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Filed 4/26/13 In re Mia H. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
In re MIA H., A Person Coming Under
the Juvenile Court Law.
LOS ANGELES COUNTY B241638
DEPARTMENT OF CHILDREN AND (Los Angeles County
FAMILY SERVICES, Super. Ct. No. CK87862)
Plaintiff and Respondent,
v.
FREDDIE H. et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los Angeles County,
Marilyn Martinez, Juvenile Court Commissioner. Affirmed.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and
Appellant Freddie H.
Kimberly A. Knill, under appointment by the Court of Appeal, for
Defendant and Appellant Yvonne L.
John F. Krattli, Office of the County Counsel, James M. Owens, Assistant
County Counsel, Aileen Wong, Deputy County Counsel, for Plaintiff and
Respondent.
Yvonne L. (Mother) and Freddie H. (Father) appeal the order terminating
parental rights under Welfare and Institutions Code section 366.26.1 Appellants
contend that their due process rights were violated when the juvenile court refused
to hold a contested hearing. Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the Department of Children and Family
Services (DCFS) in January 2011, when Mother, Father, their daughter Mia, born
in July 2009, and Mother‟s three older children fathered by Shaun K. were living
in a motel room. All the children had head lice and the older children had missed
two weeks of school. There were also reports of Mother spitting on Father and the
children.2 Further investigation revealed that Mother had been involved in
dependency proceedings in Orange County and that the three older children had
lived with their paternal grandmother (Shaun‟s mother) until two years earlier,
when Mother regained custody.3 In addition, Father‟s parental rights over three
older children had been terminated in an Orange County proceeding in 2002. Both
Mother and Father acknowledged criminal histories and use of drugs. Father had
completed a drug program and reported being clean for more than three years. But
Mother acknowledged using methamphetamine and marijuana recently, in January
2011 and December 2010 respectively. Voluntary family maintenance services
were initiated. Mother agreed to voluntary placement of the three older children
with their paternal grandmother. Mother and Father agreed to drug test and
Mother agreed to enroll in a drug program and to obtain a mental health evaluation.
1
Undesignated statutory references are to the Welfare and Institutions Code.
2
This was of particular note because Mother reportedly suffered from hepatitis.
3
Mother had three additional older children, two of whom had been the subject of
child protective services proceedings in Texas, who were no longer in her care.
2
Mother subsequently failed to appear for drug tests in April and failed to
participate in a drug program. In May 2011, DCFS filed a petition under section
300. Because Father had appeared for drug tests and had consistently tested
negative, at DCFS‟s recommendation the court placed Mia with Father. Mother
was permitted monitored visitation only.
In July 2011, Mother and Father pled no contest to allegations that Mother
had an unresolved history of drug abuse, including use of cocaine and
methamphetamine, and that Father knew of Mother‟s drug abuse and failed to
protect Mia.4 The court ordered Mother to participate in a parenting program,
substance abuse counseling with random drug tests, and mental health counseling
including a psychiatric evaluation. She was granted monitored visitation, but
Father was not to be the monitor. The court ordered Father to drug test on demand
one time, to attend a parenting class if DCFS could find an affordable one that fit
into his schedule, and to attend conjoint counseling with Mother if DCFS set it up
and found a counselor who would not charge Father and meet in accordance with
his schedule.5 It also ordered family maintenance services for Father, Mia and
Mother.
In August 2011, the caseworker learned that Mother had been staying with
Father and babysitting Mia when Father was working. DCFS filed a supplemental
petition under section 387 contending Father permitted Mother to have
unmonitored access to Mia and failed to comply with court orders. Mia was
4
Allegations pertaining to Shaun and the older children -- that Mother and Shaun
had a history of domestic violence and engaged in physical altercations in the presence of
the children, that Shaun had a history of illicit drug abuse and had failed to provide the
children the necessities of life -- were found true at a later date. Shaun‟s children were
not the subject of the order from which appeal was taken and he is not a party to this
appeal.
5
There is no evidence that DCFS was able to set up conjoint counseling for the
parents.
3
detained from Father and placed with Shaun‟s mother, with whom her half-siblings
had earlier been placed. Mother and Father pled no contest to the supplemental
petition. The court ordered Father to attend a parenting class and permitted him to
have unmonitored visits with Mia but kept in place the order that he not be the
monitor for Mother‟s visits.
In October 2011, the caseworker reported that the parents had had no contact
with her but had visited the children three times in the paternal grandmother‟s
home in September and October. In addition, Mother called nightly to speak to the
children. Mia had begun to adjust to the new home and bond with her caregiver.
She showed no signs of distress when her parents left after their visits.
In the February 2012 status report, the caseworker again reported she had
not spoken with the parents. She had visited a motel where they reportedly lived,
but no one opened the door for her even though someone appeared to be inside.
Father had been arrested for petty theft. The parents did not appear to be
complying with the reunification plan. The parents had been visiting the children
once or twice a month until mid-December. The visits went well. They had not
visited in January or February. Mother had stopped calling the children nightly,
and had called only three times in the preceding two weeks. Mia appeared to be
happy in her new home, was very bonded with her half-siblings, and was
beginning to seek out her caregiver for comfort. DCFS recommended termination
of reunification services “[b]ased on the fact that both mother and father have long
histories of substance abuse and neither parent has complied with court orders over
the past 6 months, have not remained in contact with DCFS, have not visited minor
in over two months, and due to minor being under the age of 3.” At the review
hearing on February 23, Father‟s attorney said he had been struggling financially
and wait-listed for an inpatient drug program. Mother‟s attorney said she, too, was
4
on a waiting list for services. The court terminated reunification services and set a
section 366.26 hearing for May 24, 2012 to consider termination of parental rights.
The caseworker‟s section 366.26 report was filed on May 24, 2012. The
information concerning parental visitation was taken from the February 2012 status
report. The caseworker had visited Mia in the home of the paternal grandmother
and observed that she had formed a secure attachment to the grandmother and her
husband, who were willing to adopt. Because the adoption home study had not
been completed, however, DCFS recommended that the court continue the matter
for 120 days to accomplish that task. At the hearing, the parents‟ attorneys asked
that the matter be continued so it could be set for a contest. The court inquired
whether parental rights could be terminated before the home study was completed.
The attorney for DCFS stated that although DCFS was requesting a continuance of
the section 366.26 hearing, DCFS did not disagree that termination was in Mia‟s
best interest. The attorney for Mia indicated it was her “preference” to wait to
terminate parental rights until the home study was completed.
The court asked parents‟ counsel for an offer of proof. Father‟s counsel
stated: “[M]y client has been visiting with his child and he bonds with his child,
which is the exception for the .26 hearing. So he believes that would apply. [¶]
And furthermore, . . . he is now enrolled in a full drug program through the
criminal court in Orange County, and he has begun to participate in the program.
[¶] Before that, he did have the financial issues, and he did not have the stability;
however, he has not given up. He does love his child very much, and he is doing
everything he can to still continue to comply with all court orders.” Mother‟s
counsel stated: “[M]y client has had contact with her child, and she maintains that
she does have a bond with Mia. Although she‟s not in a program, this is something
that she‟s seeking to do.” The court inquired whether it was true that the parents
had not visited since December. Counsel said it was not true and that the parents
5
had visited eight or nine times in the five months since then. The court stated there
was no reason to set the matter for a contest because the offer of proof did not
indicate the existence of evidence of a strong emotional attachment and potential
harm to Mia from termination of the relationship. Specifically, the court found that
“each parent‟s offer of proof . . . is insufficient to persuade me that if the matter
were set for a contested hearing, there‟s any reasonable likelihood that they would
persuade me that they meet [the] exception [of § 366.26(c)(1)(B)(1)] and that it
would be detrimental to terminate . . . [¶] . . . visitation . . . . [¶] I‟ve not heard any
offer of proof as to the emotional attachment, to the harm if the court terminated
parental rights, the harm to the child.”
With respect to visitation, the court stated, “assuming [Father‟s] statement
[concerning more recent visitation] is taken as true, . . . visitation in and of itself is
insufficient.” Counsel for Mother stated that Mother disputed the report‟s
statement that the last visitation had taken place in December and represented that
Mother had visited seven or eight times in 2012. Calculating that this averaged
one or two visits a month, the court stated: “I stand by my findings as to the
visitation, and that‟s all the offer of proof is.” The court went on to find by clear
and convincing evidence that Mia was adoptable and terminated parental rights.
This appeal followed.
DISCUSSION
Mother and Father contend the court denied them due process when it
refused to continue the section 366.26 hearing and set a contested hearing on the
issue of termination. For the reasons discussed, we disagree.
At a section 366.26 hearing, the burden is on the parents to demonstrate that
termination of parental rights would be detrimental to the child under one of the
exceptions listed in section 366.26, subdivision (c)(1). (In re T.S. (2009) 175
6
Cal.App.4th 1031, 1039.) Mother and Father sought to establish the exception
contained in section 366.26, subdivision (c)(1)(B)(i), which provides an exception
to termination of parental rights where “[t]he parents have maintained regular
visitation and contact with the child and the child would benefit from continuing
the relationship.” To establish this exception, “the parents must do more than
demonstrate „frequent and loving contact‟ [citation], an emotional bond with the
child, or that the parents and child find their visits pleasant. [Citation.] Rather, the
parents must show that they occupy „a parental role‟ in the child‟s life.” (In re
Andrea R. (1999) 75 Cal.App.4th 1093, 1108-1109, quoting In re Beatrice M.
(1994) 29 Cal.App.4th 1411, 1418-1419.) The court must find that the parent-
child relationship “promotes the well-being of the child to such a degree as to
outweigh the well-being the child would gain in a permanent home with new,
adoptive parents,” and that severing the relationship “would deprive the child of a
substantial, positive emotional attachment such that the child would be greatly
harmed . . . .” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) “„Because a
section 366.26 hearing occurs only after the court has repeatedly found the parent
unable to meet the child‟s needs, it is only in an extraordinary case that
preservation of the parent‟s rights will prevail over the Legislature‟s preference for
adoptive placement.‟” (In re T.S., supra, at p. 1039, quoting In re Jasmine D.
(2000) 78 Cal.App.4th 1339, 1350.)
In general, parents have a due process right to present evidence and cross-
examine witnesses at a section 366.26 hearing. (See, e.g., In re Josiah S. (2002)
102 Cal.App.4th 403, 417-418; In re Kelly D. (2000) 82 Cal.App.4th 433, 439-
440.) However, the “right to „due process‟ at the hearing under section 366.26” is
“a flexible concept which depends upon the circumstances and a balancing of
various factors.” (In re Jeanette V. (1998) 68 Cal.App.4th 811, 817.) “The due
process right to present evidence is limited to relevant evidence of significant
7
probative value to the issue before the court.” (Id. at p. 817.) “The state‟s strong
interest in prompt and efficient trials permits the nonarbitrary exclusion of
evidence [citation], such as when the presentation of the evidence will „necessitate
undue consumption of time.‟” (Maricela C. v. Superior Court (1998) 66
Cal.App.4th 1138, 1146-1147, quoting Evid. Code, § 352.) Even where a parent‟s
representations are “true” and “could have been substantiated at an evidentiary
hearing,” if they are insufficient to meet the parent‟s burden, the court does not err
in refusing to expend time and resources on a full hearing. (Maricela C. v.
Superior Court, supra, at p. 1147.) “The trial court can therefore exercise its
power to request an offer of proof to clearly identify the contested issue(s) so it can
determine whether a parent‟s representation is sufficient to warrant a hearing
involving presentation of evidence and confrontation and cross-examination of
witnesses.” (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122.) “A proper offer
of proof gives the trial court an opportunity to determine if, in fact, there really is a
contested issue of fact.” (Id. at p. 1124.) “The offer of proof must be specific,
setting forth the actual evidence to be produced, not merely the facts or issues to be
addressed and argued.” (Ibid.)
Applying these standards, we conclude the court did not abuse its discretion
in denying a contested hearing. Given the opportunity to make an offer of proof,
neither Mother nor Father offered to produce evidence demonstrating that either of
them occupied “a parental role” in Mia‟s life -- much less that the well-being and
stability of a permanent home could be outweighed by the currently existing
parent-child relationship. Nor did either parent offer to produce evidence
demonstrating that Mia would suffer significant harm were she to be adopted. It
was undisputed that Mia had been removed from the parents‟ custody at the age of
two and had resided since then with her half-siblings with whom she was closely
bonded. DCFS reports indicated the parents had visited Mia approximately twice a
8
month through 2011, and the parents‟ offer of proof represented they had
continued to visit at approximately the same frequency for the first five months of
2012. Assuming, as the court did, that the representations of additional visitation
were true, this would not have established the exception. Nor would the fact that
some bond existed between Mother, Freddie and Mia. (See In re K.P. (2012) 203
Cal.App.4th 614, 621 [“loving and frequent” contact and “existence of an
„emotional bond‟ with the child” insufficient to establish exception]; In re Andrea
R., supra, 75 Cal.App.4th at p. 1108 [evidence that “parents and child find their
visits pleasant” insufficient to establish exception].)6
Significantly, Mother had never been granted unmonitored visitation, and it
does not appear from the record or offer of proof that Father had ever taken
advantage of the unmonitored visitation permitted by the court. While proof of
day-to-day contact is not an absolute requirement of the section 366.26,
subdivision (c)(1)(B)(i) exception, the type of relationship necessary to support it
is one “characteristically arising from day-to-day interaction, companionship and
shared experiences.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.)
Consequently, a parent‟s failure to visit in an unmonitored setting is a significant
factor militating against a finding that the exception applies, particularly where, as
here, the child was very young when detained. (Ibid.; In re Andrea R., supra, 75
Cal.App.4th at p. 1109.) In short, neither Mother‟s nor Father‟s offer of proof set
forth evidence which, if credited, demonstrated that the continuation of the parent-
child relationship would promote Mia‟s well being to such a degree as to outweigh
the well-being she would gain in a permanent home, or that severance of the bond
6
Father‟s counsel also stated that Father had begun to participate in a drug program.
Attempts to become a better parent are not relevant at this stage of a dependency
proceeding. Father points out that all the parties requested that the termination issue be
continued to a later date, but does not suggest that the failure to grant a continuance
prejudiced his ability to provide an adequate offer of proof.
9
would cause actual harm to her. Thus, the court did not err in finding the offer of
proof insufficient to warrant a hearing.
DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.
10
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17 P.3d 65 (2001)
Lisa PLATZ, Appellant,
v.
José ARAMBURO, Appellee.
No. S-9492.
Supreme Court of Alaska.
February 16, 2001.
*66 Alan J. Hooper, Gloria Hanssen, Hooper & Hanssen, Fairbanks, for Appellant.
Daniel L. Callahan, Schendel & Callahan, Fairbanks, for Appellee.
Before FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
OPINION
MATTHEWS, Justice.
I. INTRODUCTION
Lisa Platz appealed the trial court's entry of default judgment against her and its decision to award full custody of her daughter to the child's father, José Aramburo. She argues that the trial court lacked jurisdiction, violated her right to due process, and failed to consider the statutory factors required in custody determinations. Following oral argument on September 22, 2000, we issued an order remanding this case to the trial court, and advised that an opinion would follow. Because the trial court failed to consider the factors required by AS 25.24.150(c) in making child custody decisions, we vacated the order granting custody to José Aramburo and remanded the case to the superior court for an evidentiary hearing on the best interests of the child.
II. FACTS AND PROCEEDINGS
Lisa Platz and José Aramburo had a daughter, Rebbeca Nicole Platz-Aramburo, in 1992, in Bellingham, Washington. Aramburo acknowledged paternity and is listed on Rebbeca's birth certificate as her father. Platz and Aramburo separated soon after Rebbeca's birth. Aramburo visited Rebbeca while Platz and Rebbeca lived in Washington. An administrative child support order was entered against Aramburo while Platz was in Washington.
