony and announced it would reserve whether to give a voluntary manslaughter instruction until the instruction conference. During the instruction conference, movant offered a voluntary *547 manslaughter instruction as a lesser included instruction of conventional murder in the second degree, as well as the required additional paragraph to the instruction of conventional murder in the second degree, but they were refused by the trial court.
At hearing, movant's appellate counsel testified that even though it was supported by evidence, she had no strategic reasons for not raising the court's refusal to allow the testimony of Mr. Hanson or the court's refusal to give the voluntary manslaughter instruction, although each issue was preserved for appeal by their inclusion in the motion for a new trial.
Following the hearing, the motion court denied movant's motion. In its order denying relief, the motion court found that appellate counsel was not ineffective in her failure to argue on direct appeal the trial court's refusal to give a voluntary manslaughter instruction because there was no adequate basis to support it and refusal to allow the testimony of Mr. Hanson because his testimony was irrelevant. Movant believes that Brian Hanson's testimony would have established why movant and victim fought that night, would have corroborated movant's videotaped statement to the police, and would have provided a basis for a voluntary manslaughter instruction. This appeal followed.
III. ISSUES PRESENTED
Movant presents two points on appeal. Both points assert movant was denied effective assistance of appellate counsel. Movant asserts his appellate counsel was ineffective for her failures to argue on direct appeal the court's refusal to give a voluntary manslaughter instruction (Point I), and the court's refusal to allow the testimony of Mr. Hanson (Point II). Movant asserts there is a reasonable probability that the outcome of his direct appeal would have been different had appellate counsel raised either of these issues on direct appeal and if they had been, he would have been granted a new trial.
IV. DISCUSSION
Like a claim based on ineffective assistance of trial counsel, movant must prove his appellate counsel's performance was unreasonable and that movant was prejudiced thereby. Taylor v. State, 262 S.W.3d 231, 253 (Mo. banc 2008). To establish a claim of ineffective assistance of appellate counsel, a "[m]ovant must establish that counsel failed to raise a claim of error that was so obvious that a competent and effective lawyer would have recognized and asserted it." Id., quoting Williams v. State, 168 S.W.3d 433, 444 (Mo. banc 2005).
In his first point, movant claims appellate counsel was ineffective for her failure to raise on direct appeal the trial court's failure to submit a jury instruction on voluntary manslaughter. The motion court denied this claim. The motion court found the instruction was not supported by the evidence.
A person commits the crime of voluntary manslaughter if he "[c]auses the death of another person under circumstances that would constitute murder in the second degree under subdivision (1) of subsection 1 of section 565.021,[[3]] except that he caused the death under the influence of sudden passion arising from adequate cause." § 565.023.1(1). State v. *548 Stidman, 259 S.W.3d 96, 101 (Mo.App. 2008). "Sudden passion" is "passion directly caused by and arising out of provocation by the victim or another acting with the victim which passion arises at the time of the offense and is not solely the result of former provocation." § 565.002(7). "Adequate cause" is defined as "cause that would reasonably produce a degree of passion in a person of ordinary temperament sufficient to substantially impair an ordinary person's capacity for self-control." § 565.002(1).
At trial, movant offered that the following paragraph be added to the conventional second-degree murder instruction:
Third, that defendant did not do so under the influence of sudden passion arising from adequate cause....
As used in this instruction, the term "sudden passion" means passion directly caused by and arising out of provocation by Sherri Westfall which passion arose at the time of the offense. The term "adequate cause" means cause that would reasonably produce a degree of passion in a person of ordinary temperament sufficient to substantially impair an ordinary person's capacity for self-control.
Movant also offered the following instruction on voluntary manslaughter:
If you do not find the defendant guilty of murder in the second degree, you must consider whether he is guilty of voluntary manslaughter.
If you find and believe from the evidence beyond a reasonable doubt:
First, that on or between April 6, 2001, and April 7, 2001, in the County of Greene, State of Missouri, the defendant caused the death of Sherri Westfall by beating her, and
Second, that the defendant knew or was aware that his conduct was causing the death of Sherri Westfall, then you will find the defendant guilty of voluntary manslaughter.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of voluntary manslaughter.
If you do find the defendant guilty of voluntary manslaughter, you will assess and declare the punishment at imprisonment for a term of years fixed by you, but not less than five years and not to exceed fifteen years.
These two instructions movant offered were modeled after Missouri Approved InstructionsCriminal 3d 313.04 and 313.08.
Movant's theory at trial in support of a finding of sudden passion and submission of a voluntary manslaughter instruction was that movant and victim engaged in two fights; that victim left the residence for several hours between the two fights; and that movant believed that while victim was gone, she had cheated on him. Although in his first interview movant claimed to have started the second fight when, upon her return, movant asked victim where she had been, and although movant never indicated in either interview that the second fight was caused or escalated by an issue of fidelity, movant's counsel nevertheless argued that victim's absence, along with movant's belief that victim was cheating on him, escalated the second fight to the level of sudden passion. Movant's trial counsel argued:
I contend, Your Honor, that theher absence, her physical absence, that night combined with his belief that she was cheating on him in the general sense, and I think you can infer that he thought she was cheating on him while she was gone for the two-hour period. *549 That that is thethat led to further escalation of argument, which resulted in her death.
I believe that that does support an inference of sudden passion due to adequate cause. While it is true, he did not know that she had gone over and propositioned Mr. Brian
THE COURT: Hanson
COUNSEL: Hanson. I'm sorry. He did not have knowledge of that specific incident. But I think herher period of unexplained absence from the house, storming out after they had a fight, he could very well have inferred, and the jury could infer that he inferred that she was out cheating with him whether he knew that she specifically with whom or where, uh, doesn't matter to his motivations.
So I think that that supports a sudden passion, aa passionate event here that would support giving the instruction on voluntary manslaughter.
As previously stated, movant did not testify at trial. The only evidence as to the events of the night of April 6 and the morning of April 7, 2001, was the two videotaped interviews of movant and the testimony of movant's neighbors and the medical examiner. During the first interview, movant stated that after the first fight, victim left their house. Movant stated that after she left, he "was like `Well, whatever,'" and decided to lie down and go to sleep. Movant stated that after victim returned several hours later and woke him up, he started a second fight after he asked her where she had been. Detective Kamykowski asked movant directly whether he thought victim was cheating on movant. The record in this appeal is silent as to his response. Although the record on appeal includes the jury's transcript of each videotaped interview of movant, movant's answer to the question posed by Detective Kamykowski inquiring about movant's belief that victim was cheating is left blank on the transcript.[4] Further, there was no mention of victim's cheating by either movant or Detective Kamykowski in the second interview.
There was no evidence before the jury that victim had cheated on movant that evening or any other time. The record on appeal reveals no evidence before the jury that movant had reason to believe victim had cheated on him. In neither interview did movant indicate that he and victim ever argued before that evening about her cheating on him, let alone argued about it the night of the crime. In fact, when the topic was raised by Detective Kamykowski's question in the first interview, movant stated that victim had no best friend, did not know anyone in Springfield and when specifically asked, hypothetically speaking, that if she had been cheating on him, whom she would do that with, movant stated, "I don't even know."
*550 Nothing in the record of this appeal regarding victim's fidelity supports a finding of sudden passion. Although movant believed that his statements, along with evidence at trial, were enough to support a finding that his degree of passion impaired his capacity for self control requiring a voluntary manslaughter instruction, the record does not support it. His statements do not demonstrate that he reasonably believed victim had cheated on him at any time, let alone that night. Further, even if he or the jury believed she had been cheating, none of movant's statements in the transcript of either interview indicate as much. Accordingly, the evidence does not rise to a level of "adequate cause" "that would reasonably produce a degree of passion in a person of ordinary temperament sufficient to substantially impair an ordinary person's capacity for self-control," thereby requiring an instruction on voluntary manslaughter.
Nothing in the record of this appeal supports a finding that victim's death was sudden. A finding of sudden passion requires a "sudden" event. State v. Jacoway, 11 S.W.3d 793, 797-98 (Mo.App.1999); State v. McCoy, 971 S.W.2d 861, 864 (Mo. App.1998); State v. Boyd, 913 S.W.2d 838, 842 (Mo.App.1995); State v. Newlon, 721 S.W.2d 89, 92 (Mo.App.1986). "For adequate cause [for sudden passion] to exist, a sudden, unexpected encounter or provocation must excite an uncontrolled passion, be it rage, anger, or terror." State v. Jacoway, supra.
[I]t "is not the assault or the provocation alone that reduces the grade of the crime, but it is the sudden happening or occurrence of the provocation so as to render the mind incapable of reflection and obscure the reason so that the elements of malice and deliberation necessary to constitute murder are absent, and therefore the crime is not murder, but manslaughter." State v. Mudgett, 531 S.W.2d 275, 280 (Mo.banc 1975), citing, State v. Clough, 327 Mo. 700, 705, 38 S.W.2d 36, 38 (Mo.1931).
Id.
Although in his first interview movant affirmed Detective Kamykowski's statement that movant was out of control and that his outrage and anger went too far, his killing of the victim was not sudden. Case law finding sufficient evidence of sudden passion for submission of voluntary manslaughter has consistently involved a sudden death, such as from a gunshot or blow to the victim's head. State v. Avery, 120 S.W.3d 196 (Mo. banc 2003); State v. Redmond, 937 S.W.2d 205 (Mo. banc 1996); State v. Fears, 803 S.W.2d 605 (Mo. banc 1991); State v. Fouts, 939 S.W.2d 506 (Mo. App.1997); State v. Richards, 795 S.W.2d 428 (Mo.App.1990). The evidence before the jury was undisputed that victim died as a result of a combination of multiple injuries inflicted over a period of time that was not sudden. Victim suffered extensive injuries. There was evidence that the time required to inflict the multitude of victim's injuries was at least one hour. See, State v. McCoy, supra. Some of the injuries were inflicted after victim stopped resisting and was unconscious, but prior to her death. The continual beating after a victim is no longer fighting back is not consistent with a claim of sudden passion. State v. Jacoway, supra, at 798. See also, State v. Boyd, supra.
Movant also stated he could not remember what had happened during the fight with victim because he was "so damn drunk." Movant acknowledged that he must have caused victim's injuries; that no one else could have caused her injuries; but that he did not remember injuring victim to the extent depicted in the photographs. A failure to remember exactly what happened at the time of death "simply *551 [is] not sufficient to have required" an instruction on voluntary manslaughter. State v. Merchant, 791 S.W.2d 840, 843 (Mo.App.1990). Neither will intoxication of the victim alone without evidence that, when intoxicated, victim became violent and that, accordingly, the accused feared the victim. State v. Jacoway, supra, at 797. Although movant's statements indicated that victim became "crazy" when she was in an intoxicated condition, he never indicated that he feared her when she was in such a condition.
The motion court found insufficient evidence to support a finding of sudden passion. The motion court's findings are presumptively correct. Cook v. State, 193 S.W.3d 378, 381 (Mo.App.2006). This court finds from the record before it that appellate counsel was not ineffective for her failure to raise on direct appeal the trial court's refusal of movant's proffered instructions on voluntary manslaughter. Movant must establish that there is a reasonable probability that the outcome of the appeal would have been different had the claimed error been raised. Williams v. State, supra. Since movant has not done so, Point I is denied.
In his second point, movant claims his appellate counsel was ineffective for her failure to raise on direct appeal the trial court's refusal to allow the testimony of Brian Hanson. The motion court denied this claim. The motion court found the testimony not relevant in that movant had no knowledge of the alleged incident Mr. Hanson was to testify about, stating that it is "illogical to suggest that [m]ovant became enraged over something he did not know about." The motion court's findings are presumptively correct. Cook v. State, supra.
Movant claims the proffered testimony was both logically and legally relevant as it would have established the reasons that victim and movant fought; would have corroborated movant's videotaped statements to police; and would have provided a basis for a voluntary manslaughter instruction. He contends a reasonable probability exists that his conviction would have been reversed had appellate counsel raised the exclusion of such testimony as an issue on direct appeal.
Movant's trial counsel argued that Mr. Hanson's testimony would indicate that victim came to Mr. Hanson's house, she appeared disheveled and intoxicated, and sexually propositioned him. Although not included in the record on appeal, at trial movant admitted the deposition testimony of Mr. Hanson. In addition, movant's trial counsel made the following offer of proof by reading an excerpt from Mr. Hanson's deposition into the record:
QUESTION: "Did she at any point try to proposition in a sexual way?"
ANSWER: "In a sexual way? Yes, she did."
QUESTION: "All right. Tell me about that."
ANSWER: "Well, she had asked me if I wanted to go to the back room and have sex with her, and I said, no."
QUESTION: "Is that the exact words she used or how did she phrase it, if you remember?"
ANSWER: "She used profanity. And she said, `Do you want to go back in the back room and'"
QUESTION: "Go ahead and tell me."
ANSWER: "She said, `Do you want to go back in the back room and f____.['] And I said no."
QUESTION: "Okay."
ANSWER: "And I kept telling her to leave."
QUESTION: "Did she do anything further of a suggestive nature?"
*552 ANSWER: "No."
Movant asserts this testimony supported his theory that movant believed victim was cheating on him. In concluding the offer of proof, movant's trial counsel argued:
Your Honor, I believe the testimony is relevant. Um, because in his videotaped interrogation, the defendant made several statements at various times that he suspected that [victim] was cheating on him and that she was seeing other men. And he indicated in his statements that that could have been a motivating factor as to why they had an argumentone of the motivating factors as to why they argued, which eventually led to the physical altercations.
I think it's relevant toit corroborates his testimony in that respect that she was, in fact, out propositioning another person as he believed, although it is true that he was not aware of this specific incident.
I do think it's relevant to hisit corroborates his statement. And further, Your Honor, I think it could it [sic] legitimately provides a basis for submission of voluntary manslaughter instruction. If the jury believed that theyhe confronted her about cheating on him, and that led to the argument, and then passions got outarose and got out of hand.
Now, II think that it'sit'spassion must be based upon something of an imminent nature, notnot just done in the past. And I think the fact that she left the home, that conduct, and returned two hours later, or whatever length of time it was she was gone, it was a perioda significant period of time that she was gone. And when she returned [movant] indicated in his statements that he was upset that she was gone so long.
I think that's thethe provocative factor that provides the basis for our voluntary manslaughter instruction. And without this testimony, I think that it impedes our ability to get that instruction from the court.[[5]]
Movant's counsel conceded that his ability to submit a voluntary manslaughter instruction was "impede[d]" without Mr. Hanson's testimony and conceded that movant did not know that victim had propositioned Mr. Hanson. Movant's appellate counsel on direct appeal stated at hearing that she did not raise the refusal of the court to allow Mr. Hanson's testimony because she did not see it as a "very strong issue." Appellate counsel "need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).
As discussed in the analysis of movant's first point, there is insufficient evidence in the transcripts of movant's interviews to demonstrate that movant believed victim was cheating on him. Although the offer of proof in the record on appeal does demonstrate that victim propositioned Mr. Hanson, it corroborates nothing of movant's interview statements. Even if movant did believe victim was cheating on him, there was no evidence that it was an issue *553 that led to either fight. Even if movant did believe victim was cheating on him, there was no evidence that movant knew about victim propositioning Mr. Hanson prior to, or at any time near, the time of victim's death. Movant's trial counsel conceded that fact. Mr. Hanson's testimony about the victim's proposition is irrelevant since movant did not know about it. Accordingly, the record on appeal of Mr. Hanson's testimony provides nothing to further support its relevancy or the necessity of a voluntary manslaughter instruction.
This court finds no reasonable probability that movant's conviction and sentence would have been reversed and remanded for a new trial had appellate counsel raised on direct appeal the court's refusal to allow the testimony of Mr. Hanson. As appellate counsel was not ineffective, Point II is denied.
The judgment denying movant's Rule 29.15 motion for post-conviction relief is affirmed.
LYNCH, P.J., and RAHMEYER, J., concur.
NOTES
[1] All references to Rules are to Missouri Court Rules (2009).
[2] All references to statutes are to RSMo 2000.
[3] Section 565.021.1(1) states:
"A person commits the crime of murder in the second degree if he:
(1) Knowingly causes the death of another person or, with the purpose of causing serious physical injury to another person, causes the death of another person."
[4] Videotapes of Detective Kamykowski's two interviews of movant, Exhibits 25 and 29, were admitted at trial and played for the jury. The videotapes of the interviews are not before this court as they were not included in the record on appeal. The jury was given typewritten transcripts of the contents of the videotapes. The transcripts are included in the record on appeal. In the first interview, movant's answer to Detective Kamykowski's question about victim cheating is left with a blank on the transcript. The videotaped interview may provide movant's answer; however, the videotape of the first interview is not before this court for review. The record on appeal in a Rule 29.15 proceeding is governed by Rule 81.12. Movant bears the burden of providing the appellate court with a record on appeal that contains all the evidence necessary for this court to determine the issues he raised. Rule 81.12(a) and (d); Carter v. State, 253 S.W.3d 580, 582 (Mo.App.2008); Collins v. State, 226 S.W.3d 906, 911 (Mo.App.2007).
[5] Defense counsel argued that movant made "several statements at various times" as to movant's belief that victim was cheating on him. This court's review of the jury's transcripts indicates Detective Kamykowski asked movant in the first interview only if he thought victim was cheating on movant. As indicated in footnote 4, supra, the videotape of the first interview is not included in the record on appeal. The transcripts are. The transcripts do not indicate movant ever said he believed victim was cheating on him that night or at any other time.
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3 P.3d 661 (2000)
Roger FALCKE and Herbig Properties Limited, A Nevada Limited Partnership, Petitioners,
v.
The COUNTY OF DOUGLAS, A Political Subdivision of the State of Nevada; and the Douglas County Board of Commissioners, Respondents.
No. 35076.
Supreme Court of Nevada.
July 14, 2000.
Allison MacKenzie Hartman Soumbeniotis & Russell and James R. Cavilia, Carson City, for Petitioners.
Scott W. Doyle, District Attorney, and Thomas E. Perkins, Deputy District Attorney, Douglas County, for Respondents.
BEFORE YOUNG, AGOSTI and LEAVITT, JJ.
OPINION
PER CURIAM:
Petitioners applied to the Douglas County Community Development Department for a master plan amendment and zoning change to real property. After approval by the Douglas County Planning Commission, the *662 Douglas County Board of Commissioners voted three-to-two in favor of the masterplan amendment. However, the three-to-two vote was deemed a denial of the master plan amendment under Douglas County Development Code § 20.608.070, which requires a super-majority vote to approve any master plan amendment. For the reasons discussed herein, we conclude that the petitioners appropriately seek relief by way of a petition for a writ of mandamus and that Douglas County Development Code § 20.608.070 is invalid because it conflicts with NRS Chapter 278. We therefore grant this petition.
FACTS
While acting as the agent and representative for petitioner Herbig Properties Limited ("Herbig"), petitioner Roger Falcke ("Falcke") applied to the Douglas County Community Development Department in June 1999 for a master plan amendment and zoning change to real property owned by Herbig. The property is located between U.S. Highway 395 and Waterloo Lane in Douglas County and is comprised of thirty and fifty-five one-hundredths (30.55) acres. Specifically, Falcke's application sought to change the property's master plan designation from 30.55 acres of agriculture to 22.87 acres of public facilities and 7.68 acres of commercial. Falcke's application also sought a zoning change from all agriculture to 22.87 acres of public facilities and 7.68 acres of neighborhood commercial.
On August 17, 1999, the Douglas County Planning Commission ("the Planning Commission") recommended approval of the master plan amendment with a five-to-two vote in favor of the amendment. Under Douglas County Development Code ("DCDC") § 20.608.030, a two-thirds vote is required by the Planning Commission to approve a master plan amendment. The Planning Commission also voted to recommend approval of the zoning change with a four-to-three vote in favor of the zoning change, which requires only a simple majority vote under § DCDC 20.610.020(D).
On September 2, 1999, the Douglas County Board of Commissioners ("the Board") met and considered the master plan amendment and the zoning change. After a motion was made to approve the requested master plan amendment, the Board voted three-to-two in favor of the master plan amendment. However, under DCDC § 20.608.070, a super-majority[1] vote of the Board is required to approve any master plan amendment. Therefore, the Board's vote in favor of the master plan amendment was deemed a denial. Because the Board did not approve the master plan amendment, it appears that the Board never reached the second issue of the zoning change.
After a rehearing held on October 7, 1999, the Board again voted three-to-two in favor of the master plan amendment, which was again deemed a denial under DCDC § 20.608.070. Subsequently, Falcke and Herbig filed in this court an original petition for a writ of mandamus challenging the Board's decision.
DISCUSSION
As a threshold issue, we must first consider whether a petition for a writ of mandamus is the proper method to challenge the Board's decision. Falcke argues that a writ of mandamus is an appropriate remedy even though he could have sought relief through a declaratory judgment under NRS 30.040. We agree.
This court may issue a writ of mandamus in order "to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station." NRS 34.160. Generally, a writ of mandamus may issue only when there is no plain, speedy, and adequate remedy at law. See NRS 34.170. However, where circumstances reveal urgency or strong necessity, this court may grant extraordinary relief. See Jeep Corp. v. District Court, 98 Nev. 440, 443, 652 P.2d 1183, 1185 (1982). Moreover, "where an important issue of law needs clarification and public policy is served by this *663 court's invocation of its original jurisdiction, our consideration of a petition for extraordinary relief may be justified." Business Computer Rentals v. State Treas., 114 Nev. 63, 67, 953 P.2d 13, 15 (1998).
In the present case, the Board correctly points out that Falcke could have sought relief through a declaratory judgment under NRS 30.040. NRS 30.040 provides that any person whose rights are affected by a statute or ordinance "may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder." Indeed, Falcke does challenge the validity of DCDC § 20.608.070.
We conclude that the conflict presented by this petition between NRS Chapter 278 and DCDC § 20.608.070 is an urgent and important issue of law, which requires clarification by this court. As the Board acknowledges in its opposition papers, land use and development are important public policy issues confronting Douglas County as well as other counties in Nevada. Here, public policy would be best served by reaching the merits of the instant petition in order to provide guidance to Douglas County, and other counties, in properly following the dictates of NRS Chapter 278. Consequently, we conclude that our consideration of this petition on its merits is justified under these circumstances.[2]
Falcke next argues that DCDC § 20.608.070 conflicts with NRS 278.220 and is therefore invalid. We agree.
Under NRS 278.020, the legislature granted counties the authority to regulate and restrict the improvement of land for the purpose of promoting health, safety, morals, or the general welfare of the community. Pursuant to this authority, the Planning Commission is required to prepare and enact a long-term master plan for the development of the county. See NRS 278.150. In 1996, the Board adopted a master plan, which can be amended subject to approval by the Planning Commission and the Board.
NRS 278.210(2) provides that "[t]he adoption of the master plan, or of any amendment, extension or addition thereof, shall be by resolution of the [planning] commission carried by the affirmative votes of not less than two-thirds of the total membership of the commission." DCDC § 20.608.030(A) echoes NRS 278.210(2) by stating that "[t]he [planning] commission may approve a master plan amendment only upon the affirmative vote of a two-thirds majority of the total membership of the commission." The Planning Commission's recommendation is then forwarded to the Board for consideration. See NRS 278.210(4).
NRS 278.220(1) states that "[u]pon receipt of a certified copy of the master plan, or of any part thereof, as adopted by the planning commission, the [Board] may adopt such parts thereof as may practicably be applied to the development of the city, county or region for a reasonable period of time next ensuing." Nothing in NRS 278.220 requires a two-thirds or super-majority vote by the Board to approve a master plan amendment. Indeed, NRS 278.220 is silent on the issue. However, DCDC § 20.608.070(A) states that "[o]nly upon the affirmative vote of a super-majority of the total membership and concurrence by the planning commission shall the board approve a master plan amendment."
*664 The question of whether DCDC § 20.608.070 conflicts with NRS 278.220 by requiring a super-majority vote to approve a master plan amendment is an issue of first impression in Nevada. As a preliminary matter, it is clear that counties are legislative subdivisions of the state. See Nev. Const. art. 4, § 25. Because counties obtain their authority from the legislature, county ordinances are subordinate to statutes if the two conflict. See Lamb v. Mirin, 90 Nev. 329, 332-33, 526 P.2d 80, 82 (1974).
Additionally, "[i]t is well settled in Nevada that words in a statute should be given their plain meaning unless this violates the spirit of the act." McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 440 (1986). "`Where the language of a statute is plain and unambiguous ... there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself.'" Charlie Brown Constr. Co. v. Boulder City, 106 Nev. 497, 503, 797 P.2d 946, 949 (1990), overruled on other grounds by Calloway v. City of Reno, 116 Nev. ___, 993 P.2d 1259 (2000) (quoting In re Walters' Estate, 60 Nev. 172, 183-84, 104 P.2d 968, 973 (1940)). However, "where a statute is susceptible to more than one interpretation it should be construed `in line with what reason and public policy would indicate the legislature intended.'" State, Dep't of Mtr. Vehicles v. Lovett, 110 Nev. 473, 477, 874 P.2d 1247, 1250 (1994) (quoting State, Dep't Mtr. Vehicles v. Vezeris, 102 Nev. 232, 236, 720 P.2d 1208, 1211 (1986)).
In an attempt to justify the deviation of DCDC § 20.608.070 from NRS 278.220, the Board essentially argues that the silence of NRS 278.220 gives the Board the authority to require a super-majority vote. On its face, the Board's argument appears reasonable. However, the Board fails to cite to any authority supporting the proposition that it may choose what portions of NRS Chapter 278 it must follow and what portions it does not have to follow.[3]
After a careful review of NRS Chapter 278 and other relevant statutes, we conclude that NRS Chapter 278 provides a comprehensive statutory framework for the Board to follow as it designs and implements the master plan for Douglas County. Because the legislature omitted any reference to a voting requirement in NRS 278.220, we conclude that this omission reflects the legislature's intent to require only a simple majority vote by the Board to approve a master plan amendment. If the legislature intended to require a super-majority vote of the Board to amend the master plan, it would have expressed this intent just as it had done in NRS 278.210 by requiring a two-thirds vote of the Planning Commission.
Indeed, the legislature has expressly required a heightened voting standard by the Board in a number of other instances. See, e.g., NRS 377B.100 (two-thirds vote by the Board required to approve tax for infrastructure); NRS 540A.040 (two-thirds vote by the Board required to take action concerning the Board's administrative matters); NRS 705.020 (two-thirds vote by the Board required to grant use of a street to the railroad). Certainly, the desire of the Board to curtail development and strictly control land use is understandable. However, given the legislature's decision to not impose a heightened voting standard under NRS 278.220, we conclude that the Board cannot independently impose this requirement.
Accordingly, we conclude that the Board exceeded the legislative authority *665 granted it under NRS Chapter 278 by requiring a super-majority vote by the Board to approve a master plan amendment. Because the legislature specifically excluded any reference to a two-thirds or super-majority voting requirement by the Board, we further conclude that the legislature intended to require only a simple majority vote by the Board to approve a master plan amendment under NRS 278.220. As this court has noted, "it is not the business of this court to fill in alleged legislative omissions based on conjecture as to what the legislature would or should have done." McKay v. Board of Cty. Comm'r, 103 Nev. 490, 492, 746 P.2d 124, 125 (1987). We therefore hold that DCDC § 20.608.070 is invalid because it goes beyond the legislative intent espoused in NRS 278.220.[4]
CONCLUSION
Because the Board twice voted in favor of Falcke's application for a master plan amendment on a three-to-two majority vote, we conclude that the Board approved the master plan amendment under NRS 278.220. By virtue of its vote, we further conclude that the Board has a duty under NRS 34.160 to give effect to its vote and approve Falcke's master plan amendment. Accordingly, we grant Falcke's petition. The clerk of this court shall issue a writ of mandamus compelling the Board to approve Falcke's application for a master plan amendment.[5]
NOTES
[1] Because the Board is comprised of five members, a super-majority consists of a four-to-one vote.
[2] The Board raises two additional arguments. First, the Board argues that Falcke has failed to exhaust his administrative remedies by not presenting to the Board his argument concerning the validity of DCDC § 20.608.070. The Board relies solely on First American Title Co. v. State of Nevada, 91 Nev. 804, 543 P.2d 1344 (1975), as support for its argument. In First Am. Title Co., this court held that a taxpayer could not maintain a suit where it had failed to challenge the property valuation before the county and state boards of equalization as required under Nevada statute. See id. at 805-06, 543 P.2d at 1345. We conclude that First Am. Title Co. is inapplicable to this case because no similar Nevada statute requires Falcke to first present his challenge to the Board.
Second, the Board also argues that mandamus does not lie because the Board had no duty to grant the master plan amendment. As discussed herein, we conclude that the Board does have a duty to grant the master plan amendment under NRS 278.220 because it voted twice to approve the amendment on a three-to-two majority vote. Accordingly, we conclude that mandamus is appropriate in this case in order to compel the Board, by virtue of its vote, to grant Falcke's amendment to the master plan.
[3] The Board does cite to Lamb, 90 Nev. at 332-33, 526 P.2d at 82, as support for the proposition that local county or city ordinances are invalidated by statute only if the legislature intended to occupy the field of regulation in the relevant area of legislation. The Board goes on to argue that NRS Chapter 278 has delegated all authority regarding land use and development issues to the Board, including the authority to require a super-majority vote by the Board to approve a master plan amendment. However, we conclude that Lamb is inapplicable to this case on this issue because, as discussed above, the legislature clearly did not intend to occupy the field of regulation concerning local land use and development issues. Rather, pursuant to NRS Chapter 278, the legislature sought to provide a clear and unambiguous statutory framework for the Board to follow as it created its own master plan and amendments thereto. Thus, we conclude that NRS Chapter 278 does not grant the Board authority to deviate from the specific language and requirements of NRS 278.220.