In February 1994 Platz and Rebbeca moved to Fairbanks. While in Fairbanks, Platz married Robert Platz, who filed for a step-parent adoption of Rebbeca. The adoption was dismissed in late 1997, and Platz subsequently divorced Robert Platz. Around April of 1998 Platz and Rebbeca left Fairbanks.
According to Aramburo, once Platz moved to Fairbanks, she did not allow him to have any contact with Rebbeca, and he was not certain where Platz and Rebbeca lived. Aramburo claims that Platz told him that he would never see Rebbeca again and that she did not want Rebbeca to learn that he was her father.
Aramburo filed a Verified Petition for Determination of Custody on July 31, 1998, in Fairbanks. The petition alleged that Platz had interfered with Aramburo's relationship with Rebbeca and requested that Aramburo be given regular contact, including periods of actual custody or visitation. Aramburo requested that the court make a custody determination based on the child's best interests, allow for interim visitation, grant a restraining order preventing Platz from taking Rebbeca across state lines or interfering with his visitation, and enter a child support order.
*67 Aramburo located Platz, and served her on April 8, 1999, in Avon, Ohio. On May 10, 1999, Platz, appearing pro se, requested and received a twenty-eight-day extension of time to file an answer. Platz did not file an answer.
On June 15, 1999, Aramburo filed a Motion to Establish Visitation, which was served on Platz by mail on that date. Aramburo requested that the court create a plan for him and Rebbeca to re-establish their relationship and have contact and visitation. Platz did not respond to the motion, and the court entered a temporary visitation order on July 19, 1999. The court ordered Platz to contact a mental health clinician or counselor and schedule an appointment to help Rebbeca through the initial contacts between her and Aramburo. The court ordered phased-in telephonic visitation and, ultimately, in-person visitation. This order was distributed by the clerk on July 23, 1999.
On July 27, 1999, Aramburo applied for entry of default. On August 4, 1999, the clerk entered default against Platz for failure to file an answer. The application for entry of default and the entry of default were served on Platz.
The court scheduled a default hearing, and Platz was served with notice of the hearing. The notice indicated that Aramburo would "request a default judgment be entered in this action in which legal and physical custody of the minor child ... is awarded to him." The hearing was conducted on September 8, 1999, by Judge Mary E. Greene. Aramburo's attorney appeared in person; Aramburo and Platz appeared telephonically.
At the hearing, Aramburo testified that Platz had not contacted him, helped him visit Rebbeca, or worked with a counselor. Aramburo told the court that he wanted custody of Rebbeca and would be willing to allow Platz to have visitation with their daughter. Aramburo testified that Platz had returned several child support checks and not cashed the others.
Platz contested the court's jurisdiction. Platz also informed the judge that she had received the temporary orders only a week previously and had not had time to hire an attorney. The judge explained to Platz that she needed to move to have the default set aside. Platz testified that she had taken Rebbeca across state lines and failed to inform Aramburo of her whereabouts, explaining that she had not read the temporary order. When asked whether she would follow a court order to allow Aramburo to visit with Rebbeca, Platz responded "I would love to say, yes, if I believed that it would not damage her. But I don't know that. I cannot predict the future and I do not know how the child will react."
At the conclusion of the hearing, the judge read the temporary order to Platz and gave her two weeks to comply. The judge concluded the hearing by noting that she wanted Platz to file a document in court that set forth her compliance with the order. The judge warned that if Platz did not file such a document by September 23, the judge would "grant Mr. Aramburo custody to carry out the Temporary Order's provisions."
The court entered written findings of fact and an order on September 30 reflecting the court's oral order entered at the end of the September 8 hearing. Specifically, the court found that it had jurisdiction to hear the case, that Platz had not complied with the Temporary Visitation Order, that Platz had denied Aramburo contact with Rebbeca, and that it was in Rebbeca's best interests to have a relationship with her father. The court ordered Platz to comply with the Temporary Visitation Order.
On October 19, 1999, Aramburo filed a motion requesting that the court grant him physical custody of Rebbeca because of Platz's failure to comply with the court's orders. The court agreed to give the motion expedited consideration and ordered Platz to respond by October 28. On October 25, Platz filed a motion to dismiss because the court lacked jurisdiction. Aramburo opposed the motion as untimely and noted that the court had already ruled on the matter of jurisdiction. The court denied Platz's motion to dismiss, concluding that it had properly asserted jurisdiction.
On October 29 the court entered an order on Aramburo's motion. The court found that Platz had failed to comply with its previous *68 orders. The court then awarded physical custody of Rebbeca to Aramburo, with visitation for Platz, transportation costs to be paid by Aramburo.
Platz filed a motion in Ohio state court on November 5, 1999, arguing that Alaska was an inconvenient forum and that the Ohio court should take exclusive jurisdiction of the case. She requested that the Ohio court stay enforcement of the Alaska court order. The Ohio court spoke with Judge Greene and concluded that the Alaska court had jurisdiction. The Ohio court dismissed the case for lack of jurisdiction.
Immediately after filing in Ohio, Platz filed a motion in Alaska asking the court to reconsider its decision because Platz did not have sufficient time to respond to Aramburo's motion for custody. Platz argued that it was in the child's best interests to remain with her and that all further proceedings should occur in the Ohio courts. Judge Greene denied Platz's motion for reconsideration on December 17; the order was distributed on December 20, 1999. Platz filed her Notice of Appeal on December 30, 1999.
III. STANDARD OF REVIEW
Whether Platz's appeal is timely is a question of law governed by the Appellate Rules.[1] This court exercises its independent judgment in interpreting those rules.[2] "On questions of law, [this court's] duty is to adopt the rule of law which is most persuasive in light of precedent, reason, and policy."[3]
This court will not consider arguments that were not raised before the trial court except to the extent that the errors alleged constitute plain error.[4] "Plain error exists where an obvious mistake has been made which creates a high likelihood that injustice has resulted."[5]
This court reviews the trial court's custody decision for abuse of discretion.[6]
IV. DISCUSSION
A. Timeliness
Aramburo claims that Platz's appeal is untimely because the order from which Platz appeals was entered on September 30, 1999, and she filed her appeal on December 30, 1999. The appeal of a child custody order must be filed within fifteen days of distribution of that order.[7] Platz argues that her appeal was timely because the order from which she appeals was the October 29, 1999, order granting custody of Rebbeca to Aramburo. She asserts that the September 30, 1999, order was not a final appealable order, because it directed her to file a document detailing her compliance with the July 19, 1999, temporary visitation order.
Because the order from which Platz appeals is the October 29, 1999, order granting custody of Rebbeca to Aramburo, we find that her appeal was timely.[8] Platz appeals the award of custody of Rebbeca to Aramburo. The order granting custody to Aramburo was entered on October 29, 1999. The order entered September 29, 1999, merely stated that the superior court had jurisdiction, that Platz was required to file a document with the court detailing her compliance with the court's previous visitation order, and that the court would order a transfer of physical custody should Platz not comply. We therefore find that Platz's appeal was timely filed.
B. Jurisdiction and Forum Non Conveniens
Platz argues that the superior court erroneously entertained Aramburo's suit because *69 it did not have jurisdiction. She argues, in the alternative, that the court should have dismissed the case on the grounds of forum non conveniens. Because we find that the superior court properly asserted jurisdiction, we do not disturb that portion of the trial court's finding.
The superior court found jurisdiction under the now-repealed Uniform Child Custody Jurisdiction Act.[9] Specifically, the court found jurisdiction under AS 25.30.020(a)(3), because no other state had jurisdiction under provisions similar to AS 25.30.020(a)(1) or (2), and it was in the best interests of Rebbeca for the court to assert jurisdiction.
Platz claims that the court erred in asserting jurisdiction because Arizona[10] could have asserted jurisdiction under its catch-all provision, which is similar to the catch-all provision under which the superior court asserted jurisdiction.[11] She argues that since Rebbeca was "permanently out of state," it was not in her best interests to have Alaska hear her custody case. However, that Arizona could have asserted jurisdiction under its catch-all provision does not deprive Alaska of jurisdiction.[12] Moreover, Rebbeca had lived in Alaska for more than four of her six years, and the child had no home state at the time the petition for determination of custody was filed. The court found that Alaska had more information about the child than any other state, and that it was therefore in the child's best interests for Alaska to assert jurisdiction. Under the foregoing circumstances, we cannot say that it was an abuse of discretion to assume jurisdiction.
Platz also argues that even if the court could have asserted jurisdiction, it should have declined to do so because Alaska is an inconvenient forum. Platz did not raise this argument in the court below, but she claims that it was plain error for the court not to dismiss the case sua sponte, under AS 25.30.060.[13] Points not raised in the trial court are generally considered to be waived for purposes of appeal, but they may be reviewed for plain error. The latter is said *70 to exist "where an obvious mistake has been made which creates a high likelihood that injustice has resulted."[14]
The superior court did not plainly err when it did not dismiss this case on the basis of forum non conveniens. Factors relevant to a forum non conveniens determination include
the case of access of proof, the availability and cost of obtaining witnesses, the possibility of harassment of the defendant in litigating in an inconvenient forum, the enforceability of the judgment, the burden on the community in litigating matters not of local concern, and the desirability of litigating local matters in local courts."[[15]]
Except for Platz's unsworn statement that she and Rebbeca had been out of the state for eighteen months and now lived in another state, the court had no information before it that demonstrated clearly that Alaska was an inconvenient forum. The superior court did not abuse its discretion in not dismissing the custody case on a forum non conveniens basis.
Because the court properly asserted jurisdiction under AS 25.30.020(a)(3), and because the court did not abuse its discretion in dismissing the case for forum non conveniens, we affirm the court's assumption of jurisdiction.
C. The Child's Best Interests
Platz argues that it was error for the court to award custody of her daughter to the child's father without holding a "best interests" hearing. She contends that the court failed to consider the factors required by statute when making child custody determinations and that the court transferred custody of the child as punishment for Platz's failure to comply with the court's orders regarding visitation. We proceed to consider these claims.
Civil Rule 55 specifies procedures for defaults and default judgments. Subsection (c)(1) contemplates "such hearings ... as [the court] deems necessary and proper" when "in order to enable the court to enter judgment ... it is necessary ... to establish the truth of any averment by evidence...."[16] Under AS 25.24.150(c), custody issues shall be determined "in accordance with the best interests of the child." Alaska Statute 25.24.150(c) requires the court to determine the best interests of the child by considering nine separate factors.[17]
In our view, to use the language of Rule 55(c)(1), it was necessary in order to establish the truth of Aramburo's best interests averment to hold an evidentiary hearing at which all factors relevant to that subject could be examined. This conclusion follows *71 from our decision in Hakas v. Bergenthal.[18] We held in Hakas that the superior court could not change custody solely because the current custodial parent had not complied with orders of the court. We stated:
A best interest of the child inquiry is an essential component of a custody determination, whether it is in the context of an initial custody determination or modification of an existing custody arrangement. This inquiry is not obviated by [the mother's] noncooperation. In making a custody determination the court must consider "all relevant factors including those enumerated in AS 25.24.150(c)." Contrary to [the father's] assertions, review of the record reveals no express consideration by the superior court of [the child's] best interests in any context. Rather, review of the superior court's findings persuades us that the superior court awarded custody of [the child] to [the father] as a sanction against [the mother] without undertaking a best interests of the child analysis.[[19]]
In Hakas we reversed the superior court's order changing custody and remanded the case "for the purpose of redetermining custody based upon a best interests of the child analysis with appropriate findings of fact which address all relevant criteria of AS 25.24.150(c)."[20] Just as a custodial parent's failure to comply with court orders cannot justify a change of child custody without a best interests determination, a parent's failure to file a responsive pleading which results in a default cannot justify such an order without such a determination. The interests of a third person, the child, are central to change of custody cases. This means that despite the wilful failure of a custodial parent to follow court procedures or orders, custody cannot be changed without addressing fully the question whether the change is in the child's best interests.
In the present case there was a post-default evidentiary hearing on September 8, 1999. But the focus of that hearing was on whether Platz was willing to comply with the court's temporary visitation order of July 19, 1999, rather than on the more general subject of the best interests of Rebbeca. The trial court found following the hearing that it was in the best interests of Rebbeca for her to have a relationship with her father and that to this end a gradual reintroduction of Aramburo into the child's life would be desirable. These findings were well justified. And the willingness of a parent to allow a relationship between the child and the other parent is one of the nine factors relevant to the best interests of the child under AS 25.24.150(c). But the court did not demonstrate consideration of any of the other relevant factors in its order following the September 8 hearing and made no general finding concerning Rebbeca's best interests. Thus the September 8, 1999, hearing and order were not sufficiently comprehensive to serve as a basis for a general custody change.
Based on the foregoing, we believe that the custody order of October 29, 1999, must be vacated. On remand an evidentiary hearing concerning the best interests of the child must be held following which the court should enter findings of fact which address the relevant factors specified in AS 25.24.150(c).[21]
V. CONCLUSION
For the above reasons the custody order of October 29, 1999, is VACATED and this case is REMANDED to the superior court for further proceedings consistent with this opinion.
NOTES
[1] See Alaska R.App.P. 204, 218.
[2] See Compton v. Chatanika Gold Camp Properties, 988 P.2d 598, 601 (Alaska 1999).
[3] Id. (quoting Grove v. Alaska Constr. & Erectors, 948 P.2d 454, 456 (Alaska 1997)).
[4] See id.
[5] Id. (quoting Murray v. Feight, 741 P.2d 1148, 1156-57 (Alaska 1987)).
[6] See Virgin v. Virgin, 990 P.2d 1040, 1043 (Alaska 1999).
[7] Alaska R.App.P. 218(d).
[8] Although her appeal was filed more than fifteen days following the custody order, it was within fifteen days of the denial of her motion to reconsider that order.
[9] AS 25.30.010-.910. Former AS 25.30.020(a) stated:
(a) The superior court has jurisdiction to make a child custody determination by initial or modification of decree if the conditions set out in any of the following paragraphs are met:
(1) this state (A) is the home state of the child at the time of commencement of the proceeding, or (B) had been the child's home state within six months before commencement of the proceeding and the child is absent from this state because of removal or retention by a person claiming custody or for other reasons, and a parent or person acting as parent continues to live in this state; or
(2) the child is physically present in this state and is a child in need of aid as defined in AS 47.10.990; or
(3) it (A) appears that no other state would have jurisdiction under prerequisites substantially in accordance with (1) or (2) of this subsection, or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (B) is in the best interest of the child that this court assume jurisdiction.
[10] Rebbeca was enrolled in school in Arizona as of April of 1998, but she had not lived there for six months as of the date Aramburo filed his petition. Therefore, Arizona was not Rebbeca's home state. See AS 25.30.909(7).
[11] See Ariz.Rev.Stat.Ann. § 25.433(A)(4) (2000).
[12] See Former AS 25.30.020(a)(3).
[13] Former AS 25.30.060, in effect at the time, reads as follows:
(a) The superior court may decline to exercise its jurisdiction any time before issuing a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.
(b) A finding of inconvenient forum may be made upon the court's own motion or upon motion of a party....
(c) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
(1) if another state is or recently was the child's home state;
(2) if another state has a closer connection with the child and the child's family or with the child and one or more of the contestants;
(3) if better evidence concerning the child's present or future care, protection, training, and personal relationships is available in another state, or if equally substantial evidence is more readily available in another state;
(4) if the parties have agreed on another forum no less appropriate; and
(5) if the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in AS 25.30.010.
[14] Murray v. Feight, 741 P.2d 1148, 1156-57 (Alaska 1987).
[15] Bodzai v. Arctic Fjord, 990 P.2d 616, 621 n. 28 (Alaska 1999) (quoting Crowson v. Sealaska Corp., 705 P.2d 905, 908 (Alaska 1985)).
[16] See Alaska R.Civ.P. 55(c)(1) ("If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to ... establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper.").
[17] According to AS 25.24.150(c):
The court shall determine custody in accordance with the best interests of the child under AS 25.20.060-25.20.130. In determining the best interests of the child the court shall consider
(1) the physical, emotional, mental, religious, and social needs of the child;
(2) the capability and desire of each parent to meet these needs;
(3) the child's preference if the child is of sufficient age and capacity to form a preference;
(4) the love and affection existing between the child and each parent;
(5) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
(6) the desire and ability of each parent to allow an open and loving frequent relationship between the child and the other parent;
(7) any evidence of domestic violence, child abuse or child neglect in the proposed custodial household or a history of violence between the parents;
(8) evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well-being of the child;
(9) other factors that the court considers pertinent.
[18] 843 P.2d 642 (Alaska 1992).
[19] Id. at 644-45 (citations and footnotes omitted).
[20] Id. at 645.
[21] Our disposition in this case makes it unnecessary to discuss Platz's claim that her entitlement to due process of law has been violated.
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511 S.W.2d 502 (1974)
Clinton Phelps WEST, Appellant,
v.
The STATE of Texas, Appellee.
No. 48574.
Court of Criminal Appeals of Texas.
July 17, 1974.
*503 Rodney L. Poirot, Dallas (Court-appointed) for appellant.
Henry Wade, Dist. Atty., Richard W. Wilhelm, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
McCLOUD, Commissioner.
Appellant was convicted by a jury of the offense of indecent exposure. Punishment was enhanced under Article 63, Vernon's Ann.P.C., and a life sentence assessed.
The record reflects that James Richard Ross was an eight-year-old male child. While playing in a park near his home, he observed appellant drive up in a white over red Ford automobile, unzip his pants, and *504 expose his private parts. James told his sister to go get his brother, Daryl. As the brother came to the scene, appellant drove off. A short time later appellant drove back by the scene. Daryl wrote the license plate number of the car on the sidewalk with a rock. The police were called to the scene. The next day, the boys identified appellant's picture from a police mug book. It was determined that the license plates were assigned to the white over red Ford car belonging to appellant. Each boy identified appellant at the trial.
In his first two grounds of error, appellant challenges the competency of James Richard Ross, age 8, and Daryl Ross, age 11, to testify. He contends that because of the young age of the witnesses they were not able to intelligently relate the transaction about which they were interrogated.
Prior to their testifying before the jury, the trial court heard the testimony of the boys and their pledge to tell the truth for fear of punishment. The court determined that both witnesses were competent to testify. This Court said in Fields v. State, 500 S.W.2d 500 (Tex.Cr.App.1973):
"The competency of a witness to testify is generally a question for determination by the trial court and its ruling in that regard will not be disturbed on appeal unless an abuse of discretion is shown. 61 Tex.Jr.2d, Witnesses, Secs. 67, 47; 4 Branch's Ann.P.C.2d Sec. 1945, p. 264. Melton v. State, 442 S.W.2d 687 (Tex.Cr.App.1969).
"* * *
"Further, it is well established that even though a child states he does not know the meaning of an oath or what it means to swear, he may nevertheless be a competent witness if he knows it is wrong to lie and that he will be punished if he does so. . . .
"In determining, however, whether there has been an abuse of discretion, a review of the child's entire testimony, rather than the preliminary qualification, should be made in order to determine whether he was a competent witness. Jundt v. State, 164 Tex.Cr.R. 437, 300 S.W.2d 73 (Tex.Cr.App.1957); Hines v. State, 160 Tex.Cr.R. 284, 268 S.W.2d 459 (Tex.Cr.App.1954)."
We hold, after reviewing the entire testimony of the two boys, the trial court did not abuse its discretion in permitting them to testify. The grounds of error are overruled.
Next, appellant contends that the in-court identification by both Daryl Ross and James Richard Ross was improper because such identification was tainted by pretrial photographic identification. We disagree.
In compliance with Martinez v. State, 437 S.W.2d 842 (Tex.Cr.App.1969), the trial court conducted a hearing outside the presence of the jury and found that the pretrial photographic identification by the boys did not taint their in-court identification of appellant. Each boy testified that the appellant was the same person as the one in the white and red Ford on the day of the incident. They both testified as to having sufficient time, from a close range, on a bright day to see the appellant on that day. There is no testimony the boys ever identified any person other than appellant. The evidence does not indicate that improper suggestive procedures were used when the boys identified appellant's picture in the police mug book.
We do not find the pretrial procedure complained of to be impermissibly suggestive. Benson v. State, 487 S.W.2d 117 (Tex.Cr.App.1972); Clemons v. State, 505 S.W.2d 582 (Tex.Cr.App.1974). Furthermore, the evidence was sufficient to support the trial court's finding that the prior observation of appellant by the boys was sufficient to serve as an independent origin for the in-court identification. Ward v. State, 474 S.W.2d 471 (Tex.Cr.App.1972).
The ground of error is overruled.
*505 During the direct examination of Officer Jan Montgomery, testimony was elicited that the mug book shown the Ross brothers contained pictures exclusively of men previously arrested for indecent exposure. Appellant objected to such testimony, his objection was sustained and at his request the jury was instructed to disregard same. He now challenges the court's action in denying his motion for mistrial. We overrule the ground of error.
Such testimony was improper. However, in view of the court's instruction, no reversible error is shown. See Fisher v. State, 493 S.W.2d 841 (Tex.Cr.App.1973); Cazares v. State, 488 S.W.2d 110 (Tex.Cr. App.1972), and Boykin v. State, 504 S.W. 2d 855 (Tex.Cr.App.1974).
Appellant's challenge to the admission of State's exhibit 10-A is overruled. The exhibit was identified as a copy of the original registration certificate of a 1964 Ford automobile belonging to the appellant. The certificate was regular on its face and was admissible as prima facie evidence of the matters stated therein. Article 3731a, Vernon's Ann. Civ.Stat.; Ashworth v. State, 172 Tex. Cr.R. 383, 357 S.W.2d 573 (Tex.Cr. App.1962); Goolsby v. State, 166 Tex.Cr. R. 180, 312 S.W.2d 654 (1958).
We overrule appellant's ground of error complaining of the admission into evidence of State's exhibits numbers 11, 12 and 13 during the punishment phase of the trial. The three exhibits were prison packets of three prior convictions of appellant. Number 11 related to a conviction for indecent exposure in 1956; number 12 related to a conviction for robbery by assault; and number 13 related to a conviction for indecent exposure in 1964. Appellant contends he was not properly identified as being the person who was named in the prison packets prior to their introduction. After their admission, an expert witness testified that in his opinion the fingerprints contained in the three prison packets were identical to those he had previously taken of appellant.
Furthermore, appellant took the witness stand and admitted he was the person convicted in each of the three prior convictions. This Court stated in Simmons v. State, 493 S.W.2d 937 (Tex.Cr.App.1973):
"Appellant waived any objection about the proof of the prior convictions when he took the stand and admitted them. Shannon v. State, 170 Tex.Cr.R. 91, 338 S.W.2d 462."
In his seventh ground of error appellant contends the court erred in allowing the jury to consider the enhancement portion of the indictment during the penalty stage of the trial. Appellant first argues the 1956 conviction for indecent exposure, used for enhancement, is void because he was not represented by an attorney. Appellant testified he was not represented by counsel and the record reflects that no attorney's name appears on the trial docket sheet. However, there is testimony that the failure of the docket sheet to reflect an attorney's name does not necessarily mean that appellant was without counsel. A certified copy of the 1956 judgment recites that appellant "appeared in person, his counsel also being present.. . ." The record also contains a jury waiver form signed by appellant which states that "R. A. Miller, attorney for the defendant," consented to appellant's waiver of his right to trial by jury.
The evidence before the trial court was sufficient to support the finding that appellant was represented by an attorney at the time of the 1956 conviction. Reeves v. State, 500 S.W.2d 648 (Tex.Cr.App.1973); Harvey v. State, 485 S.W.2d 907 (Tex. Cr.App.1972). We also note that the testimony does not show that the appellant was indigent at the time of his conviction or that he did not waive his right to counsel.
Appellant further contends that since the 1956 conviction was used to enhance the 1964 conviction under Article 62, V.A.P.C., to a 15-year sentence, it cannot be used in the present case to enhance punishment *506 to life under Article 63, V.A.P.C. This Court has rejected such contention. Head v. State, 419 S.W.2d 375 (Tex.Cr. App.1967). Appellant's ground of error is overruled.
Appellant's contention that the punishment is cruel and unusual is overruled. Article 63, V.A.P.C., is applicable to a case of this type. Fobbs v. State, 468 S.W.2d 392 (Tex.Cr.App.1971). The constitutionality of the statute has been upheld by this Court against similar attacks. See Shaver v. State, 496 S.W.2d 604 (Tex.Cr.App. 1973). Rogers v. State, 486 S.W.2d 786 (Tex.Cr.App.1972), and Flores v. State, 472 S.W.2d 146 (Tex.Cr.App.1971).
Appellant's ground of error challenging the court's failure to grant his motion for an instructed verdict is overruled. We hold there was sufficient proof for the jury to conclude that the exposure occurred in a park located in Dallas County, Texas. Phillips v. State, 459 S.W.2d 632 (Tex.Cr.App.1970).
The judgment is affirmed.
Opinion approved by the Court.
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 4, 2006
Charles R. Fulbruge III
Clerk
No. 03-20846
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRETT COHEN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:02-CR-546-3
--------------------
Before REAVLEY, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Brett Cohen appeals his 180-month sentence, following his
guilty-plea conviction for conspiracy to possess with intent to
distribute methylenedioxymethamphetamine (MDMA). Cohen
challenges the district court’s application of the federal
Sentencing Guidelines to the facts of his case. As part of
Cohen’s plea agreement, however, he knowingly and voluntarily
waived his right to appeal his sentence except for an upward
departure. See United States v. McKinney, 406 F.3d 744, 746 (5th
*
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. 03-20846
-2-
Cir. 2005); United States v. Portillo, 18 F.3d 290, 292-93 (5th
Cir. 1994). We therefore decline to consider Cohen’s arguments
that challenge the district court’s application of the Sentencing
Guidelines.
We do consider, however, Cohen’s contention that the
district court erroneously decided that an upward sentencing
departure was warranted under the facts of his case. Cohen also
contends that the extent of the departure was unreasonable.
Cohen has not shown that the decision to upwardly depart was
either unreasonable or an abuse of discretion. See United
States v. Saldana, 427 F.3d 298, 310 & n. 46 (5th Cir.),
cert. denied, 126 S. Ct. 810 (2005). The decision was grounded
in an acceptable basis. See 18 U.S.C. § 3553(a)(2). Further,
the extent of the departure was acceptable. See Saldana, 427
F.3d at 132-13.
AFFIRMED.
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12-4810-cv
Lewis v. NYC Police Dept.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
1st day of November, two thousand thirteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
AMALYA L. KEARSE,
RICHARD C. WESLEY,
Circuit Judges.
______________________________________
Crystal D. Lewis,
Plaintiff-Appellant,
v. No. 12-4810-cv
NYC Police Department, Raymond Kelly,
Commissioner,
Defendants-Appellees.
______________________________________
For Plaintiff-Appellant: Crystal D. Lewis, pro se, Brooklyn, NY.
For Defendants-Appellees: Marta Soja Ross, Assistant Corporation Counsel, for
Michael A. Cardozo, Corporation Counsel of the City of
New York, New York, NY.
Appeal from the United States District Court for the Eastern District of New York
(Townes, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court be and hereby is AFFIRMED.
Plaintiff-Appellant Crystal D. Lewis, proceeding pro se, appeals the district court’s grant
of summary judgment in favor of Defendants-Appellees the New York City Police Department
and Commissioner Raymond Kelly with respect to her claims for discrimination in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination
in Employment Act, 29 U.S.C. § 621 et seq., as well as for discrimination and retaliation in
violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and the Family
Medical Leave Act, 29 U.S.C. § 2601 et seq. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
“We review a district court’s grant of summary judgment de novo, construing the
evidence in the light most favorable to the non-moving party and drawing all reasonable
inferences in its favor.” Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir. 2005). “We will
affirm the judgment only if there is no genuine issue as to any material fact, and if the moving
party is entitled to a judgment as a matter of law.” Id. Summary judgment is appropriate
“[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-
moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Here, an independent review of the record and relevant case law reveals that the district
court properly granted summary judgment in favor of the Appellees on Lewis’s employment
discrimination claims. Because Lewis raises no arguments on appeal that were not properly
2
before the district court, we affirm for substantially the same reasons stated by the district court
in its thorough November 8, 2012 decision.
We have considered all of Lewis’s remaining arguments and find them to be without
merit. Accordingly, the judgment of the district court is hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
3
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205 F.2d 225
CITY OF MISHAWAKA, IND.v.SANTUCCI CONST. CO. et al.
No. 10776.
United States Court of Appeals, Seventh Circuit.
June 23, 1953.
Albert L. Doyle, Mishawaka, Ind., M. Edward Doran, South Bend, Ind., for appellant.
James H. Cartwright and Edmund J. Kenny, Chicago, Ill., Winston, Strawn, Black & Towner, Chicago, Ill., Seebirt, Oare & Deahl, South Bend, Ind., of counsel, for appellees.
Before DUFFY, LINDLEY and SWAIM, Circuit Judges.
DUFFY, Circuit Judge.
1
The City of Mishawaka, Indiana (hereinafter called City), brought this suit against defendant construction company and its surety for damages for failure of the construction company (for convenience hereinafter referred to as defendant) to execute and carry out certain contracts with the City based upon construction bids submitted to the City by it. The trial was to the court which found the issues favorably to defendant and dismissed the action.
2
On March 6, 1950, the Board of Public Works of the City recommended to the Common Council that work be commenced upon the construction of what was known as 'Sewage Treatment Works and Sewer Project.' On March 20, 1950, an ordinance was enacted which authorized the construction of the project and the taking of bids. Notices to bidders were thereafter published, which contained the statement that no bid could be withdrawn for a period of 60 days from the opening thereof, but also stated that the City reserved the right to reject any and all bids.
3
The construction work was divided into divisions and separate contracts were contemplated for each division. The bid forms upon which the bidders were required to submit their bids required that a unit price be stated for each item of work to be performed under each contract, and at the end of the form there was a space for the bidder to state his total price for performance of all the items under that contract.
4
Santucci filled in the unit prices but did not fill in a total figure on any of defendant's three bids individually, although every other bidder did so. As a separate proposal each bidder had an opportunity to state what reduction in the total price of the three contracts would be allowed if the bidder were awarded all three. On this sheet Santucci inserted a figure which he had computed to be the aggregate of the unit prices on all three of defendant's bids and agreed that said price would be reduced by 1%. The forms also required each bidder to fill out an alternate bid on each of the three contracts individually, based upon the condition that the City would furnish the necessary pipe. Santucci did not fill out an alternate bid form for any of the three contracts individually, although that practice was followed by other bidders. On that sheet Santucci said he would reduce defendant's bid by allowing a deduction for the actual cost of the materials purchased by the City.
5
May 18, 1950, at 10:00 A.M. was fixed as the time for the opening of bids. Several hours earlier on that day Nicholas Santucci, president of defendant, examined the site for the proposed sewage treatment works and discovered that performance of contract No. 1 would be greatly hampered and made much more expensive because the site was low and water would interfere with construction. At that time all of the blanks for unit prices had been filled in, in ink, on the proposals which he intended to file as to Contracts No. 1, No. 2, and No. 3, Division A, except that the first items on the latter two bids were blank, but had pencilled figures written on the margin. In order to make up for the extra cost which he figured defendant would incur in carrying out Contract No. 1, Santucci substantially raised the first item in both Contracts No. 2 and No. 3.