[4] We note that DCDC §§ 20.608.060 and 20.608.070 conflict with NRS 278.220 in another crucial way. The plain language of NRS 278.220 does not require that the Board's decision comport with the Planning Commission's decision in approving a master plan amendment. See NRS 278.220; 79-14 Op. Att'y Gen. 73 (1979) (concluding that the Board "is not precluded from subsequently acting on a proposed amendment to the Master Plan which initially failed to obtain an affirmative two-thirds majority vote of the [Planning Commission]"). However, DCDC §§ 20.608.060 and 20.608.070 require that both the Board and the Planning Commission agree to the master plan amendment. In light of our conclusion that DCDC § 20.608.070 is invalid because it conflicts with NRS 278.220, we note this additional conflict between. DCDC §§ 20.608.060 and 20.608.070 and NRS 278.220 in order to provide guidance to Douglas County on this issue.
[5] We note that after a careful review of the entire record, it appears that Falcke's request for a zoning change of the Herbig property is still subject to approval by the Board pursuant to DCDC § 20.610.040.
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262 F.3d 427 (5th Cir. 2001)
UNITED STATES OF AMERICA, Plaintiff-Appellant,v.HENRY BLUME LOE, Defendant-Appellee.UNITED STATES OF AMERICA, Plaintiff-Appellant,v.HENRY BLUME LOE, Defendant-Appellee.
No. 99-41372, No. 99-41506
UNITED STATES COURT OF APPEALSFor the Fifth Circuit
August 15, 2001
Appeals from the United States District Court for the Eastern District of Texas[Copyrighted Material Omitted]
Before REAVLEY, SMITH, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
1
In April 1998, a multi-count, superseding indictment was returned against several individuals including Defendant Henry Blume Loe ("Blume Loe"). Among the various counts charged against Blume Loe were those for conspiracy to defraud the United States, submitting false statements, and tax fraud. After several weeks of trial, a jury convicted Blume Loe of all ten counts that were charged against him, but the district court ultimately granted a judgment of acquittal with respect to five of the counts.
2
On appeal, the government seeks a reversal of the district court's judgment of acquittal. Blume Loe cross-appeals, hoping to reverse his remaining convictions and sentences. For the following reasons, we affirm the convictions and sentences assessed against Blume Loe, but reverse the district court's judgment of acquittal.
I. BACKGROUND
3
In 1946, the Loe family started Loe's Highport, Inc. ("LHI"), a marina located on Lake Texoma on property leased from the United States Army Corps of Engineers ("COE"). At the times pertinent to these appeals, Cornelius Dewitte Loe, Jr. ("C.D. Loe"), and Babo Beazley Loe ("Babo Loe") operated LHI. Of their three sons, only Blume Loe worked at the marina. Neither Cornelius Dewitte Loe, III, nor William Loe played a significant role in the marina's operations, and neither was charged with any criminal activity in the indictment.
4
In 1996, the Federal Bureau of Investigation executed a search warrant on the marina facilities of LHI, which later culminated in the multi-count indictment against Blume Loe, C.D. Loe, Babo Loe, and others. Not all of the counts were pressed against all of the defendants. Thereafter, the district court partially granted a motion to sever, and a trial on some of the counts against some of the defendants occurred. That first trial pertained to Counts 17, 22-25, and 29-31 of the multi-count indictment and did not involve Blume Loe. The second trial concerned the remaining counts and included Blume Loe as a defendant. Approximately five weeks into the second trial, however, one of Blume Loe's attorneys became ill and was unable to proceed. As a result, the district court severed Blume Loe's case and continued the trial with the remaining defendants.
5
When the government finally proceeded with the third trial against Blume Loe, he faced ten criminal counts, generally grouped into three categories. First, Counts 1-5 charged Blume Loe with conspiracy to defraud the COE and related substantive acts of submitting false statements. Under the lease agreement with the COE, LHI owed rent based upon a percentage of the gross receipts of its business. LHI reported the rent to be paid on a COE form called the "Graduated Rent System Rental Computation Form." Count 1 alleged that Blume Loe entered into a conspiracy to defraud the COE by submitting false rental numbers, and Counts 2-5 complained of individual substantive acts of submitting false statements. Second, Counts 12-15 charged Blume Loe with making false statements on his personal income tax returns for the 1992-95 tax years. The government maintained that in the returns for those years, Blume Loe underreported his income and did not include as compensation thousands of dollars that he received from an off-the-books account of LHI. Third, Count 16 charged Blume Loe with failing to file a Form 8300, a document required to be filed with the Internal Revenue Service whenever a person receives $10,000 or more in cash or cash equivalents in a business transaction. Specifically, the government alleged that Blume Loe sold a boat to Gene DeBullet in or around November 1994 for $21,000 in cash and that Blume Loe failed to file a Form 8300 reporting that transaction.
6
The jury convicted Blume Loe on all counts, but the district court granted a judgment of acquittal with respect to Counts 1-5.1 In general, the district court held that there was no evidence that Blume Loe had anything to do with completing or filing the rental reports with the COE or in supervising those persons who did. The government filed this appeal to seek review of that judgment. Blume Loe cross-appeals, maintaining that: 1) there was insufficient evidence to support his convictions for the other five counts; 2) the district court erred in calculating his sentence; 3) the district court made improper evidentiary rulings; and 4) the district court should have granted his motion for a mistrial based on prejudicial communications between the jurors and others.
II. DISCUSSION
A. Counts 1-5
7
The government maintains that the district court erred in granting Blume Loe's motion, pursuant to Rule 29, for a judgment of acquittal on Counts 1-5. When reviewing such a decision, we give no deference to the district court's ruling. United States v. Baytank (Houston), Inc., 934 F.2d 599, 616 (5th Cir. 1991). Instead, we review de novo a district court's grant of a judgment of acquittal, applying the same standard as the district court. United States v. Sanchez, 961 F.2d 1169, 1179 (5th Cir. 1992). That standard asks whether a reasonable jury could conclude that the relevant evidence, direct or circumstantial, established all of the essential elements of the crime beyond a reasonable doubt when viewed in the light most favorable to the verdict. See United States v. Scott, 159 F.3d 916, 920 (5th Cir. 1998). The standard does not require that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. Baytank, 934 F.2d at 616. "'A jury is free to choose among reasonable constructions of the evidence.'" Id. (quoting United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc)). And it retains the sole authority to weigh any conflicting evidence and to evaluate the credibility of the witnesses. United States v. Millsaps, 157 F.2d 989, 994 (5th Cir. 1998).
8
As previously noted, Count 1 alleged that Blume Loe, his mother Babo Loe, and others entered into a conspiracy to defraud the COE by submitting false rental numbers, in violation of 18 U.S.C. § 371, and Counts 2-5 complained of individual substantive acts of submitting false statements, in violation of 18 U.S.C. § 1001.2 The crux of those five charges pertained to the conspiracy charge as the individual substantive act counts were predicated on Pinkerton v. United States, 328 U.S. 640 (1946).3 To establish a violation of 18 U.S.C. § 371, the government must establish beyond a reasonable doubt: 1) that two or more people agreed to pursue an unlawful objective; 2) that the defendant voluntarily agreed to join the conspiracy; and 3) that one or more members of the conspiracy committed an overt act in furtherance of the conspiracy. United States v. Dien Duc Huynh, 246 F.3d 734, 745 (5th Cir. 2001).
9
Here, the district court generally observed that "[t]here is no evidence that Henry Blume Loe had anything to do with completing or filing the rental reports with the Corps of Engineers or supervised those persons who did." It further recited the substance of various aspects of the government's evidence: 1) testimony and written job descriptions indicating that Blume Loe had an important role and major duties at LHI; 2) testimony stating that Blume Loe was brought in to run the business; 3) testimony observing Blume Loe's attendance in Babo Loe's office discussing marina business; 4) and testimony from Marie Ward, a coconspirator of Babo Loe's, that Blume Loe returned from a meeting with the COE and stated certain possibly incriminating statements. Despite the standard of review afforded motions for judgments of acquittal, the district court found the evidence insufficient. Ultimately, the district court seemed persuaded by the fact that there was no direct evidence of Blume Loe's participation in accounting functions and by the fact that, regardless of any title held by Blume Loe, the bulk of the evidence showed that Babo Loe ran the marina.
10
Babo Loe's management of LHI, however, does not mean that Blume Loe did not or could not have entered into a conspiracy as to the underreporting of boat sales. Admittedly, none of the evidence presented to the jury directly linked Blume Loe with the COE reports. The government's case clearly rested on circumstantial evidence. We, however, do not differentiate between direct and circumstantial evidence when reviewing a grant of a judgment of acquittal. See Scott, 159 F.3d at 920. The key issue then is whether the circumstantial evidence established all of the essential elements of the crime beyond a reasonable doubt, and we must draw all reasonable inferences from that evidence in favor of the verdict.
11
Doing so, we find that the evidence cited by the district court, and the evidence it did not mention, sufficient to convict Blume Loe of a § 371 violation. A reasonable inference from the testimony about Blume Loe being the "heir apparent" of the marina business and from the job descriptions and other evidence indicating Blume Loe's level of responsibility at the marina is that he knew about the underreporting of boat sales.4 It is not unreasonable to infer that a son presumed to be the next head of the corporation would probably know what is going on with the affairs of that business, especially in light of his frequent meetings with the parent that supposedly ran the business. Furthermore, the jury could have reasonably concluded that Babo Loe would not have sent Blume Loe to meet with the COE, where the parties talked about matters such as future development and the new lease format, unless he had some knowledge regarding the reporting of boat sales. And most importantly, a reasonable inference from Ward's testimony about the statements made by Blume Loe after he returned from meeting with the COE is that he knew about LHI's underreporting. Ward testified on direct testimony that after returning from the COE meeting in Tulsa, Blume Loe said that "the Corps told him that everyone kept two sets of books." On cross, she responded positively to defense counsel's question as to whether Blume Loe told her that the COE stated that LHI was due a refund because LHI had been overpaying for brokerage boats and that he wanted her to go back and try to calculate the refund. Later on re-direct, Ward elaborated, stating that she told Blume Loe that she did not have time and that the recalculation "wouldn't offset the other changes [LHI] had already made." By "other changes," Ward meant prior underreporting by LHI. The jury could have reasonably inferred that Ward's statement that any new calculations would not offset the previous other changes reflected a common knowledge and tacit agreement by the parties involved in the underreporting. There is no evidence showing that Ward had to define "other changes" to Blume Loe or that Blume Loe responded in any fashion demonstrating innocence. Rather, the evidence in the record seems to suggest that Blume Loe accepted, without challenge, Ward's comments. Thus, even the evidence recited by the district court could reasonably create the inference in the minds of the jurors that Blume Loe knew of and was involved in the reporting of the COE forms.
12
What is also equally damning of Blume Loe is the evidence that the district court failed to discuss in its order. Besides failing to note that Blume Loe sought the COE meeting, where the parties discussed future development and the new lease format, the district court did not evaluate in its order Blume Loe's control and access over the bank account where LHI kept the proceeds of the boat sales that were not reported to the COE, and which he definitely utilized for personal purposes. With respect to that latter fact, a jury could have reasonably inferred that a person utilizing thousands of dollars from a bank account would have had some knowledge of how that money got there and had some direction in the money's procurement.
13
We recognize that some of the circumstantial evidence in isolation can be read to suggest a possibility other than guilt. But when viewed in the light most favorable to the verdict, neither the total composition of that evidence nor certain items, such as Blume Loe's control over the off-the-books bank account and his statements to Ward after the COE meeting, seem to suggest an equally viable theory of innocence. So long as a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt, the evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt. Baytank, 934 F.2d at 616. That is the case here, and the jury was free to choose among the reasonable constructions of the evidence: one of which was consistent with Blume Loe's guilt. Id. Therefore, we reverse the district court's grant of a judgment of acquittal; we direct that the district court reinstate the jury's guilty verdict on Counts 1-5; and we remand for sentencing proceedings consistent with these determinations.
B. Counts 12-15
14
On his cross-appeal, Blume Loe questions the sufficiency of the evidence with respect to his convictions for Counts 12-15. Those counts charged Blume Loe with making false statements on his personal income tax returns for the 1992-95 tax years, in violation of 26 U.S.C. § 7206(1).5 During each of those years, besides his normal salary compensation, Blume Loe received approximately $90,000, which he used to pay the premiums on a life insurance policy on Babo Loe. He also received various smaller amounts, which were not utilized for the life insurance premiums. The monies given to Blume Loe came from the off-the-books account, into which LHI diverted sales income that it did not report to the COE. Blume Loe's tax returns did not include the extra monies as income. According to Blume Loe, the government did not establish a violation of § 7206(1) because it failed to prove 1) that the extra monies constituted compensation or taxable income and 2) that he knew that the income was taxable income.
15
We need not expend too much energy on Blume Loe's arguments as they are unavailing. The government introduced substantial evidence reflecting Blume Loe's guilt. First, Babo Loe maintained "commission files" that indicated that much of the additional monies received by Blume Loe were commission payments, i.e., taxable income. Second, several government exhibits showed that Blume Loe claimed a salary in excess of $100,000 a year, far more than the $52,000 that he noted on his income tax returns. Third, after the government began its investigation of LHI and the Loes, Blume Loe's 1996 W-2 form suddenly complied with the greater income figures, reporting that he made in excess of $100,000. Fourth, Blume Loe left a job making more than $100,000 a year to come work at LHI. The jury could have reasonably inferred that Loe would not have taken a 50% pay cut unless other remuneration would be provided. Fifth, the jury could have reasonably concluded that based on the fact that Blume Loe oversaw the sales department and reviewed the salesmen's commissions and the fact that he himself was eligible for those commissions, Blume Loe knew that he would receive more than the reported $52,000 salary. Finally, the jury could have reasonably inferred from LHI's and the Loes' underreporting of boat sales that LHI would need a way to dispose of some of the extra funds and that under-the-table money to Blume Loe would be a good candidate for such funds. In light of all the proffered evidence, we believe that sufficient evidence existed for the convictions on Counts 12-15.
C. Count 16
16
Blume Loe also appeals his conviction on Count 16, which charged Blume Loe with failing to file a Form 8300, a document required to be filed with the Internal Revenue Service whenever a person receives $10,000 or more in cash or cash equivalents in a business transaction, in violation of 26 U.S.C. §§ 6050I(a) and 7203. Specifically, the government alleged that Blume Loe sold a boat to Gene DeBullet in or around November 1994 for $21,000 in cash and that Blume Loe failed to file a Form 8300 reporting that cash transaction. In his brief, Blume Loe generally contends that the evidence was insufficient because he was not present during the actual cash transaction nor directed anyone not to file the form. Instead, he maintains that he told Ward to write out a receipt for DeBullet.
17
Having reviewed the considerable evidence proffered by the government, however, we find Blume Loe's argument meritless. Although he initially contends, and points to evidence, that he was not the one who received the cash from DeBullet for the boat sale, other testimony contradicts that view. We must defer to the jury's assessment of credibility and accept its apparent belief that Blume Loe obtained the cash from DeBullet and then gave it to Ward. The evidence clearly established that before the DeBullet sale, Blume Loe knew about the reporting requirement, that he had personally made boat sales exceeding $10,000 in cash, and that he had attempted to divert those funds so as to escape the reporting requirement. Furthermore, the evidence revealed that Blume Loe lied to the IRS about not having done cash sales greater than $10,000, that he refused to turn over records to the IRS, and that neither he nor LHI had ever filed a Form 8300 on sales exceeding $10,000. Thus, at the time of the DeBullet sale, the evidence suggested that the jury could reasonably infer that Blume Loe had the intent and knowledge to do the crime.
18
Of course, Blume Loe insists that he bears no responsibility because he instructed Ward to document the transaction and because he never told her not to do the Form 8300. But asking Ward to document the sale does not mean that he wanted her to do the form. Instead, the record indicates that LHI's routine was not to file the Form 8300; hence, a reasonable inference could have been that Blume Loe was relying upon Ward to do the regular thing and not file it. In any case, evidence showed that Blume Loe was the person responsible for filing the Form 8300, and he cannot escape blame for failing to do that act. Accordingly, we reject his sufficiency of the evidence challenge as to Count 16.
D. Evidentiary Rulings
19
Besides his sufficiency of the evidence claims, Blume Loe argues that the district court committed an "identifiable pattern of consistently erroneous evidentiary rulings that disregarded the evidentiary requirements and resulted in cumulative error that was harmful in nature." He charges that the district court "repeatedly allowed summary witnesses with no personal knowledge whatsoever of the events at issue to testify as to documents about which they had no personal knowledge." In addition, Blume Loe contends that the district court admitted documents that were never properly authenticated and that were never shown to be admissible business records.
20
We review a district court's evidentiary rulings for abuse of discretion. United States v. Wilson, 249 F.3d 366, 374-75 (5th Cir. 2001). After reviewing Blume Loe's specific allegations, the district court's rulings, and the applicable law, we find no such abuse. Accordingly, the district court's evidentiary rulings are affirmed.
E. Alleged Sentencing Errors
21
Blume Loe also avers that the district court erred in its calculation. With respect to that claim, he points to several purported mistakes. First, Blume Loe maintains that the money he received and then used to pay the life insurance premiums each year should not have been included in the tax loss calculation for 1993-95. Second, he argues that the district court erred in evaluating LHI's purchase of a home in 1990 on his behalf as relevant conduct and in including the "tax due" on that house in the tax loss calculation. Third, Blume Loe believes that the district court's decision to include the value of the home as taxable income for the tax loss calculation violated the holding of Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).6 Fourth, Blume Loe challenges the district court's inclusion in its tax loss calculation $34,314.92 that Babo Loe's notes indicate were paid "tax-free" to Blume Loe. He states that the evidence is unclear as to whether he received the money and that Babo Loe's intent was to give the funds tax-free. Finally, Blume Loe contends that the district court wrongly utilized a 34% corporate tax rate in calculating the tax loss, rather than the applicable 28% rate.
22
We review the district court's interpretation and application of the sentencing guidelines de novo. United States v. Hill, 42 F.3d 914, 916 (5th Cir. 1995). On the other hand, factual findings of the district court, such as what constitutes relevant conduct, must be supported by a preponderance of the evidence and are reviewed for clear error. United States v. Nevels, 160 F.3d 226, 229 (5th Cir. 1998). An amount of loss finding is also reviewed for clear error. Hill, 42 F.3d at 919.
23
Upon reviewing Blume Loe's arguments, the record, and the applicable law, we find his points of error unavailing. With respect to his first point, it resembles his sufficiency of the evidence claims against Counts 12-15. We previously found the evidence sufficient for Counts 12-15; and here, despite the different standard, we find no clear error in the district court's assessment to include the $90,000 per year payments in the tax loss calculation. Likewise, we do not believe that the district court clearly erred in including the home and its value. The evidence revealed that Blume Loe "took" a substantial pay cut to come to LHI, and the district court could have reasonably inferred that the house was intended to be additional compensation. That finding is buttressed by the fact that Blume Loe's compensation suddenly jumped after the government began its investigation of LHI and the Loes. The district court could reasonably infer from that sudden jump that Blume Loe's actual compensation in the earlier years included the value of the home and that he was merely not reporting it. Additionally, including the home's value as relevant conduct did not amount to an Apprendi violation. Contrary to Blume Loe's assertion, the district court's consideration of the home's value did not result in a sentence in excess of the statutory maximum. Blume Loe received a sentence well within the three-year statutory maximum for a violation of § 7206(1). As for Blume Loe's contention that the district court should not have included the $34,314.92 that Babo Loe purportedly gave tax-free, we again conclude that the district court did not clearly err. That sum was part of the amount that formed the basis of Count 14, and the government meticulously traced the checks and the funds that comprised virtually all of the contested amount to LHI corporate funds. Finally, we see no support for Blume Loe's argument that the district court applied an incorrect tax rate. The revised presentence report reflects application of a 28%, not 34%, tax rate. In light of the preceding, we conclude that Blume Loe's contentions with respect to his sentence are without merit.
F. Mistrial
24
The final item in Blume Loe's cross-appeal relates to the district court's denial of his motion for a mistrial based on allegations of juror misconduct. We review such denials for abuse of discretion. United States v. Denman, 100 F.3d 399, 405 (5th Cir. 1996).
25
Here, two allegedly improper contacts with the jury occurred. In the first incident, one of the bailiffs essentially told the jurors that the present case had been previously tried with other defendants, that the case had to be severed because of health problems associated with one of the defense counsel, that the district court believed that the case should be decided within three weeks, and that the trial could last much longer if it did not end in three weeks. Upon learning of the possible length of the trial, the jurors all groaned. In the second incident, a juror ran into one of the government's witnesses during lunch. That witness told the juror that he was testifying for the second time due to the prior trial being called off because of a defense counsel's heart attack. When the district court became aware of the two incidents, it conducted interviews with each juror. The district court found no prejudice and continued with the trial, although it did remove the offending bailiff.
26
Blume Loe contends that through the contacts, inadmissible information reached the jury, abridging his Sixth Amendment right to confront the evidence against him and resulting in convictions based in part on guilt by association. We disagree. None of the communications arising from the contacts were material or prejudicial. They did not inform the jurors about the outcome of the prior trial nor did they cast any aspersions on Blume Loe or the other defendants in the prior trial. Furthermore, the communications did not concern any facts that would necessarily have been a focus of cross-examination by the defendant. Consequently, we conclude that the district court did not abuse its discretion in denying Blume Loe's motion for a mistrial based on allegations of juror misconduct.
III. CONCLUSION
27
For the foregoing reasons, we affirm the convictions for Counts 12-15 and for Count 16; we reverse the grant of a judgment of acquittal on Counts 1-5; we direct that the district court reinstate the jury verdict of guilty on Counts 1-5; and we remand the case for resentencing consistent with this opinion.
NOTES:
1
Blume Loe moved for a judgment of acquittal on all counts after the close of the government's case in chief. The district court took the matter under advisement and filed an order three months after trial had ended.
2
The indictment also referred to the aiding and abetting statute, 18 U.S.C. § 2.
3
"In Pinkerton, the Supreme Court held that 'a party to a conspiracy may be held responsible for a substantive offense committed by a coconspirator in furtherance of a conspiracy, even if that party does not participate in or have any knowledge of the substantive offense.'" United States v. Gobert, 139 F.3d 436, 439 n.22 (5th Cir. 1998) (quoting United States v. Jensen, 41 F.3d 946, 955-56 (5th Cir. 1994)). Blume Loe's liability for the substantive offenses appears to be based on his coconspirators' actions, which were apparently clear violations of 18 U.S.C. § 1001. Blume Loe does not challenge the government's reliance on Pinkerton for Counts 2-5.
4
One of the descriptions denoted his responsibilities as including 1) the supervision of employees in all departments, 2) the review of weekly payroll and sales reports, and 3) the review of monthly corporate financial statements.
5
To establish a violation of § 7206(1), the government must show that 1) the accused willfully made and subscribed to a tax return, 2) the return contained a written declaration that it was made under penalties of perjury, and 3) the accused did not believe that the return was true as to every material matter. United States v. Mann, 161 F.3d 840, 848 (5th Cir. 1998).
6
Apprendi held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury. 120 S. Ct. at 2363-64.
| {
"pile_set_name": "FreeLaw"
} |
878 F.Supp. 1091 (1995)
AGRICULTURAL EXCESS AND SURPLUS INSURANCE COMPANY, an Illinois Corporation and Delta Sonic Automatic Car Wash Systems, a New York Corporation, Plaintiff,
v.
A.B.D. TANK & PUMP CO., an Illinois Corporation, and Xerxes Corporation, a Delaware Corporation, Defendants.
No. 94 C 2854.
United States District Court, N.D. Illinois, Eastern Division.
February 16, 1995.
*1092 Daniel Charles Murray, Frederick S. Mueller, William J. Anaya, Robert Walter York, Johnson & Bell, Ltd., Chicago, IL, for Agricultural Excess & Surplus Ins. Co.
Glenn Charles Sechen, Jerome Wiener, Brian M. Fornek, Schain, Firsel & Burney, Ltd., Chicago, IL, Daniel Charles Murray, Frederick S. Mueller, William J. Anaya, Robert Walter York, Johnson & Bell, Ltd., Chicago, IL, for Delta Sonic Automatic Car Wash Systems.
Donald F. Hemmesch, Jr., Timothy David Nimrod, Taslitz, Smith & Hemmesch, Chicago, IL, for A.B.D. Tank & Pump Co.
Neil Kevin Quinn, Michael Gerard Bruton, Mark Peter Standa, Pretzel & Stouffer, Chtd., Chicago, IL, for Xerxes Corp.
MEMORANDUM OPINION AND ORDER
NORDBERG, District Judge.
Before the Court are Defendant A.B.D. Tank & Pump Company's and Defendant Xerxes Corporation's Motions to Dismiss Plaintiff Agricultural Excess and Surplus Insurance Company's and Delta Sonic Automatic Car Wash Systems' Amended Complaint.
ALLEGED FACTS
Plaintiffs Agricultural Excess and Surplus and Insurance Company ("AESIC") and Delta Sonic Automatic Car Wash Systems ("Delta Sonic") have brought a fourteen count complaint against Defendant A.B.D. Tank & Pump Company ("ABD Tank") and Defendant Xerxes Corporation ("Xerxes") based on the leakage of an underground storage tank at Delta Sonic's retail operation located at 600 West North Avenue, Elmhurst, Illinois.
AESIC and Delta Sonic allege that in or about August, 1984, Delta Sonic entered into an agreement with ABD Tank to purchase an underground storage tank for the purpose of holding petroleum products and dispensing the same for retail sale at Delta Sonic's retail operation located at 600 West North Avenue, Elmhurst, Illinois. (Amended Complaint at ¶ 11.) The tank was to be deigned and manufactured by Xerxes and installed by ABD Tank. Id.
Sometime after Xerxes delivered and ABD Tank installed the underground storage tank and underground storage tank system, AESIC and Delta Sonic determined that the underground storage tank and the underground storage tank system leaked causing petroleum to escape into the soil and groundwater both at the site and on adjacent property Id. at ¶ 17. AESIC and Delta Sonic allege that they have incurred great expense determining the cause and extent of the damage and remedying the damage. Id. at ¶ 18. According to AESIC and Delta Sonic, all of *1093 the damage incurred was caused by ABD Tank's intentional or negligent acts or omissions and its failure to perform in a workmanlike manner and by Xerxes' intentional or negligent acts or omissions and its material breach of its agreement including its express and implied warranties. Id. at ¶¶ 19-20. (The First Amended Complaint does not describe in detail the cause of the leaks.) Pursuant to a Commercial General Liability Insurance Policy, AESIC is obligated to indemnify Delta Sonic for certain costs and expenses incurred because of petroleum leaks.
AESIC and Delta Sonic bring Count I of their Amended Complaint pursuant to the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901-6992k, alleging that the conditions caused by the leaking underground storage tank "may present an imminent and substantial endangerment to health or the environment" because petroleum products have migrated through the soil and into the groundwater at the site and through the soil and into the groundwater of adjacent properties. (Amended Complaint Count I at ¶ 21.) As a result of the leakage, petroleum products allegedly remain in the soil and groundwater and continue to migrate beyond the site. Id. at ¶ 24. According to the Amended Complaint, ABD Tank and Xerxes have improperly disposed of a solid or hazardous waste in violation of the RCRA, and thus AESIC and Delta Sonic assert that they are entitled to a preliminary and permanent injunction requiring ABD Tank and Xerxes to undertake all necessary actions to address and abate the petroleum contamination at the site, see 42 U.S.C. § 6972(a). Id. at ¶ 26, Prayer for Relief (A). The remaining counts are based on the following state law theories, contractual subrogation (Count II), breach of contract (Count III), breach of warranty (Counts IV and V), negligence (Counts VI and VII), breach of third party beneficiary contract (Count VIII), strict liability ultra hazardous activities (Count IX), strict liability products liability (Count X), nuisance (Count XI), continuing private nuisance (Count XII), continuing trespass (Count XIII) and equitable indemnity (Count XIV).
ABD Tank and Xerxes have filed separate motions to dismiss the Amended Complaint. ABD Tank, in its Motion to Dismiss, offers two reasons why this Court should dismiss the Amended Complaint. First, ABD Tank argues that § 6972(a) of the RCRA does not provide for a private cause of action to compel the remediation of soil and ground water contamination emanating from leaking petroleum underground storage tanks. Second, ABD Tank argues that, even if § 6972(a) does provide a private cause of action to compel the remediation of soil and ground water contamination caused by leaking petroleum, AESIC and Delta Sonic cannot state a claim under § 6972(a) as they have not alleged a substantial and imminent damage to public health or the environment.
Xerxes offers three reasons why this Court should dismiss the Amended Complaint. First, Xerxes asserts that, as a manufacturer or supplier of the underground storage tank, it has not contributed to the handling, storage, treatment or disposal of waste, and thus it is not subject to liability under § 6972(a) of the RCRA. Second, Xerxes claims that, even if a manufacturer of an underground storage tank is subject to liability, AESIC and Delta Sonic cannot hold Xerxes liable because AESIC and Delta Sonic did not notify Xerxes of the suit ninety (90) days prior to filing its Amended Complaint, see 42 U.S.C. § 6972(b)(2)(A). Finally, as to the remaining state claims, Xerxes argues that, if this Court dismisses Count I, it should decline to exercise pendant jurisdiction over the remaining state claims and if this Court does not dismiss Count I, it should nevertheless dismiss the remaining state claims for failure to state a claim on which relief may be granted.