6
The Board of Public Works met in the Council Chamber at the scheduled time for opening the bids. Mr. Santucci testified that on the way upstairs he informed the consulting engineer, Mr. Cole, that his company's three bids were to be combined and that it would not accept one contract without being awarded the other two. The Board of Public Works proceeded to open bids and the bid of defendant was the second one opened. Before it was read, however, Mr. Santucci stepped up to the table where the Mayor and Board members were seated, and stated that the bid of his company was for all three contracts or none.
7
After all of the bids had been opened, they were referred to Consulting Engineer Cole, and Nicholas Santucci returned to Skokie, Illinois, where
8
The net bid of defendant for the three contracts was $938,916.14. The the principal office of defendant is located. On the following day he sent a telegram and a registered letter to the City referring to his statements at the time that the bids were opened, and restating that defendant's bid was for all three contracts or none. next lowest combination bid was $981,770.70. All bids were referred to Charles W. Cole, the consulting engineer. On June 12, Cole reported to the Board of Public Works, giving his tabulation and analysis of the various bids. He noted that defendant's bid was contingent upon it being awarded all three contracts, and also that defendant's bid for said three contracts was lower than any combination of bids by other bidders. Cole recommended that the three contracts be awarded to defendant. This was not done.
9
On June 12, 1950, the City Council passed an ordinance authorizing the issuance of $2,500,000 of revenue bonds to be used in payment of the construct construction costs to the project. Such bonds were thereafter sold, and by July 14, 1950, the City had the proceeds from such sale on hand. On said date the City sent a notice to defendant that only Contracts No. 1 and No. 2, Division A, had been awarded to it, and demanded that contracts be executed in accordance with defendant's construction bids, and be delivered to the Board of Public Works by July 21, 1950. Defendant refused to execute the contracts. The Board re-advertised for bids on Contracts No. 1 and No. 2, and finally let same at a price which exceeded the total of defendant's bids for those two contracts by $56,223.82. Plaintiff brought suit for that sum.
10
The district court found that Mr. Santucci intended to condition defendant's bids on Contracts No. 1, No. 2, and No. 3 on an 'all or none' basis, and that the defendant company acted in good faith and within its rights in submitting its bid on that basis. The court found that the Board of Public Works was put on notice prior to the awarding of any contracts that defendant's bid was for all three contracts or none, and concluded that the City was not entitled to construe the bid of defendant as bids for Contracts No. 1 or No. 2 separately. Judgment was entered dismissing the suit.
11
The finding of the district court that defendant acted in good faith in attempting to submit bids on the basis of 'all or none' is clearly sustained by the evidence. Although Santucci was an experienced contractor, his formal education was limited. When he inspected the site of the work in the morning of the day bids were to be opened, he realized that construction costs on Contract No. 1 would greatly exceed the figures that had already been inserted in ink on defendant's bid for that work. He did not have any other bid forms available, and the deadline was near. He reasoned that if the figures for Item No. 1 in defendant's bid on both Contracts No. 2 and No. 3 could be raised, and if the company could obtain all three contracts, the net result would be the same as if he corrected the figures in the bid for Contract No. 1. Although such procedure might seem an unusual way to meet the situation, Santucci had to act fast. Certain it is that the procedure he adopted could have been a remedy for defendant's too low bid on Contract No. 1 only on the basis that he intended as a condition of defendant's bids- that defendant be awarded all three contracts or none.
12
The City insists that the clause in the notice inviting bids as well as in the bid forms, that a bid may not be withdrawn for a period of 60 days from the opening thereof, is controlling. The City argues that the general rule of contracts that an offer remains subject to the control of the offerer up to the time of acceptance is not applicable. Admitting that there is a division of authority on the subject, the City urges that the following rule as stated in Vol. 43, Am. Juris., Public Works and Contracts, Sec. 62, p. 804, should be adopted: 'As a general rule, at law a bidder for a public contract cannot, in the absence of special circumstances, either withdraw his bid or proposal or recover the deposit made, pursuant to the requirements of the advertisement for bids, at the time of the submission of his bid, although in equity the bidder will be protected where it would be inequitable to compel him to perform the contract or forfeit the deposit in the case of his refusal or failure to perform, and there are numerous exceptions and qualifications to the rule at law.'
13
Until July 14, 1950, when proceeds from the sale of bonds were available, the City of Mishawaka was legally incapable of executing any contracts under Bids No. 1, No. 2 or No. 3, Division A. Burns Indiana Stats. Anno., § 48-1597. In fact up to that date the City was free to abandon the entire project without obligation to anyone. Hamer v. City of Huntington, 1939, 215 Ind. 594, 21 N.E.2d 407. The advertisement for bids stated and the bid forms provided that the City had the right to reject any and all bids. Thus at the time Santucci spoke to Cole before any bids were opened, and immediately after his bid was opened when he informed the Mayor and the Board of Public Works of his intention, there was no consideration which had passed to him which prevented the conditioning of his bids on an all or none basis. That was his intention in good faith. The City officials well knew that he so intended and they were in no way deceived or misled.
14
The evidence clearly sustains the district court's finding that defendant did in fact submit its bid on the basis of obtaining all three or none of the contracts in Division A, and that defendant submitted such bid in good faith. Hence the City could not compel defendant to accept Contracts No. 1 and No. 2 while awarding Contract No. 3 to another; and the district court correctly found the issues favorably to the defendant.
15
The situation is different where, after the opening of bids, a bidder, then knowing the amount of the proposed bids of others, attempts to alter his bid and thus obtain a contract for himself at a more advantageous price. Here, however, Santucci was acting in good faith, and he was entirely willing that defendant accept all three contracts on the basis of the only total figure which he submitted. The district court was correct in holding that the City was not entitled under the circumstances of this case to construe defendant's bid to be for individual contracts when the City officials well knew that Santucci's intention was directly to the contrary.
16
The City also alleged error because the court denied its motion for a new trial on the ground of newly discovered evidence. Based upon its interpretation of Santucci's testimony, it offered to produce a handwriting expert who would testify that there were no pencil notations or erasures in the space left for unit prices to be inserted in item No. 1 in defendant's bids for Contracts No. 2 and No. 3. It is doubtful whether the motion complied with Rule 60(b)(2), Federal Rules of Civil Procedure, 28 U.S.C.A., but in any event, we think that the proffered evidence was based on a misconception of Santucci's testimony. We approve of the court's denial of the motion.
17
Judgment affirmed.
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 26 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KATHLEEN ECKBERG, No. 12-17029
Plaintiff-Appellant, D. C. 2:11-cv-00537-SMM
v. MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant-Appellee.
On Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Argued and Submitted January 14, 2015
San Francisco, California
Before: O’SCANNLAIN and CLIFTON, Circuit Judges, and RAKOFF, Senior
District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jed S. Rakoff, Senior District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
Kathleen Eckberg appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of her application for disability
insurance benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291.
On appeal, the Commissioner concedes that the Administrative Law Judge
(the “ALJ”) erred in rejecting non-examining physician Dr. Vincent Russo’s
testimony concerning the limitations Eckberg suffers as a result of her left-side De
Quervain’s syndrome. The ALJ also erred in offering no reason for finding certain
aspects of Eckberg’s subjective pain testimony not credible other than the
“boilerplate” statement that the testimony was inconsistent with the ALJ’s residual
functional capacity assessment. See Treichler v. Comm’r of Soc. Sec. Admin., No.
12-35944, 2014 WL 7332774, at *9 (9th Cir. Dec. 24, 2014). The remaining
question, therefore, is whether to remand for an award of benefits or for further
proceedings.
“Before we may remand a case to the ALJ with instructions to award
benefits, three requirements must be met: ‘(1) the record has been fully developed
and further administrative proceedings would serve no useful purpose; (2) the ALJ
has failed to provide legally sufficient reasons for rejecting evidence, whether
claimant testimony or medical opinion; and (3) if the improperly discredited
evidence were credited as true, the ALJ would be required to find the claimant
-2-
disabled on remand.’” Burrell v. Colvin, No. 12-16673, 2014 WL 7398892, at *6
(9th Cir. Dec. 31, 2014) (quoting Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir.
2014)). If the record is “uncertain and ambiguous, the proper approach is to
remand the case to the agency” for further proceedings. Treichler, 2014 WL
7332774, at *11.
Here, the record is sufficiently unclear to warrant a remand for further
proceedings on an open record. See Burrell, 2014 WL 7398892, at *7. First, the
record contains minimal and inconclusive information regarding the degree to
which Eckberg’s De Quervain’s syndrome would impede her ability to work.
Although Dr. Russo testified that De Quervain’s syndrome would affect Eckberg’s
dexterity, he also stated that De Quervain’s syndrome is “subject to spontaneous
improvement” and that there would be times when Eckberg’s left hand would
function “quite close to normal.” We cannot conclude that, on remand, “the ALJ
would be required to find [Eckberg] disabled” within the meaning of the Social
Security Act without more information about how frequently and to what extent
this limitation affects Eckberg.
Second, the Commissioner has raised serious doubts about Eckberg’s
credibility. Although Eckberg testified that, in general, she took medication when
her pain required, she repeatedly refused to take injections to treat her De
-3-
Quervain’s syndrome. She now claims that an injection would have been too
painful, but the record reveals that she accepted an injection for a different ailment.
Likewise, Eckberg, in connection with her initial application for benefits, reported
being able to partake in some normal daily tasks, such as cleaning her home and
going for walks; but four months later, after the application was denied, Eckberg
submitted a revised statement asserting that she did “nothing” on an average day
because of her pain. The suspicious timing of this precipitous decline, in
combination with her selective acceptance of treatment, calls Eckberg’s credibility
into question.
Third, the experts at Eckberg’s hearing took her testimony into account
before offering their opinions. Dr. Russo explained that his assessment was
“mainly based on the subjective pain complaints.” Similarly, the vocational expert
was asked to “assume the claimant’s testimony” before answering a question on
the availability of past relevant work and transferable skills. Given the doubts
about Eckberg’s credibility, it would be improper to remand for an award of
benefits on the basis of these opinions.
In sum, in light of the ambiguities and gaps in the record, we cannot say that
“further proceedings would not be useful.” Treichler, 2014 WL 7332774, at *8
(internal quotation marks and alteration omitted).
-4-
REVERSED and REMANDED for further proceedings on an open
record.
-5-
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Case: 14-3078 Document: 15 Page: 1 Filed: 06/16/2014
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HENRY E. GOSSAGE,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
______________________
2014-3078
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-3330-14-0078-I-1.
______________________
ON MOTION
______________________
Before PROST, Chief Judge, WALLACH and CHEN, Circuit
Judges.
PER CURIAM.
ORDER
Henry E. Gossage moves for reconsideration of the
court’s May 13, 2014 order dismissing his case for failure
to pay the docketing fee, failure to file the Statement
Concerning Discrimination, and failure to file a brief. He
Case: 14-3078 Document: 15 Page: 2 Filed: 06/16/2014
2 GOSSAGE v. OPM
also moves to consolidate this petition with his other
recent cases.
Upon consideration thereof,
IT IS ORDERED THAT:
The motions are denied.
FOR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk of Court
s26
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484 N.E.2d 624 (1985)
Olin P. BELL, Appellant (Plaintiff),
v.
Max BINGHAM, Beverly Ann Bingham, and John W. Vironet, Appellees (Defendants).
No. 2-984-A-270.
Court of Appeals of Indiana, Second District.
October 31, 1985.
*625 Dean E. Richards, Richards, Caress, Vargo, Light and Brown, Indianapolis, for appellant.
James M. Secrest, James M. Secrest, P.C., Indianapolis, for appellees Max Bingham and Beverly Ann Bingham.
Larry E. Swick, Elwood, for appellee John W. Vironet.
BUCHANAN, Chief Judge.
CASE SUMMARY
Plaintiff-appellant Olin P. Bell (Olin) appeals the trial court's entry of summary judgment in favor of defendants-appellees Max and Beverly Ann Bingham [hereinafter collectively referred to as the Binghams] and John W. Vironet (Vironet) claiming the trial court erred by denying as untimely his petition to foreclose a judgment lien and his claim against Vironet, the sole distributee of the estate of Mary Ellen Bell (Mary).
We affirm.
FACTS
The facts viewed in a light most favorable to Olin are as follows: Olin and Mary were divorced in 1978 pursuant to a decree issued by the Madison Superior Court. In pertinent part, the decree provided:
"The Court approves the oral property settlement, to-wit: Petitioner (Mary) shall pay over to respondent (Olin) the sum of twenty-two thousand five hundred dollars ($22,500.00) in the form of an alimony judgment as defined under the Federal Law. That said twenty-two thousand five hundred dollars will be payable over a period of ten years and one month... . That further, the nursing home, all equipment, inventory, all personal items, real estate are set over to petitioner including the residence next door at 623 Adams will be turned over to her as her sole property and that respondent have no further interest in said *626 real estate at 623 or 625 Adams whatsoever."
Record at 172-73 (emphasis supplied). Olin received regular monthly payments of $185.00 through March 22, 1980.
Mary died on March 21, 1980. Vironet, Mary's son, opened her unsupervised estate in the Madison Superior Court. Vironet was appointed executor and published notice to creditors on April 30, 1980 and May 7, 1980. On February 19, 1981, the court approved a land sale contract entered into by Mary before her death. As executor, Vironet completed the land sale contract and conveyed the real estate located at 623 Adams Street to the Binghams. Vironet paid all the claims filed in Mary's estate. As the only distributee of Mary's estate, Vironet collected his bequest and closed the estate on April 24, 1981.
Over two years after Mary's death, in November of 1982, Olin filed suit against the Binghams and Vironet claiming that he was a secured creditor of Mary's estate because his "alimony" judgment was a lien against the property which had been conveyed to the Binghams, and that as sole distributee Vironet was responsible to Olin for Olin's claim up to the amount Vironet received from the estate. The trial court granted summary judgment in favor of the Binghams and Vironet, and Olin appeals.
ISSUE
The sole question presented for our review is:
Whether the trial court erred by granting summary judgment in favor of Vironet and Binghams?
DECISION
PARTIES' CONTENTIONS Olin contends the judgment against Mary was a lien against her real estate so that compliance with the five month claim statute was unnecessary and his judgment may be satisfied from either Binghams' real estate or Vironet's assets by an action brought within three years of Mary's death. Binghams respond that the divorce decree was payable in installments, therefore no lien arose. Vironet argues Olin's action is barred because no timely claim was filed against Mary's estate.
CONCLUSION The trial court did not err by granting summary judgment in favor of Vironet and Binghams because the divorce decree did not attach as a lien to Mary's real estate.
Summary judgment is appropriate when the pleadings, affidavits, testimony, and products of discovery demonstrate there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. McMahan v. Snap On Tool Corp. (1985), Ind. App., 478 N.E.2d 116; Anderson v. State Farm Mut. Auto. Ins. Co. (1984), Ind. App., 471 N.E.2d 1170; Ind.Rules of Procedure, Trial Rule 56.
We recognize that more than one statute regulates the manner in which certain creditors are assured payment of their money judgments. Our general judgment lien statute, codified at Ind. Code 34-1-45-2 (1982), provides as follows:
"All final judgments for the recovery of money or costs in the circuit court and other courts of record of general original jurisdiction sitting in the state of Indiana, whether state or federal, shall be a lien upon real estate and chattels real liable to execution in the county where, and only where, such judgment has been duly entered and indexed in the judgment docket as provided by law, from and after the time the same shall have been so entered and indexed, and until the expiration of ten [10] years from the rendition thereof, and no longer, exclusive of the time during which the party may be restrained from proceeding thereon by any appeal or injunction or by the death of the defendant, or by agreement of the parties entered of record."
[Hereinafter cited as the judgment lien statute]. Additionally, in dissolution actions a trial court must, absent an agreement of the parties, divide the parties' property, and the court may require some assurance of payment of the property division. *627 IC 31-1-11.5-11 (1982); IC 31-1-11.5-15. [Hereinafter collectively cited as the dissolution statutes]. IC 31-1-11.5-15 provides as follows:
"Security for Payment. Upon entering an order pursuant to section 11 or 12 of this chapter, the court may provide for such security, bond or other guarantee that shall be satisfactory to the court to secure the obligation to make child support payments or to secure the division of property."
Therefore, in some respects both the judgment lien statute and the dissolution statutes speak to the same subject matter: assurance of payment of judgments.
When two statutes or two sets of statutes speak to the same subject matter, effect should be given to both acts if possible. Wright v. Gettinger (1981), Ind., 428 N.E.2d 1212; Indiana State Highway Comm'n v. Bates & Rogers Constr. (1983), Ind. App., 448 N.E.2d 321. If the two statutes cannot be harmonized or reconciled, then, as a general rule of statutory construction, the more specific or detailed statute should prevail over the more general statute. Sanders v. State (1984), Ind., 466 N.E.2d 424; Stream Pollution Control Bd. v. Amax, Inc. (1985), Ind. App., 475 N.E.2d 1157; Indiana State Highway Comm'n, supra.
A judgment lien is purely a creature of statute. Wells v. Benton (1886), 108 Ind. 585, 8 N.E. 444; Uhrich v. Uhrich (1977), 173 Ind. App. 133, 362 N.E.2d 1163, trans. denied; Taylor v. McGrew (1902), 29 Ind. App. 324, 64 N.E. 651. It arises by operation of law when the events enumerated in the judgment lien statute come to pass. Sullivan State Bank v. First Nat'l Bank (1925), 82 Ind. App. 419, 146 N.E. 403.
Clearly, between the judgment lien statute and the dissolution statutes the more particular is the dissolution statutes which govern security between divorcing spouses. Therefore, we first examine the effect of the dissolution statutes on Olin's claimed lien.
Absent a written agreement by the parties, a dissolution court must divide the parties' property in contemplation of a financial parting of the ways. Johnson v. Johnson (1984), Ind. App., 460 N.E.2d 978; Henderson v. Henderson, (1980) Ind. App., 401 N.E.2d 73. To accomplish this task, the trial court has the power to transfer real property between the parties. Henderson, supra; Plese v. Plese (1970) 146 Ind. App. 545, 257 N.E.2d 318. Inherent in the trial court's power to dispose of divorcing parties' property, is the power to award real estate free of liens or encumbrances so as to enable one spouse to pass title clear of any claim from the other spouse that would arise as a result of the divorce. IC 31-1-11.5-15 permits the dissolution court to complete the task of disposing of marriage property in a just and reasonable manner. It gives divorce courts the authority to fashion security for the payment of property settlement awards independent of the judgment lien statute by creating a lien on a given tract of real estate or by freeing a particular tract of real estate from a judgment lien.
Here, the dissolution court awarded certain property to Mary and expressly denied Olin a lien on the same real estate that he now wishes to foreclose. The decree clearly states,
"that further, the nursing home, all the equipment, inventory, all personal items, real estate are set over to petitioner [Mary] including the residence next door at 623 Adams will be turned over to her as her sole property and that respondent [Olin] have no further interest in said real estate at 623 or 625 Adams whatsoever."
Record at 173 (emphasis supplied). Olin chose not to appeal this decree. We may not, after Mary's death, permit Olin to secure an interest in Mary's real estate that was denied him by the dissolution court. The dissolution court awarded Mary certain property in its decree and exercised its discretionary powers by withholding a lien on a particular tract of land. As these more specific statutes were designed to *628 precisely meet the needs of the divorcing citizens of Indiana, we conclude that the dissolution statutes control over the more general judgment lien statute; hence, pursuant to the specific language of the dissolution decree, no lien arose.
Because Olin's award did not create a judgment lien against Mary's real estate on the date of the decree, Olin was a general creditor of Mary's estate and should have filed a claim against Mary's estate within five months of the first published notice to creditors. IC XX-X-XX-X (1982);[1]Hicks v. Fielman (1981), Ind. App., 421 N.E.2d 716. Thus, the trial court properly entered summary judgment in favor of Vironet and Binghams.
Judgment affirmed.
SULLIVAN, J., concurs with separate opinion.
MILLER, J. (sitting by designation), concurs.
SULLIVAN, Judge, concurring.
I concur. However, I fear possible misinterpretation of a statement in the opinion. In considering the general judgment lien provisions of I.C. XX-X-XX-X (Burns Code Ed. 1973) vis-a-vis the security provision of the dissolution statutes, I.C. 31-1-11.5-15 (Burns Code Ed.Repl. 1980), we state:
"As these more specific statutes were designed to precisely meet the needs of the divorcing citizens of Indiana, we conclude that the dissolution statutes control over the more general judgment lien statute, hence pursuant to the specific language of the dissolution decree, no lien arose."
It is my fear that some may read that conclusion to indicate mutual exclusivity. Such an interpretation would be unwarranted.
Under our opinion today, the trial court retains flexibility. The court may enter a monetary judgment with respect to a particular property distribution obligation and have that judgment attach as a lien upon real estate pursuant to I.C. XX-X-XX-X. In addition thereto, the court may direct additional security under I.C. 31-1-11.5-15 for payment of a different obligation.
Subject to this caveat, I concur in the opinion of my colleagues.
NOTES
[1] IC XX-X-XX-X(a) provides:
"(a) All claims against a decedent's estate, other than expenses of administration and claims of the United States, and of the estate and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise, shall be forever barred against the estate, the personal representative, the heirs, devisees and legatees of the decedent, unless filed with the court in which such estate is being administered within:
(1) five (5) months after the date of the first published notice to creditors; or
(2) three (3) months after the court has revoked probate of a will, in accordance with IC XX-X-X-XX, if the claimant was named as a beneficiary in that revoked will; whichever is later."
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125 B.R. 254 (1991)
In re Ronald Moses HARRIS and Rhonda Joann Harris, Debtors.
UNITED STATES TRUSTEE, Appellant,
v.
Ronald M. and Rhonda J. HARRIS, Appellees.
No. CIV 91-4015.
United States District Court, D. South Dakota, S.D.
March 27, 1991.
*255 Charles L. Nail, Jr., Asst. U.S. Trustee, Sioux Falls, S.D.
James A. Craig, Craig & Nichols, Sioux Falls, S.D., for debtors.
AMENDED MEMORANDUM OPINION and ORDER
JOHN B. JONES, Chief Judge.
Introduction
The U.S. Trustee (the UST) appeals Judge Ecker's denial of its motion to dismiss the Harris's (the debtors or, individually, Rhonda and Ron) Ch. 7 petition for substantial abuse under § 707(b). In re Harris, 122 B.R. 744 (Bkrtcy.D.S.D.1990).
Jurisdiction
This Court takes jurisdiction over this matter pursuant to 28 U.S.C. § 158(a).
Standard of Review
This Court shall review the decisions of law of the bankruptcy court de novo (Matter of Newcomb, 744 F.2d 621, 625 (8th *256 Cir.1984).), and findings of fact shall be upheld unless clearly erroneous (Bankruptcy Rule 8013.).
BACKGROUND
The debtors filed a voluntary petition under Ch. 7 on 2 April 1990. Rhonda is a high school graduate with two years of college but has no specialized marketable skill. Ron is a fireman. The debtors have one child, Ron has two children from a previous marriage. Ron's two children live in St. Louis; Ron pays child support.
In 1989, the debtors had their income tax refund withheld because Rhonda had defaulted on a student loan. Rhonda testified that her father told her that he had paid her student loans, and that the income tax garnishment was the first notice that the loan was outstanding.
In an effort to pay the loan Rhonda took a night job at John Morrell & Co. The debtors testified that they were struggling to keep up with their obligations until a judgment creditor began garnishing Rhonda's wages at the rate of $80.00 per week.
The debtors testified that Rhonda's nighttime employment was causing strife within the family because Rhonda wished to spend more time with her child and because the debtors wished to spend more time together. Rhonda testified that she voluntarily resigned from her employment at John Morrell in January 1991 for the good of her family.
The debtors' Schedule of Current Income and Current Expenditures states that the debtors have a net monthly income of $2,249.00 (This is before Rhonda quit her job.). The debtors' monthly expenses are $1,973.00, which leaves the debtors a disposable income of $276.00 per month. At the hearing on the UST's motion, a bankruptcy analyst testified, and the bankruptcy court found, that the debtors were over withholding by at least $200.00 per month. It was also revealed that Ron had received a raise amounting to a net $60.00 per month. The bankruptcy court made no mention of Ron's raise.
Judge Ecker found that, although this additional income would give the debtors significantly greater disposable income, he believed that the debtors had not allocated enough for food each month.
The Court finds that a $200 adjustment to Debtors' food expense is appropriate given Debtors' family status. Debtors' original $400 claim is insufficient considering that five, and soon six, family members must be fed.
The bankruptcy court then stated that this sua sponte $200.00 increase in the debtors' monthly expenses would offset the increased income from proper tax exemptions.
The bankruptcy court then denied the UST's motion to dismiss stating that the debtors had made a good faith effort to pay their bills, had filed bankruptcy only as a last resort, and could only pay slightly more than fifty percent of their unsecured debt in a three year plan.
ISSUES
1. WHETHER THE BANKRUPTCY COURT ERRED IN HOLDING THAT TO PREVAIL ON A MOTION TO DISMISS FOR "SUBSTANTIAL ABUSE" UNDER 11 U.S.C. § 707(b), THE MOVING PARTY MUST ESTABLISH "EGREGIOUS BEHAVIOR" ON THE PART OF THE DEBTOR.
2. WHETHER THE BANKRUPTCY COURT ERRED IN HOLDING THAT IN CONSIDERING A MOTION TO DISMISS FOR SUBSTANTIAL ABUSE IT SHOULD ONLY LOOK TO A DEBTOR'S ABILITY TO FUND A THREE YEAR PLAN.
3. WHETHER THE BANKRUPTCY COURT ERRED IN HOLDING THAT, IN THE CONTEXT OF A MOTION TO DISMISS FOR SUBSTANTIAL ABUSE, A DEBTOR'S ABILITY TO REPAY 56% OF HIS UNSECURED DEBT OVER A THREE YEAR PERIOD DOES NOT REPRESENT A "SIGNIFICANT" REPAYMENT OF UNSECURED DEBT.
*257 4. WHETHER THE BANKRUPTCY COURT ERRED IN CALCULATING THE DEBTORS' DISPOSABLE INCOME.
DISCUSSION
I. Whether the bankruptcy court erred in holding that to prevail on a motion to dismiss for "substantial abuse" under 11 U.S.C. § 707(b), the moving party must establish "egregious behavior" on the part of the debtor.
The bankruptcy court committed error in requiring a showing of egregious behavior. The bankruptcy court held
that substantial abuse requires something more than the naked ability of a debtor to repay a significant amount of unsecured debt under a three year Chapter 13 plan. Egregious behavior, such as repeated bankruptcy filings evidencing a lack of good faith, fraud, impropriety or evidence of misconduct, must be established by the moving party in addition to proving that a significant portion of unsecured debt may be paid by net disposable income under a three year Chapter 13 plan.
Memorandum Decision, 122 B.R. 744, 747 (Bkrtcy.D.S.D.1990).
Such a conclusion is clearly contrary to the law of the Eighth Circuit.
Both parties agree that the law on this issue is In re Walton, 866 F.2d 981 (8th Cir.1989). The Walton court stated
His own good faith filing, Walton maintains, plus the statutory presumption favoring relief, should prevent the dismissal of his petition. We disagree. . . .
Recently, the Ninth Circuit became the first court of appeals to focus on the meaning of "substantial abuse" under 707(b). Zolg v. Kelly (In re Kelly), 841 F.2d 908 (9th Cir.1988). Kelly discusses the future income issue thoroughly, and holds as follows:
[T]he debtor's ability to pay his debts when due as determined by his ability to fund a chapter 13 plan is the primary factor to be considered in determining whether granting relief would be substantial abuse. . . . We find this approach fully in keeping with Congress's intent in enacting section 707(b). . . . This is not to say that inability to pay will shield a debtor from section 707(b) dismissal where bad faith is otherwise shown. But a finding that a debtor is able to pay his debts, standing alone, supports a conclusion of substantial abuse.
We agree with the reasoning and result of the Ninth Circuit on this issue[.]
In re Walton, 866 F.2d at 982, 984 (emphasis added.).
The Walton court clearly contemplates that the ability to fund a chapter 13 plan can be sufficient reason to dismiss a chapter 7 petition under § 707(b).
Although the term "substantial abuse" is not defined in the Act, legislative history indicates that the amendments to the Code were aimed primarily at stemming the use of Chapter 7 relief by unneedy debtors.
Id., at 983 (emphasis added).
In this regard the bankruptcy court, by requiring "egregious behavior" on the part of the debtors, has disregarded the law of the Eighth Circuit. As the Walton court stated
[This] cramped interpretation of section 707(b) . . . would drastically reduce the bankruptcy court's ability to dismiss cases filed by debtors who are not dishonest, but who also are not needy.
Id. at 983.
The bankruptcy court, and the debtors, attempt to distinguish Walton on the basis of what they perceive to be bad faith actions by Mr. Walton. However, the factors they point to were not important to the Eighth Circuit's holding because the Walton court clearly considered Mr. Walton to be a good faith debtor.[1]See Walton, 866 F.2d at 982, 983, 985.
*258 The Walton court stated, "Certainly the court may take the petitioner's good faith and unique hardships into consideration under section 707(b)." Id. at 983. The Walton decision was an effort to increase the bankruptcy court's ability to make case-by-case determinations of substantial abuse. "[T]he absence of a laundry list of abuses in section 707(b) further suggests that the drafters did not intend a narrow interpretation of `substantial abuse.'" Id. at 983.
The law of the Eighth Circuit, as established by In re Walton, is that the bankruptcy court must consider the debtor's ability to pay a substantial portion of his unsecured debts through a chapter 13 plan as the primary consideration under § 707(b). The ability of the debtor to pay a substantial portion of his unsecured debt under a chapter 13 plan is, in itself, sufficient grounds to dismiss the chapter 7 petition for substantial abuse. However, the bankruptcy court may also consider the debtor's good faith and unique hardships, so that the bankruptcy court is not required to dismiss a debtor's chapter 7 simply because the debtor has the naked ability to fund a chapter 13 plan.
This rule conforms with the plain language of In re Walton, the statutory presumption in favor of granting relief, and it is also compelled by logic. If § 707(b) required bad faith or other "egregious behavior" on the part of the debtor it would be meaningless because § 105(a) and § 707(a) already provide a bankruptcy court with the power to dismiss a debtor for bad faith actions. Section 707(b) must mean something that § 105(a) and § 707(a) do not.
II. Whether the bankruptcy court erred in holding that in considering a motion to dismiss for substantial abuse it should only look to a debtor's ability to fund a three year plan.
The bankruptcy court's decision stated that
While Walton examined repayment ability under a three and a five year plan, the statutory assumption is that all plans shall be three years in duration unless just cause exists. 11 U.S.C. § 1322(c). Ascertaining the amount of disposable income, as defined by 11 U.S.C. § 1325(b), to pay unsecured creditors for substantial abuse purposes primarily contemplates a three year hypothetical plan.
Memorandum Decision at 746-47.
It is clear that, in the Eighth Circuit, the bankruptcy court should look at the debtors ability to fund a chapter 13 plan both a three year and a five year plan.
IV. Whether the bankruptcy court erred in calculating the debtors' disposable income.
Because of its necessary affect on the discussion of issue III, issue IV will be discussed first.