The Court addresses ABD Tank's and Xerxes' arguments in support of their motions to dismiss below.
ANALYSIS
When considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must view all of the facts alleged in the complaint, as well as any inferences reasonably drawn from them, in the light most favorable to the plaintiff. Caldwell v. City of Elwood, Ind., 959 F.2d 670, 671 (7th Cir.1992), citing Mosley v. Klincar, *1094 947 F.2d 1338, 1339 (7th Cir.1991). A court should only dismiss a claim if it appears beyond a doubt that the plaintiff cannot establish any set of facts which would entitle him to the relief requested. Id. at 671-672.
ABD Tank's Motion to Dismiss
a. Private Right of Action
As noted above, ABD Tank asserts that the Court should dismiss Count I of the Amended Complaint because § 6972(a) of the RCRA does not provide for a private right of action to compel the remediation of soil and groundwater contamination from leaking petroleum underground storage tanks. RCRA § 6972(a) states in relevant part:
Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf
(1)(A) against any person (including (a) the United States, and (b) any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any permit, standard, regulation, condition, requirement, or order which has become effective pursuant to this chapter; or
(B) against any person, including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution, and including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.
42 U.S.C. § 6972(a).
At least two courts have provided different answers to the question of whether § 6972(a) applies to leaking petroleum underground storage tanks. In Dominick's Finer Foods, Inc. v. Amoco Oil Company and Shell Oil Company, No. 93 C 4210, 1993 WL 524808 * 2 (N.D.Ill. December 15, 1993), the court held that the plaintiff could bring a claim for injunctive and declaratory relief under § 6972 of the RCRA for contamination caused by petroleum leaks from defendant's underground storage tanks. In arriving at its conclusion, the Dominick's court noted that, under § 6972(a)(1)(B), a person may bring a cause of action based on the disposal of a solid waste that presents a substantial danger to the health or environment. 42 U.S.C. § 6972(a)(1)(B). The contested issue which the Dominick's court had to address was whether gasoline or petroleum from an underground tank constituted either a "hazardous or solid waste." Id. at * 2.
The Dominick's court concluded that leaked petroleum from an underground storage tank constitutes a "solid waste." Id. Following the reasoning of Zands v. Nelson, 779 F.Supp. 1254, 1261-64 (S.D.Cal.1991), the Dominick's court noted that the RCRA's definition of "solid waste" includes discarded liquid from commercial operations, see 42 U.S.C. § 6903(3).[1] In Zands, the court observed that, even though the RCRA does not define "discarded," the statute does define "disposal"a word synonymous with "discarded" as the "leaking ... of any solid waste or hazardous waste into or on any land or water...." 779 F.Supp. at 1262 (citing 42 U..C. § 6903(3)). Moreover, the Code of Federal Regulations defines "discarded material" as any material that is abandoned, see 40 C.F.R. § 261.2(a)(2), and explains that materials are solid wastes if they are "abandoned" by being "disposed" of. Zands, 779 F.Supp. at 1262 (citing 40 C.F.R. §§ 261.2(a)(2) and (b)).
Although the RCRA and the regulations define "solid waste""any discarded material" broadly, the Zands court did recognize that the definition of "solid waste" would not *1095 include material which is still useful. 779 F.Supp. at 1262. In fact, the Zands court opined that Congress intended the RCRA to take into account the transformation of a product from useful to useless by including the word "leaking" in its definition of the word "disposed." Id. While gasoline is clearly a useful material when it is deposited into an underground storage tank and dispensed through pumps for sale, gasoline is no longer useful once it seeps into the soil and groundwater. Id. Based on Zands's analysis of the RCRA's statutory language and the definitions in the Code of Federal Regulations, the Dominick's court found that "once gasoline leaked into the soil, the gasoline itself was no longer a useful material and instead became abandoned or discarded material." 1993 WL 524808 at * 2. This Court finds the reasoning of the Zands and Dominick's courts persuasive and agrees that leaked gasoline from an underground storage tank is no longer useful and is appropriately defined as discarded material or solid waste. In all likelihood, Congress did not intend that soil and groundwater contaminated by gasoline should escape the RCRA's coverage simply because the contamination was caused by a product which was at one time useful.
In addition to concluding that the statutory language of the RCRA, supplemented by the definitions in the Code of Federal Regulations, included leaking petroleum from underground storage tanks within the definition of solid waste, both the Zands and Dominick's courts rejected the argument that Subchapter IX of the RCRA, 42 U.S.C. §§ 6991-6991i, regulates underground storage tanks and is the exclusive remedy for petroleum leaks from underground storage tanks. 779 F.Supp. at 1262-63; 1993 WL 524808 at * 3. Both Zands and Dominick's determined that, even if the regulation of underground storage tank petroleum waste was governed by Subchapter IX, Subchapter IX does not foreclose a private action brought pursuant to § 6972(a)(1)(B) regarding a leaking storage tank. Id.
In Winston v. Shell Oil Co., 861 F.Supp. 713, 716 (C.D.Ill.1994), the court agreed with the court in Zands that, taking the C.F.R.'s broad definition of solid waste into account, petroleum which leaked from an underground storage tank could be defined as a solid waste. However, the Winston court rejected the Zands court's determination that Subchapter IX merely provides an additional, as opposed to exclusive, means for addressing problems with underground storage tanks. Id. at 716-17. In holding that plaintiffs may not bring a citizen suit because petroleum underground storage tanks are exclusively regulated by Subchapter IX and Subchapter IX does not provide for citizen suits, Winston relied on Edison Elec. Institute v. U.S.E.P.A., 2 F.3d 438 (D.C.Cir.1993). 861 F.Supp. at 717.
In Edison, the court held that the Environmental Protection Agency's ("EPA") decision to defer regulation of underground storage tank waste did not violate RCRA's statutory mandate to establish rules identifying hazardous waste and then to subject such hazardous waste to regulation. 2 F.3d at 452-53. The Edison court noted that the EPA reasonably determined that regulation of petroleum leakage from underground storage tanks under Subchapter III would overlap with the regulatory scheme for underground storage tanks under Subchapter IX creating administrative confusion and duplication of efforts, and thus upheld the EPA's decision to defer regulation of petroleum leakage from underground storage tanks under Subchapter III until the EPA worked out the overlap. Id.
In determining that regulation of leaked petroleum from underground storage tanks under Subchapter IX would overlap with regulation under Subchapter III, the EPA noted that Subchapter IX § 6991(2) defines "regulated substance" as
(A) any substance defined in section 9601(14) of this title (but not including any substance regulated as a hazardous waste under Subchapter III of this chapter), and
(B) petroleum
42 U.S.C. § 6991(2).[2] 2 F.3d at 452. The EPA found that the language of § 6991(2)(A) *1096 ensures that, apart from petroleum, the substances regulated under Subchapters III and IX would not overlap. Id. Once a substance is defined as a hazardous substance under Subchapter III, it is no longer regulated under Subchapter IX falling instead into the domain of Subchapter III. Id.
However, the EPA recognized that a problem arises because Subchapter III defines petroleum as a hazardous waste and yet the kickout provision of § 6991(2)(A) does not apply to petroleum.[3]Id. The EPA contended, and the Edison court agreed, that the appropriate solution to this problem was to leave regulation of petroleum waste to Subchapter IX to avoid duplication of regulation efforts under Subchapters III and IX. Edison, 2 F.3d at 452. Thus, the Edison court permitted the EPA to temporarily defer regulating petroleum waste under Subchapter III until it sorted out the overlap between Subchapter III and Subchapter IX with regard to the regulation of petroleum leakage from underground storage tanks. Id. at 452-53.
Based on the reasoning of Edison, the Winston court concluded that petroleum underground storage tanks should be regulated only under Subchapter IX. 861 F.Supp. at 717. While this Court agrees with Winston that petroleum leakage from underground storage tanks should be regulated under Subchapter IX, not Subchapter III, this Court does not conclude that regulation of petroleum leakage from underground storage tanks under Subchapter IX prohibits civil enforcement suits under Subchapter VII.
Subchapter VII § 6972(a) allows a private citizen to bring a civil suit against anyone "who has contributed or is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." 42 U.S.C. § 6972(a). Because § 6972(a) allows a private citizen to bring a civil enforcement suit against anyone who is contributing to the disposal of any solid or hazardous waste, this Court finds, contrary to the holding in Winston, that the Edison court's reasoning does not require this Court to conclude that Subchapter IX of the RCRA precludes private civil enforcement suits. The Edison court's conclusion that petroleum leakage from underground storage should be regulated under Subchapter IX, not Subchapter III, (even though petroleum waste might be defined as a hazardous waste under Subchapter III) does not mean that a private citizen cannot bring a civil enforcement suit, pursuant to Subchapter VII, against someone who is contributing to the disposal of petroleum defined as a solid waste.
The Winston court notes that Subchapter IX defines petroleum as a "regulated substance," see 42 U.S.C. § 6991(2)(B), separate and apart from all other "regulated substances" which are defined as "any substance defined in section 9601(14) of this title (but not including any substance regulated as a hazardous waste under subchapter III of this chapter)." 861 F.Supp. at 717. The Winston court notes further that § 9601(14) of the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA") defines "hazardous substance" to exclude *1097 petroleum.[4] From CERCLA's definition of "hazardous substance," which explicitly excludes petroleum, the Winston court concludes that petroleum is neither a hazardous or solid waste under RCRA, and thus a private civil enforcement suit is not available under § 6972(a). Id.
Contrary to the Winston court's reasoning, this Court agrees with Zands that CERCLA's exclusion of petroleum from the definition of "hazardous substance" does not mean that RCRA excludes petroleum from its definition of hazardous or solid waste. RCRA, unlike CERCLA, does not explicitly exclude "petroleum" from its definition of hazardous waste or more importantly from its definition of solid waste. Again, this Court notes that, even if Edison counsels that petroleum leakage from underground storage tanks should not be defined as a hazardous waste regulated under Subchapter III, Edison does not prevent an individual from bringing a civil enforcement action, pursuant to Subchapter VII, to enjoin further contamination from petroleum leakage from underground storage tanks where such leakage is defined as a solid waste. Thus, this Court refuses to bar civil enforcement suits under RCRA § 6972(a) for petroleum leakage from underground storage tanks simply because CERCLA excludes petroleum from its coverage.
As the Zands and Dominick's courts noted, even given Edison's direction that petroleum leakage from underground storage tanks should be regulated under Subchapter IX, no section of Subchapter IX prohibits civil enforcement suits. Subchapter IX does permit the Administrator of the Environmental Protection Agency to issue orders requiring compliance with Subchapter IX and to bring a civil action to enforce such orders. Dominick's, 1993 WL 524808 at *3 (citing 42 U.S.C. § 6991e(a)(1)). Subchapter IX also allows states to impose and enforce more stringent regulations. 1993 WL 524808 at *3 (citing 42 U.S.C. § 6991g). However, Subchapter IX contains no provision establishing that Subchapter IX is the exclusive remedy for leaks from underground storage tanks. 1993 WL 524808 at * 3. Moreover, Subchapter VII § 6972 expressly recognizes that federal and state governments have enforcement authority and precludes a private civil enforcement action where the Administrator or the State has initiated certain actions. See 42 U.S.C. § 6972(b)(2)(B) and (b)(2)(C). Thus, this Court agrees with the Zands and Dominick's courts that Subchapter IX merely provides additional, not exclusive, means for addressing problems with underground storage tanks. Civil enforcement suits brought pursuant to Subchapter VII § 6972(a) would merely supplement the federal enforcement provisions of Subchapter IX. Because this Court concludes petroleum leakage from an underground storage tank can be defined as disposed solid waste and regulation of underground storage tanks under Subchapter IX does not preclude a civil enforcement action under Subchapter VII § 6972(a)(1)(B), this Court denies ABD Tank's Motion to Dismiss Count I of the Amended Complaint on the basis that civil enforcement actions are not available for petroleum leakage from underground storage tanks.
b. Imminent and Substantial Endangerment to Health or the Environment
Even if § 6972(a) does provide a private cause of action to compel the remediation of soil and ground contamination caused by *1098 leaking petroleum, ABD Tank argues that AESIC and Delta Sonic cannot state a claim under § 6972(a) as they have not alleged a substantial and imminent damage to public health or the environment. Contrary to ABD Tank's argument, paragraph 22 of Count I of the Amended Complaint alleges that "[t]he conditions caused by the leaking UST at the Site may present an imminent and substantial endangerment to health or the environment as these terms are defined and described in the [RCRA] ... in that leaked petroleum products from the UST or UST systems have migrated through the soil and into the groundwater at the Site and onto and through the soil and groundwater at adjacent properties." (Amended Complaint at ¶ 21.)
Despite paragraph 22, ABD Tank focuses on paragraphs 18, 28 and 29 of the Amended Complaint which suggest that the escaping petroleum products have cost AESIC $180,222.00 in remedial expenses, $275,765.80 in property damage and $50,000.00 in related expenses and Delta Sonic over $50,000.00 (the amount of its deductible, plus non-covered expenses). According to ABD Tank such paragraphs suggest that AESIC and Delta Sonic brought this action to recoup monies expended for remediation of contamination at the site, and thus no imminent or substantial threat or endangerment to health or the environment exists. Because § 6972(a) does not permit a private citizen to bring a civil enforcement act for damages, ABD Tank argues that this Court should dismiss Count I of the Amended Complaint.
RCRA § 6972(a) states in relevant part, The district court shall have the jurisdiction ... to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation or disposal of any solid or hazardous waste referred to in paragraph (1)(B), [and] to order such person to take such other action as may be necessary ...
42 U.S.C. § 6972(a). In Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 57 n. 2, 108 S.Ct. 376, 381, 98 L.Ed.2d 306 (1987), the Supreme Court specifically mentioned the RCRA as an example of an environmental statute that authorizes only prospective relief. Moreover, subsequent cases have specifically held that, while injunctive relief is available under § 6972(a)(1)(B), the statute does not provide a private action for damages. Kaufman and Broad-South Bay v. Unisys Corp., 822 F.Supp. 1468, 1476-77 (N.D.Cal.1993); Commerce Holding Co. v. Buckstone, 749 F.Supp. 441, 445 (E.D.N.Y.1990).
Thus, the Court agrees with ABD Tank that AESIC and Delta Sonic cannot bring an action under § 6972(a)(1)(B) to recoup past remediation expenses. However, a close look at the allegations in the Amended Complaint suggest that, while the state law claims, which include paragraphs 28 and 29, may seek to recover remediation expenses, Count I prays for a preliminary and permanent injunction which orders ABD Tank and Xerxes to address the problem of petroleum in the soil and groundwater at the site and to prevent continuing migration of petroleum into the soil and groundwater beyond the site. (Amended Complaint at ¶ 24, Prayer for Relief A.)
Yet, ABD Tank argues that, even if paragraphs 28 and 29 are part of AESIC's and Delta Sonic's attempt to recoup remediation expenses under state law, paragraph 18, which is incorporated in the RCRA claim, suggests that AESIC and Delta Sonic have already cleaned up the site, and thus no imminent or substantial threat to health or the environment exists. Paragraph 18 reads,
The escaping petroleum products have caused great expense to AESIC and Delta Sonic to determine the cause, and to determine the threat and extent of environmental damage, and to remedy the cause and the threat of environmental damage at the Site and at adjacent property, and other serious damage.
Id. at 18. While the Court agrees with ABD Tank that paragraph 18, when read in isolation, indicates that AESIC and Delta Sonic have already addressed the environmental damage, the Court finds that when paragraph 18 is read in conjunction with paragraph 24, they indicate that the harm from the underground storage tank petroleum *1099 leak continues to grow. Paragraph 24 makes it clear that petroleum remains in the groundwater and soil at the site and continues to migrate beyond the site. Accepting all allegations as true and construing all reasonable inferences in favor of the AESIC and Delta Sonic, the Court concludes that the Amended Complaint sufficiently alleges that the petroleum leakage from the underground storage tank may present an imminent and substantial endangerment to health or the environment.
Xerxes' Motion to Dismiss
c. Scope of Potential Defendants under § 6972(a)(1)(B)
In support of its Motion to Dismiss, Xerxes argues that, as a manufacturer or supplier of the underground storage tank, it has not contributed to the handling, storage, treatment or disposal of waste, and thus it is not subject to liability under § 6972(a) of the RCRA. Xerxes relies principally on Zands for its assertion that it does not fall within the scope of potential defendants under § 6972(a)(1)(B).
In Zands, the court noted that § 6972(a)(1)(B) allows any person to commence a civil action "against any person ... who has contributed or who is contributing to the past or present handling, storage, treatment, transportation or disposal of any solid or hazardous waste...." 779 F.Supp. at 1264 (citing 42 U.S.C. § 6972(a)(1)(B)). Because the statute does not define "contributor," the Zands court looked to the "ordinary meaning" of the language in the RCRA. Id. (citing Securities Industries Association v. Board of Governors, 468 U.S. 137, 149, 104 S.Ct. 2979, 2985-86, 82 L.Ed.2d 107 (1984)). While "contribute to" is ordinarily defined as "to be an important factor in; help to cause," the Zands court holds that there must be some limitations on the definition of contributor with respect to § 6972(a)(1)(B). 779 F.Supp. at 1264. Thus, the court in Zands determined,
[I]ndividuals who provided the materials for the underground storage tank to the installer are one step removed, as are individuals who sold the land to the individuals who had the underground storage tank installed.
Id. While under a broad reading of contributor, such individuals could be said to have "helped cause" the leak, the Zands court found it appropriate to limit the definition of "contributor" to exclude such individuals. Id.
The Court agrees with Zands that the individuals who sold the land to the persons who had the underground storage tank installed and the bank which made the loan for the purchase of the land are so far removed that it can be said as a matter of law that they did not contribute to the leakage. However, this Court finds that the definition of "contributor" should not be limited to such an extent to foreclose a suit against the manufacturer of the underground storage tank.[5]
AESIC and ABD Tank allege that XERXES manufactured and designed the underground storage tank which was installed by ABD Tank on Delta Sonic's property in or about August 1984. (Amended Complaint at ¶ 11.) Sometime thereafter, AESIC and Delta Sonic determined that the underground storage tank and the underground storage tank system leaked causing petroleum products to escape from the underground storage tank and the underground storage tank system into the soil and groundwater at the site and onto adjacent property. Id. at ¶ 17. AESIC and Delta Sonic's allegations clearly suggest that Xerxes' faulty manufacture and design of the underground storage tank caused the leakage of the petroleum from the underground storage tank into the soil and groundwater. Id. at ¶¶ 20, 23 and 24. Given the allegations in the Amended Complaint and accepting those allegations as true, this Court cannot hold as a matter of law that Xerxes, the manufacturer and designer of the underground storage tank which allegedly *1100 leaked petroleum, does not fall within § 6972(a)(1)(B)'s definition of one who is contributing to the disposal of any solid waste. Thus, the Court denies Xerxes' Motion to Dismiss Count I on the basis that Xerxes does not fall within the scope of defendants liable under § 6972(a)(1)(B).
In addition to its assertion that, as a manufacturer and designer of underground storage tanks, it does not fall within the scope of § 6972(a)(1)(B), Xerxes argues that this Court must dismiss Count I because AESIC and Delta Sonic have failed to comply with the notice requirements of § 6972(b). RCRA § 6972(b)(2)(A) states in relevant part:
No action may be commenced under subsection (a)(1)(B) of this section prior to ninety days after the plaintiff has given notice of the endangerment to
(i) the Administrator;
(ii) the state in which the alleged endangerment may occur;
(iii) any person alleged to have contributed or to be contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in subsection (a)(1)(B) of this section;
except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of Subchapter III of this chapter.
42 U.S.C. § 6972(b)(2)(A).
In Hallstrom v. Tillamook, 493 U.S. 20, 24, 110 S.Ct. 304, 308, 107 L.Ed.2d 237 (1989), the Supreme Court addressed the notice requirements in § 6972(b)(1)(A) for actions commenced under § 6972(a)(1)(A). Although this Court recognizes that AESIC and Delta Sonic bring Count I of their Amended Complaint under § 6972(a)(1)(B), not § 6972(a)(1)(A), the language of the notice provisions for § 6972(a)(1)(A) and § 6972(a)(1)(B) is identical except for the fact that § 6972(b)(1)(A) prohibits a plaintiff from bringing an action under § 6972(a)(1)(A) prior to sixty days after the plaintiff has given notice to the Administrator, the State and any alleged violator; whereas § 6972(b)(2)(A) prohibits a plaintiff from bringing an action under § 6972(a)(1)(B) prior to ninety days after the plaintiff has given notice to the Administrator, the State and any person alleged to have contributed to the handling, storage, treatment, transportation, or disposal of any solid or hazardous waste. Given the similarities between the notice requirements of § 6972(b)(1)(A) and § 6972(b)(2)(A), this Court finds the Supreme Court's opinion in Hallstrom persuasive.
In Hallstrom, the Supreme Court held that, because the notification language is expressly incorporated into § 6972(a), "it acts as a specific limitation on a citizen's right to bring a suit." 493 U.S. at 26, 110 S.Ct. at 308-09. Thus, under a literal reading of the statute, compliance with the ninety day notice provision is a mandatory, not optional, condition precedent for suit. See Hallstrom, 493 U.S. at 26, 110 S.Ct. at 308-09.
In the present case, AESIC and Delta Sonic notified both ABD Tank and Xerxes of their intention to file a suit under § 6972(a) of the RCRA on May 9, 1994. See, Plaintiffs' Exhibit A attached to their Response Memorandum to Xerxes' Motion to Dismiss. Also on May 9, 1994, Delta Sonic and AESIC filed their Complaint naming ABD Tank and Xerxes as Defendants. Thus, Delta Sonic and AESIC cannot contend that they waited the requisite ninety days after providing notice to ABD Tank and Xerxes before filing suit.
AESIC and Delta Sonic present two arguments in an attempt to escape application the Supreme Court's holding in Hallstrom. First, AESIC and Delta Sonic argue that, although they filed their original complaint on the same date they provided the Defendants with notice of the suit, they filed an Amended Complaint on June 9, 1994 and Xerxes did not plead or otherwise answer the Amended Complaint until it filed its Motion to Dismiss on October 20, 1994. Thus AESIC and Delta Sonic argue that the action did not really commence until October 20, 1994. The Hallstrom court has already rejected a similar argument.
In Hallstrom, the plaintiffs argued that if a suit, which was commenced without proper *1101 notice, is stayed until sixty days after notice has been given, the district court should deem the notice requirement to be satisfied. 493 U.S. at 26, 110 S.Ct. at 308-09. The Hallstrom court responded that allowing the plaintiffs to stay the action to comply with the notice requirement flatly contradicts the language of the statute. Id. The Supreme Court noted that, under Rule 3 of the Federal Rules of Civil Procedure, "[a] civil action is commenced by filing a complaint with the court," and thus the plaintiffs cannot contend that they commenced their suit on any day other than the day on which they filed their complaint. Id. (citing Fed.R.Civ.P. 3).
Reading § 6972(b)(2) in light of Rule 3, a plaintiff may not file suit before fulfilling the ninety day notice requirement. The fact that Xerxes did not respond to the Amended Complaint until it filed its Motion to Dismiss on October 20, 1994 does not delay the commencement of the suit. As AESIC and ABD Tank have not complied with the notice provision of § 6972(b)(2)(A), their action is barred by the plain terms of the statute and thus Count I of the Amended Complaint must be dismissed. See Hallstrom, 493 U.S. at 33, 110 S.Ct. at 312.
However, AESIC and Delta Sonic assert that, even if their suit commenced on May 9, 1994 when they filed their Complaint, Count I should not be dismissed because § 6972(b)(2)(A) provides an exception to the rule that a plaintiff may not commence an action until ninety days after providing notice. RCRA § 6972(b)(2)(A) does provide an exception to the ninety day notification rule. However, such exception provides no aid to AESIC and Delta Sonic. RCRA § 6972(b)(2)(A) prohibits a plaintiff from bringing an action pursuant to § 6972(a)(1)(B) prior to ninety days after plaintiff has given notice of the endangerment "except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of subchapter III of this chapter." 42 U.S.C. § 6972(b)(2)(A).
Relying on Edison Elec. Institute v. U.S.E.P.A., 2 F.3d 438, 451-53 (D.C.Cir. 1993), this Court has already held that petroleum leakage from underground storage tanks should be regulated under Subchapter IX, not Subchapter III. Moreover, this Court found that Plaintiffs could bring a civil enforcement action under Subchapter VII § 6972(a) because leaked petroleum from underground storage tanks is a solid waste, not a hazardous waste. As Subchapter III regulates only hazardous wastes, AESIC and Delta Sonic cannot bring a citizen suit pursuant to § 6972(a) for a violation of Subchapter III due to leaking petroleum from underground storage tanks. Thus, AESIC and Delta Sonic cannot take advantage of § 6972(b)(2)(A)'s exception for Subchapter III violations. AESIC and Delta Sonic have not satisfied the ninety day notice requirement, and because the ninety day notice requirement is a prerequisite to bringing suit pursuant to § 6972(a)(1)(B), this Court must dismiss Count I of their Amended Complaint without prejudice.
As jurisdiction in this case is based on a federal question, the RCRA, and as the dismissal of Count I disposes of all federal claims before this Court, this Court may decline to exercise jurisdiction over Plaintiffs' state law claims under 28 U.S.C. § 1367(c). This Court is mindful of the Supreme Court's admonition that if the federal claims are dismissed before trial, then the state claims should be dismissed as well. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). Accordingly, Counts II through XIV of the Amended Complaint are dismissed without prejudice.
CONCLUSION
For the foregoing reasons ABD Tank's Motion to Dismiss is denied. Xerxes' Motion to Dismiss is granted. As AESIC and Delta Sonic have failed to comply with the ninety day notice requirement provided in 42 U.S.C. § 6972(b)(2)(A), they are precluded from bringing a civil enforcement action pursuant to 42 U.S.C. § 6972(a)(1)(B). Accordingly, Count I of the Amended Complaint is dismissed as to both ABD Tank and Xerxes without prejudice. Counts II through XIV of the Amended Complaint are also dismissed without prejudice.
NOTES
[1] The RCRA defines "solid waste" as
"any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining and agricultural operations and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows ..."
42 U.S.C. § 6903(27).
[2] Section 9601(14) lists those substances regulated under the Comprehensive Environmental Response, Compensation and Liability Act and expressly excludes petroleum. 42 U.S.C. § 9601(14).
[3] It is not clear why the EPA determined and the Edison court agreed that petroleum could be defined as a hazardous substance under Subchapter I. Subchapter I defines "hazardous waste" as
(5) a solid waste, or combination of solid wastes, which because of its quantity, concentration or physical, chemical or infectious characteristics may
(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible illness; or
(B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.
42 U.S.C. § 6903(5). However, the EPA may have concluded that, as petroleum is composed of xylene and benzene, both of which are covered by Subchapter III, Subchapter III defines petroleum as a "hazardous substance."
[4] CERCLA § 9601(14) defines "hazardous substance" as follows:
(A) any substance designated pursuant to section 1321(b)(2)(A) of Title 33, (B) any element, compound, mixture, solution, or substance designated pursuant to section 9602 of this title, (C) any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act [42 U.S.C.A. § 6921], (D) any toxic air pollutant listed under section 1317(a) of Title 33, (E) any hazardous air pollutant listed under section 112 of the Clean Air Act [42 U.S.C.A. § 7412], and (F) any imminently hazardous chemical substance or mixture with respect to which the Administrator has taken action pursuant to section 2606 of Title 15. The term does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (A) through (F).
42 U.S.C. § 9601(14).
[5] When the Zands court excluded "individuals who provided the materials for the underground storage tank," it is not clear whether the Zands court meant to exclude only those individuals who provided the raw materials necessary to construct and install the underground storage tank or additionally, manufacturers of underground storage tanks.
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NUMBER 13-09-00466-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
______________________________________________________________
RODNEY COATS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
_____________________________________________________________
On Appeal from the 148th District Court
of Nueces County, Texas.
______________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion Per Curiam
Appellant, Rodney Coats, attempted to perfect an appeal from a conviction for
failure to register as a sex offender. We dismiss the appeal for want of jurisdiction.
Sentence in this matter was imposed on June 4, 2009. No motion for new trial was
filed. Notice of appeal was filed on August 6, 2009. On September 1, 2009, the Clerk of
this Court notified appellant that it appeared that the appeal was not timely perfected.
Appellant was advised that the appeal would be dismissed if the defect was not corrected
within ten days from the date of receipt of the Court’s directive. Appellant has not
responded to this notice.
Texas Rule of Appellate Procedure 26.2 provides that an appeal is perfected when
notice of appeal is filed within thirty days after the day sentence is imposed or suspended
in open court unless a motion for new trial is timely filed. TEX . R. APP. P. 26.2(a)(1). Where
a timely motion for new trial has been filed, notice of appeal shall be filed within ninety days
after the sentence is imposed or suspended in open court. TEX . R. APP. P. 26.2(a)(2). The
time within which to file the notice may be enlarged if, within fifteen days after the deadline
for filing the notice, the party files the notice of appeal and a motion complying with Rule
10.5(b) of the Texas Rules of Appellate Procedure. See TEX . R. APP. P. 26.3.
Appellant’s notice of appeal was due to have been filed on or before July 6, 2009.
See TEX . R. APP. P. 26.2(a)(1). Appellant did not file a motion for extension of time to file
his notice of appeal as permitted by Texas Rule of Appellate Procedure 26.3 and did not
file his notice of appeal until August 6, 2009.
This Court's appellate jurisdiction in a criminal case is invoked by a timely filed
notice of appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Absent a
timely filed notice of appeal, a court of appeals does not obtain jurisdiction to address the
merits of the appeal in a criminal case and can take no action other than to dismiss the
appeal for want of jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App.
1998). Appellant may be entitled to an out-of-time appeal by filing a post-conviction writ
of habeas corpus returnable to the Texas Court of Criminal Appeals; however, the
availability of that remedy is beyond the jurisdiction of this Court. See TEX . CODE CRIM .
PROC . ANN . art. 11.07, § 3(a) (Vernon 2005); see also Ex parte Garcia, 988 S.W.2d 240
(Tex. Crim. App. 1999).
The appeal is DISMISSED FOR WANT OF JURISDICTION.
PER CURIAM
Do not publish. See TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and filed
this the 12th day of November, 2009.
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838 P.2d 1100 (1992)
115 Or. App. 440
STATE of Oregon, Respondent,
v.
Dennis Dal MAHONEY, Appellant.
C89-11-36711; CA A65260.
Court of Appeals of Oregon.
Argued and Submitted October 30, 1991.
Decided October 14, 1992.
*1101 Barry L. Adamson, Lake Oswego, argued the cause for appellant. With him on the brief were Roger Hennagin and Hennagin & Shonkwiler, Lake Oswego.
Virginia L. Linder, Sol. Gen., Salem, waived appearance for respondent.
David Paul and Merten & Associates, Portland, filed a brief amicus curiae for Lorraine Robertson.
Before RICHARDSON, P.J., JOSEPH, C.J., and DEITS, J.
RICHARDSON, Presiding Judge.
Defendant pled no contest to one count of sexual abuse in the second degree, ORS 163.425, under an indictment charging four counts of sexual abuse in the second degree and one count of public indecency. ORS 163.465. He was placed on five years' probation, subject to 11 special conditions. He challenges three of those conditions. Two of the challenged conditions, 10 and 11, have become moot.[1] We address only his claim of error regarding probation condition 3:
"Defendant is to pay the victim * * * attorney fees in the amount of $10,414.79."
Defendant was the victim's supervisor at her place of employment. The criminal charges arose from the employment relationship. In 1986, the victim consulted an attorney about defendant's sexual harassment, and the attorney advised her about avenues that she could pursue. In 1989, when the sexual harassment had not stopped, her attorney began investigating and collecting information to present to the police to induce a criminal complaint against defendant. The attorney entered into discussions with the employer about the harassment. He also advised and counselled the victim as she proceeded through the criminal complaint process and until defendant entered his plea in February, 1990.
The victim was billed an hourly fee by the lawyer for services rendered to her until defendant entered his plea. After the plea of no contest, the victim decided to file a civil action and signed a contingency fee agreement with her attorney to prosecute that action. The services reflected in her request for restitution were all rendered before the no contest plea.
Defendant argues:
"A crime victim's attorney fees that have been incurred solely in contemplation of related civil litigation are not `special damages' that can be imposed as restitution under ORS 137.103(2)."
Essentially, his argument is that the requested fees were accrued to prosecute the civil action and that fees sought in the same action in which they are incurred are not considered "special damages."
Restitution, for the purposes of ORS 137.106, is defined in ORS 137.103(2) to be "special damages, * * * which a person could recover against the defendant in a civil action arising out of * * * the defendant's criminal activities." There is little question but that the attorney fees were incurred because of defendant's criminal activities. The trial court so found, and defendant does not contest that finding. However, in order for the fees to be ordered *1102 as restitution, they must be special damages.
Defendant cites State v. O'Brien, 96 Or.App. 498, 774 P.2d 1109, rev. den. 308 Or. 466, 781 P.2d 1214 (1989), as dispositive. We said:
"The crucial question in deciding whether attorney fees may be recovered as restitution is whether they are `special damages' * * *. Attorney fees are not considered damages when sought in the same action in which the services are rendered. However, they may be damages when sought in a separate action." 96 Or.App. at 505, 774 P.2d 1109.
Defendant argues that, as in O'Brien, the victim here is seeking restitution for attorney fees and expenses incurred in pursuing a civil claim against him.
Defendant did not contest the victim's statements or the affidavit of her attorney about the fees. The evidence was to the effect that she sought legal advice to help her deal with defendant and her employer and to work toward an indictment and criminal prosecution. Certainly, a crime victim is entitled to do that. See State v. Lindsly, 106 Or.App. 459, 808 P.2d 727 (1991). In a civil tort action against defendant, the victim would be entitled to seek as damages attorney fees expended to help her work through a criminal prosecution so that the sexual harassment could be stopped. The criminal process was a different action than the civil complaint that she filed.
Affirmed.
JOSEPH, Chief Judge, dissenting.
The majority's attempt to distinguish State v. O'Brien, 96 Or.App. 498, 774 P.2d 1109, rev. den. 308 Or. 466, 781 P.2d 1214 (1989), is wholly unpersuasive. That is hardly surprising, because there is no rational way to make a distinction.
I dissent.
NOTES
[1] Condition 10 is:
"Defendant is to be restrained from obligating or transferring his assets, property, interests in real estate, cash, rights to pension and retirement funds and personal property without prior approval of probation officer pending resolution of civil suit by victim."
Condition 11 is:
"Defendant is to pay any civil judgment found in [the victim's civil action]."
The parties settled the civil action after the appeal was filed and defendant has paid the amount of the settlement.
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135 Cal.Rptr.2d 790 (2003)
109 Cal.App.4th 1118
David L. KAHN, Plaintiff and Appellant,
v.
LASORDA'S DUGOUT, INC., et al., Defendants and Respondents.
No. B156294.
Court of Appeal, Second District, Division Eight.
June 16, 2003.
*791 David L. Kahn, in pro. per., for Plaintiff and Appellant.
No appearance for Defendants and Respondents.
RUBIN, J.
INTRODUCTION
Plaintiff David L. Kahn appeals from an order dismissing his fourth amended complaint following an unsuccessful application for the entry of default.[1] Because the trial court failed to exercise discretion in deciding whether to accept copies of promissory *792 notes in lieu of the originals at the default prove-up hearing, we reverse and remand for a new hearing.
PROCEDURAL SUMMARY AND FACTUAL STATEMENT
As there was no contested factual determination, the underlying events are gleaned from the complaint, plaintiffs declaration filed in support of his default application, and responses to plaintiffs requests for admission. Essentially, plaintiff claimed to have loaned defendant Tommy Lasorda, Inc. ("Lasorda Inc.") $25,000. The loans were memorialized in two promissory notes for $12,000 and $13,000, respectively. In addition, Lasorda Inc. and defendant Lasorda's Dugout, Inc. ("Dugout") guaranteed payment of the two notes. Neither defendant repaid the monies when they became due, so plaintiff brought this action.
The record does not disclose the entire history of the litigation, but, as noted, the operative pleading was the fourth amended complaint. Apparently, at some point in time the case was hotly contested because not only were demurrers and amended pleadings filed, the trial judge appointed a discovery referee to handle various disputes. On April 7, 1998, the referee issued an order striking the answer of Lasorda Inc. and awarding plaintiff sanctions in the amount of $6,080.50, most of which represented earlier sanctions. Meanwhile Dugout, although apparently served, did not answer, and its default was taken.[2]
On September 28, 2001, the court held a default prove-up hearing. Plaintiff, a lawyer, appeared in pro. per. There were no appearances by defendants. Prior to the hearing, plaintiff, had submitted two packets of materials to the court. The documents included plaintiffs declaration, his requests for admission and Lasorda Inc.'s responses thereto, various exhibits, the summons, and proof of service. The court queried plaintiff about the extent of the prove-up materials and confirmed that plaintiff was seeking default judgments against both Lasorda Inc. and Dugout. There was no substantive discussion about either the law of promissory notes or guarantees or the procedural posture of the case. The court then took the matter under submission.
On October 19, 2001, the court issued a minute order that stated in part: "Plaintiff has failed to provide the Court with the originals of the promissory notes as required by California Rule of Court 234 ["rule 234"]. Plaintiff has failed to meet the burden of proof necessary for default judgment. Plaintiffs Request for the Entry of Default Judgment as to defendants Lasorda's Dugout, Inc and Tommy Lasorda, Inc. is denied." After observing that the claims against the only other defendant, Steven Fox, had been submitted to binding arbitration, the court dismissed the matter "in its entirety." Plaintiff was not offered an opportunity to submit additional evidence in an attempt to cure any defects in his prove-up.
Thereafter, plaintiff sought reconsideration. On December 31, 2001, the trial court denied the motion. This appeal followed.[3]
*793 DISCUSSION
Plaintiff argues that the trial court erred when it: (1) required him to submit the original promissory notes; (2) ignored the guarantee as a separate basis for relief; and (3) concluded that plaintiff had failed to meet his burden of proof. He contends that not only were the orders denying the entry of a default judgment and dismissing the case contrary to law, they violated his federal and state constitutional rights. We conclude that the trial court failed to exercise its discretion in deciding whether to accept copies of the notes. We remand for the court to reconsider its ruling in light of the discretion that it has. Because we cannot determine if the court's conclusion that plaintiff failed to meet his burden of proof is predicated on the failure to submit the original notes or for some other reason, that issue is more appropriate for the trial court to address in the first instance after the court exercises the required discretion. Finally, because we reverse for other reasons, we do not consider plaintiffs constitutional arguments.
We start our analysis with the rule on which the trial court founded its decision to deny entry of default and to dismiss the case. Rule 234 provides: "In all cases in which judgment is rendered upon a written obligation to pay money, the clerk shall, at the time of entry of judgment, unless otherwise ordered, note over his official signature and across the face of the writing the fact of rendition of judgment with the date thereof and title of the court and cause."
Plaintiff contends that, under the circumstances of this case, where he had lost the original notes, the trial court erred in not accepting copies. He cites no case authority for this proposition. The dearth of prior cases on the precise subject, however, is not surprising, as our research has uncovered only one reported case that discusses any aspect of either rule 234 or its repealed, identical municipal court counterpart, former rule 522. That case, Bill Benson Motors, Inc. v. Macmorris Sales Corp. (1965) 48 Cal.Rptr. 123, 238 Cal. App.2d Supp. 937, is not particularly helpful because the opinion contains only a description of trial court practice and does not purport to establish principles for interpreting the rule. There, the cross-complaint sought safekeeping during litigation and eventual destruction by the clerk of certain items of negotiable paper on which the plaintiff had based its complaint. In characterizing the effect of the cross-complaint, the appellate department observed: "This is relief which a court of law (as distinguished from equity) customarily gives in course of rendering a money judgment on contracts involving written instruments. Where rights on a written instrument are merged into a judgment, the clerk is under a duty to take up such instruments and to note such merger on the instruments. (Cal. Rules of Court, rule 522.) In fact such notation stamp has been put on the said eleven drafts which were introduced in the trial as part of Exhibit 1." (Id. at p. 941, 48 Cal.Rptr. 123.)
Without direct appellate authority to guide our inquiry into the meaning of *794 rule 234, we turn to general principles of law. First, the interpretation of a rule of court is governed by the same precepts that apply to statutory interpretation. "The usual rules of statutory construction are applicable to the interpretation of the California Rules of Court." (Volkswagen of America, Inc. v. Superior Court (2001) 94 Cal.App.4th 695, 703, 114 Cal.Rptr.2d 541.) This means our primary object is to determine the drafters' intent. "The words of the statute are the starting point. Words used in a statute ... should be given the meaning they bear in ordinary use. [Citations.]' If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature...." (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 977, 90 Cal.Rptr.2d 260, 987 P.2d 727.)
On its face, rule 234 does not purport to address the circumstances under which a party, in a default proceeding or trial, may use a copy in lieu of the original of a promissory note or other written obligation to pay. Rather, it appears to be directory only to the clerk of the court, by stating that the clerk must undertake certain obligations with respect to a category of judgments. Indeed, temporally, the rule speaks to postjudicial determination, and does not even appear to address the subject of admissibility of writings at hearing or trial.[4] A contrary interpretation would appear to create a conflict between rule 234 and various Evidence Code provisions that generally permit the use of secondary evidence (including copies) to prove the content of a writing. (See Evid.Code, §§ 1521 et seq, 1550 et seq.) If rule 234 were irreconcilable with the Evidence Code, the former would have to yield for rules "promulgated by the Judicial Council may not conflict with governing statutes." (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 532, 117 Cal.Rptr.2d 220, 41 P.3d 46.)
Having made these observations, we do not rest our decision on this ground, for there is a narrower basis for affording plaintiff the relief he seeks, and we are reluctant to give definitive construction to the rule as a whole given that this is an appeal from the entry of a default judgment, no respondents' brief has been filed, and the matter is proceeding under rule 17(a)(2). Rather, we return to that portion of rule 234 which states the clerk shall make the entries on the written instrument "unless otherwise ordered." (Italics added.) This phrase is commonly used throughout the Rules of Court. (See, e.g., rules 103 [appellate division calendars], 243 [removal of court papers], 317 [filing of papers], 326 [change of venue motions], 367 [consolidation of cases], 953 [Supreme Court review of state bar proceedings].) Using the principles of statutory construction referred to earlier, we conclude that the phrase "unless otherwise ordered" unambiguously provides the trial court with discretion in determining whether original notes are to be inscribed as provided by rule 234. The phrase "unless otherwise ordered" has been considered the legal equivalent of the grant of judicial discretion for nearly a century (see Perry v. Industrial Acc. Comm. (1917) 176 Cal. 706, 709-710, 169 P. 353), and in a vast variety of settings. (See People v. Brigham (1979) 25 Cal.3d 283, 286, fn. 4, 157 Cal.Rptr. 905, 599 P.2d 100 ["unless otherwise ordered" equates to grant of discretion in determining length of oral argument]; Perry v. Industrial Acc. Comm., supra, at pp. 709-710, 169 P. 353 [same, in *795 context of workers' compensation benefits]; People v. Ashley (1990) 220 Cal. App.3d 919, 921, 269 Cal.Rptr. 769 [tape recording judicial proceedings]; Estate of Houchin (1958) 160 Cal.App.2d 81, 86, 324 P.2d 647 [probate orders]; Salomons v. Lumsden (1949) 213 P.2d 132, 95 Cal. App.2d Supp. 924, 928-929 [nonsuit motions]; Greenamyer v. Board of Lugo E.S. Dist. (1931) 116 Cal.App. 319, 323-324, 2 P.2d 848 [amendment of pleadings].)
Thus, because rule 234 contains the "unless otherwise ordered" exception, at a minimum the trial court here had the discretion not to require the submission of the original promissory notes. Indeed, other than a situation in which the trial court did not believe that an original document was in fact lost or destroyed, it is difficult to imagine a court not exercising its discretion to allow the use of a copy in a default proceeding, where by definition no party has interposed an objection to the copy. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2002) ¶ 5:164 [suggesting proper procedure is an application for an ex parte order directing clerk to accept copy].) The minute order clearly reflects that the trial court did not exercise discretion, as it states merely that plaintiff failed to submit originals and does not address plaintiffs excuse; nor does the reporter's transcript suggest the trial court was aware of its discretion. "The failure to exercise discretion is an abuse of discretion." (Dickson, Carlson & Campillo v. Pole (2000) 83 Cal.App.4th 436, 449, 99 Cal.Rptr.2d 678.) We therefore must remand the matter to the trial court to exercise the discretion that it enjoys. Given the procedural posture of the case, we need not decide the correctness of the trial court's conclusion that plaintiff failed to meet his burden of proof, as this ruling may have been predicated on the absence of the original notes. For the same reason, we do not decide the constitutional questions raised by plaintiff as that issue may be moot if the trial court exercises its discretion to admit copies of the notes.[5]
DISPOSITION
The order of dismissal is reversed and the matter remanded to the trial court to conduct a new default prove-up hearing consistent with the views expressed herein. Appellant to recover costs on appeal.
We concur: COOPER, P.J, and BOLAND, J.
NOTES
[1] Although plaintiff states he is appealing from the order denying entry of default judgment and subsequent motion for reconsideration, he cites no authority that either is an appealable order. However the minute order also dismissed the action in its entirety. Accordingly, we treat the minute order, which was in writing, signed by the court, and filed in the action, as an appealable judgment. (See Code Civ. Proc, § 58Id; Chauncey v. Niems (1986) 182 Cal.App.3d 967, 971, 227 Cal.Rptr. 718.)
[2] Plaintiff does not include in his appellant's appendix either a request for entry of default as to Dugout or an order entering the default of Lasorda Inc. following the referee's order striking the answer. The docket sheet reflects the entry of a default against an unidentified party on May 30, 2000. Because that date was more than four years after service on Dugout and nearly two years after the referee's order, it is not possible to link this default to a particular defendant. Although we note that plaintiff has failed to provide us with a complete record, we conclude this omission is not fatal to a determination of the appeal.
[3] Neither Lasorda Inc. nor Dugout filed a respondent's brief in this court. The record does not reveal whether this failure was based on a belief that as defaulting defendants they were not entitled to file a respondent's brief or for some other reason. (See Corona v. Lundigan (1984) 158 Cal.App.3d 764, 767, 204 Cal.Rptr. 846 [defaulting defendant has limited appellate rights].) On July 2, 2002, the court sent written notification to trial counsel for Lasorda Inc. that, unless it filed a respondent's brief within 15 days, the appeal would proceed under California Rules of Court, rule 17(a)(2) [where respondent fails to file a timely brief, the court may decide the case on the record before it]. The court received no response. All further rule references are to the California Rules of Court.
[4] Rule 234 is exceedingly narrow in scope, directing the clerk to make only a notation on the instrument of the "fact of rendition of judgment," together with the date and case name.
[5] Even if the notes were not admissible, there appears to have been no bar to plaintiff's, proving up the underlying obligation represented by the commercial paper. Fairly read, the fourth amended complaint contains two causes of action for breach of contract with damages of $12,000 and $13,000, respectively. The fact that a promissory note is a negotiable instrument, subject to the Commercial Code (see Cal. U. Com.Code, § 3104(a)) does not mean it cannot be a predicate document for an underlying breach of contract action. (See Saks v. Charity Mission Baptist Church (2001) 90 Cal.App.4th 1116, 1132, 110 Cal. Rptr.2d 45; Lawler v. Jacobs (2000) 83 Cal. App.4th 723, 731, 100 Cal.Rptr.2d 52; Kurtz v. Calvo (1999) 75 Cal.App.4th 191, 193, 89 Cal.Rptr.2d 99; Brenelli Amedeo, S.P.A. v. Bakara Furniture, Inc. (1994) 29 Cal.App.4th 1828, 1836, 35 Cal.Rptr.2d 348.)
We also observe that the trial court's dismissal did not take into account the fact that the underlying obligations were apparently guaranteed. The record does not reflect any determination that the deficiencies in plaintiff's case against the primary obligor inured to the benefit of the guarantors. Generally, a cause of action on a guarantee is separate and apart from one on the underlying obligation. (Consolidated Capital Income Trust v. Khaloghli (1986) 183 Cal.App.3d 107, 112, 227 Cal.Rptr. 879; Bauman v. Castle (1971) 15 Cal.App.3d 990, 994, 93 Cal.Rptr. 565.)
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653 N.W.2d 68 (2002)
2002 ND 179
W.J. WILSON, Petitioner and Appellant
v.
Allen M. KOPPY, Respondent and Appellee.
No. 20020161.
Supreme Court of North Dakota.
November 5, 2002.
*69 W.J. Wilson (on brief), Bismarck, pro se, for petitioner and appellant.
*70 Brian David Grosinger (on brief), Assistant State's Attorney, Mandan, for respondent and appellee.
MARING, Justice.
[¶ 1] W.J. Wilson, Jr., appearing pro se, appeals from an order denying his Petition for Writ of Mandamus to compel Morton County State's Attorney Allen M. Koppy to prosecute. We affirm.
[¶ 2] While in the custody of the North Dakota State Department of Corrections, Wilson petitioned the Morton County District Court for a writ of mandamus. In the petition, Wilson asked the court to require the State, specifically Morton County State's Attorney Koppy, to initiate the prosecution of Wilson's wife and her alleged lover for the crimes of adultery and unlawful cohabitation under N.D.C.C. §§ 12.1-20-09 and 12.1-20-10, respectively. The one-page petition was unsigned, contained no accompanying affidavit from Wilson, and was not served on the State. Wilson did not submit a filing fee, but rather, he included an Application to Proceed in Forma Pauperis with his petition. All of Wilson's pleadings were stamped filed by the clerk of court, but not given a case number. On May 17, 2002, Wilson's Application to Proceed in Forma Pauperis was denied by the trial court. Thereafter, the clerk of court mailed back to Wilson all of the documents which he had submitted to the court for filing, including his Petition for Writ of Mandamus and his Application to Proceed in Forma Pauperis. The letter which accompanied the documents stated that the documents were being returned because the trial court had denied Wilson's Application to Proceed in Forma Pauperis. In response, Wilson mailed all the documents back to the court with a letter requesting a filing number for the case and the name of the presiding judge. In the letter, Wilson also accused the clerk of lying to him and denying him his right to due process. After receiving Wilson's resubmitted documents, the trial court entered an Order on May 30, 2002, denying Wilson's Petition for Writ of Mandamus on the grounds that Koppy had exercised his discretion in not prosecuting. This Order was filed by the clerk of court and mailed to Wilson and Koppy. Wilson appeals from this Order.
[¶ 3] Wilson argues on appeal that it is his right to have his wife and her alleged lover prosecuted for adultery and unlawful cohabitation. Specifically, Wilson contends that it is the State's Attorney's duty to initiate prosecution under N.D.C.C. § 11-16-01(2) and claims that Koppy has chosen not to prosecute in this matter solely because of the type of crime that is being alleged. Because of Koppy's alleged breach of this duty to prosecute and Wilson's alleged absolute right to such prosecution, Wilson reasons that the trial court erred when it refused to issue a writ of mandamus ordering Koppy to prosecute. We disagree with Wilson's position.
I
[¶ 4] Before specifically addressing Wilson's Petition for Writ of Mandamus and the Order denying the issuance of the writ, the issue concerning the quashing of Wilson's Notice of Appeal must be resolved.
[¶ 5] After Wilson filed a Notice of Appeal on June 6, 2002, challenging the trial court's Order denying the Petition for Writ of Mandamus, the trial court clerk served Wilson's Notice of Appeal on the Assistant County State's Attorney. In reply, the State filed an "Omnibus Response to Multiple Attempted Filings by the Captioned Plaintiff" with the trial court on June 13, 2002, asking it to quash Wilson's Notice of Appeal. In the Omnibus Response, the State contended that since the filing fee *71 was neither paid nor waived for Wilson's original Petition for Writ of Mandamus, the case was improperly filed and, therefore, could not be appealed. On June 18, 2002, the trial court granted the State's Omnibus Response, quashing Wilson's Notice of Appeal and further instructing the clerk "to ignore documents unaccompanied by authorization or fee for filing in regard to this matter...."
[¶ 6] The State contends the trial court properly quashed Wilson's Notice of Appeal. According to the record, Wilson filed his Notice of Appeal with the Morton County District Court on June 6, 2002. Ordinarily, a trial court loses its jurisdiction when a notice of appeal is filed. See State v. Meier, 422 N.W.2d 381, 386 (N.D.1988) (stating "It is well recognized that unless otherwise provided by law, the trial court loses jurisdiction over a matter once an appeal is filed in that matter."). There are, however, exceptions to that general rule. See, e.g., United Accounts, Inc. v. Teladvantage, Inc., 499 N.W.2d 115, 119 (N.D.1993) (concluding that a trial court does not lose jurisdiction when a patently frivolous notice of appeal is filed); Schmidt v. Schmidt, 325 N.W.2d 230, 233 (N.D.1982) (finding an exception to the general rule when determining attorney fees on appeal in divorce cases); Thomas C. Roel Assocs., Inc. v. Henrikson, 303 N.W.2d 543, 544 (N.D.1981) (holding that an untimely filed notice of appeal does not cause a trial court to lose jurisdiction). Here, the State never argued any exception to the general rule controlled. Because the State's motion and the trial court's Order quashing Wilson's Notice of Appeal were filed after the Notice of Appeal was filed and no exception to the general rule applies, the trial court was without jurisdiction. An order entered by a court without proper jurisdiction is void and can be vacated. See Albrecht v. Metro Area Ambulance, 1998 ND 132, ¶¶ 11, 17, 580 N.W.2d 583. The trial court lost jurisdiction of the case once the Notice of Appeal was filed; the order quashing Wilson's Notice of Appeal, therefore, is void and vacated.
II
[¶ 7] The State argues that this Court does not have jurisdiction to hear this appeal since the case at the trial court level "does not exist." The State bases its contention on the fact that a filing fee was neither paid to the trial court nor waived by the trial court. We disagree with the State's position.
[¶ 8] Although Wilson's Application to Proceed in Forma Pauperis was denied by the trial court on May 17, 2002, the court later proceeded to rule on the matter by issuing an Order denying Wilson's Petition for Writ of Mandamus on May 30, 2002. While not suggesting courts should follow this procedure, we hold that by issuing the May 30, 2002 Order, the trial court was impliedly waiving the filing fee in this matter.
[¶ 9] North Dakota law authorizes the waiver of filing fees connected with any civil case by the filing of an in forma pauperis petition accompanied by a sworn affidavit establishing indigency. See N.D.C.C. § 27-01-07 (1991). The statute specifically states that the determination of whether to waive filing fees is left to the court's discretion. Id. Further, the legislature intended that a court exercise its discretion when reviewing requests to proceed in forma pauperis. See Patten v. Green, 369 N.W.2d 105, 107 (N.D.1985). The trial court initially exercised its discretion and denied Wilson's Application to Proceed in Forma Pauperis, but upon further consideration, the trial court ruled on Wilson's Application, exercising its discretion to not require a filing fee.
*72 [¶ 10] We will not disturb a trial court's decision to grant an application to proceed in forma pauperis unless the trial court abused its discretion. See id. "A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination." Vogel v. Braun, 2001 ND 29, ¶ 5, 622 N.W.2d 216. We are not convinced that the trial court abused its discretion when it waived the filing fee in this matter.
III
[¶ 11] Wilson argues that because he is entitled to have his wife and her alleged lover criminally prosecuted for adultery and unlawful cohabitation, the trial court erred when it denied his Petition for Writ of Mandamus. He contends Koppy has neglected his duty under North Dakota law to "[i]nstitute proceedings before magistrates for the arrest of persons charged with or reasonably suspected of public offenses when the state's attorney has information that such offenses have been committed,..." N.D.C.C. § 11-16-01(2) (2001). Wilson further contends that by not prosecuting, the state's attorney is "effectively [r]epeal[ing] [a] law by [c]ategorically [r]efusing [t]o prosecute one kind of crime." Wilson argues it was error for the trial court to refuse to issue a writ of mandamus compelling Koppy to prosecute because of his alleged right to this prosecution. We disagree with Wilson's position.
[¶ 12] This Court has held that it will not reverse a trial court's determination of whether to issue a writ of mandamus, "unless the writ should not issue as a matter of law or the court abused its discretion." Frank v. Traynor, 1999 ND 183, ¶ 9, 600 N.W.2d 516.
[¶ 13] In order for a court to issue a writ of mandamus, the applying party must show both a clear legal right to performance of the particular act sought to be compelled and no other plain, speedy, and adequate remedy in the ordinary course of law. See N.D.C.C. §§ 32-34-01, 32-34-02; Christianson v. City of Bismarck, 476 N.W.2d 688, 689 (N.D.1991); Old Broadway Corp. v. Backes, 450 N.W.2d 734, 736 (N.D.1990).
[¶ 14] The trial court in this case was correct in not issuing a writ of mandamus, as there remained a plain, speedy, and adequate remedy available to Wilson under N.D.C.C. § 11-16-06. See Olsen v. Koppy, 1999 ND 87, 593 N.W.2d 762 (where petitioner asked the trial court to appoint a private attorney under N.D.C.C. § 11-16-06 to initiate a criminal prosecution). Section 11-16-06 vests in the district court judge the power to appoint an attorney when a state's attorney has "refused or neglected to perform any of the duties prescribed in subsections 2 through 6 of section 11-16-01, ..." In this case, Wilson did not seek the appointment of a private attorney under N.D.C.C. § 11-16-06, but rather asked the court for a writ of mandamus. Before the trial court could properly consider the merits of Wilson's Petition for Writ of Mandamus, Wilson must first have shown that he had no other adequate remedy. Since Wilson did have an adequate remedy under § 11-16-06, he did not meet the criteria for the issuance of a writ of mandamus. The trial court should have denied his petition on these grounds. Although the trial court denied the writ based on the state's attorney's proper exercise of prosecutorial discretion, "we will not set aside a correct result merely because the trial court assigned an incorrect reason if the result is the same under the correct law and reasoning." Frank, 1999 ND 183, ¶ 10, 600 *73 N.W.2d 516. As a matter of law, Wilson was not entitled to a writ of mandamus. Therefore, the trial court did not err when it denied Wilson's Petition for Writ of Mandamus.
[¶ 15] We vacate the trial court's order quashing the Notice of Appeal and affirm the trial court's Order denying Wilson's Petition for Writ of Mandamus.