In arriving at the debtors' disposable income the bankruptcy court relied upon clearly erroneous findings, relied upon facts not in the record, disregarded relevant facts in the record, and made findings unsupported by evidence. The bankruptcy court's calculation of debtor's disposable income is clearly erroneous.
The bankruptcy court sua sponte increased debtors' monthly expenses by $200.00. As I noted above, the bankruptcy court stated
The Court finds that a $200 adjustment to Debtors' food expense is appropriate given Debtors' family status. Debtors' original $400 claim is insufficient considering that five, and soon six, family members must be fed.
Memorandum Decision at 745.
Initially, the assumed information is clearly erroneous; the debtors have one child and are, therefore, a family of three. The reference, "soon six," is not supported in the record. Debtors signed and declared under penalty of perjury that they had reviewed and properly stated their monthly expenses. The bankruptcy court committed clear error by inflating the debtors' expenses.
The debtors also have income that the bankruptcy court did not consider. Initially, *259 the bankruptcy court did not consider Ron's raise. This raise would increase the debtors' monthly income by an additional $60.00. Additionally, the UST points out that, although the debtors listed their monthly child care expense as $240.00, Rhonda testified that the highest that these expenses ran was $230.75, and were as low as $200.42.[2] This leaves an overstatement in the debtors' monthly expenses of $9.25 to $39.58.
Adjusting the bankruptcy court's findings to reflect these amounts gives the debtors a net monthly disposable income of $421.25 (bankruptcy court's finding ($152) + erroneous increase in expenses ($200) + Ron's raise ($60) + overstated child care ($9.25)). This disposable income will enable the debtors to pay approximately 156 percent of their unsecured debt over three years. The debtors also spend $175.00 per month on recreation and charity.
III. Whether the bankruptcy court erred in holding that, in the context of a motion to dismiss for substantial abuse, a debtor's ability to repay 56% of his unsecured debt over a three year period does not represent a "significant" repayment of unsecured debt.
The Walton court found that the ability to repay two-thirds of a debtor's unsecured debt over three years, or 100 percent over five years, constituted a substantial abuse.[3] Finding that the debtors have the ability to repay 155.77 percent of their unsecured debts over three years, they clearly fall within the Eighth Circuit's definition of substantial abuse. Hence, this Court need not address issue III.
Constitutionality of § 707(b)
Debtors raise, for the first time, the question of § 707(b)'s constitutionality. Because the debtors did not raise this issue below they begin their brief by citing In re Stratton, 23 B.R. 284 (D.S.D.1982). Stratton stated that new legal theories could be raised on appeal provided that the factual basis for the theory was contained in the record. Id., at 288. The vitality of Stratton must be called into question in light of In re Ozark Restaurant Equipment Co., Inc., In Ozark the Eighth Circuit stated that, "As a reviewing court the district court is not empowered to consider an issue not raised in the bankruptcy court." In re Ozark, 850 F.2d 342, 346 (8th Cir.1988). This Court is not empowered to consider the issue of constitutionality.
ORDER
Upon the record herein and the foregoing,
IT IS ORDERED:
(1) That the Bankruptcy Court's Order of December 24, 1990 is reversed.
(2) That this action is remanded to the Bankruptcy Court with instructions to dismiss debtor's petition.
NOTES
[1] Or, more probably, to establish a rule of law the Eighth Circuit worked from the assumption that Mr. Walton was a good faith debtor without ever making a finding on the issue. But it is clear that the Eighth Circuit intended this rule to apply to good faith debtors.
[2] My calculations from Rhonda's testimony are not even that high. I calculated her highest child care expense to be $213 per month. Hearing Transcript page 28 line 12 to page 30 line 6.
[3] Walton also cited with approval the case of In re Grant, 51 B.R. 385 (Bkrtcy.N.D.Ohio 1985) which found that the ability to repay 68 percent over 5 years was substantial abuse. Walton, 866 F.2d at 985.
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J-A23004-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
OWEN FRANCIS, :
:
Appellant : No. 501 WDA 2014
Appeal from the Judgment of Sentence entered on February 10, 2014
in the Court of Common Pleas of Allegheny County,
Criminal Division, No. CP-02-CR-0013746-2013
BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 22, 2015
Owen Francis (“Francis”) appeals from the judgment of sentence
imposed following his conviction of two counts each of recklessly
endangering another person (“REAP”) and simple assault, and one count
each of aggravated assault, terroristic threats, and a carrying a firearm
without a license.1 We vacate Francis’s judgment of sentence for aggravated
assault and carrying a firearm without a license, affirm Francis’s convictions
of simple assault and terroristic threats, and remand for resentencing.
Francis and the victim, Chanel Palmer (“Palmer”), began dating in April
2012. On December 15, 2012, while watching television with Francis,
Palmer received a text message. Francis and Palmer argued about the text
message. During the argument, Palmer held her one-year-old daughter in
1
See 18 Pa.C.S.A. §§ 2705, 2701, 2702, 2706, 6106.
J-A23004-15
her arms, and Palmer’s two-year-old daughter sat on the couch. Francis told
Palmer he was going to leave, after which he gathered his belongings. The
two continued to argue, at which time Francis head-butted Palmer on the
forehead and struck Palmer with his closed fist. At the time, Palmer still
held her daughter. After being struck, Palmer put her daughter down.
Francis went to the second floor, as the two continued to argue. Upon
returning to the first floor, Francis grabbed Palmer by the neck, holding her
against the wall. Francis threw Palmer to the ground, still choking her. As
Francis continued to strike Palmer, he pulled out a gun and held it to
Palmer’s head. Francis told Palmer that if she continued to scream, he
would pull the trigger. Palmer stopped screaming, and Francis released her.
However, Francis continued striking Palmer with a closed fist. Palmer
gathered her children and proceeded to the first floor exit door. Francis
grabbed Palmer’s phone and smashed it on the floor. Then, as he left the
residence, Francis threatened to kill Palmer and her grandmother if he saw
them again.
Officer Elvis Duratovic (“Officer Duratovic”) responded to the scene, at
which time he found Palmer, crying hysterically. Officer Duratovic observed
that Palmer had severe injuries to her head and face, and that her mouth
was bleeding. Based upon Palmer’s difficulty speaking and her injuries,
Officer Duratovic believed that “there was a pistol whipping[.]” N.T.,
-2-
J-A23004-15
2/10/14, at 7. During his investigation, Officer Duratovic discovered that
Francis did not have a license to carry a firearm.
After a non-jury trial, the trial court found Francis guilty of the above-
described charges. For his conviction of carrying a firearm without a license,
the trial court sentenced Francis to two to four years in prison, followed by a
five-year term of probation. For his conviction of aggravated assault, the
trial court imposed a concurrent prison term of two to four years, followed
by five years of probation.2 Francis timely filed a post-sentence Motion,
which the trial court denied. Thereafter, Francis filed the instant timely
appeal, and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters
complained of on appeal.
Francis presents the following claim for our review: “Was the evidence
sufficient to support the conclusion[,] beyond a reasonable doubt[,] that
[he] committed the offenses of aggravated assault and carrying a firearm
without a license?” Brief for Appellant at 6.
Francis claims that the Commonwealth failed to establish that he, in
fact, possessed a deadly weapon, and that he used that weapon to assault
Palmer. Id. at 15. Francis contends that Palmer “was not familiar with guns
at all,” and described it only as being black and silver. Id. According to
Francis, the Commonwealth’s evidence is “wholly insufficient to allow a
conclusion that the object in question ‘looks like, feels like, sounds like, or is
2
The trial court imposed no further sentence as to Francis’s convictions for
REAP, simple assault and terroristic threats.
-3-
J-A23004-15
like, a firearm.’” Id. at 16 (quoting Commonwealth v. Layton, 307 A.2d
843, 844 (Pa. 1973)). Francis argues that “[n]o evidence of any kind exists
on the record to establish that [he] had or used any pistol that could be
made to shoot a bullet.” Brief for Appellant at 16.
In reviewing a challenge to the sufficiency of the evidence, we
evaluate the record “in the light most favorable to the verdict winner giving
the prosecution the benefit of all reasonable inferences to be drawn from the
evidence.” Commonwealth v. Bibbs, 970 A.2d 440, 445 (Pa. Super.
2009) (citation omitted).
Evidence will be deemed sufficient to support the verdict when it
established each element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty, and may sustain its burden by means of
wholly circumstantial evidence. Significantly, [we] may not
substitute [our] judgment for that of the factfinder; if the record
contains support for the convictions they may not be disturbed.
Id. (citation and quotation marks omitted). It is within the province of the
fact finder to determine the weight to be accorded each witness’s testimony
and to believe all, part, or none of the evidence introduced at trial.
Commonwealth v. Randall, 758 A.2d 669, 674 (Pa. Super. 2000).
Francis first challenges the sufficiency of the evidence underlying his
conviction of aggravated assault, 18 Pa.C.S.A. § 2702(a)(4). A person is
guilty of aggravated assault under that subsection if he “attempts to cause
or intentionally or knowingly causes bodily injury to another with a deadly
weapon[.]” Id. The Crimes Code defines a “deadly weapon,” as
-4-
J-A23004-15
[a]ny firearm, whether loaded or unloaded, or any device
designed as a weapon and capable of producing death or serious
bodily injury, or any other device or instrumentality which, in the
manner in which it is used or intended to be used, is calculated
or likely to produce death or serious bodily injury.
Id. § 2301. Section 2301 provides no definition for the term “firearm.”
The term “firearm” is defined in thirteen separate sections of the
Crimes Code. Crimes Code section 908(c) (prohibited offensive weapons),
defines a firearm as “[a]ny weapon which is designed to or may readily be
converted to expel any projective by the action of an explosive or the frame
or receiver of any such weapon.” Id. § 908(c). Substantially similar
definitions are used in Crimes Code sections 913 (possession of firearm or
other dangerous weapon in court facility), 2702.1 (assault of law
enforcement officer), 2707.1(d) (discharge of a firearm into an occupied
structure), 3901 (theft and related offenses), 5515(a) (prohibiting of
paramilitary training), 6105(i) (persons not to possess, use, manufacture,
control, sell or transfer firearms), 6106(e)(1) (firearms not to be carried
without a license), 6107(c) (prohibited conduct during emergency), 6111.2
(firearm sales surcharge),3 and 6111.4 (registration of firearms). Thus,
twelve of the thirteen statutory definitions of firearm, set forth in the Crimes
Code, include the requirement that the weapon must be designed or readily
3
See also 18 Pa.C.S.A. § 6111.1 (adopting the definition set forth in section
6111.2).
-5-
J-A23004-15
be converted to expel a projectile by means of an explosive.4 See id.
Therefore, consistent with the definitions of “firearm” adopted by our
legislature, we conclude that for purposes of a conviction of aggravated
assault under 18 Pa.C.S.A. § 2301, the Commonwealth must establish, at a
minimum, that the weapon must be designed to, or readily may be
converted to expel a projectile by means of an explosive or the expansion or
escape of gas.
Our review of the record discloses no evidence upon which a jury could
find that the weapon in Francis’s possession was designed to, or readily
could be converted to expel a projectile by means of an explosive or the
expansion or escape of gas. The victim, Palmer, provided the only
description of the weapon:
Q. [The Commonwealth]: … Were you able to see this gun?
A. [Palmer]: It was black and silver.
Q. It was black and silver. Okay. And are you familiar with
guns at all?
A. No.
Q. Okay. And had you ever seen this gun before?
A. I seen [sic] it once before.
Q. … Do you recall when that was?
4
We note that Crimes Code section 5122 (weapons or implements of
escape) defines a firearm as including “an unloaded firearm and the
unassembled components of a firearm.” 18 Pa.C.S.A. § 5122(b)(2).
-6-
J-A23004-15
A. Maybe a couple weeks prior to the incident.
Q. ... And was it the same color and everything that you had
seen before?
A. Yes.
Q. … Is this something that you knew to be in your home?
A. No.
Q. … So, when he held the gun to your head, what did he do?
A. He said if I didn’t stop screaming, he will pull the trigger.
…
Q. What part of your head was the gun pointing towards?
A. Along my temple.
N.T., 2/10/14, at 16-17. On cross-examination, Palmer testified as follows:
Q. [Defense counsel]: … You indicated … in answer to the
Assistant District Attorney that you had seen this alleged
gun before?
A. [Palmer]: Yes.
Q. And where had you seen it before?
A. In a car.
Q. In a vehicle?
A. In a car. In the Land Rover. I’ve been in the Land Rover
before.
Q. Now, on this particular occasion, though, you’re not saying
that he left the residence and went out to the street where
the car was. Right?
A. I’m sorry. No, he did not.
-7-
J-A23004-15
Q. He went up to your bedroom area?
A. Correct.
Q. … And you never saw him carry the gun?
A. No.
Q. Did he have a holster for it?
A. No.
Id. at 38-39. The Commonwealth presented no other evidence describing
the weapon.
The evidence, even when viewed in a light most favorable to the
Commonwealth, fails to establish that the object used to threaten Palmer
was designed to, or readily could be converted to expel a projectile. Further,
there is no evidence, direct or circumstantial, upon which such inference
could be made. “[R]easonable inferences are predicated on proven facts
and circumstances, not on suspicion or surmise.” Commonwealth v.
Jackson, 955 A.2d 441, 444 (Pa. Super. 2008). Because the
Commonwealth failed to establish that Francis committed aggravated
assault, as defined by 18 Pa.C.S.A. § 2702(a)(4), we vacate his judgment of
sentence as to that charge.
Francis also challenges the sufficiency of the evidence underlying his
conviction of carrying a firearm without a license, a violation of Crimes Code
section 6106(a). Brief for Appellant at 17. Francis again argues that the
-8-
J-A23004-15
Commonwealth failed to establish that he possessed a firearm, as defined by
that statute. Id.
Section 6106 of the Crimes Code provides, in relevant part, that
any person who carries a firearm in any vehicle or any person
who carries a firearm concealed on or about his person, except
in his place of abode or fixed place of business, without a valid
and lawfully issued license under this Chapter commits a felony
of the Third Degree.
18 Pa.C.S.A. § 6106(a). The Uniform Firearms Act, 5 of which section
6106(a) is a part, offers the following definition of “firearm”:
Any pistol or revolver with a barrel length less than 15 inches,
any shotgun with a barrel length less than 18 inches or any rifle
with a barrel length less than 16 inches, or any pistol, revolver,
rifle or shotgun with an overall length of less than 26 inches.
The barrel length of a firearm shall be determined by measuring
from the muzzle of the barrel to the face of the closed action,
bolt or cylinder, whichever is applicable.
18 Pa.C.S.A. § 6102.
As the trial court stated in its Opinion,
In Dictionary.com, pistol is defined as “a short firearm intended
to be held and fired with one hand, a short and barreled
handgun. The Free Dictionary.com defines revolver as “a
handgun having a revolving cylinder with several cartridge
chambers that may be fired in succession.” Another definition is
a “multi-chambered cylinder that allows several shots to be
discharged without reloading.” When terms such as fired and
discharged are used, the clear intent is the device must expel a
projectile by some mechanism. In [Commonwealth v.]
Gaine[r, 7 A.3d 291 (Pa. Super. 2010)], the [Superior] Court
stated[,] “The issue is whether the gun was capable of being
converted into an object that could fire a shot.” [Gainer, 7 A.3d
5
18 Pa.C.S.A. §§ 6101-6127.
-9-
J-A23004-15
at] 298-299. Simply stated, the gun must be a real gun capable
of firing a shot.
Trial Court Opinion, 12/22/14, at 26. We agree.
As reflected by this Court’s analysis in Gainer, the Commonwealth
must establish, at a minimum, not only the barrel length, as expressly
required by statute, but that the firearm is capable of being converted into
an object that could fire a shot. Our review of the record confirms the trial
court’s conclusion that the Commonwealth presented no evidence regarding
barrel length, or that the weapon was capable of being converted into
something that could fire a shot. See 18 Pa.C.S.A. § 6102; Gainer, 7 A.3d
at 298-99. We therefore agree with the conclusion reached by the trial
court, as stated in its Opinion, that the evidence is insufficient to sustain
Francis’s conviction of possessing a firearm without a license. See Trial
Court Opinion, 12/22/14, at 26.