[¶ 16] VANDEWALLE, C.J., and NEUMANN, SANDSTROM and KAPSNER, JJ., concur.
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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 June 25, 2003
Charles R. Fulbruge III
Clerk
No. 03-50105
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUBEN JAIMES-ARZATE, also known
as Ruben Arzate-Jaimes, also known
as Ruben Jaimes, also known as Ruben
James, also known as Rafael Hernandez,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. A-02-CR-217-ALL-JN
--------------------
Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Ruben Jaimes-Arzate appeals the sentence imposed following
his guilty plea conviction of being found in the United States
after deportation/removal in violation of 8 U.S.C. § 1326.
Jaimes contends that 8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b)
define separate offenses. He argues that the prior conviction
that resulted in his increased sentence is an element of a
*
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. 03-50105
-2-
separate offense under 8 U.S.C. § 1326(b) that should have been
alleged in his indictment. Jaimes maintains that he pleaded
guilty to an indictment which charged only simple reentry under
8 U.S.C. § 1326(a). He argues that his sentence exceeds the
two-year maximum term of imprisonment which may be imposed for
that offense.
In Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998), the Supreme Court held that the enhanced penalties in
8 U.S.C. § 1326(b) are sentencing provisions, not elements of
separate offenses. The Court further held that the sentencing
provisions do not violate the Due Process Clause. Id. at 239-47.
Jaimes acknowledges that his argument is foreclosed by
Almendarez-Torres, but asserts that the decision has been cast
into doubt by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
He seeks to preserve his argument for further review.
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000). This court must follow Almendarez-Torres
“unless and until the Supreme Court itself determines to overrule
it.” Dabeit, 231 F.3d at 984 (internal quotation marks and
citation omitted). The judgment of the district court is
AFFIRMED.
The Government has moved for a summary affirmance in lieu of
filing an appellee’s brief. In its motion, the Government asks
that an appellee’s brief not be required. The motion is GRANTED.
AFFIRMED; MOTION GRANTED.
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Filed 9/24/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2019 ND 234
Margaret Cichos, individually, and as the
surviving spouse of Bradley Cichos, and as
Personal Representative of the Estate of
Bradley Cichos, deceased, Lyman Halvorson,
individually, Kenzie Halvorson,
individually, Landon and Sierra Halvorson
as parents and natural guardians of A.H.
DOB 2011, a minor child, each individually
and collectively as assignees of Lyle Lima,
Lyle Lima, individually, Plaintiffs and Appellants
v.
Dakota Eye Institute, P.C., Dakota
Eye Institute, LLP, Briana Bohn, O.D.,
individually, Defendants and Appellees
No. 20180347
Appeal from the District Court of Pierce County, Northeast Judicial District,
the Honorable Donovan J. Foughty, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Opinion of the Court by Tufte, Justice.
Daniel M. Traynor (argued) and Jonathon F. Yunker (appeared), Devils Lake,
N.D., for plaintiff and appellant Margaret Cichos.
Timothy M. O’Keeffe (on brief), Fargo, N.D., for plaintiffs and appellants
Lyman and Kenzie Halvorson.
Mark V. Larson (appeared), Minot, N.D., for plaintiffs and appellants Landon
and Sierra Halvorson.
Jason R. Vendsel (on brief), Minot, N.D., for plaintiff and appellant Lyle Lima.
Tracy V. Kolb (argued), Bismarck, N.D., for defendants and appellees.
2
Cichos v. Dakota Eye Institute, P.C.
No. 20180347
Tufte, Justice.
[¶1] Plaintiffs appeal from the district court’s judgment and amended judgment
dismissing their complaint. The parties dispute whether a physician in North Dakota
owes a duty to third parties to warn a patient regarding vision impairments to driving;
whether medical malpractice claims are assignable; and whether the medical expert
affidavit met the requirements of N.D.C.C. § 28-01-46. We conclude physicians do
not owe a duty to third parties under these circumstances, Lima’s malpractice claim
is assignable, and the expert affidavit was sufficient to avoid dismissal. We remand
for further proceedings.
I
[¶2] In their first amended complaint, the plaintiffs alleged the following facts. In
May 2016, Lyle Lima was driving his truck on a highway when he collided with a
horse-drawn hay trailer. The collision killed one of the five passengers on the horse-
drawn trailer and injured the others. In April 2015, a doctor at Dakota Eye Institute
determined Lima to be legally blind, prepared a certificate of blindness, and instructed
Lima and his spouse that he was not to drive. In April 2016, about six weeks before
the collision, a second Dakota Eye Institute doctor, Briana Bohn, examined Lima. Dr.
Bohn measured Lima’s vision as being “improved” and “told Lyle Lima he could
drive, with some restrictions.” Plaintiffs claimed Dr. Bohn was liable for medical
malpractice because Lima’s eyesight, although improved, was still below the
minimum vision standards required to operate a vehicle in North Dakota under N.D.
Admin. Code ch. 37-08-01.
[¶3] The injured parties and their representatives made a claim against Lima, which
he could not fully satisfy. In partial settlement of the claim, Lima assigned his medical
malpractice claim against Dakota Eye Institute and any recovery he might receive to
1
the other plaintiffs. The injured parties and Lima then filed this suit individually and
as assignees of Lima against Dr. Bohn, Dakota Eye Institute P.C., and Dakota Eye
Institute LLC. The defendants filed two motions to dismiss: one arguing Lima’s
claims were not assignable and should be dismissed under N.D.R.Civ.P. 12(b)(6), and
one arguing the affidavit failed to meet the requirements of N.D.C.C. § 28-01-46. At
the hearing on the motions, the parties also argued whether North Dakota law extends
liability for medical malpractice to a third party who was not a patient. The district
court granted the motions to dismiss.
II
[¶4] In Ramirez v. Walmart, we explained:
A motion to dismiss under N.D.R.Civ.P. 12(b)(6) tests the legal
sufficiency of the claim presented in the complaint. On appeal, we
construe the complaint in the light most favorable to the plaintiff and
accept as true the well-pleaded allegations in the complaint. This Court
will affirm a judgment dismissing a complaint for failure to state a
claim under N.D.R.Civ.P. 12(b)(6) if we cannot discern a potential for
proof to support it. We review a district court’s decision granting a
motion to dismiss under N.D.R.Civ.P. 12(b)(6) de novo.
2018 ND 179, ¶ 7, 915 N.W.2d 674 (internal citations and quotation marks omitted).
III
[¶5] Appellants argue Dr. Bohn owed a duty to the injured parties to warn Lima that
his vision was below the minimum standard to operate an automobile. Third party
liability for medical malpractice is an issue of first impression in North Dakota.
Appellants cite several cases from other jurisdictions in support of a duty to third
parties in various circumstances. Many of these cases involve physicians prescribing
or administering medications and failing to warn about side effects. Such cases are of
limited persuasive value here where no medication was administered to Lima. In
situations similar to this one, other jurisdictions are divided, but we find more
persuasive those that state there is no third party duty to warn a patient based on
public policy considerations.
2
[¶6] “[I]n a negligence action, whether or not a duty exists is generally an initial
question of law for the court.” Bjerk v. Anderson, 2018 ND 124, ¶ 10, 911 N.W.2d
343 (quoting APM, LLLP v. TCI Ins. Agency, Inc., 2016 ND 66, ¶ 8, 877 N.W.2d 34
(internal citation omitted)).
The court must balance the following factors when determining
the existence of duty in each particular case: (1) foreseeability of
harm to plaintiff; (2) degree of certainty that plaintiff suffered injury;
(3) closeness of connection between defendant’s conduct and injury
suffered; (4) moral blame attached to defendant’s conduct; (5) policy
of preventing future harm; (6) extent of burden to defendant and the
consequences to the community of imposing a duty to exercise care
with resulting liability for breach; and (7) availability, cost and
prevalence of insurance for the risk involved.
Bjerk, at ¶ 18 (quoting Hurt v. Freeland, 1999 ND 12, ¶ 13, 589 N.W.2d 551 (quoting
W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 53, at 359 n.24 (5th
ed. 1984))). Although “[i]mposition of a duty on these facts is a policy-laden question
better suited to legislative judgments . . . courts must sometimes consider public
policy in determining whether a duty of care applies in a particular situation.” Bjerk,
at ¶ 24.
[¶7] In Kolbe v. State, 661 N.W.2d 142 (Iowa 2003), Charles Kolbe was struck by
a vehicle driven by Justin Schulte. Id. at 143. Schulte had a form of macular
degeneration called Stargardt’s Disease which leaves him blind when looking directly
ahead and requires him to use his peripheral vision to see. Id. at 143-44. Three doctors
wrote letters to the Iowa Department of Transportation (“IDOT”) recommending
Schulte be permitted to drive with restrictions. Id. Schulte collided with Kolbe while
Kolbe and his wife were riding bicycles. Id. at 145. The Kolbes sued Schulte’s
doctors under a theory of negligence in recommending to IDOT that Schulte be
permitted to drive with restrictions. Id.
[¶8] The Kolbe court analyzed the issue of “whether a physician owes a duty to
persons not within the physician/patient relationship.” Id. Three factors were weighed
to determine if there was a duty: (1) the parties’ relationship, (2) reasonable
foreseeability of harm to the injured person, and (3) public policy considerations.
3
Id. at 146. The court weighed these factors “under a balancing approach and not as
three distinct and necessary elements. . . . [W]hether a duty exists is a policy
decision.” Id. “More important than [the first two factors] is the issue of the public
policy concerns implicated by imposing liability on physicians under such
circumstances. As we stated above, the existence of a duty depends largely on public
policy.” Id. at 147. The court noted there was no privity between the Kolbes and
the doctors and the harm to Kolbe was not a foreseeable result of the doctors’
recommendations. Id. at 146-47.
[¶9] The Kolbe court expressed particular concern regarding how physicians’
concerns over third party liability might affect how they treat their patients, thus
compromising treatment. Id. at 148-49. A “therapist might . . . find it necessary to
deviate from the treatment [he] would normally provide.” Id. at 149 (quoting J.A.H.
v. Wadle and Associates, 589 N.W.2d 256, 263 (Iowa 1999)). Such incentives would
destroy the patient-physician relationship. Id. “[P]hysicians may become prone to
make overly restrictive recommendations concerning the activities of their patients.”
Id. (quoting Schmidt v. Mahoney, 659 N.W.2d 552, 555 (Iowa 2003)). The court
concluded that at “the public policy level, a physician does not have a duty to ‘protect
the entire public from any harm that might result from his or her patient’s actions.’”
Id. at 150 (quoting Crosby by Crosby v. Sultz, 592 A.2d 1337, 1344 (Pa. Super. Ct.
1991)). “Rather, physicians must be able to fulfill their duty to patients without fear
of third party liability claims for the acts of patients over which physicians have no
control.” Id. The physician’s primary obligation is to treat the patient. Id. at 149.
[¶10] In Estate of Witthoeft v. Kiskaddon, 733 A.2d 623 (Pa. 1999), Witthoeft was
bicycling when she was struck by a vehicle driven by Helen Myers. Id. at 624. Myers
had been examined by Dr. Kiskaddon, an ophthalmologist, who determined Myers
had a combined visual acuity of 20/80. Id. The plaintiffs sued Dr. Kiskaddon for
failing to inform Myers that she was “not ‘legally authorized’ to drive a motor
vehicle” and for failing to report the results of Myers’s examination to the DOT as
required by law. Id. at 624-25. The court analyzed whether “a physician may be held
4
liable for injuries suffered by a third party in an automobile accident caused by the
physician’s patient.” Id. at 624. “[S]pecifically, will an ophthalmologist be held liable
to a third party where the ophthalmologist failed to inform his patient . . . of the
patient’s poor visual acuity” and she injured someone while driving. Id. The court
stated, “[W]e believe that it is an unreasonable extension of the concepts of duty and
foreseeability to broaden a physician’s duty to a patient and hold a physician liable
to the public at large within the factual scenario of this case.” Id. at 630. The court
continued, “This is especially true where, as here, Dr. Kiskaddon did not cause or
aggravate a medical condition that affected the patient’s driving and the patient was
necessarily aware of her medical condition.” Id.
[¶11] In Jarmie v. Troncale, 50 A.3d 802 (Conn. 2012), Dr. Troncale diagnosed and
treated Mary Ann Ambrogio for kidney and liver aliments, including hepatic
encephalopathy, which impaired her ability to safely operate a motor vehicle. Id. at
805. Ambrogio crashed into the plaintiff, John Jarmie. Id. The plaintiff alleged his
injuries were a result of Dr. Troncale’s failure to warn Ambrogio not to drive. Id.
The court analyzed duty by first considering foreseeability. Id. at 809. However, a
“simple conclusion that the harm to the plaintiff was foreseeable . . . cannot by itself
mandate a determination that a legal duty exists.” Id. “Many harms are quite literally
foreseeable, yet for pragmatic reasons, no recovery is allowed. A further inquiry must
be made, for we recognize that duty is not sacrosanct in itself but is only an
expression of the sum total of those considerations of policy which lead the law to say
that the plaintiff is entitled to protection.” Id. at 809-10. “The final step in the duty
inquiry, then, is to make a determination of the fundamental policy of the law, as to
whether the defendant’s responsibility should extend to such results.” Id. at 810.
[¶12] The Jarmie court examined Connecticut precedent and found no support for
extension of duty beyond the patient-physician relationship. Id. at 811. Connecticut
courts previously found harm foreseeable only when the victim was identifiable. Id.
at 811-14. The court then turned to public policy considerations supporting each side.
The “final step in the duty inquiry is to make a determination of the fundamental
5
policy of the law, as to whether the defendant’s responsibility should extend to such
results.” Id. at 814. The Jarmie court determined public policy weighed in favor of
the defendant physician because physicians “[1] do not expect to be held accountable
to members of the general public for decisions regarding patient treatment, [2] optimal
treatment of patients is frustrated by extending a physician’s liability to unidentifiable
third persons and [3] extending liability would lead to increased litigation and higher
health care costs.” Id.
[¶13] The Jarmie court determined that putting physicians under third party duty
would not meet the purposes of tort compensation, i.e., compensation of innocent
parties, shifting loss to responsible parties, and deterrence of wrongful conduct. Id.
When examining compensation, the court noted a victim could receive compensation
elsewhere, for example, through the driver’s insurance. Id. at 815. The court
determined the burden on physicians and the physician-patient relationship, and
potentially high costs of litigation, would not necessarily be outweighed by the
financial cost to victims. Id. Even if the physician has not warned the driver, he may
not be responsible for an accident if the driver was engaging in other activities such
as speeding or driving while intoxicated. Id. Looking to loss distribution, the court
expressed concern that a physician’s failure to warn a patient prior to an accident
could result in unfair liability to the physician. Id. A driver may not heed the warning,
so the Jarmie court reasoned that a physician would be liable when the harm might
not have been prevented anyway. Id. “With respect to the deterrence of wrongful
conduct, the proximate cause of a driving accident is the conduct of the driver.” Id.
A patient may drive despite a warning, limiting deterrence of wrongful conduct; thus
liability for failure to warn would require more of physicians than they already owe
to their patients. Id. at 815-16. Liability would also “interfere with the physician-
patient relationship and give rise to increased litigation.” Id. at 816.
[¶14] The Jarmie court looked at specific factors: “(1) the normal expectations of the
participants in the activity under review; (2) the public policy of encouraging
participation in the activity, while weighing the safety of the participants; (3) the
6
avoidance of increased litigation; and (4) the decisions of other jurisdictions.” Id.
First, within a physician-patient relationship, the physician has a duty to the patient
under common law principles, but this duty traditionally does not extend to third
parties. Id. at 817. Second, the court said such an extension of liability would be
“problematic, at best, because it would be inconsistent with the physician’s duty of
loyalty to the patient, would threaten the inherent confidentiality of the physician-
patient relationship and would impermissibly intrude on the physician’s professional
judgment regarding treatment and care of the patient.” Id. at 818. Extension of duty
would threaten confidentiality and affect how physicians treat their patients. Id. at
819, 820, 822. Physicians may advise patients against any activity that might harm
a third party, giving far more restrictive advice than necessary in order to avoid
litigation. Id. at 820-21. A physician who faces potential liability may give advice
based not on an individual patient’s condition, but rather on reducing the physician’s
risk of exposure to unknown members of the public who may interact with the patient.
Id. at 822. In addition, an increase in litigation would be likely because a new
category of plaintiffs arises when liability is extended to physicians, potentially
driving up healthcare costs. Id. at 822-23. Finally, the court determined there was no
clear trend among other jurisdictions. Id. at 826.
[¶15] In addition to these three decisions, other jurisdictions have also considered
extension of third party duty in similar circumstances and also declined to impose
such a duty. See Medina v. Hochberg, 987 N.E.2d 1206 (Mass. 2013) (distinguishing
duty to warn patient about side effects of treatment while rejecting asserted duty to
warn patients about driving risks from underlying medical condition) ; Schmidt v.
Mahoney, 659 N.W.2d 552 (Iowa 2003) (affirming dismissal of third party negligence
claim against physician who advised a patient with seizure disorder that she could
safely drive). Although the appellants cite several cases in support of their arguments,
they are not persuasive. Most of the cited cases involve facts where the physician has
prescribed medications or administered medications, vaccinations, or dialysis and
failed to warn about side effects of the treatment given to the patient.
7
[¶16] On the facts here, we consider more persuasive the cases that examine and
reject a duty to third parties arising from a failure to warn a patient having a medical
condition that increases driving risk. The facts alleged in the complaint support an
inference of foreseeability in the sense that a person with impaired vision who drives
a motor vehicle foreseeably will cause a traffic accident. However, the defendants did
not treat or provide medication to Lima that led to the vision impairment. We find the
public policy concerns expressed in the decisions discussed above to be
determinative, and we decline to extend a physician’s duty to encompass the situation
presented here. We conclude a physician has no duty to third parties arising from the
physician’s failure to warn a patient about driving risks resulting from the patient’s
medical condition.
IV
[¶17] Next the plaintiffs argue that the district court erred in dismissing their
collective claim as assignees of Lima’s claims against the defendants. Assignability
of a chose in action has long been recognized in North Dakota law. See Roberts v.
First Nat’l Bank of Fargo, 8 N.D. 474, 79 N.W. 993 (1899).
The right to bring an action or recover a debt or money is a
chose in action, and a chose in action is a form of property. [A] “chose
in action” is a legal claim or a right to bring an action to receive or
recover a debt, money, or damages by a judicial proceeding, and is
intangible personal property. An assignment transfers a property right,
interest, or claim from the assignor to the assignee. Generally, a person
may assign a legal claim or a chose in action.
In re Guardianship of V.A.M., 2015 ND 247, ¶ 17, 870 N.W.2d 201 (internal citations
omitted). An absolute assignment generally divests the assignor of all control and
right to the cause of action, and the assignee is entitled to control the cause of action
and to receive the benefits. Id. at ¶ 18. “There is a general right to assign common law
and statutory rights unless there is an express prohibition in a statute or a showing that
an assignment would clearly offend an identifiable public policy.” 6 Am. Jur. 2d
Assignments § 7 (2019). Exceptions to assignability include actions of “wrongs done
8
to the person, the reputation, of the feelings of the injured party, and to contracts of
a purely personal nature, like promises of marriage.” Goodley v. Wank & Wank, Inc.,
133 Cal. Rptr. 83, 84-85 (Cal. Ct. App. 1976). Thus, we start our analysis from the
premise that claims are generally assignable and determine whether there is an
exception that applies here.
[¶18] Defendants argue that medical malpractice claims are not assignable because
they are intensely personal claims like personal injury claims that are generally not
assignable and also because they stem from the duties in the confidential physician-
patient relationship. The defendants compare the current medical malpractice claim
to personal injury claims and legal malpractice claims, both of which are generally not
assignable. See, e.g., Regie de l’assurance Auto. du Quebec v. Jensen, 399 N.W.2d
85, 89 (Minn. 1987) (personal injury claim not assignable); Goodley v. Wank & Wank,
Inc., 133 Cal. Rptr. 83 (Cal. Ct. App. 1976) (legal malpractice claim not assignable);
AMCO Ins. Co. v. All Solutions Ins. Agency, LLC, 198 Cal. Rptr. 3d 687, 694 (Cal.
Ct. App. 2016) (“the exceptions to the general rule favoring assignability of causes
in action include tort causes of action for wrongs done to the person, the reputation
or the feelings of an injured party . . . [or] legal malpractice claims and certain types
of fraud claims”); 6 Am. Jur. 2d Assignments § 57 (2019). Plaintiffs argue that Lima’s
claim is purely economic because he suffered no personal injury and his damages
consist solely of money he owes to others as a result of the claimed malpractice.
[¶19] We have not previously addressed whether a medical malpractice claim is
excepted from the general rule that claims may be assigned. However, in the context
of Medicaid, we have acknowledged specific statutory authority providing for
assignment of “medical costs incurred,” including malpractice claims for pain and
suffering. Grey Bear v. North Dakota Dep’t of Human Servs., 2002 ND 139, 651
N.W.2d 611. The issue presented here is one of first impression in North Dakota.
[¶20] The longstanding general rule is that on “grounds of public policy, the sale or
assignment of actions for injuries to the person are void.” North Chicago St. R. Co.
v. Ackley, 49 N.E. 222, 225 (Ill. 1897). Here, there is no assignment of an action for
9
personal injury to Lima, only an assignment of his claim for reimbursement from
defendants. The “injuries resulting [here] are not personal injuries, in the strict sense
of injuries to the body, feelings or character.” Joos v. Drillock, 338 N.W.2d 736, 739
(Mich. Ct. App. 1983). Lima’s claim against the defendants derives from his liability
to the injured parties for money damages resulting from the collision. If medical
malpractice by the defendants is the proximate cause of monetary damages Lima
became obligated to pay, it implicates none of the public policy concerns typically
associated with personal injury claim assignments. See Ackley, 49 N.E. at 225; Lingel
v. Oblin, 8 P.3d 1163, 1166-67 (Ariz. Ct. App. 2000); Dodd v. Middlesex Mut.
Assurance Co., 698 A.2d 859, 864 (Conn. 1997).
[¶21] Because of the purely economic nature of the medical malpractice claim here
and the absence of any claim for personal injury to Lima, we conclude it is assignable.
See Standard Chartered PLC v. Price Waterhouse, 945 P.2d 317, 327 (Ariz. Ct. App.
1996) (“our supreme court demonstrated that, for tort claims of an economic nature,
the court continued to adhere to an assignability rule”); New Hampshire Ins. Co., Inc.
v. McCann, 707 N.E.2d 332, 336 (Mass. 1999) (Discussing a legal malpractice claim
assignment, the court states, “It is important to note that New Hampshire’s claim is
not for personal injury, but for economic loss. We think the claim should be
assignable unless some clear rule of law or professional responsibility, or some matter
of public policy necessitates that the assignment should not be enforced.”). As
presented in this case, the public policy reasons that weigh against assignment of
malpractice claims are not present, so the general rule that a chose in action may be
assigned remains applicable.
V
[¶22] Finally, under N.D.C.C. § 28-01-46, the district court granted a motion to
dismiss without prejudice. Section 28-01-46 states, in pertinent part:
Any action for injury or death alleging professional negligence
by a physician, . . . must be dismissed without prejudice on motion
unless the plaintiff serves upon the defendant an affidavit containing an
10
admissible expert opinion to support a prima facie case of professional
negligence within three months of the commencement of the action.
The court may set a later date for serving the affidavit for good cause
shown by the plaintiff if the plaintiff’s request for an extension of time
is made before the expiration of the three-month period following
commencement of the action. The expert’s affidavit must [1] identify
the name and business address of the expert, [2] indicate the expert’s
field of expertise, and [3] contain a brief summary of the basis for the
expert’s opinion. This section does not apply to unintentional failure to
remove a foreign substance from within the body of a patient, or
performance of a medical procedure upon the wrong patient, organ,
limb, or other part of the patient’s body, or other obvious occurrence.
N.D.C.C. § 28-01-46. Typically, a “dismissal without prejudice . . . is not appealable.”
Cartwright v. Tong, 2017 ND 146, ¶ 5, 896 N.W.2d 638. Yet “a dismissal without
prejudice may be final and appealable if the plaintiff cannot cure the defect that led
to dismissal, or if the dismissal has the practical effect of terminating the litigation in
the plaintiff’s chosen forum.” Id. Because the time has expired for plaintiffs to amend
the affidavit, the issue is appealable.
[¶23] “We have not precisely defined the standard of review to be employed by this
court in reviewing a trial court’s dismissal of a medical malpractice action under § 28-
01-46, N.D.C.C.” Larsen v. Zarrett, 498 N.W.2d 191, 195 n.2 (N.D. 1993). Although
Larsen was applying a prior version of § 28-01-46, the amendments since 1981 do not
alter the analysis of the standard of review. In Larsen, we examined both the summary
judgment standard of review and an abuse of discretion under an evidentiary ruling
standard of review. Id. We said that a “trial court’s decision to dismiss a medical
malpractice claim under the authority of § 28-01-46 does not fit neatly within the
contours of either a typical summary judgment disposition or a typical evidentiary
ruling.” Id. Because the statute requires an affidavit within three months of
commencing the action, a summary judgment standard of review is a poor fit. Id.
Summary judgment ordinarily occurs after the parties have conducted more discovery
than can typically be accomplished in three months. Id. Also, the result of a dismissal
under the statute is harsher than the result of a typical evidentiary ruling. Id. Thus,
“greater leniency for the plaintiff who is subject to a motion for dismissal under § 28-
11
01-46 may be required.” Id. Where, as here, an affidavit is timely filed, we review a
district court’s dismissal under § 28-01-46 as follows. We will affirm the district court
if, when looking at the affidavit in the light most favorable to the non-moving party,
and assuming the facts alleged in the complaint are true, the affidavit does not
“support a prima facie case of professional negligence” as asserted in the complaint.
N.D.C.C. § 28-01-46.
[¶24] Section 28-01-46, N.D.C.C., was “enacted to prevent an actual trial in such
cases where a medical malpractice plaintiff cannot substantiate a basis for the claim.”
Pierce v. Anderson, 2018 ND 131, ¶ 7, 912 N.W.2d 291. The purpose is an “attempt[]
to minimize frivolous claims by requiring the plaintiff to produce an expert opinion to
support the allegations of the negligence in the early stages of litigation.” Cartwright,
2017 ND 146, ¶ 10, 896 N.W.2d 638. Under § 28-01-46, if a party moves for
dismissal, the court must dismiss a medical malpractice claim, without prejudice, if
the affidavit does not meet the requirements. The importance of the expert’s affidavit
in medical malpractice claims has been consistently recognized by this Court. Pierce,
at ¶ 13; see Fortier v. Traynor, 330 N.W.2d 513, 517 (N.D. 1983) (“If we recognize,
as we must, that it does not require a genius to draft a complaint it becomes apparent
that more is needed than a mere allegation of negligence in a malpractice action.”
(footnote omitted)).
[¶25] Here, Dr. Weingarden’s affidavit states his business address and his area of
expertise. The district court determined the affidavit failed to include “a brief
summary of the basis for the expert’s opinion,” N.D.C.C. § 28-01-46, which
encompasses “evidence establishing the applicable standard of care, violation of that
standard, and a causal relationship between the violation and the harm complained
of.” Pierce, 2018 ND 131, ¶ 12, 912 N.W.2d 291. Dr. Weingarden’s affidavit
stated he reviewed the medical records and found that “Lima did not meet the driving
vision requirements under North Dakota Law” and that Dr. Bohn “deviated from
the standard of care required of Optometrists in the State of North Dakota by allowing
Lyle Lima to drive, despite the fact that he did not meet the driving vision
12
requirement.” The district court found the affidavit did not support “the applicable
standard of care” nor does it “give a minimal assertion of causation between deviation
and the harm complained of.” We disagree. From Dr. Weingarden’s statements that
Lima’s vision was below the driving vision requirements and that Dr. Bohn violated
the standard of care by allowing Lima to drive, we can infer that Dr. Weingarden’s
opinion on the standard of care was that Dr. Bohn should have warned Lima that his
vision did not meet the legal standard to drive. In this situation, the affidavit need
not expressly state that adequate vision is required to safely drive and that a driver
whose vision does not meet legal standards will foreseeably cause driving accidents.
Therefore, Dr. Weingarden’s failure to explicitly describe this aspect of causation in
his affidavit is not determinative here.
[¶26] We determine that the affidavit meets the low threshold set out in N.D.C.C.
§ 28-01-46 because the section’s purpose “is to eliminate, at an early stage of the
proceedings, frivolous or nuisance medical malpractice actions . . . [and the] statute
provides for a preliminary screening of totally unsupported cases.” Ellefson v.
Earnshow, 499 N.W.2d 112, 114 (N.D. 1993). “The statute merely requires a plaintiff
to come forward with an expert opinion to support the allegations of malpractice.”
Id. The timely affidavit here served the purpose of ensuring that this malpractice
claim was not frivolous or unsupported. Thus, we reverse the district court’s order
dismissing the claims under N.D.C.C. § 28-01-46.
VI
[¶27] We have considered the plaintiff’s remaining issues and arguments and
conclude they are either without merit or unnecessary to our decision.
13
VII
[¶28] We affirm the judgment dismissing the third party claims, reverse the judgment
dismissing the assigned claim, and remand for further proceedings.
[¶29] Jerod E. Tufte
Daniel J. Crothers
Jon J. Jensen
Jay A. Schmitz, D.J.
[¶30] The Honorable Jay A. Schmitz, D.J., and the Honorable Dale V. Sandstrom,
Surrogate Judge, sitting in place of VandeWalle, C.J., and McEvers, J., disqualified.