Francis does not challenge his remaining convictions on appeal.
Although the trial court imposed no further sentence as to these convictions,
our resolution of Francis’s appeal disrupts the trial court’s sentencing
scheme. See Commonwealth v. Wilson, 67 A.3d 736, 745 n.11 (Pa.
2013) (deeming it necessary to remand for resentencing when the Court’s
resolution of the appellant’s claims affects the sentencing scheme imposed
by the trial court). We therefore reverse Francis’s judgment of sentence as
to REAP, simple assault and terroristic threats, and remand for resentencing.
- 10 -
J-A23004-15
Judgment of sentence vacated in part, reversed in part, and remanded
for resentencing, consistent with this Memorandum. Superior Court
jurisdiction relinquished.
Lazarus, J., joins the memorandum.
Gantman, P.J., concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2015
- 11 -
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The Attorney General of Texas
November 14, 1980
MARKWHITE
Attorney General
Honorable Wilhelmina Delco Opinion No. MW-273
State Representative
House of Representatives Re: Whether schools listed in
P. 0. Box 2910 article VII, section 17 of the Texas
Austin, Texas 78769 Constitution are prohibited from
receiving appropriations from
~general revenues for construction
Dear Ms. Delco:
You ask whether the seventeen schools listed in article VII, section 17
of the Texas Constitution are prohibited from receiving appropriations from
general revenues for the purposes set out in that constitutional provision.
This question arises because the legislature reduced to .OOOl% the
assessment ratio for the ad valorem tax levied by article VII, section 17 of
the constitution. Prop. Tax Code S26.03. This ratio will generate less than
$200 per year for the fund supporting seventeen eligible universities. See
Attorney General Opinion MW-147 (19801 You do not inquire about andwe
do not address the constitutionality of the state assessment ratio.
The tax levied by article VII, section 17 provides funds for acquiring,
constructing and initially equipping buildings or other permanent improve-
ments at the following institutions of higher education:
Arlington State College at Arlington
Texas Technological College at Lubbock
North Texas State University at Denton
Lamar State College of Technology at Beaumont
Texas College of Arts and Industries at Kingsville
Texas Woman’s University at Denton
Texas Southern University at Houston
Midwestern University at Wichita Falls
University of Houston at Houston
Pan American College at Edinburg
East Texas State College at Commerce
Sam Houston State Teachers College at Huntsville
Southwest Texas State College at San Marcus
West Texas State University at Canyon
Stephen F. Austin State College at Nacogdoches
Sul Ross State College at Alpine
Angelo State College at San Angelo
p. 869
Honorable Wilhelmina Delco - Page Two (Ml&273)
The constitution provides that the funds generated by the tax are to be allocated
to these institutions for the twelve-year period beginning January 1, 1966, and for
succeedirg ten-year periods. A complex formula is provided for the allocation of the
tax revenues &ring each ten-year period. During the first year of each ten-year
period, the comptroller is to allocate 85% of funds derived from the tax during that
period to the eligible state institutions then in existence. During the sixth year, he is
to allocate the remaining 15% to eligible state institutions then in existence. See
Attorney General Opinion H-1129 (19781. “All such designated institutions of big=
learning shall not thereafter receive any general revenue funds for the acquiring or
constructing of buildiws or other permanent improvements for which said. . . ad
valorem tax IS herem provided except m case of fire, flood, storm, or earthquake
occurring at any such institution. . . .” Tex Const. art. VII, S17. (Emphasis added).
We believe the quoted language means that institutions receiving allocations for
any ten-year period may not receive general Fevenue funds for construction for the
same ten-year period. The comptroller has a ministerial duty to allocate the available
funds. See Attorney General Opinion H-1129 (1978). Even though only a small amount
of mane= avaiIable for allocation, the clear language of article VII, section 17, denies
general revenue construction funds to universities participating in that allocation. -See
Carpenter v. Sheppard, 145 SW. 2d 562 (Tex. 1940).
SUMMARY
Institutions which participate in the allocation of funds
under article VII, section 17 of the Texas Constitution may not
receive general revenue funds for construction for the same
ten-year period.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Susan Garrison
Assistant Attorney General
p. 870
Honorable Wilhelm ina Delco - Page Three @UV-273)
APPROVED:
OPINION COMMlTTEE
Susan L. Garrison, Acting Chairman
Jon Bible
Rick Gilpin
Myra McDaniel
p. 871
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5690
CLAYTON PERRY CROWE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Bryson City.
Richard L. Voorhees, Chief District Judge.
(CR-94-32)
Argued: December 7, 1995
Decided: February 16, 1996
Before ERVIN, MICHAEL, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Terry Goodwin Harn, Chapel Hill, North Carolina, for
Appellant. Deborah Ann Ausburn, Assistant United States Attorney,
Asheville, North Carolina, for Appellee. ON BRIEF: Mark T. Cal-
loway, United States Attorney, Charlotte, North Carolina, for Appel-
lee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
After a bench trial Clayton Perry Crowe was convicted of one
count of criminal contempt, see 18 U.S.C.§ 401(3), and was sen-
tenced to six months imprisonment. He appeals his conviction on the
grounds that (1) the evidence was insufficient and (2) that the district
court failed to inquire as to his competency to stand trial. Finding no
error, we affirm.
I.
On April 4, 1994, Crowe, who was already in state custody, was
indicted on 17 counts of sending threatening mail to his wife, in viola-
tion of 18 U.S.C. § 876. As part of its trial preparation the govern-
ment sought handwriting exemplars from Crowe. On April 29, 1994,
FBI Special Agent James D. Russell visited Crowe in the Buncombe
County Jail in Asheville, North Carolina, and asked him to provide
the exemplars voluntarily. Crowe refused, and on May 11 the district
court ordered Crowe to provide the exemplars.
Crowe, his lawyer, and Special Agent Russell met at the jail on
June 14, 1994. Russell showed Crowe a copy of the court order, and
(according to Russell) Crowe's lawyer "instructed Mr. Crowe that the
order was valid and had to be complied with." Crowe refused.
On June 20, 1994, the government moved for an order to show
cause why Crowe should not be held in contempt. The next day, at
the conclusion of a hearing at which Crowe admitted that he had
refused to provide the handwriting exemplars as ordered, the magis-
trate judge certified that Crowe was in contempt. The magistrate
judge also said that Crowe "should be allowed to purge himself of any
contempt order that the District Court enters by providing handwrit-
ing exemplars as ordered."
2
Crowe was brought before the district judge on September 7, 1994,
for trial on the charge of criminal contempt. Crowe's counsel indi-
cated to the judge that notwithstanding the criminal contempt charge,
Crowe still claimed he had no duty to provide handwriting exemplars.
After Crowe waived a jury, the case proceeded to trial before the dis-
trict judge. Special Agent Russell testified that Crowe refused to com-
ply with the court order that had been shown to him, even after his
lawyer advised him to comply. Crowe testified that he refused to pro-
vide the exemplars because he believed doing so would violate his
Fifth Amendment right against self-incrimination. He admitted that he
saw and understood the court order. He claimed, however, that his
lawyer told him that "refusing wouldn't hurt me either way because
I am doing a sentence, a state sentence already" and that therefore the
court had no effective power to punish him. The district judge found
Crowe guilty of criminal contempt.
II.
Crowe argues that the evidence against him was insufficient to sus-
tain a conviction for criminal contempt. In support of this argument
Crowe claims he should have been given the opportunity to purge
himself of his contempt (by providing the exemplars) after the magis-
trate judge certified his contempt. We disagree.
To support a conviction for criminal contempt, the government
must establish beyond a reasonable doubt that the defendant "will-
fully, contumaciously, intentionally, with a wrongful state of mind,
violated a decree which was definite, clear, specific, and left no
uncertainty in the minds of those to whom it was addressed."
Richmond Black Police Officers Ass'n v. City of Richmond, 548 F.2d
123, 129 (4th Cir. 1977) (citations omitted). If the defendant makes
a good faith effort to comply with a court order, he may not be con-
victed of criminal contempt. Id. On appeal, we must affirm if there
is substantial evidence, viewed in the light most favorable to the gov-
ernment, to support the conviction. Glasser v. United States, 315 U.S.
60, 80 (1942).
Crowe's argument that the evidence was insufficient because he
was not given an opportunity to purge himself of his contempt shows
a fundamental misunderstanding of the difference between civil and
3
criminal contempt. Criminal contempt may not be purged. A person
may purge himself of civil contempt because civil contempt proceed-
ings are intended "to coerce the contemnor into compliance with court
orders." Buffington v. Baltimore County, 913 F.2d 113, 133 (4th Cir.
1990), cert. denied, 499 U.S. 906 (1991). Once a person complies
with the court order, the civil contempt sanction no longer is neces-
sary to force compliance. Criminal contempt proceedings, however,
serve a different purpose: "to vindicate the authority of the court by
punishing the contemnor and deterring future litigants' misconduct."
Id. Because earlier defiance is not cured by later compliance, criminal
contempt sanctions are always available to punish past misconduct,
even when civil contempt sanctions would be neither necessary nor
effective.
Here the evidence shows that Crowe knew that the court was order-
ing him to give handwriting exemplars, that the court properly had
power over him, that his lawyer told him that he must give the exem-
plars, and that he still refused to do so. Indeed, Crowe's claim that his
lawyer told him that it didn't matter if he refused to comply (because,
since he already was in jail, the court had no effective way to punish
him) lends support to a finding that his refusal was willful and contu-
macious. At no time did Crowe ever make any good faith attempt to
comply with the order.
Crowe's attempt to invoke his Fifth Amendment right against self-
incrimination does not give him the right to disobey a valid court
order requiring exemplars, which are non-testimonial evidence. In
short, requiring a person to give handwriting samples does not violate
the Fifth Amendment. United States v. Mara, 410 U.S. 19 (1973);
United States v. Dionisio, 410 U.S. 1 (1973).
We conclude that the evidence was sufficient for the district judge
to find Crowe guilty of criminal contempt.
III.
Crowe next claims that his conviction is invalid because the district
court failed to inquire, sua sponte, as to his competency to stand trial.
This claim also fails.
4
In the related (threatening mail) case Crowe sought to assert the
insanity defense. In that case he moved, pro se , for a psychiatric eval-
uation. The government joined in the motion, and on June 21, 1994,
a magistrate judge ordered Crowe to submit to an evaluation. A
month later Crowe changed his mind and filed a motion asking the
court to vacate its order. The magistrate judge denied this motion on
July 25, 1994. Crowe's criminal contempt trial was held on Septem-
ber 7, 1994, before the results of the psychiatric evaluation were
available. Crowe argues that because an evaluation had been ordered
by the magistrate judge in the related case, but the results had not yet
been received, the district judge here erred in going ahead with a trial
on the criminal contempt charge.
We believe that the district judge was under no duty in this case
to inquire, sua sponte, as to Crowe's competency. Even if the defen-
dant's trial counsel fails to raise the issue, when a defendant has a his-
tory of "pronounced irrational behavior," the trial court's failure to
assess the defendant's competency to stand trial can sometimes vio-
late due process. Pate v. Robinson, 383 U.S. 375, 385-86 (1966). In
such a case the court also may be required to seek expert opinion as
to competency. Drope v. Missouri, 420 U.S. 162, 181-82 (1975).
There are, however, "no fixed or immutable signs which invariably
indicate the need for further inquiry to determine" competency. Id. at
180. In Pate there was ample evidence that the defendant suffered
from a serious mental disorder. On several occasions he had been hos-
pitalized for psychiatric reasons, and he had attempted suicide. Pate,
383 U.S. at 379-83. In addition, the Pate defendant may have suffered
from an organic brain disorder as a result of his being struck in the
head with a brick when he was seven or eight years old. Id. at 378.
In Drope, it was held that the defendant's mid-trial suicide attempt
should have put the trial court on notice to inquire further as to the
defendant's competency. See also United States v. Mason, 52 F.3d
1286 (4th Cir. 1995) (court sua sponte should have held competency
hearing on learning of defendant's suicide attempt and alcohol abuse).
Here, the "pronounced irrational behavior" that Crowe claims
should have put the court on notice to conduct a competency hearing
was the charge that he had allegedly sent a series of obsessive and
threatening letters to his wife. This behavior does not qualify under
the standard described in Pate and later cases interpreting it. See also
5
Godinez v. Moran, 113 S. Ct. 2680, 2688 n.13 (1993) ("a competency
determination is necessary only when a court has reason to doubt the
defendant's competence").
Nor did Crowe's behavior on the day of trial create any bona fide
doubt as to his competency. See Fallada v. Dugger, 819 F.2d 1564,
1567-69 (11th Cir. 1987). A person is competent to stand trial if (1)
he can "consult with his lawyer with a reasonable degree of rational
understanding" and (2) he has a "rational as well as factual under-
standing of the proceedings against him." Penry v. Lynaugh, 492 U.S.
302, 333 (1989). Immediately before trial Crowe's lawyer represented
to the district court that Crowe understood that he faced a criminal
contempt charge and did not wish to have a jury trial on that charge.
During the trial Crowe consulted with his lawyer from time to time.
Crowe also testified. His testimony was coherent, and it establishes
that Crowe understood that he was being tried because he would not
give handwriting exemplars after receiving a court order to do so. All
of this indicates that Crowe was capable of assisting his lawyer in his
defense and that he had a rational understanding of the proceedings
against him.
Finally, Crowe has come forward with no evidence that the psychi-
atric evaluation that was performed would have shown that he was
incompetent to stand trial. He presumably was found competent to
stand trial on the threatening mail charges, as he was convicted May
22, 1995, on twelve of those counts.
IV.
We are convinced that the evidence was sufficient to show that
Crowe was guilty of criminal contempt and that the district court had
no duty to inquire, sua sponte, as to his competency to stand trial. The
conviction is affirmed.
AFFIRMED
6
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705 So.2d 397 (1997)
Nancy A. HALL
v.
Mark A. HALL.
2951116.
Court of Civil Appeals of Alabama.
February 14, 1997.
Rehearing Denied March 28, 1997.
Certiorari Quashed October 24, 1997.
*398 Thomas B. Hanes of Barnett, Hanes, O'Neal, Duffee & Garfield, L.L.C., Birmingham, for appellant.
Oliver Frederick Wood of Green, Wood & Howell, Hamilton, for appellee.
Alabama Supreme Court 1961137.
PER CURIAM.
This is a child custody modification case.
The trial court divorced the parties on the grounds of incompatibility, on December 14, 1994, awarding them joint legal custody of their two minor children (a daughter, born November 30, 1988, and a son, born June 17, 1991), with the mother having primary physical custody and the father having specified liberal visitation rights.
On February 8, 1996, the father, after learning that the mother was planning to move to Minnesota and to take the children there with her, petitioned to modify the custody provision. On May 10, 1996, following a hearing, the court entered an order transferring primary physical custody to the father if the mother moves to Minnesota. It reserved the issues of visitation rights and support obligations until such time as the mother moves from Alabama. The court stated that if the mother "remains in Marion County, Alabama, the original divorce [judgment] ... shall remain in full force and effect." The mother appeals, contending that the court erred because, she says, the father failed to meet the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), and also because, she says, the order impermissibly interferes with her right to travel.