Sandstrom, Surrogate Judge, concurring and dissenting.
[¶31] I agree with the majority’s analysis on assignability of Lyle Lima’s claim and
on the sufficiency of the medical expert affidavit. As to the majority’s analysis on a
medical provider’s potential liability to third parties, I respectfully dissent.
[¶32] Although on potential liability to third parties the opinion focuses on “failure
to warn,” this is not a failure-to-warn case. The complaint claims not mere “omission”
but “commission.” The complaint alleges that the medical provider affirmatively told
the patient he could drive, not that Dr. Briana Bohn merely failed to warn him that he
could not. Indeed, as alleged in the complaint, if Dr. Bohn had remained silent, the
operative medical advice to the patient would have remained “you’re legally blind and
cannot drive.” As alleged, Dr. Bohn told the patient he could drive and he did drive,
killing Bradley Cichos and severely injuring five other passengers on a horse-drawn
hay trailer.
[¶33] In the opening sentence of section III on potential third-party liability, the
opinion at ¶ 5 states, “Appellants argue Dr. Bohn owed a duty to the injured parties
to warn Lima that his vision was below the minimum standard to operate an
automobile.” And at ¶ 16, the conclusion to the section, the opinion states, “We
conclude a physician has no duty to third parties arising from the physician’s failure
to warn a patient about driving risks resulting from the patient’s medical condition.”
The opinion underrepresents appellants’ claim and substitutes for it a weaker one to
address.
14
[¶34] But as the amended complaint alleges at ¶ 22:
Defendant Briana Bohn, O.D., failed to notify Lyle Lima that his
vision did not meet the minimum requirements to operate a vehicle
under North Dakota law. Instead, Dr. Bohn told Lyle Lima he could
drive, with some restrictions.
Similarly, the appellants’ brief at ¶ 4 summarizes:
The April 2016 eye exam results showed Lima’s vision was
below the minimum standards required to operate a vehicle under
North Dakota law. Instead of informing Lima he could not legally
drive, Dr. Briana Bohn told Lima he could drive with certain
restrictions.
[¶35] On the issue of liability to third parties, the district court based its decision on
the opinion in Estate of Witthoeft v. Kiskaddon, 733 A.2d 623, 630 (Pa. 1999), and
held that the deceased and other plaintiffs here were not foreseeable victims. I agree
with the majority that the district court erred on the question of foreseeability, as the
opinion states at ¶ 16: “The facts alleged in the complaint support an inference of
foreseeability in the sense that a person with impaired vision who drives a motor
vehicle foreseeably will cause a traffic accident.” I would send the case back at this
point for the facts to be developed.
[¶36] We must remember that this case is at its earliest stage. The complaint has not
been answered. There has been no discovery. The facts have not been developed. Our
cases reflect that dismissal at the complaint stage is not favored and should occur only
if the court is convinced it is impossible that facts could be developed to establish the
claim. “In an appeal from a Rule 12(b) dismissal, we construe the complaint in the
light most favorable to the plaintiff, taking as true the allegations in the complaint.”
Ennis v. Dasovick, 506 N.W.2d 386, 389 (N.D. 1993) (citations omitted). “A trial
court should dismiss under Rule 12(b) only when certain it is impossible for the
plaintiff to prove a claim for which relief can be granted.” Id. Under this legal posture,
for example, we must assume the patient was driving as authorized by Dr. Bohn.
[¶37] Potential facts to be discovered could include the possibility that Dr. Bohn
never reviewed the file. The file may have prominently flagged the certificate of
15
blindness. Macular degeneration is apparently irreversible and therefore it was
impossible for both tests to be correct, and under such circumstances it may have been
recklessness or gross negligence not to pursue it further. Possibly the doctor was
rushing to go somewhere else. The facts may establish that no non-negligent doctor
would have told this patient it was all right to drive under any circumstances. At this
stage we don’t know what the facts are, and these or other significant facts could
emerge.
[¶38] The plaintiffs present cases showing courts have recognized medical
negligence liability to third parties. They cite failure-to-warn cases—cases less
egregious than that alleged here—as an illustration. In response the defendants cite
other cases where failure to warn was held not to establish liability to third parties.
[¶39] The majority fails to analyze the cases put forward by the plaintiff and the
public policy arguments they contain. It appears a plurality of the states recognize
potential liability of doctors to third parties in certain circumstances. In Davis v. S.
Nassau Communities Hosp., 46 N.E.3d 614, 622 (N.Y. 2015), for example, the court
extended the doctors’ duty to include third parties “the best position to protect against
the risk of harm.”
[¶40] There are other cases where a party may be liable to third parties because of
negligence. Wrongful death is an example. Although North Dakota and other states
now have wrongful death statutes, there is also authority that wrongful death actions
“can now be regarded as arising under the common law.” The Restatement (Second)
of Torts § 925, comment k states:
“[T]here is no present public policy against allowing recovery for
wrongful death,” so that the right of action can now be regarded as
arising under the common law. Most of the details of the right may be
controlled by an existing statute or taken by analogy from one. When
recognized, this common law right has been utilized to fill in
unintended gaps in present statutes or to allow ameliorating common
law principles to apply.
16
The United States Supreme Court quoted in part by the Restatement above appears
to recognize common law wrongful death actions in maritime cases. Moragne v.
States Marine Lines, Inc., 398 U.S. 375, 390-403 (1970).
[¶41] The majority puts forth a public policy analysis discussing the possibility that
third-party liability could interfere with a doctor’s medical judgment in deciding on
a course of treatment. But this is not a choice-of-treatment case. The majority raises
the possibility that a patient may be more negligent than the doctor. But many patients
simply trust what their doctor tells them they can or cannot do. And even if the driver
had greater negligence than the doctor, under our comparative fault, two or more
persons or entities can be negligent and have liability.
[¶42] The plaintiffs present cases showing courts have recognized medical
negligence liability to third parties. They cite failure-to-warn cases—cases less
egregious than that alleged here—as an illustration. In response the defendants cite
other cases where failure to warn was held not to establish liability to third parties.
[¶43] A logical flaw in the majority’s reasoning is that even if there is not third-party
liability for the less serious failure to warn, that does not preclude liability for the
more serious incorrect—deadly—advice.
[¶44] Consider a perhaps extreme but also potentially deadly analogy. There may be
no negligence for a tenant to fail to warn his guest not to shoot his gun at the wall
separating an adjoining apartment, but there well could be liability if he told his guest
it was okay to do so. In that case, as in this case, serious bodily injury or death could
be the result.
[¶45] Case law has many examples where failure to warn or advise is not a problem
but giving incorrect advice is. Here are some examples. “Being unaware is not
synonymous with ill or erroneous advice.” Stewart v. State, 845 So. 2d 744, 747
(Miss. Ct. App. 2003). “[R]elief is not warranted where counsel merely fails to inform
a client about the various ramifications of gain time as opposed to volunteering
incorrect information.” Henderson v. State, 626 So. 2d 310, 311 (Fla. Dist. Ct. App.
1993) (citations omitted). “We find the reasoning of the . . . courts persuasive with
17
respect to the affirmative misrepresentation exception to the general rule regarding
[no need to advise of] collateral consequences.” Rubio v. State, 194 P.3d 1224, 1232
(Nev. 2008). “Because a defendant need not be informed of all possible collateral
consequences, misinformation about a collateral consequence does not make a
guilty plea involuntary per se. But affirmative misinformation about a collateral
consequence may nevertheless create a manifest injustice if the defendant materially
relied on that misinformation when deciding to plead guilty.” In re Reise, 192 P.3d
949, 957 (Wash. Ct. App. 2008) (citations omitted).
[¶46] The cases cited above and others establish that there are circumstances in
which incorrect advice is a problem when failure to warn or advise is not. On the
other hand, the majority can cite no case holding—as it apparently does—that there
is no difference between a failure to warn and giving incorrect—even deadly—advice.
[¶47] In this uncharted area of the law, we should move carefully and deliberately,
waiting for the facts to be developed to inform any public policy decisions that courts
may be compelled to make. The majority itself, at ¶ 6, sets forth factors several of
which developing the facts in this case may inform:
The court must balance the following factors when determining
the existence of duty in each particular case: (1) foreseeability of
harm to plaintiff; (2) degree of certainty that plaintiff suffered injury;
(3) closeness of connection between defendant’s conduct and injury
suffered; (4) moral blame attached to defendant’s conduct; (5) policy
of preventing future harm; (6) extent of burden to defendant and the
consequences to the community of imposing a duty to exercise care
with resulting liability for breach; and (7) availability, cost and
prevalence of insurance for the risk involved.
The importance of waiting for the facts to be developed is emphasized by the fact that
every one of the cases cited by the majority in support of these factors is a summary
judgment case. See Bjerk v. Anderson, 2018 ND 124, ¶ 10, 911 N.W.2d 343; APM,
LLLP v. TCI Ins. Agency, Inc., 2016 ND 66, ¶ 8, 877 N.W.2d 34; and Hurt v.
Freeland, 1999 ND 12, ¶ 13, 589 N.W.2d 551. In fact every case cited in support of
these factors in every one of these cases cited by the majority is a summary judgment
case. See Perius v. Nodak Mut. Ins. Co., 2010 ND 80, ¶ 9, 782 N.W.2d 355; Rawlings
18
v. Fruhwirth, 455 N.W.2d 574, 577 (N.D.1990); Saltsman v. Sharp, 2011 ND 172,
¶ 11, 803 N.W.2d 553; M.M. v. Fargo Pub. Sch. Dist. #1, 2010 ND 102, ¶ 9, 783
N.W.2d 806; Schmidt v. Gateway Cmty. Fellowship, 2010 ND 69, ¶ 8, 781 N.W.2d
200; Iglehart v. Iglehart, 2003 ND 154, ¶ 11, 670 N.W.2d 343; Diegel v. City of West
Fargo, 546 N.W.2d 367, 370 (N.D. 1996).
[¶48] If the facts turn out to be the most egregious possible, third-party liability may
well be appropriate. If the facts are something less, a line may need to be drawn. Or
perhaps on remand the issue here will become moot.
[¶49] Dale V. Sandstrom, S.J.
19
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-14-00213-CR
MARVIN FRANK HALL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th District Court
Hopkins County, Texas
Trial Court No. 0216557
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Marvin Frank Hall filed a pro se notice of appeal December 3, 2014, attempting to appeal
the trial court’s “Order Denying Defendant’s Motion For Time Cut.” We received and reviewed
the clerk’s record in this matter, which indicated that the judgment adjudicating Hall’s guilt in
trial court cause number 0216557 was filed August 26, 2004, and sentence was imposed in this
matter on that same date. On December 5, 2014, we notified Hall by letter of a possible defect in
this Court’s jurisdiction over his appeal; specifically, we informed Hall that there was no
appealable judgment or order in the record and that, in the absence of such, we lacked
jurisdiction over the appeal. Providing Hall a reasonable opportunity to cure this defect, we
afforded him fifteen days from the date of the letter to show this Court how it had jurisdiction.
On December 29, 2014, we received a document from Hall captioned, “In the Direct Appeal of
Marvin Frank Hall Seeking Relief From Final Felony Conviction,” in which Hall claimed this
Court has jurisdiction over his appeal because the issues he raises are purportedly jurisdictional.
Hall further claimed that this Court has jurisdiction over his appeal because he is permitted to
raise the issue of whether or not his plea was voluntary.
To the extent that Hall seeks to directly appeal the judgment rendered against him
August 26, 2004, his appeal is untimely. See TEX. R. APP. P. 26.2(a)(1). Under Rule 26.2(a)(1)
of the Texas Rules of Appellate Procedure, the deadline for filing a direct appeal from that
judgment expired long ago. See id.
To the extent that Hall seeks to appeal from the trial court’s order denying his
December 3, 2014, motion seeking some form of time credit on his prison sentence or a
2
reduction in that sentence, we find that such order is not one from which the Texas Legislature
has authorized an appeal. In the State of Texas, a party may only appeal when the Texas
Legislature has authorized an appeal. Galitz v. State, 617 S.W.2d 949, 951 (Tex. Crim. App.
1981). When the Legislature passes legislation granting a right of appeal, in addition to granting
its citizens that substantive right, it also grants the appellate courts of this State jurisdiction to
hear such appeals. In the absence of such authorizing legislation, appellate courts are without
jurisdiction and have no authority to act. See id.
Because the time to file a direct appeal in this matter has long since passed and because
the record does not otherwise include any appealable order, we dismiss this appeal for want of
jurisdiction.
Josh R. Morriss, III
Chief Justice
Date Submitted: January 7, 2015
Date Decided: January 8, 2015
Do Not Publish
3
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IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
GUADALUPE REINOSO & EDMUNDO : No. 111 MAL 2015
DOMINGUEZ, H/W :
:
: Petition for Allowance of Appeal from the
v. : Order of the Superior Court
:
:
HERITAGE WARMINSTER SPE LLC :
:
:
v. :
:
:
KOHL'S DEPARTMENT STORES, INC. :
T/A KOHL'S; AND LOTS & US, INC. :
:
:
PETITION OF: HERITAGE :
WARMINSTER SPE LLC :
ORDER
PER CURIAM
AND NOW, this 17th day of June, 2015, the Petition for Allowance of Appeal is
DENIED.
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378 F.Supp.2d 519 (2005)
PLASTPRO, INC., Plaintiff,
v.
THERMA-TRU CORP., Defendant.
Civil Action No. 97-1222(JCL).
United States District Court, D. New Jersey.
June 13, 2005.
*520 Allyn Zissel Lite, Esq., Lite, Depalma, Greenberge & Rivas, Esqs., Newark, NJ, Richard M. Rosati, Esq., Andrew L. Reibman, Esq., Kenyon & Kenyon, Esqs., New York, NY, for Plaintiff.
Sherilyn Pastor, Esq., McCarter & English, Newark, NJ, Sangeeta G. Shah, Esq., Brooks, Kushman, Esqs., Southfield, MI, for Defendants.
MEMORANDUM AND ORDER
LIFLAND, District Judge.
Presently before the Court is Plaintiff Plastpro Inc.'s motion seeking a summary declaratory judgment that its accused grained fiberglass door assemblies do not *521 infringe United States Patent No. 4,550,540 ("the '540 patent"), which is assigned to Defendant Therma-Tru Corporation. Specifically at issue is whether Plastpro's fiberglass doors satisfy the claim limitation that the outer surface of the door "skins" be "essentially devoid of glass fibers for a predetermined depth of at least 0.005 inch" ("the fiber-free claim limitation"). The parties primarily disagree as to the proper construction of the term "glass fibers." Because the facts in this case are not in dispute, the Court's construction of the disputed language in the claim effectively resolves this patent infringement action.
Background
A. Procedural History
Plastpro filed its complaint on March 17, 1997, seeking a declaration that its door assemblies do not infringe claims 1,2,4,5, and 6 of the '540 patent. On June 24, 2003, this Court ruled that certain of Plastpro's accused door assemblies do not infringe the '540 patent as it relates to the structural relationship between the door skins and the door frame. The Court expressly limited its opinion to two primary fiberglass door structures specifically put in issue in the motion, noting that "[a]ny other doors ... sold by Plastpro are not the subject of this motion." (Plastpro v. Therma-Tru v. Nan Ya Plastics Corp., No. 97-1222(JCL), at 4-5). The instant motion applies to all of Plastpro's remaining grained fiberglass doors.[1]
B. The '540 Patent and Prosecution History
i. The '540 Patent
The '540 patent discloses a "Compression Molded Door Assembly," which consists of compression molded[2] skins (made of a molding resin and reinforcing glass fibers) adhering to a foamed core. A texture is molded on the exterior of the skins to simulate the grain and texture of a wood door. As described in the Summary of the Invention, the '540 patent achieves three primary goals: 1) the exterior of the doors closely simulates the texture and grain of wood; 2) the door assembly may be trimmed for insertion in an opening, thus allowing preinstallation adjustments to meet job-specific circumstances; 3) the door assembly resists permanent deflection[3] and warping when exposed to temperature differentials and humidity. (Id., Exh. A, col. 1, ll. 62-68; col. 2, ll. 1-4.).
As described in the specification, glass fibers are "eliminated" from the surface of the door skins. (Id., col. 3, ll. 16-18.). The purpose of the fiber-free claim limitation is to embed the glass fibers within the skin to a certain depth so that they are not exposed on the skin's surface. Surface exposure of the glass fibers causes "wicking"[4]*522 of finishing stains and diffuses the reinforcing properties of the fibers throughout the skin rather than concentrating them toward the center of the skin. The concentration of the glass fibers near the centroid of the skin reduces deflection in the door structure. (Id., ll. 16-25.).
ii. Prosecution History
The '540 patent derives from U.S. Patent Application 16/456,400 ("the '400 application") filed on January 7, 1983. (McQuillen Dec., Exh. C, at 3; Exh. A, col. 1, ll. 5-6.). The eight claims in the '400 application did not indicate that the outer surface of the door skin was "essentially devoid of glass fibers for a predetermined depth of at least 0.005 inch." (Id., Ex. C, at 9-10.). None of the claims in the '400 application said anything about glass fibers in the door skins, noting only that the "outer side of each skin defin[es] a molded textured pattern simulating the grain and texture of a wood door." (Id. at 9.). However, the specification recites that "a compression molded sheet molding compound (SMC) panel... includes 15% to 40% fibrous glass reinforcement." (Id. at 6.).
In response to the Patent Office's October 5, 1983 rejection of the '400 application, Therma-Tru requested an amendment to the specification and claims. (Id. at 39.). The sole independent claim was amended to include a depth specification for the molded textured pattern on the outer surface of the door skin: "said textured pattern ha[s] a depth between .003 inches and .009 inches." (Id.). Therma-Tru distinguished three prior art references on the basis that the '400 application required compression molding (as distinct from a "cold press lay-up technique," a "cold cast technique," and a "low pressure casting method.") (Id. at 41-42.). It was asserted that compression molded skins allowed surface graining of a depth between .003 and .009 inches, a grain pattern feature "in which the relatively small depth of openings allows a wiping stain having pigments of defined mesh sizes to be placed into such openings." (Id. at 41.). The specification correlates grain depth and grain openings for effective staining, but it says nothing about the role of glass fibers in the process. (Id.). After the Patent Office rejected all the claims in the amended '400 application, Therma-Tru abandoned the application. (Id. at 48.).
Therma-Tru then filed continuation-in-part application 594,549 ("the '549 CIP application") on March 29, 1984. (Id., Exh. D, at 4-11.). The sole independent claim 1 of the '549 CIP application included limitations that "said compression molded skins being integral, including a molding resin and glass fibers, said outer side of said skin being essentially devoid of glass fibers for a predetermined depth of at least 0.005 inch ... but not in excess of such predetermined depth." (Id. at 10.). The Patent Office rejected the ten asserted claims based on prior art. (Id. at 20-23.).
Therma-Tru filed an Amendment with the Patent Office in which it added two claims and requested reconsideration of the decision. (Id. at 44.). At that time Therma-Tru argued that "[t]he combination of opposed [sheet molding compound] panels bonded on a perimeter frame with adhering foam, where the exterior surface is devoid of glass fibers and the grain depth is between .003 and .009 inch results in a door assembly which is far superior to prior art doors." (Id. at 47.)(emphasis added).
The Patent Office responded that it would allow claims 7-10 (dealing with the structural relationship between the skins *523 and the frame around the door unit) if "rewritten in independent form including all of the limitations of the base claim and any intervening claims." (Id. at 63-64.). Consequently, all of the independent claims of the '540 patent claims 1, 10, 11, 12, and 13 contain the fiber-free claim limitation.
The Patent Office conducted a re-examination of the '540 patent in 1999. (Id., Exh. E.). At that time the patentability of claims 1-13 was confirmed. (Id., Exh. F, at 3.). In a July 25, 2002 Office Action, the Patent Office again confirmed the patentability of claims 7, 9, 11, and 12, but rejected claims 1-6, 8, 10, and 13. (Id.). Therma-Tru requested reconsideration of all claims on September 25, 2002. (Id., Exh. F.).
In its request for reconsideration, Therma-Tru specifically distinguished its invention from the relevant prior art. (Id. at 5-6.). The Examiner had proposed that it would have been obvious to one of ordinary skill at the time of the invention "to make the outside surfaces of the skins of [the cited reference] essentially devoid of glass fibers to provide a low surface porosity and to make the casing highly resistant to chemical attack and high humidity as taught by [another cited reference]." (Id. at 5.). Therma-Tru acknowledged that one of the references had recognized "the problem of glass at the outer surface of the door skins," but that Therma-Tru's solution to this problem was a distinguishing feature:
None of the cited references disclose or suggest compression molding the ... skins with a fine wood grain texture having a depth of .003-.009 inches to suppress the glass fibers to the claimed .005 inch depth. None of the cited references show this feature, let alone in combination with the other features recited in the claims. Indeed ... the cited references teach away from this solution, since each teaches applying a gel coat to the outer surface of the [] skins as a protective layer.
(Id. at 6.).
Thus, Therma-Tru clearly viewed the fiber-free claim limitation as vital to its invention.
C. Material Facts
All of the doors sold by Plastpro have certain common features, including two fiberglass skins attached to a frame and a foamed inner core. It is not disputed that all of the skins of Plastpro's grained fiberglass doors have filaments in the top 0.005 inch of the skins. (Def.'s Rule 56.1 Statement ¶ 2; Pl.'s Rule 56.1 Statement ¶ 1.).
Standard of Review
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. Rule 56(e) requires that when a motion for summary judgment is made, the non-moving party must set forth specific facts showing that there is a genuine issue for trial. Id.; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). No issue for trial exists unless unless the nonmoving party can demonstrate sufficient evidence favoring it such that a reasonable jury could return a verdict in that party's favor. Anderson, 477 U.S. at 249, 106 S.Ct. 2505.
Summary judgment may be granted if the materials submitted to the Court 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. Fed.R.Civ.P. 56; Hersh v. Allen Prod. Co., 789 F.2d 230, 232 (3d Cir.1986). Where the facts are not in dispute and the issues contested in a summary judgment motion *524 are legal issues, the court may proceed to decide the legal issues and rule accordingly on the summary judgment motion. See Ingram v. County of Bucks, 144 F.3d 265, 267 (3d Cir.1998) (when there is no genuine issue of material fact in dispute and the issue facing the court is a question of law, it is properly resolved on summary judgment). Such is the case here.
Discussion
All of the claims of the '540 patent contain the contested claim limitation in this case. Claim 1 of the '540 patent requires:
A door assembly comprising, in combination, a rectangular frame, a pair of opposed compression molded skins mounted on said frame, and a foamed core positioned within said frame between and adhered to said opposed compression molded skins, said skins each having an outer side and an inner side, a vertically extending projection positioned on each vertical edge of said inner side of said compression molded skins, said projections engaging said rectangular frame, said compression molded skins being integral, including a molding resin and glass fibers, said outside of said skin being essentially devoid of glass fibers for a predetermined depth of at least 0.005 inch, said outer side of said skin defining a textured pattern simulating the grain and texture of a wood door, said textured pattern having a pattern depth between 0.003 inch and 0.009 inch, but not in excess of such predetermined depth.
(McQuillen Dec., Exh. A, col. 4, ll. 4-20) (emphasis added).
Plastpro seeks a summary declaratory judgment that:
(1) None of the grained fiberglass doors manufactured by Nan Ya and sold by Plastpro, including the remaining accused doors, literally infringe any claim of the '540 patent;
(2) None of the grained fiberglass doors manufactured by Nan Ya and sold by Plastpro, including the remaining accused doors, infringe any claim of the '540 patent under the doctrine of equivalents;
(3) The term "glass fibers" as used in claims of the '540 patent shall be construed to mean "glass threads or filaments or pieces thereof;"
(4) The term "essentially devoid" as used in claims of the '540 patent shall be construed to mean that no more than "trace or residue amounts" of glass fibers may be present in the top 0.005 inch region of the skins;
(5) The term "predetermined depth" as used in the '540 patent shall be construed to mean that the depth of the fiber-free layer be "settled or decided beforehand or in advance" of forming the textured pattern in the door skins.
(Pl.'s Notice of Mot. for Summ. J.)
The parties' respective positions on claim construction are straightforward. Plastpro contends that 1) "glass fibers" must be construed as "glass threads or filaments or pieces thereof;" 2) "essentially devoid" must be construed as "no more than trace or residue amounts;" and 3) "predetermined depth" must be construed as "settled or decided beforehand or in advance." (Pl.'s Br., at 2.). Construing the claim in this manner, the presence of an average of 28 to 29 filaments (or "fibers," in Plastpro's view) in the top 0.005 inch of Plastpro's door skin (as compared to the average of 80-150 glass "fibers" for all 0.005 inch layers) renders Plastpro's doors not essentially devoid of glass fibers and therefore not within the claim limitation. (Id., at 22.).
*525 Therma-Tru counters that in order to serve their reinforcing and wicking functions, and to be consistent with the prosecution history, 1) "glass fibers" must be construed as "bundles of filaments;" and 2) "essentially devoid" must be construed as "virtually devoid." (Def.'s Br., at 16-17, 21-22.). So construed, the accused doors lack "bundles of fibers" to the prescribed 0.005 inch depth, thus squarely infringing on the '540 patent.
I. Applicable Law
A. Literal Infringement
Literal infringement is determined in a two-step process. First, a court must determine a claim's acquired meaning and scope. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). Second, the claim as construed must be compared to the accused product to ascertain whether it "reads" on the accused product. Southwall Tech., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1575 (Fed.Cir.1995). "To establish literal infringement, every limitation set forth in a claim must be found in an accused product exactly." Id. Where there is no dispute as to any relevant facts regarding the accused product, literal infringement is solely a matter of claim construction. Athletic Alternatives, Inc. v. Prince Mfg., Inc., 73 F.3d 1573, 1578 (Fed.Cir.1996).
1. Claim Construction
It is a court's "power and obligation to construe as a matter of law the meaning of language used in patent claims." Markman, 52 F.3d at 979. In discharging this obligation, a court first consults intrinsic evidence, i.e., the claim language, the written description, and the prosecution history. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996).
The wording of a patent claim is paramount. Digital Biometrics, Inc. v. Identix, Inc., 149 F.3d 1335, 1344 (Fed.Cir.1998). The written description in a patent directs whether the patentee ascribed a particular meaning to disputed claim terms. Id. "A patentee may choose to be his own lexicographer and use terms in a manner other than their ordinary meaning, as long as the special definition of the term is clearly stated in the patent specification or file history." Vitronics, 90 F.3d at 1582. Absent a special meaning, however, claim language takes on the ordinary meaning to one skilled in the art. Digital Biometrics, 149 F.3d at 1344.
"Claims must be read in view of the specification, of which they are a part." Markman, 52 F.3d at 979. "Where the specification makes clear that the invention does not include a particular feature, that feature is deemed to be outside the reach of the claims of the patent, even though the language of the claims, read without reference to the specification, might be considered broad enough to encompass the feature in question." SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys., Inc., 242 F.3d 1337, 1341 (Fed.Cir.2001). On the other hand, it is improper to read certain limitations from the patent specification into the claims. Comark Communications, Inc. v. Harris Corp., 156 F.3d 1182, 1186 (Fed.Cir.1998). Examples disclosed in the patent specification may aid in the proper interpretation of a claim, but the scope of a claim is not necessarily limited by such examples. See Texas Instruments, Inc. v. United States Int'l Trade Comm'n, 805 F.2d 1558, 1563 (Fed.Cir.1986) ("This court has cautioned against limiting the claimed invention to preferred embodiments or specific examples in the specification."); see also Northern *526 Telecom Ltd. v. Samsung Elec. Co., 215 F.3d 1281 (Fed.Cir.2000). Prosecution history may also shed light on the meaning of a claim, particularly in light of exchanges between the patent applicant and the Patent and Trademark Office. Id.
The Federal Circuit instructs that ordinarily "an analysis of the intrinsic evidence alone will resolve any ambiguity in a disputed claim term." Vitronics, 90 F.3d at 1583. When this is the case, it is improper for the court to rely on extrinsic evidence. Id. Where there is still doubt as to a claim's meaning, a court may resort to extrinsic evidence such as treatises, technical references, and expert testimony. Id.
Although treatises and dictionaries are extrinsic evidence, the Federal Circuit instructs that the district court may consult them "at any time" to aid in the construction of disputed claim terms:
Although technical treatises and dictionaries fall within the category of extrinsic evidence, as they do not form a part of an integrated patent document, they are worthy of special note. Judges are free to consult such resources at any time in order to better understand the underlying technology and may also rely on dictionary definitions when construing claim terms, so long as the dictionary definition does not contradict any definition found in or ascertained by a reading of the patent documents.
Id. at 1584 n. 6.[5]
"[D]ictionaries, encyclopedias, and treatises are particularly useful resources to assist the court in determining the ordinary and customary meanings of claim terms." Texas Digital Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193, 1202 (Fed.Cir.2002); see also Vanguard Prods. Corp. v. Parker Hannifin Corp., 234 F.3d 1370, 1372 (Fed.Cir.2000) ("A dictionary is not prohibited extrinsic evidence, and is an available resource of claim construction."). It is the court's duty to consult the intrinsic record "to identify which of the different possible dictionary meanings of the claim terms in issue is most consistent with the use of the words by the inventor." Texas Digital, 308 F.3d at 1203.
a. GLASS FIBERS: Intrinsic Evidence
The competing asserted meanings for "glass fibers" are "glass threads or filaments or pieces thereof" (Plastpro) and "bundles of filaments" (Therma-Tru). Because it is "the most significant source of the legally operative meaning of disputed claim language," Vitronics, 90 F.3d at 1582, the Court turns first to the intrinsic evidence of record. All the independent claims of the '540 patent require that the outside of the door skins be "essentially devoid of glass fibers for a predetermined depth of at least 0.005 inch." The specification uses the terms "fibrous glass reinforcement" and "glass fibers." (McQuillen Dec., Exh. A, col. 2, ll. 43, 68.). "Fibrous glass reinforcement" describes one of the components of the sheet molding compound, or resin, compressed to form the door skins. (Id., ll. 41-44.). In another *527 portion of the specification, the disputed term is used in the following manner:
The elimination of glass fibers from the surface of the exterior side provides the present structure with several advantages. First, it allows the fine grain texture to be placed in the surface to a defined depth without exposing glass fibers. The [sic] prevent wicking and other inherent fibrous glass problems from occurring. At the same time, it allows the fibrous glass reinforcement to be distributed closer to the centroid of the skin. This results in a door structure which reduces deflection.
(Id., col. 3, ll. 16-24.)(emphasis added).
The specification does not expressly or impliedly define "glass fibers." Furthermore, there is no indication in the specification that the patentee ascribed a special meaning to the term. Nor does the prosecution history reveal any special meaning of the term. In fact, the fiber-free claim limitation does not appear in the '400 application in any form. The rejected' 549 CIP application included the fiber-free claim limitation, but with no special meaning attached to the term. As recently as 2002, the Patent Office challenged the fiber-free limitation for obviousness. Therma-Tru's response echoed the language of the fiber-free claim limitation and does not assist the Court in its construction of the term. The Court therefore cannot agree with Therma-Tru that the plain language of the specification alone resolves the claim construction question.
As the intrinsic evidence of record the claim language, the specification, and the prosecution history does not indicate that Therma-Tru ascribed a particular meaning to the claim term, "glass fibers" must take on the ordinary meaning to one skilled in the art. Digital Biometrics, 149 F.3d at 1344. For this inquiry, the Court consults dictionaries, encyclopedias, and treatises.
b. GLASS FIBERS: Ordinary Meaning in the Relevant Art
In support of its construction of "glass fibers" as "glass threads or filaments or pieces thereof," Plastpro directs the Court to both general and technical dictionaries, as well as trade encyclopedias and engineering manuals available at the time the '540 patent issued. A general dictionary defines "fiber" as "a filament; any threadlike part of a substance." See Exh. N, WEBSTER'S NEW UNIVERSAL UNABRIDGED DICTIONARY 680. "Filament" is in turn defined as "a thread; a fiber." See id. at 684. A scientific/technical dictionary defines "glass fiber" as "[a] glass thread less than a thousandth of an inch thick, used loosely or in woven form as a ... reinforcing material in laminated plastics." See Exh. O, MCGRAW-HILL DICTIONARY OF SCIENTIFIC AND TECHNICAL TERMS 685. Finally, one scientific dictionary essentially defines "fiber" and "filament" as synonyms of one another. See Exh. P, THE CONDENSED CHEMICAL DICTIONARY 388 (defining "filament" as "a continuous fiber"). An engineering manual on materials states that standard glass fiber is spun as "single glass filaments ... collected into strands that are manufactured into many forms of reinforcement." See Exh. Q, MATERIALS HANDBOOK 385.
In support of its construction of "glass fibers" to include "pieces of filaments," Plastpro cites to a handbook on reinforced plastics in which it is noted that "chopped fiber lengths" are used as reinforcement in sheet molding compounds such as are at issue in this case. See Exh. T, HANDBOOK OF TECHNOLOGY AND ENGINEERING OF REINFORCED PLASTICS/COMPOSITES 216.[6]
*528 The above objective sources clearly support construction of "glass fibers" as threads, filaments, or pieces of filaments. However, as discussed below, ThermaTru urges that the plain meaning of the term is "bundles of filaments" or, if not, then the Court should look beyond the demonstrated plain meaning of the term to find a definition more suited to the practical functioning of glass fibers in the invention.
In support of its "ordinary meaning" position, Therma-Tru argues that, because the '540 patent specification implicitly defines "glass fibers" as "bundles of filaments," Plastpro erroneously relies on extrinsic evidence to support its construction.[7] Therma-Tru contends that an implicit definition is discernible from the '540 patent's repeated use of the term "glass fibers." It also argues that the prosecution history reinforces its proposed construction. Therefore, it is ThermaTru's position that the Court need go no further than the intrinsic evidence in the record to construe the fiber-free claim limitation.
The Court finds Therma-Tru's positions unpersuasive. The patentee's "multiple and consistent use" of the term "glass fibers" in no way conveys an implicit definition of the term. The term is used repeatedly in the specification and claims without any definition or further clarification. The mere repetition of "glass fibers" does nothing to convey its meaning. The phrase "bundles of filaments" does not appear in any form in the '540 patent or its prosecution history. In order for "glass fibers" to take on a "bundles" definition, such a special meaning would have to be "clearly stated in the patent specification or file history." Vitronics, 90 F.3d at 1582. That is not the case here.
Therma-Tru further argues that general and technical dictionaries do not consistently define a "fiber" as a "filament." Therma-Tru is correct that differing dictionary definitions must be reconciled with reference to the patent itself, but it does not offer a contemporaneous objective source to support its construction. Rather, Therma-Tru relies on the testimony of several experts.
For example, Kenneth West, a Therma-Tru employee involved in the production of fiberglass doors, concluded in his Technical Expert Report that "if individual filaments are used in the SMC manufacturing process, the resulting door skins would be unacceptable in appearance and strength." (Dec. of Sangeeta Shah, Exh. D, at 16.). Mr. West further noted:
The functional characteristics of the '540 `glass fibers' clarify the patentee's intent in defining `glass fibers' to constitute a bundle of filaments and not a single filament. The use of fine grain texturing at the surface to a defined depth does prevent surface exposure of bundles of filaments, i.e., glass fibers. However, surface texturing cannot eliminate single break away filaments from being exposed at the surface. Moreover, the *529 existence of these single glass filaments at the exterior surface does not affect any of the functional reasons identified in the '540 patent for suppression of glass fibers, i.e., to avoid wicking, provide reinforcement, a high quality surface appearance, and ease in handling.
(Id. at 17.)(emphasis in original).
Robert R. Jackson, Director of Research and Development at Therma-Tru, testified that a fiber is a "bundle of filaments." (Id., Exh. F, at 28.). John M. Maxel, an expert for Therma-Tru in this litigation, also testified that a "fiber" is a "bundle of filaments," and acknowledged that while a bundle consists of approximately 200 filaments, as few as 100 filaments would also constitute a bundle. (Id., Exh. G, at 18 ll. 20-23; at 21-22.). Therma-Tru also offers the testimony of John E. Thorn, the inventor, who testified that the intent of the patent was to suppress the majority of the fibers (which he referred to as "clusters of filaments") from the top .005 inch of the door skin. (Id., Exh. H, at 27, ll. 7-16.)
As a threshold issue of the correct legal standard to apply to Therma-Tru's evidence, the Court notes that the Federal Circuit clearly favors "objective resources" such as dictionaries, encyclopedias, and treatises over expert testimony on claim construction:
Dictionaries, encyclopedias, and treatises, publicly available at the time the patent is issued, are objective resources that serve as reliable sources of information on the established meanings that would have been attributed to the terms of the claims by those of skill in the art. Such references are unbiased reflections of common understanding not influenced by expert testimony or events subsequent to the fixing of the intrinsic record by the grant of the patent, not colored by the motives of the parties, and not inspired by litigation.
Texas Digital Sys., 308 F.3d at 1202-03.
These objective sources are preferred over the expert testimony of attorneys, technical experts, and even the inventors themselves. Vitronics, 90 F.3d at 1585. Given that "opinion testimony on claim construction should be treated with the utmost caution, for it is no better than opinion testimony on the meaning of statutory terms," id., the Court places emphasis on contemporaneous objective resources over opinion testimony to discern the ordinary meaning to one skilled in the art.
As to its "practical functioning" position, Therma-Tru does not convincingly show that the ordinary meaning of glass fibers is inconsistent with the practical function of glass fibers in the invention. The Court addresses each of ThermaTru's "functional" arguments that Plastpro's proposed construction contradicts the "implicit definition" of the term.
1. Individual Filaments Are Not Available to Purchase
Therma-Tru contends that "glass fibers" must mean "bundles of filaments" because one cannot purchase single glass threads. However, this is irrelevant to the Court's inquiry into the proper meaning of "glass fibers" as used in the invention. Indeed, the form in which a raw material is marketed and sold may have little resemblance to the form it assumes once incorporated in a patented product or process. Furthermore, there is evidence in the record that bundles or rovings of glass fibers may "filamentize," or break down into individual threads, during the compression molding process, which further suggests that the relevant inquiry is not the form the fiberglass takes at the time of purchase, but the form it assumes when used in the molding process. See McQuillen Dec., Exh. M ¶ 41 (distinguishing "hard" glass from "soft" glass and noting *530 that, when combined with the SMC resin, the latter "tend[s] to separate into individual filaments."); see also id., Exh. Q, MATERIALS HANDBOOK 385 (noting that "fibers spun as single glass filaments ... are collected into strands that are manufactured into many forms of reinforcement," thus implying that the manufactured form may vary widely from the ultimate reinforcing form.).
2. Individual Filaments Do Not Perform the Required Reinforcement
Therma-Tru next contends that individual filaments cannot adequately reinforce the door skins. Its essential argument is that single filaments "would cause the SMC compound to fall apart during molding." (Def.'s Opp. Br., at 16.). However, construing "glass fibers" to mean filaments does not contravene the reinforcing function attributed to "glass fibers" in the specification. The description of the glass fibers' function in the specification is as follows: "The elimination of glass fibers from the surface of the exterior side ... allows the fibrous glass reinforcement to be distributed closer to the centroid of the skin. This results in a door structure which reduces deflection." (McQuillen Dec., Exh. A, col. 3, ll. 16-24.). The McGraw-Hill Dictionary of Scientific and Technical Terms, a source available at the time the '540 patent issued, notes that a glass fiber may be "used loosely or in woven form ... as a reinforcing material." (Id., Exh. O, at 685.). Therefore, to one skilled in the art, the ordinary meaning of "glass fiber" in the reinforcement context must include individual filaments.
3. Individual Filaments Do Not Solve the "Wicking" Problem
Therma-Tru argues that the wicking problem only arises if bundles of filaments occur at the surface of the skins; because single filaments are incapable of wicking stain, the '540 patent thus implicitly defines fibers to mean bundles. In support, Therma-Tru points only to the patent itself and a general definition of wicking in support of its position. However, the statements of Therma-Tru's experts make clear that the precise quantity of filaments required to make a wicking-resistant bundle is not clear.
On the one hand, Therma-Tru's Kenneth West testified that "[a] bundle of filaments includes approximately 200 glass filaments." (Shah Dec., Exh. D at 16.). Burr L. Leach, a Therma-Tru expert in prior litigation, stated that a fiber consists of approximately 264 filaments. (Id., Exh. E, at 95, ll. 11-15.). John M. Maxel, Therma-Tru's expert in this litigation, testified that a fiber consists of approximately 200 filaments, but that even 100 filaments could also constitute a fiber. (Id., Exh. G, at 21-22.). Maxel emphasized that defining a fiber in terms of filaments is "not black and white." (Id. at 22.).
Significantly, West testified that as few as three filaments could cause a wicking problem. (McQuillen Reply Dec., Exh. D, at 59, ll. 23-25.). If as few as three filaments can cause wicking (and none of the cited experts suggests that three filaments would constitute a "bundle"), it cannot be that "the wicking problem only arises if bundles of filaments occur at the surface of the skins." Therefore, it would be consistent with the specification to construe "glass fibers" as "threads" or "filaments" or "pieces thereof" because, if not suppressed to a certain depth below the surface, even a few filaments can cause a wicking problem.
Because the ordinary meaning of the term to one skilled in the art is not inconsistent with the intrinsic evidence, Vitronics, 90 F.3d at 1584 n. 6, the Court finds that "glass fibers" should be interpreted as *531 "glass threads or filaments or pieces thereof."
c. ESSENTIALLY DEVOID: Intrinsic Evidence
Plastpro next argues that "essentially devoid" should be construed as "lacking or having an absence of, except for trace or residue amounts." ThermaTru contends that the term is more appropriately defined as "virtually or in essence devoid," but offers no intrinsic or extrinsic evidence to support its construction. Therma-Tru reasons that while the phrase does not connote the absolute exclusion of glass fibers from the surface of the skin, the proper construction of the term must functionally prevent a surface that wicks stain. Plastpro objects to ThermaTru's proposed meaning because its inherent ambiguity does not provide a meaningful standard against which infringement can be judged.
The intrinsic evidence does not contain an explicit definition of "essentially devoid." However, the '540 specification and the prosecution history do offer some helpful assistance. The '540 patent's enumeration of the supposed advantages of a fiber-free surface is prefaced by: "The elimination of glass fibers from the surface of the exterior side provides the present structure with several advantages." (McQuillen Dec., Exh. A, col. 3, ll.16-18.)(emphasis added). Similarly, an amendment to the '549 CIP application contained the following Remark: "The combination of opposed SMC panels ... where the exterior surface is devoid of glass fibers ... results in a door assembly which is far superior to prior art doors." (Id., Exh. D, at 47) (emphasis added). In other words, the unqualified use of the terms "elimination" and "devoid" indicates a complete lack of fibers. A fair and plain reading of these descriptions suggests to a person skilled in the art that no glass fibers should be present in the outer 0.005 inch of the door skins.
Logically, then, "essentially devoid" must mean as near as possible to a complete absence, or at most trace amounts of glass fibers. Plastpro's cited dictionary references support such a meaning. See McQuillen Dec., Exh. AA, THE RANDOM HOUSE COLLEGE DICTIONARY 451 (listing "essentially" as synonymous with "fundamentally," "inherently," or "intrinsically"). Unlike Therma-Tru's "virtually or in essence devoid," Plastpro's construction is not only consistent with the specification and prosecution history, but lends itself to quantification and therefore provides a standard for infringement. If the meaning of "essentially devoid" is ambiguous, "virtually devoid" does little to clarify it. The phrase "essentially devoid" is interpreted as meaning "lacking or having an absence of except for trace or residue amounts."
Restated in light of these constructions, the fiber-free claim limitation becomes: "outside of said skin lacking or having an absence of glass threads or filaments or pieces thereof except for trace or residue amounts for a predetermined depth of at least 0.005 inch." The Court need not construe the phrase "predetermined depth" because it is not necessary to resolve this infringement action.
II. Application of the Fiber-Free Limitation to Plastpro's Accused Doors
A. Literal Infringement
Charles L. Tucker III, Ph.D., a professor of mechanical engineering, tested two doors "representative of all simulated wood-grain doors manufactured by Nan Ya Plastics and sold by Plastpro... with respect to the spatial distribution of the glass fibers in the skin." (McQuillen Dec., Exh. M, at ¶ 122.). Dr. Tucker removed from each of the samples a circular plug of *532 material consisting of the front fiberglass skin, the foam core, and the back fiberglass skin. (Id., Exh. M, at A2.). A rectangular strip was cut radially from each disk to obtain smaller specimens for a scanning electron microscope (SEM). (Id.). Multiple SEM images at various degrees of magnification were taken. (Id. at A4.). Tucker's report reveals high magnification images showing the glass fibers distributed throughout the skin. (Id., at A9, Fig. 6.). The number of fibers in each layer was determined by hand counting. (Id. at A10.).
Dr. Tucker then compared the average glass fiber count in the top 0.005 inch layer with the average for all 0.005 inch layers throughout the skin. (Id. ¶ 124.). The Court reproduces Dr. Tucker's table of results here:
Average Glass Fiber Count
Interlock Flat-Edge
Door Door
---- ----
Avg. for top 0.005
inch layer 28.8 27.8
Avg. for all 0.005
inch layer 151.5 81.5
(Id.).
For example, the Interlock Door tested for 28.8 fibers in the outer 0.005 inch layer of the skin, while the average number of fibers for all 0.005 inch layers of the skin was 151.5.
Plastpro argues that the claim limitation "essentially devoid of glass fibers for a predetermined depth of 0.005 inch" is not satisfied given that in both doors tested the average count of glass fibers in the top 0.005 inch was 19% or 34.4% of the average total amount counted in all 0.005 inch layers. The Court agrees that the top 0.005 inch of Plastpro's doors contains more than trace or residue amounts of glass threads or filaments or pieces thereof. Perhaps because Dr. Tucker's analysis is premised on a claim construction involving the term "glass fibers" which it rejects, Therma-Tru does not dispute the results of Dr. Tucker's analysis, nor does it dispute the infringement analysis that results from Plastpro's proposed construction of the claim.
Based on the foregoing analysis, Plastpro's doors do not literally infringe the '540 patent.
B. Doctrine of Equivalents
Plastpro also seeks to have this Court declare that its doors do not infringe the '540 patent under the doctrine of equivalents. Plastpro disputes the applicability of the doctrine of equivalents to the fiber-free claim limitation. However, assuming the doctrine of equivalents is applicable, Plastpro argues that there is no equivalent structure in its doors reducing deflection in substantially the same way as required by the fiber-free claim limitation. (Pl.'s Br. at 31.). To some extent, this is the only logical result given the construction of "glass fibers" as meaning "threads, filaments, or pieces thereof." Under this construction, the distinction is clear between doors reinforced by concentrated bundles at the center of the skin and doors reinforced by dispersal of fibers generally throughout the skin. Therefore, in this case claim construction has essentially resolved the infringement issues both literally and under the doctrine of equivalents. ThermaTru does not substantively address Plastpro's doctrine of equivalents argument.[8]
*533 An accused product that does not literally infringe may nonetheless still infringe under the "doctrine of equivalents," which allows a patentee to claim insubstantial alterations not expressly captured in the drafting of the original patent claim. Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 733, 122 S.Ct. 1831, 152 L.Ed.2d 944 (2002). An element of an accused product is the equivalent of a claim limitation if the element performs substantially the same function as the claim limitation to which it is being compared, in substantially the same way to obtain the same result. Graver Tank & Mfg. Co. v. Linde Air Prod. Co., 339 U.S. 605, 608-09, 70 S.Ct. 854, 94 L.Ed. 1097 (1950) (the "function-way-result" test). When considering an equivalence argument, the court makes the essential inquiry: "Does the accused product or process contain elements identical or equivalent to each claimed element of the patented invention?" Warner-Jenkinson Co., Inc. v. Hilton Davis Chem. Co., 520 U.S. 17, 39, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). "The doctrine [of equivalents], which requires an element-by-element inquiry, cannot be used to eliminate completely any claim element." HERBERT F. SCHWARTZ, PATENT LAW & PRACTICE 142 (3d ed.2001) (citing Warner-Jenkinson, 520 U.S. at 40, 117 S.Ct. 1040.).
The '540 patent specification provides that one of the aims of suppressing the fibers below the 0.005 inch layer (and therefore concentrating the fibers toward the center of the skin) is the reduction of deflection. (McQuillen Dec., Exh. A, col. 3, ll. 21-24.). As the Court discussed at length above, Plastpro's doors contain relatively significant quantities of glass fibers in the top 0.005 inch of the skins. Furthermore, the evidence in the record demonstrates that this feature of Plastpro's doors is the deliberate result of its use of so-called "soft glass," a type of glass specifically designed to separate into individual fibers during the compression molding process. (McQuillen Dec., Exh. M, ¶ 40 (noting that if the "binder" holding the fibers together in bundles is soluble in the SMC resin, the bundles are termed "soft glass" and "tend to separate into individual filaments when the SMC is handled and molded.")).
As compared to "hard glass" (which tends to maintain its bundled form throughout the molding process) (id.), Dr. Tucker indicated in his report that the properties of "soft glass" result in clear structural and reinforcing differences. The dispersal of glass fibers throughout the door skin, as opposed to concentrating the fibers in the center of the skin (per Therma-Tru's doors), produces a stronger door. (Id., ¶ 132.). Thus, while both parties' compression molded doors are designed to achieve high strength and stability, Plastpro's method for doing so is substantially different from Therma-Tru's. Therefore, Plastpro's doors do not infringe the fiber-free claim limitation of the '540 patent under the doctrine of equivalents.
Conclusion
To the extent that all of Plastpro's grained door assemblies have the same spatial distribution of glass fibers in the door skins (Id., Exh. M, ¶ 122; Pl.'s Br. at 7.), these doors do not infringe the '540 patent either literally or under the doctrine of equivalents. The Court agrees with Plastpro's proposed construction of the terms "glass fibers" and "essentially *534 devoid." The Court does not construe "predetermined depth" because it is not necessary to resolve the infringement issues presented.
Accordingly, IT IS on this 13th day of June 2005 ORDERED that Plastpro, Inc.'s motion for summary judgment is granted and the following declaratory judgment is entered:
1. The term "glass fibers" as used in the claims of U.S. Patent No. 4,550,540 is construed to mean "glass threads or filaments or pieces thereof;"
2. The term "essentially devoid" as used in the claims of U.S. Patent No. 4,550,540 is construed to mean that "no more than trace or residue amounts" of glass fibers may be present in the top 0.005 inch of the door skins;
3. None of Plastpro's grained fiberglass doors infringe any claim of U.S. Patent No. 4,550,540 either literally or under the doctrine of equivalents.
Therma-Tru's counterclaim against Plastpro for patent infringement is dismissed based on the foregoing analysis. The parties are directed to inform the Court as to what parties and claims remain after this judgment.
NOTES
[1] As Plastpro notes in its brief, "the reasons why the remaining accused doors lack the fiber-free claim limitation and, therefore, do not infringe the '540 patent also apply to the Plastpro door assemblies found not to infringe in this Court's June 25, 2003 Order since the skins for all the grained fiberglass doors sold by Plastpro are made from the same basic formulation and under the same molding conditions." Pl. Br. at 2 n. 3 (emphasis in original).
Although Plastpro's door manufacturer, Nan Ya Plastics Corporation ("Nan Ya"), initially made several variations on the internal structure of the doors, the physical properties of the doors have remained constant. (McQuillen Dec., Exh. L, Dep. of Charles L. Tucker, at 14 ll. 6-21.).
[2] "Compression molding" refers to the process by which molding compounds are heated, pressed, and formed into "high-quality appearance parts." (McQuillen Dec., Exh. B, SHEET MOLDING COMPOUND MANUAL, at 5, 34).
[3] "Deflection" refers to the movement of a structure or structural part due to stress.
[4] "Wicking" describes the carrying away of liquid or moisture by capillary action.
[5] As of the time of this Memorandum and Order, the Federal Circuit en banc is reconsidering the law of claim construction, particularly the respective roles of the dictionary and the specification as sources for claim interpretation. Phillips v. AWH Corp., 363 F.3d 1207 (Fed.Cir.2004), reh'g granted, Nos. 03-1269, 03-1286, 376 F.3d 1382 (July 21, 2004). The Federal Circuit requested briefing on a range of questions highly relevant to the claim construction inquiry, including "what use should be made of dictionaries if the primary source for claim construction should be the specification."
Pending the en banc decision in Phillips, however, the Court is of course guided by the Federal Circuit's existing pronouncements on claim construction.
[6] Plastpro also refers the Court to Therma-Tru Corp. v. Pease Indus., Inc., No. 97-70164 (July 14, 1998), an Eastern District of Michigan decision construing the '540 patent's fiber-free limitation as "glass threads or filaments or pieces thereof." Although the claim construction in Pease does not bind this Court, the Court has considered the underlying reasoning for the Michigan district court's construction of the same claim limitation disputed in this case. In Pease the court adopted the recommendations of a Special Master who reviewed the intrinsic and extrinsic evidence in the case. The court found that the Master's recommended construction comported with the form in which such fibers are used in the industry. See Exh. W at 3; Exh. X at 20.
[7] However, Therma-Tru itself offers extrinsic evidence almost exclusively to support its construction of "glass fibers." See Def.'s Opp. Br., at 13-17.
[8] Therma-Tru makes only cursory mention of "an equivalent structure" at the conclusion of its opposition brief: "Once the `glass fiber' limitation is properly construed, it necessarily follows that the accused doors meet the `essentially devoid' limitation literally. Moreover, because the `essentially devoid' limitation was never amended, the accused doors would at a minimum constitute an equivalent structure." (Def.'s Br. at 23.). Therefore, as the Court reads it, Therma-Tru's brief argues only for literal infringement based on its construction of "glass fibers" as "bundles of filaments."
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790 S.W.2d 93 (1990)
TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Relator,
v.
The Honorable Roy ENGELKE, Judge of the 10th Judicial District Court, Galveston County, Texas Respondent.
No. 01-90-00397-CV.
Court of Appeals of Texas, Houston (1st Dist.).
May 16, 1990.
*94 Mike Phillips, Houston, for relator.
Michael Atkinson, Conroe, for respondent.
Before EVANS, C.J., and DUGGAN and MIRABAL, JJ.
EVANS, Chief Justice.
Relator seeks leave to file a writ of mandamus, directing respondent, the Honorable Roy Engelke, Judge of the 10th Judicial District Court of Galveston County, Texas, to vacate an order dated April 27, 1990, which granted the motion of the judgment creditor, Howell Puckett, Jr., the real party-in-interest, to release funds seized by the sheriff of Dallas County under writ of execution, and which required said funds to be turned over to the judgment creditor pursuant to the court's earlier turnover order. Relator also asks for a writ of prohibition preventing the respondent judge from entertaining any further attempt by the judgment creditor to turn over the disputed funds, and asks this Court to enjoin the judgment creditor, his attorneys and agents, from any further attempts to collect the funds seized under the writ of execution and turnover order or to otherwise attempt to enforce the trial court's judgment.
The essential facts are undisputed. The trial court entered judgment in favor of the real party-in-interest, Howell Puckett, Jr., for the sum of $1,922,577, and relator thereafter perfected its appeal to this Court. Relator then asked the trial court to allow it to suspend execution of the judgment by posting a supersedeas bond in the amount of $0, which request the trial court denied. Instead, the trial court granted the request of the judgment creditor for a turnover of assets to satisfy the judgment. The judgment creditor then sought writ of execution to enforce the judgment.
On April 17, 1990, at 8:33 a.m., the trial court issued a writ of execution. At 2:00 p.m. that same day, the sheriff of Dallas County executed the writ. At 2:30 p.m., relator issued a letter directing its bank to *95 issue a cashier's check in the amount of $1,991,119 to the sheriff of Dallas County. The cashier's check was immediately deposited in the account of the sheriff of Dallas County. On April 20, 1990, the sheriff of Dallas County issued a check in the amount of the judgment, less the sum of $10,000, representing its commission fee, and sent the check via Federal Express to the district clerk of Galveston County. On April 23, 1990, the district clerk received the check and deposited the money in the registry of the court. The judgment creditor then filed a motion for delivery of the money collected under the judgment, and on April 27, 1990, the court granted the order that the relator now seeks to have this Court vacate.
Relator contends, in effect, that it made a good faith effort on April 17, 1990, to timely file its supersedeas bond with the district clerk in Galveston County but that the judgment creditor informed the district clerk that the supersedeas bond was defective because, among other reasons, it was in the amount of the judgment only, and did not obligate the surety to pay interest and costs. See National Convenience Stores, Inc. v. Martinez, 763 S.W.2d 960 (Tex.App.Houston [1st Dist.] 1989, no writ); Tex.R.App.P. 47(b). Relator contends, therefore, that it did not have sufficient time to revise the bond and secure the required signatures before the Sheriff of Dallas County executed the judgment by levying on relator's back account. Relator submits that it later filed, on April 19, 1990, a valid supersedeas bond with the Galveston County district clerk, and that this bond was sufficient to supercede the enforcement process, and to preclude the turnover of the funds that had been seized by the sheriff. Relator argues that this bond had the effect of suspending all "further proceedings," including the court's distribution of the seized funds placed in its registry.
We overrule relator's contention. A judgment creditor has a statutory right to have execution issued to enforce a judgment pending appeal, unless and until a valid supersedeas bond has been filed. Anderson v. Lykes, 761 S.W.2d 831, 833 (Tex.App.Dallas 1988, orig. proceeding); Elliott v. Lester, 126 S.W.2d 756, 758 (Tex. Civ.App.Dallas 1939, no writ); Bryan v. Luhning, 106 S.W.2d 403, 404 (Tex.Civ. App.Galveston 1937, no writ). Thus, the pendency of an appeal does not suspend the judgment creditor's right to seek the aid of the court through execution or the entry of a turnover order. The fact that a judgment debtor is financially unable to file such bond does not destroy this statutory right. Elliott, 126 S.W.2d at 759; Bryan, 106 S.W.2d at 404.
Neither does Texas Rule of Appellate Procedure 47(j) support relator's contention. That rule simply provides that an "issued" writ of execution, will be suspended by valid supersedeas bond. We have no quarrel with that proposition; it has always been the rule. Here, however, we are faced not with the issuance of an execution, but with the levy of the execution. As noted, it is at this point, the time of the levy, that the judgment lien is fixed.
Relator does not challenge the validity of either the judgment execution or the levy thereunder. A valid levy of an execution creates a lien on the debtor's property in favor of the judgment creditor, Herndon v. Cocke, 138 S.W.2d 298, 300 (Tex.Civ.App. El Paso 1940, no writ), which in the case of personal property is prima facie evidence of satisfaction of the execution. Cornelius v. Burford, 28 Tex. 202, 206 (1866); Bryan's Adm'r v. Bridge, 10 Tex. 149, 151 (1853). This lien is effective from the time of the levy and continues in effect until it is lost or abandoned, or in some way ceases to have vitality and effect. Borden v. McRae, 46 Tex. 396, 400 (1877).
In this case, the judgment creditor's lien attached at the time the sheriff of Dallas County levied under the judgment execution. Relator's later filing of the supersedeas bond did not, and could not, have vacated the fixed rights of the judgment creditor to the proceeds seized pursuant to the levy. The seized funds remained "custodia legis," in the hands of the seizing officer, and thereafter in the registry of the court, pending distribution of such *96 funds to the judgment creditor. Thus, the Sheriff of Dallas County acted simply in a ministerial capacity, as an officer of the court, in returning the seized funds to the District Clerk of Galveston County.
When relief is sought from a trial court's order by way of writ of mandamus, relator must show either that the action of the trial judge is an abuse of discretion or that the action violates a clear duty under law, and that there is no adequate remedy by appeal. Ryland Group, Inc. v. White, 723 S.W.2d 160, 161-62 (Tex.App.Houston [1st Dist.] 1986, orig. proceeding). In this case, relator has not provided us with a transcript of the proceedings on the hearing on the judgment creditor's motion for delivery of the funds. It was relator's burden to provide an adequate record for our review, The Englander Co. v. Kennedy, 428 S.W.2d 806, 807 (Tex.1968); Tex.R. App.P. 50(d), and in the absence of a transcript, we cannot determine whether the trial court's ruling constituted an abuse of its discretion. Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987).
We accordingly deny relator's petition to file a writ of mandamus, prohibition, and injunction.
The trial court's order of April 27, 1990, granting the motion of the real party-in-interest to release the funds seized by the sheriff of Dallas County, is stayed until 5:00 p.m., May 25, 1990, in order for relator to seek review of our holding in the Texas Supreme Court.
DUGGAN, Justice, dissenting.
I respectfully dissent.
The net result of the majority's decision is to hold that a writ of supersedeas comes too late to protect a judgment debtor when it is posted after a sheriff levies under a writ of execution, seizes funds, and delivers them to the district clerk, all as required by the terms of the writ of execution, but before the clerk delivers the funds to the judgment creditor. I would hold: (1) that the directions and procedures contained in the writ of execution here involved made it a process, not an event; (2) that prior to the time relator filed its supersedeas bond and obtained its writ of supersedeas, the execution process was not completed according to the specific, multi-stepped provisions required by this particular Galveston County writ of execution; and (3) that relator's writ of supersedeas suspended the execution process.
In deciding that levy and seizure, not delivery of seized property, finalizes the execution process, I believe the majority misinterprets the wording and effect of rule 47 of the Texas Rules of Appellate Procedure, entitled "Suspension of Enforcement of Judgment Pending Appeal in Civil Cases." Rule 47(j) states:
Effect of Security. Upon the filing and approval of a proper supersedeas bond... execution of the judgment or so much thereof as has been superseded, shall be suspended, and if execution has been issued, the clerk shall forthwith issue a writ of supersedeas.
TEX.R.APP.P. 47(j).
I interpret rule 47(j) to establish a relationship between the supersedeas bond and "execution of the judgment," on the one hand, and the writs of execution and supersedeas, on the other. Rule 47(j) states that where a supersedeas bond has been filed and approved, execution of the judgment "shall be suspended." It further provides that where a writ of execution already has been issued, the clerk "shall forthwith issue a writ of supersedeas." In short, a supersedeas bond stops execution, and a writ of supersedeas stops a writ of execution. The rule contains no language of exemption for a writ of execution that has already been levied.
I do not dispute the majority's statement citing Herndon v. Cocke, 138 S.W.2d 298, 300 (Tex.Civ.App.El Paso 1940, no writ), that a levy of execution creates a lien on the debtor's property in favor of the judgment creditor. However, nothing in that 50-year-old decision states that the judgment creditor's protection under the lien is not satisfactorily replaced by a valid supersedeas bond. The majority assumes the issue to be decided when it states, with no *97 citation to authority, that the judgment debtor's/relator's "later filing of the supersedeas bond did not, and could not, have vacated the fixed rights of the judgment creditor to the proceeds seized pursuant to the levy." What fixed rights? Why not? If levy and seizure under a writ of execution settle a judgment debtor's and creditor's rights, why do we find no statement to that effect in the rules of civil and appellate procedure that regulate supersedeas?
Further, I conclude that none of the case law cited by the majority holds that a judgment creditor's lien, which attached under a writ of execution, aborts or preempts a writ of supersedeas filed after levy of execution, but before delivery of seized property to the judgment creditor. In Anderson v. Lykes, 761 S.W.2d 831, 833 (Tex.App.Dallas 1988, orig. proceeding), cited by the majority, there was no supersedeas involved at any stage of execution. Rather, it addressed the question of whether a trial court that rendered a money judgment had jurisdiction to entertain the judgment creditor's application for turnover relief, or whether jurisdiction for that purpose lay only in the court of appeals to which an appeal had been perfected. Id. at 833. In dicta, Anderson held that a judgment creditor has a statutory right "to have execution issue to enforce a judgment where no supersedeas bond has been filed or approved." Id. (emphasis added). It did not address the effect of a writ of supersedeas that is issued during the execution process and before the property seized by the sheriff and delivered to the clerk is turned over to the judgment creditor.
In Elliott v. Lester, 126 S.W.2d 756 (Tex. Civ.App.Dallas 1938, no writ), also cited, the issue was whether a near-insolvent insurer, which had defended a trucking firm in a motor bus collision, could serve as its own surety for an additionally required supersedeas bond. It did not deal with whether a levy under execution negates a supersedeas bond that is in place before funds are delivered to a judgment creditor.
I would hold that relator's writ of supersedeas was effective to supersede the writ of execution during its progress, and would grant relator's motion for leave to file a writ of mandamus, prohibition, and injunction.
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961 F.2d 213
U.S.v.Barrios
NO. 91-8008
United States Court of Appeals,Fifth Circuit.
Apr 07, 1992
1
Appeal From: W.D.Tex.
2
AFFIRMED.
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State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: February 5, 2015 519459
________________________________
In the Matter of the Claim of
MILTON C. DAVIS,
Appellant.
MEMORANDUM AND ORDER
COMMISSIONER OF LABOR,
Respondent.
________________________________
Calendar Date: December 2, 2014
Before: Peters, P.J., Garry, Lynch and Devine, JJ.
__________
Milton C. Davis, Stone Mountain, Georgia, appellant pro se.
Eric T. Schneiderman, Attorney General, New York City
(Bessie Bazile of counsel), for respondent.
__________
Appeal from a decision of the Unemployment Insurance Appeal
Board, filed February 13, 2014, which ruled, among other things,
that claimant was disqualified from receiving unemployment
insurance benefits because he voluntarily left his employment
without good cause.
Substantial evidence supports the decision of the
Unemployment Insurance Appeal Board finding that claimant
resigned from his employment as a counselor with a nonprofit
agency for personal and noncompelling reasons. The record
establishes that although continuing work was available, claimant
resigned from his job because he was nervous that a lack of a
signed contract between the employer and the federal government
for the funding of the services provided by the employer would
result in his loss of employment. Inasmuch as resigning from a
job in anticipation of being discharged has been held not to
constitute good cause for leaving employment (see Matter of
-2- 519459
Carcaterra [Association for Computing Mach., Inc.-Commissioner of
Labor], 90 AD3d 1389, 1390 [2011]; Matter of Dixon-Weaver
[Commissioner of Labor], 67 AD3d 1243, 1244 [2009]), we find no
reason to disturb the Board's decision that claimant was
disqualified from receiving unemployment insurance benefits under
the circumstances herein. Furthermore, because claimant
indicated on his application for unemployment insurance benefits
that his separation from employment was due to lack of work, the
Board's finding that he made a willful false statement to obtain
benefits will not be disturbed (see Matter of Ferreira
[Commissioner of Labor], 84 AD3d 1609, 1610-1611 [2011]; Matter
of DeGennaro [Commissioner of Labor], 68 AD3d 1274, 1275 [2009]).
Peters, P.J., Garry, Lynch and Devine, JJ., concur.
ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court
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317 So.2d 43 (1975)
CORRUGATED INDUSTRIES, INC.
v.
CHATTANOOGA GLASS COMPANY et al.
No. 48104.
Supreme Court of Mississippi.
July 7, 1975.
Rushing & Guice, William Lee Guice, III, Biloxi, for appellant.
White & Morse, William M. Rainey, Gulfport, for appellees.
Before PATTERSON, SMITH and BROOM, JJ.
*44 SMITH, Justice.
The action, out of which this appeal arises, was brought in the County Court of Harrison County by Corrugated Industries, as plaintiff, against Chattanooga Glass Company, as owner, and John E. Shavers, as contractor, under Mississippi Code Annotated section 85-7-181 (1972). The suit sought to bind in the hands of Chattanooga Glass the sum of $6,684.48, alleged to be due Corrugated Industries by Shavers for material furnished to him by it and alleged to have been used for the repair of the Chattanooga Glass Company building, it being further alleged that notice of Shavers' debt had been given Chattanooga Glass at a time when it had in its hands funds owed Shavers.
Section 87-7-181, supra, provides in part:
When any contractor ... shall not pay any person who may have furnished materials used in the ... repair of any house, building, ... such person . .. may give notice in writing to the owner ... and, thereupon the amount that may be due upon the date of the service of such notice by such owner to the contractor ... shall be bound in the hands of such owner... .
The material facts of the case are not in dispute. Chattanooga Glass contracted with Shavers to repair the roof of its building for a total contract sum of $22,257.60.
Work under the contract having proceeded, Chattanooga Glass issued its check to Shavers for $10,500.00 as a progress payment upon the contract sum.
On May 2, 1972, the work having been completed, Chattanooga Glass issued its check to Shavers for $11,757.60, in payment of the final balance owing to Shavers under the contract.
On May 10, 1972, the check so issued to Shavers was cashed or negotiated by the First Mississippi National Bank, Biloxi.
On May 11, 1972, the check was cleared by Whitney Bank, New Orleans, Louisiana, a correspondent bank.
On May 11, 1972, the Gulfport office of Chattanooga Glass received a stop payment notice from Corrugated Industries, claiming that Shavers owed for material which had gone into the job.
On May 15, 1972, the check cleared American National Bank and Trust Company, Chattanooga, Tennessee, the bank on which it was drawn.
It appears incidentally that on May 26, 1972, Corrugated Industries received Shavers' check in payment for all amounts due it but that on June 5, 1972, Shavers' check proved to be "no good."
In the county court the case was submitted to a jury which returned a verdict for Corrugated Industries in the amount sued for against both Chattanooga Glass and Shavers. On motion, however, the judgment was set aside and judgment non obstante veredicto entered for Chattanooga Glass Company. The verdict against Shavers remains in full force and effect.
The Circuit Court of Harrison County affirmed that judgment and Corrugated Industries now appeals here.
It appears to be conceded that the issue presented by the present appeal is whether Chattanooga Glass, as owner, owed Corrugated Industries, as a materialman, the affirmative duty to stop payment on its check issued to Shavers, in final settlement with him under the contract, the check having been issued, delivered and negotiated prior to the receipt of any stop notice from Corrugated Industries. The check, issued on May 2, 1972, was duly honored upon presentment in due course by the payor bank in Chattanooga.
Only one case has been cited, and no other has been found, where this precise question has been dealt with by a court of last resort. The Supreme Court of North *45 Carolina in Parnell-Martin Supply Co. v. High Point Motor Lodge, Inc., 277 N.C. 312, 177 S.E.2d 392 (1970), passed upon a case which involved an almost exactly similar factual situation. North Carolina has a statute analogous to section 85-7-181, supra, designed like the Mississippi statute, to protect laborers and materialmen by providing a means of binding undisbursed funds due a contractor which remain in the hands of an owner. In Parnell-Martin, supra, the North Carolina Supreme Court set out the following chronology of events:
September 1, 1966 contractor submitted final bill to owner;
October 14, 1966 owner delivered its check to the contractor in payment of balance due on contract;
October 17, 1966 the check was negotiated by contractor;
October 18, 1966 materialman sent notice;
October 21, 1966 payor bank cleared owner's check.
The North Carolina Supreme Court prefaced its conclusion that the owner was under no duty to stop payment of its check, by stating:
It is well recognized that, as between owner and drawee bank, owner had authority to countermand or order the drawee bank to stop payment on the check at any time before drawee bank paid the check. Bank v. Bank, 118 N.C. 783, 24 S.E. 524; 10 Am.Jur.2d, Banks, § 641. It is equally well recognized in this jurisdiction that in the absence of an agreement to the contrary, delivery of a check by a debtor to a creditor and acceptance of the check by the creditor does not constitute payment until the check is paid by the drawee bank, but if the check is paid upon presentation, the payment is deemed to have been made at the time the check was given. Paris v. Builders Corp., 244 N.C. 35, 92 S.E.2d 405, and cases cited.
(277 N.C. at 316-317, 177 S.E.2d at 394).
In Tonnar v. Wade, 153 Miss. 722, 121 So. 156 (1929), the question before the Court was whether a defendant in an election suit was a qualified elector. To be a qualified elector the law required that he pay his taxes on or before February 1 of the election year. The taxes had been paid by check on February 1 and a receipt issued by the tax collector. The check did not clear the bank on which it was drawn until February 9. The Court found that, nevertheless, the defendant was a duly qualified elector, saying:
The general rule is that a check becomes absolute payment of a debt when the check is paid on presentation, and, on such payment, the debt is deemed to have been discharged from the date the check was given... . By the giving of a check, the tax obligation and the tax lien are both conditionally discharged, the condition being the payment of the check, and, when the check is paid, a discharge of both the tax obligation and the tax lien relates back to the date of the check.
(153 Miss. at 732, 121 So. at 158).
In Parnell-Martin, the North Carolina Court drew an analogy between the obligation of an owner to a materialman under circumstances such as those involved and that of a garnishee-defendant, quoting with approval an Illinois decision wherein the Illinois Court stated:
In Waples on Attachments and Garnishments, the author says (section 364): "One is not liable to garnishment if he has paid what he owed the defendant in attachment by a bank check, though the latter may not have presented the check to the bank and drawn the money prior to the service of the process of garnishment upon the drawer of the check. It is true that the funds in the bank are *46 still under his control, so that he might stop payment of the check; and, so far as the bank is concerned, he has the right to control the deposit; but he has no moral right to do so, considering his relation to the payee who has taken the check in payment or earnest of payment. At all events, the drawer, as garnishee, is not under the slightest obligation to countermand his own check for the purpose of enabling a professed creditor of the payee to attach the credit in his hands and suspend settlement of his account with the payee for an indefinite time." [Hart v. Veneer Co., 287 Ill. App. 89, 4 N.E.2d 499 (1936)].
(277 N.C. at 318, 177 S.E.2d at 395).
In Parnell-Martin, supra, the North Carolina Court observed:
Conceding, arguendo, that the statutory notice was delivered to owner prior to payment of the check by drawee bank we must decide whether it was incumbent upon owner to stop payment on the check when check was delivered to contractor prior to receipt of statutory notice by owner.
The statutory remedy of garnishment, recognized in many jurisdictions, creates rights and duties which are strikingly similar to those Chapter 44 of the General Statutes creates between subcontractors, owners of property, and claimants. In the usual garnishment proceeding the plaintiff seeks satisfaction of the indebtedness out of property or credits of his debtor in the possession of or owing by a third person... .
......
In 6 Am.Jur.2d, Attachment and Garnishment, § 517, p. 928, we find the following:
"Duty of garnishee to stop payment or delivery of check for indebtedness. The drawer of a check is under no duty or obligation to stop payment, when garnished, for the benefit of the garnishing plaintiff. However, it has been held that where the check is still within the control of the drawer at the time of the service of the writ upon him, it is his duty to withhold delivery or to exercise reasonable diligence to stop its delivery. And where the check has not been delivered at the time of the service of the summons upon the drawer, it is revocable, and the debt is still owing and subject to garnishment." See also 38 C.J.S. Garnishment § 96, pp. 304-305.
The North Carolina Court concluded:
Applying the above rules and reasoning, we conclude that owner (High Point Motor Lodge, Inc.) was under no legal duty to stop payment on the check. Plaintiff's evidence affirmatively shows that at the time notice was given owner had not breached his duty, in the language of the statute, "to retain from the money then due the contractor a sum ... sufficient to pay ... such person for material furnished." The Court of Appeals correctly decided that nonsuit was properly granted as to this cause of action.
(277 N.C. at 317-320, 177 S.E.2d at 395-397).
This Court has never dealt with this precise factual situation, but Chancellor v. Melvin, 211 Miss. 590, 52 So.2d 360 (1951), presented a case in which the owner, in an owner-contractor relationship, had paid his contractor with a promissory note. Subsequently, stop notices from several unpaid materialmen were received by the owner, after delivery of the note but prior to the due date of the note. This Court held that under such circumstances the owner had not been indebted to the contractor at the time he had received the stop notices, saying:
In the absence of a statutory provision to the contrary, the owner may make payment to his principal contractor in *47 any method and at any time they agree upon. Rockel, Mechanics' Liens (1909), Sec. 67; 57 C.J.S., Mechanics' Liens, § 251. There are numerous cases in which the owner was held to have paid his contractor by giving him in good faith a promissory note for the amount due on the contract, even though the note was not paid until after stop notices had been given to the owner... .
(211 Miss. at 602, 52 So.2d at 366).
As stated by the North Carolina Court in Parnell-Martin, supra, while a debt is not paid by the giving and acceptance of a check until the check is paid on presentment in due course, authorities cited to that effect are not relevant to the issue in the present case. Such authorities relate to the extinguishment of an existing debt as between the debtor-maker of a check and creditor-acceptor to whom it is given. Of course, in such a case, if the check is no good the debt is not paid.
No privity exists between an owner and those furnishing material independently to his contractor and no obligation to such a materialman on the part of the owner arises until after receipt of notice. Notice given by a materialman to an owner after the owner has, in good faith, made final settlement with his contractor, as he was obligated by his contract to do, by issuing the contractor his check, which the contractor, in good faith, has negotiated, does not undo the settlement or require the owner to stop payment of the check. Deposit of such a check by a contractor and the issuance of checks of his own against the deposit, not only would involve endorsers but laborers, materialmen and other innocent persons might be drawn into expensive and time consuming litigation as a result of inexcusable neglect on the part of the claimant-materialman to give timely notice.
The judgment of the Circuit Court of Harrison County, affirming the judgment entered for Chattanooga Glass Company by the Harrison County Court, non obstante veredicto, is affirmed.
Affirmed.
GILLESPIE, C.J., RODGERS, P.J., and INZER, ROBERTSON, SUGG and WALKER, JJ., concur.
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699 F.2d 1046
Steven A. STEPANIAN, II, Plaintiff-Appellee,v.David R. ADDIS, Defendant-Appellant.
No. 81-5670.
United States Court of Appeals,Eleventh Circuit.
March 7, 1983.
Anthony J. Steinmeyer and Howard S. Scher, Civ. Div., Appellate Staff, Dept. of Justice, Washington, D.C., for defendant-appellant.
Steven A. Stepanian, II, pro se.
Appeal from the United States District Court for the Middle District of Florida.
Before RONEY, TJOFLAT and FAY, Circuit Judges.
RONEY, Circuit Judge:
1
The sole question on this appeal is whether absolute immunity protected the defendant, a federal prosecuting attorney, from a common law tort action based on what he said at a press conference announcing the criminal indictment of the plaintiff. Holding that the kind of immunity applicable depends upon a development of the facts, we affirm the district court's denial of defendant's motion for summary judgment.
2
Defendant David Addis, the assistant United States Attorney primarily responsible for presenting evidence to the grand jury, announced at a press conference in Orlando, Florida, the indictment of Steven Stepanian and others for criminal violations of federal law in connection with an alleged land fraud. The news reports of the press conference attributed various statements to the prosecutor which Stepanian contends defamed him, and violated a federal regulation regarding the release of information by the Department of Justice about criminal proceedings as well as the American Bar Association's Code of Professional Responsibility Disciplinary Rule 7-107 concerning extra-judicial statements. After receiving a directed verdict of acquittal on the criminal charges, Stepanian filed this diversity civil suit against Addis seeking damages for common law slander. Addis contended that as a prosecutor he had absolute immunity from suit.
3
The district court initially dismissed the suit because it decided Addis's conduct fell within the scope of his duties as a prosecutor, and he was absolutely immune from suit under Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), and Henzel v. Gerstein, 608 F.2d 654 (5th Cir.1979). Shortly thereafter, the former Fifth Circuit announced its decision in Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981). Marrero held that state prosecutors sued under 42 U.S.C.A. Sec. 1983 are entitled to only a qualified, good faith immunity when they engage in activities outside their quasi-judicial roles, and then only to the extent that the activities were authorized as part of their discretionary duties. Thereupon the district court, sua sponte, vacated its dismissal and reinstated the original complaint.
4
Addis moved for summary judgment, again asserting his claim of absolute immunity. In the alternative, he claimed he acted in good faith and was entitled to qualified immunity. The trial court denied the motion for absolute immunity and stated further factual development was needed to determine if Addis could claim a qualified immunity. The court certified the case as involving a controlling question of law about which there was a substantial ground for a difference of opinion so that an immediate interlocutory appeal could be taken.
5
On Addis's appeal, the question before us is whether Addis was entitled to absolute immunity as a matter of law. There are two paths to absolute immunity for a federal prosecutor. First, it could apply to a prosecutor for activity protected as quasi-judicial. Second, if the prosecutor is doing something that is not clothed with quasi-judicial protection, he could receive the same immunities given other federal officials in the executive branch of the government, which in some instances can be absolute. See Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959).
6
Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981), controls the decision as to quasi-judicial immunity. There the Court held that a prosecutor's statements to news media do not fall within the range of quasi-judicial activity afforded absolute immunity. Marrero involved a news conference to announce the results of a search and seizure, an activity the court held was not quasi-judicial. Here the prosecutor held a news conference to announce the return of an indictment. The decision to seek the indictment would clearly constitute quasi-judicial activity. See Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). We see insufficient difference between the two cases, however, to distinguish one news conference from the other for absolute immunity purposes. We hold that the Marrero decision controls this case insofar as it holds that a news conference is not absolutely protected by quasi-judicial immunity.
7
This brings us to the argument that Addis is entitled to absolute immunity under the rule announced in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). Barr applied the doctrine of absolute immunity from suits alleging common law violations to federal executive officials below Cabinet rank. Barr involved a libel action brought against the head of a federal agency. The Court limited the immunity to discretionary actions falling within the scope of the officer's official duties, thus endorsing an analysis based on functions rather than status. Id. at 573-75, 79 S.Ct. at 1340-41. If the disputed activities are discretionary and within the outer perimeter of the official's line of duty, the official is immune from suit even though his or her acts were malicious. The question presented here is how to define the scope of a prosecutor's protected authority.
8
Addis's official authority as to what he could say was bounded by the regulation found at 28 C.F.R. Sec. 50.2 (1981)1 and the indictment. The indictment itself was a matter of public record. Any statements by Addis repeating the information contained therein could not be the subject of a defamation action. The regulation spells out the information which Justice Department officials may release about criminal defendants. It represents a considered policy judgment as to the proper balance between the Department's obligation to inform the public about its statutorily defined duties and a criminal defendant's right to be free of prejudicial pre-trial publicity. It would seem that if Addis stated only what he was permitted to say by the regulation, he would be entitled to the absolute immunity accorded in Barr. If Addis's comments went outside the authority given in the regulation, however, the immunity might be at most qualified. The Marrero Court stated that to the extent the prosecutor was authorized to make press statements as part of his discretionary duties he may be entitled to assert a qualified immunity defense. We do not have before us any question as to what immunity, if any, Addis would have short of absolute immunity to the entire lawsuit.
9
Whether Addis exceeded the scope of his authority in making particular statements was a disputed issue of material fact. Until the facts are developed, it can not be determined to what immunity Addis may be entitled. The district court properly denied summary judgment for the defendant.
10
AFFIRMED.
1
The relevant subsections of the regulation provide:
Release of information by personnel of the Department of Justice relating to criminal and civil proceedings.
(b) Guidelines to criminal actions.
(1) These guidelines shall apply to the release of information to news media from the time a person is the subject of a criminal investigation until any proceeding resulting from such an investigation has been terminated by trial or otherwise.
(2) At no time shall personnel of the Department of Justice furnish any statement or information for the purpose of influencing the outcome of a defendant's trial, nor shall personnel of the Department furnish any statement or information, which could reasonably be expected to be disseminated by means of public communication, if such a statement or information may reasonably be expected to influence the outcome of a pending or future trial.
(3) Personnel of the Department of Justice, subject to specific limitations imposed by law or court rule or order, may make public the following information:
(i) The defendant's name, age, residence, employment, marital status, and similar background information.
(ii) The substance or text of the charge, such as a complaint, indictment, or information.
(iii) The identity of the investigating and/or arresting agency and the length or scope of an investigation.
(iv) The circumstances immediately surrounding an arrest, including the time and place of arrest, resistance, pursuit, possession and use of weapons, and a description of physical items seized at the time of arrest.
Disclosures should include only incontrovertible, factual matters, and should not include subjective observations. In addition, where background information or information relating to the circumstances of an arrest or investigation would be highly prejudicial or where the release thereof would serve no law enforcement function, such information should not be made public.
(4) Personnel of the Department shall not disseminate any information concerning a defendant's prior criminal record.
(5) Because of the particular danger of prejudice resulting from statements in the period approaching and during trial, they ought strenuously to be avoided during that period. Any such statement or release shall be made only on the infrequent occasion when circumstances absolutely demand a disclosure of information and shall include only information which is clearly not prejudicial.
(6) The release of certain types of information generally tends to create dangers of prejudice without serving a significant law enforcement function. Therefore, personnel of the Department should refrain from making available the following:
(i) Observations about a defendant's character.
(ii) Statements, admissions, confessions, or alibis attributable to a defendant, or the refusal or failure of the accused to make a statement.
(iii) Reference to investigative procedures such as fingerprints, polygraph examinations, ballistic tests, or laboratory tests, or to the refusal by the defendant to submit to such tests or examinations.
(iv) Statements concerning the identity, testimony, or credibility of prospective witnesses.
(v) Statements concerning evidence or argument in the case, whether or not it is anticipated that such evidence or argument will be used at trial.
(vi) Any opinion as to the accused's guilt, or the possibility of a plea of guilty to the offense charged, or the possibility of a plea to a lesser offense.
(7) Personnel of the Department of Justice should take no action to encourage or assist news media in photographing or televising a defendant or accused person being held or transported in Federal custody. Departmental representatives should not make available photographs of a defendant unless a law enforcement function is served thereby.
(8) This statement of policy is not intended to restrict the release of information concerning a defendant who is a fugitive from justice.
(9) Since the purpose of this statement is to set forth generally applicable guidelines, there will, of course, be situations in which it will limit the release of information which would not be prejudicial under the particular circumstances. If a representative of the Department believes that in the interest of the fair administration of justice and the law enforcement process information beyond these guidelines should be released, in a particular case, he shall request the permission of the Attorney General or the Deputy Attorney to do so.
28
C.F.R. Sec. 50.2(b) (1981)
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875 F.2d 862
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Calvin BUCHANAN, Plaintiff-Appellant,v.John T. WIGGINTON, Secretary Corrections Cabinet, SteveBerry, Branch Classification Manager, Defendants-Appellees.
No. 88-6385.
United States Court of Appeals, Sixth Circuit.
May 5, 1989.
Before WELLFORD and RALPH B. GUY, Jr., Circuit Judges, and BAILEY BROWN, Senior Circuit Judge.
ORDER
1
This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and appellant's brief, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
Calvin Buchanan moves to remand this case and appeals from the district court's judgment dismissing his 42 U.S.C. Sec. 1983 prisoner civil rights complaint as frivolous pursuant to 28 U.S.C. Sec. 1915(d). Buchanan claimed that he was transferred to a maximum security institution in retaliation for aiding fellow inmates with their legal claims. The defendants are the Secretary of the Corrections Cabinet and the Branch Classification Manager at Frankfort, Kentucky. Upon review of the magistrate's report and recommendation and Buchanan's objections, the district court dismissed the complaint as frivolous.
3
Buchanan raises the same argument on appeal.
4
Upon consideration, we remand for further consideration of Buchanan's claim of retaliatory transfer. Although Buchanan alleged that his constitutional rights were violated by his transfer from Northpoint Training Center to the Kentucky State Penitentiary, inmates have no constitutional right to be incarcerated in any particular state institution and may be transferred at the discretion of state officials unless the state has created a liberty interest in remaining in a particular institution. See Olim v. Wakinekona, 461 U.S. 238, 245-51 (1983); Meachum v. Fano, 427 U.S. 215 (1976). Kentucky has not created such a liberty interest; transfer of prisoners is within the discretion of the corrections cabinet. See 1985 Ky.Rev.Stat. & R.Serv. Sec. 197.065 (Baldwin). However, to the extent that Buchanan claimed that his transfer to the Kentucky State Penitentiary was punitive and in retaliation for helping inmates file their legal claims, he has raised a question sufficient to avoid a dismissal as frivolous. The defendants should be required to file an answer. We express no judgment as to the merits of this claim.
5
The motion to remand is hereby granted and this matter is returned to the district court for further proceedings. Rule 9(b)(6), Rules of the Sixth Circuit.
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