This court has held: "The parent seeking modification of a previous order granting custody bears the stringent burden of proving that a change in custody will materially promote the child's best interest" and must also show that "such a change in custody will more than offset the inherently disruptive effect caused by uprooting the child." Moore v. Moore, 585 So.2d 66, 67-68 (Ala.Civ.App.1991), citing Ex parte McLendon, 455 So.2d 863 (Ala.1984). In addition, this court has held that a change in the custodial parent's residence and the accompanying problems with visitation, without other factors, do not justify a change in custody. Moore, supra, at 68. Because the trial court based its ruling on ore tenus evidence, its ruling will not be reversed unless it is plainly and palpably wrong. Ex parte Murphy, 670 So.2d 51 (Ala.1995).
The evidence presented indicates the following: The parties were married in June 1983. They moved from Minnesota to Alabama after the father graduated from dental school. The mother is from Minnesota, and her family still resides there. She testified that she moved to Alabama so that the father could open a dental practice and that now that their life together is over she would like to go back home. The father testified that he grew up in Guin, Alabama, and in Minnesota and that he also has family in Minnesota. The father's parents live in Guin, but are retired; they testified that they travel frequently and are away from Guin approximately *399 40% of the year. They also testified that they travel to Minnesota whenever possible, to visit their other son, who lives there.
The record further reflects that the father sued for a divorce and that the mother counterclaimed for a divorce, alleging that the father had committed adultery. The father married his alleged paramour approximately six months after he was divorced from the mother.
Immediately following the divorce, the daughter experienced emotional difficulty, which caused her to have problems at school. The testimony from the mother and the child's counselor, as well as the counselor's records, indicates that the child experienced some anxiety and fear beginning about the time her father moved out of the house. She was unable to sleep except in her mother's bed, and she feared that someone would break in and kill her mother while she was in school. She also had problems at school because of a fear that her mother might not pick her up after school. She appeared to be suffering from poor self-esteem and an excessive need for approval, assurance, and attention. From all accounts, her condition has greatly improved and her problems have mostly subsided. Her teacher testified that she is an excellent student and is well liked by the other children. The mother testified that the daughter has overcome much of her anxiety, but that she still exhibits some anxious behavior when separated from her.
Although it appears that counseling has greatly benefited the daughter, the father testified that he believed the daughter's counselor was incompetent and that he did not support sending her to the counselor. The father's apprehension seems to be based on his one visit with the counselor, when, he says, he noticed that the counselor let the children play with toys and draw, rather than sitting them down and questioning them. The counselor testified that young children express themselves better through drawings and through conversations that are not forced, but that come about in the course of playing and relaxing. At one time, both children saw the counselor approximately every two weeks, and they now see him once a month. It is not clear how much longer the children will receive counseling, given the daughter's improved condition.
The mother wants to return to Minnesota to be close to her family. She testified that she had not decided exactly where she and the children would live in Minnesota, although she said she planned to move somewhere close to her parents. The mother also testified that she had checked into the schools in the area where her family lives and had discovered that there was an after-school program, so that her children could stay at the school until she left work. In addition, the testimony indicates that the maternal grandmother is a homemaker and will have time to help the mother with the children.
The mother testified that she believed the schools in Minnesota were better than those in Alabama. For instance, she explained that the schools there are better-funded, and she said that here she has to provide her daughter with even basic items such as toilet tissue for use at the school she attends. She also testified that the schools in Minnesota offer a much broader curriculum than the schools in Guin. The paternal grandfather testified that his children had attended schools in Alabama and in Minnesota and that, in his opinion, the Minnesota schools were better than those in Alabama. The maternal grandfather is a retired school teacher; he testified to the quality of Minnesota's schools.
No evidence was presented to show that the father offered a better home or was a better parent than the mother. Indeed, the record reflects that the mother is an excellent parent. However, the mother testified that she worried about the father's parenting abilities and that several instances had caused her to be concerned. For instance, after the parties' divorce and the father's remarriage, his young stepson allegedly fell into his swimming pool and had to be rescued, and the father and his present wife admitted to riding a roller coaster at an amusement park while leaving the young children under the care of an unknown park attendant.
*400 The children testified that they wanted to move to Minnesota, even though it would mean they were a two-day drive from their father. They also testified that they had visited their grandparents in Minnesota every summer and also during Christmas holidays some years. The evidence indicates that the children have many relatives in Minnesota, including their maternal grandparents, and including aunts, uncles, and cousins on both sides of their family. No evidence presented indicates that moving to Minnesota would negatively affect either of the children. In fact, given the daughter's attachment to her mother, it appears that a separation from her mother, such as would occur if the mother moved to Minnesota without her, would be detrimental to the daughter. In addition, the record reflects that the mother is deeply concerned about the children's physical and emotional well-being and that the daughter's recovery is largely due to the mother's efforts to provide her counseling.
In light of all the evidence, it is clear that the father failed to meet his burden of proving that the proposed change in custody would materially promote the children's best interest and that it would outweigh the inherently disruptive effect of a change in custody.
The mother also contends that the conditional restriction on her moving to Minnesota is an impermissible restriction on her right to travel. This court noted in Everett v. Everett, 660 So.2d 599 (Ala.Civ.App.1995), that in some circumstances a parent's fundamental right to travel can be overcome by the compelling state interest in the best interests of a child. We also upheld a relocation restriction in Cohn v. Cohn, 658 So.2d 479, 481-82 (Ala.Civ.App.1994), cert. denied, 668 So.2d 575 (Ala.1995), in which we stated:
"Restrictions on the movement of children may be upheld when the territorial restriction promotes or protects the best interests of the children involved....
"... [T]he trial court's conclusion that removing the children from their current surroundings and environment at this time was not in their best interests is supported by ample evidence. We note that there is no prohibition against removal of the restriction in the future as the children's circumstances and needs change.
"The mother's argument that the residence restriction on the children places an unreasonable or unconstitutional restriction on her ... is unpersuasive. The territorial restriction applies to the children's residence, not to the mother's residence."
The father testified that he requested a modification of child custody only because the mother planned to move. Because the best interests of the children are served by their remaining with their mother, whether she resides in Alabama or in Minnesota, we reverse the judgment and remand the case for the trial court to enter an order consistent with this opinion.
The mother's request for an attorney fee on appeal is granted in the amount of $1,000.
REVERSED AND REMANDED WITH INSTRUCTIONS.
YATES, MONROE, CRAWLEY, and THOMPSON, JJ., concur.
ROBERTSON, P.J., concurs in the result.
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Case: 17-12679 Date Filed: 04/25/2018 Page: 1 of 19
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12679
Non-Argument Calendar
________________________
D.C. Docket No. 1:15-cr-00109-AT-JSA-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RYAN VINCENT HILL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(April 25, 2018)
Before TJOFLAT, JULIE CARNES, and NEWSOM, Circuit Judges.
PER CURIAM:
Case: 17-12679 Date Filed: 04/25/2018 Page: 2 of 19
Following an armed bank robbery, Defendant Ryan Hill was charged with
conspiracy to commit Hobbs Act robbery, armed bank robbery, and aiding and
abetting the brandishing of a firearm during a crime of violence. He pled guilty to
the two former charges and went to trial on the latter. After the jury returned a
guilty verdict, the district court sentenced him to 205 months’ imprisonment.
Defendant now raises three arguments on appeal. First, he challenges the
sufficiency of the evidence to support his conviction for aiding and abetting the
brandishing of a firearm during a crime of violence. He also challenges the district
court’s imposition of a two-level enhancement under U.S.S.G. § 2B3.1(b)(4)(B)
for the use of physical restraint on the robbery victims. Finally, he argues that the
district court clearly erred by denying him a reduction for acceptance of
responsibility. After careful review, we affirm.
I. BACKGROUND
A. Facts1
At approximately 9:30 AM on February 27, 2015, three masked men entered
a Wells Fargo Bank in Atlanta, Georgia and held it up for approximately $22,000.
The men entered the bank from the front door—the bank’s only entrance.
1
These facts are derived from those facts Defendant admitted to during his guilty plea colloquy
on Counts 1 and 2, as well as those facts presented during trial on Count 3. Because the jury
found Defendant guilty on Count 3, all reasonable inferences and credibility determinations are
resolved in favor of the jury’s verdict. See United States v. Doe, 661 F.3d 550, 560 (11th Cir.
2011).
2
Case: 17-12679 Date Filed: 04/25/2018 Page: 3 of 19
Witnesses distinguished the robbers based on their relative statures. The biggest
robber—later identified as Kayode Adeleye—entered the bank first, immediately
jumped over the counter, and started demanding cash. The medium-sized robber—
later identified as Bruce Brown—guarded the door. The smallest robber—later
identified as Defendant—entered the bank last and immediately went behind the
counter with Adeleye. Adeleye and Brown brandished firearms during the
robbery.
Vada Faniel, a bank teller, was behind the teller counter when Adeleye came
directly toward him demanding cash. Adeleye held a gun at Faniel’s side, and
when Faniel had trouble opening the coin vault, Adeleye said “you must want to
get shot” or “you must want to die.” Other witnesses heard Adeleye say,
“Somebody is going to die today.” Witnesses believed that the robbers were
working together because they entered the bank together, their disguises were
coordinated, and they each appeared to have assigned roles.
After obtaining nearly $22,000, Adeleye, Brown, and Defendant fled the
bank in a Nissan Xterra. They drove to a nearby parking lot where Xavier Shields
was waiting with another vehicle: a Mercedes AMG that had been leased by
Defendant. Adeleye, Brown, and Defendant got into the AMG and headed to
Shields’ apartment. Law enforcement officers were eventually able to locate the
AMG through GPS tracking devices that had been placed in the stolen currency.
3
Case: 17-12679 Date Filed: 04/25/2018 Page: 4 of 19
Before arriving at Shields’ apartment, Adeleye, Brown, and Defendant discarded
the evidence, including the disguises, firearms, and stolen currency—most of
which was later recovered by law enforcement officers.
B. Procedural History
A federal grand jury charged Defendant in a superseding indictment with:
(1) conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a)
(Count 1); (2) armed bank robbery, in violation of 18 U.S.C. §§ 2113(a), (d) and 2
(Count 2); and (3) aiding and abetting the brandishing of a firearm during a crime
of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Count 3).
Defendant later pled guilty without a plea agreement to Counts 1 and 2, but
proceeded to trial on Count 3.
At trial, the Government presented testimony from several witnesses,
including Defendant’s co-defendant, Adeleye. Adeleye testified that he
participated in the February 27 bank robbery with Defendant and Brown. Adeleye
explained that he and Defendant came up with an elaborate plan for the robbery
approximately two weeks ahead of time. Defendant selected the bank and figured
out possible escape routes. Together, they decided that Brown would guard the
door and Adeleye and Defendant would retrieve the money from behind the
counter. After the robbery, they planned to switch cars and then meet up at
Shields’ apartment.
4
Case: 17-12679 Date Filed: 04/25/2018 Page: 5 of 19
Adeleye stated that they had planned to rob the bank on February 26. That
day they met up at Shields’ apartment and drove to a parking lot near the bank
where they planned to switch cars after the robbery. While in the parking lot,
Defendant handed Adeleye the “Glock 40 firearm” that he was going to use in the
robbery. Brown had his own firearm. After putting on their disguises, they
proceeded to the bank. They got nervous, however, when they saw police officers
near the bank and decided to call off the robbery. They went back to Shields’
apartment and decided to attempt the robbery the next day.
They met up again the next morning, February 27, and drove together to the
switch-location near the bank. Once in the parking lot, they put on their disguises
and Defendant again provided Adeleye with the gun he was to use during the
robbery. They drove to the bank in the Nissan Xterra. Adeleye got out of the car
first, followed by Brown, and finally Defendant. Adeleye and Brown had their
guns out when Defendant entered the bank. Adeleye explained that the purpose of
having the guns out was so that the bank occupants would know it was an “actual
robbery.”
At the close of the Government’s case-in-chief, Defendant moved for
judgment of acquittal, arguing that the Government presented insufficient evidence
showing that he had advance knowledge that firearms would be brandished during
5
Case: 17-12679 Date Filed: 04/25/2018 Page: 6 of 19
the robbery. The court denied the motion. The jury found Defendant guilty on
Count 3, and specifically found that a firearm was brandished during the robbery.
In preparation for sentencing, the probation officer prepared the Presentence
Investigation Report (PSR). With respect to Counts 1 and 2, the PSR assigned
Defendant a base offense level of 20 pursuant to U.S.S.G. § 2B3.1. Defendant
received several enhancements, including (1) a two-level enhancement under
U.S.S.G. § 2B3.1(b)(1) because property from a financial institution was taken,
(2) a two-level enhancement under § 2B3.1(b)(4)(B) because a person was
physically restrained to facilitate the offense, and (3) a one-level enhancement
under § 2B3.1(b)(7)(B) because the loss was more than $20,000 but less than
$95,000. Defendant also received a two-level enhancement under U.S.S.G.
§ 3C1.2 for reckless endangerment during flight and a three-level enhancement
under § 3C1.3 because the offense was committed while Defendant was on release
for another federal offense, specifically conspiracy to commit bank fraud in the
District of South Dakota.
The PSR did not apply a reduction for acceptance of responsibility, resulting
in a total offense level of 30. With a total offense level of 30 and a criminal history
category of III, Defendant’s guideline range was 121 to 151 months’ imprisonment
as to Counts 1 and 2. The PSR noted that Defendant was subject to a mandatory
6
Case: 17-12679 Date Filed: 04/25/2018 Page: 7 of 19
minimum 84-month sentence as to Count 3, to be served consecutively to all other
sentences.
Relevant to this appeal, Defendant objected to the two-level physical-
restraint enhancement under § 2B3.1(b)(4)(B) and the denial of a reduction for
acceptance of responsibility. At sentencing, the district court addressed
Defendant’s objections to the PSR. As to the physical-restraint enhancement,
Defendant argued that the victims were necessarily restrained by the presence of a
gun during the armed robbery, and that without some additional conduct such as
moving victims to another place, the application of the enhancement constituted
impermissible double counting. The Government responded that Defendant
qualified for the physical-restraint enhancement because he aided and abetted
Adeleye and Brown, both of whom had pointed guns directly at victims to restrain
them. The court agreed and overruled the objection.
As to the reduction for acceptance of responsibility, Defendant argued that
he had cooperated and pled guilty to Counts 1 and 2. He asserted that his decision
to go to trial on Count 3, which charged him with aiding and abetting the use,
carrying, or brandishing of a firearm during the bank robbery, was not inconsistent
with his guilty plea to Count 2, which charged him with aiding and abetting the
armed bank robbery. The court overruled Defendant’s objection. After confirming
that the guidelines range was 121 to 151 months’ imprisonment as to Counts 1 and
7
Case: 17-12679 Date Filed: 04/25/2018 Page: 8 of 19
2, followed by a consecutive 84-month sentence on Count 3, the district court
sentenced Defendant to 205 months’ imprisonment: that is, to 121 months on the
first two counts and to 84 months consecutive on the third count.
Before entry of judgment, Defendant filed a supplemental sentencing
memorandum in which he argued that the district court committed procedural error
by failing to address whether his sentence should run concurrently or consecutively
to the 57-month sentence he had earlier received for bank fraud in South Dakota.
The court vacated Defendant’s sentence, and following a hearing limited to the
issue presented in the sentencing memorandum, the court sentenced Defendant to
121 months as to Counts 1 and 2, with 24 months of that sentence to be served
concurrently with Defendant’s 57-month sentence in South Dakota, followed by 84
months’ imprisonment as to Count 3, to be served consecutively to all Defendant’s
other sentences. This appeal followed.
II. DISCUSSION
A. Sufficiency of the Evidence
Defendant argues that the evidence was insufficient to find him guilty
beyond a reasonable doubt of aiding and abetting the § 924(c) charge because the
Government failed to show that he had advance knowledge that his co-defendants
would be carrying guns.
8
Case: 17-12679 Date Filed: 04/25/2018 Page: 9 of 19
We review de novo whether the evidence was sufficient to sustain a criminal
conviction. United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). In
reviewing the denial of a motion for judgment of acquittal, we view the evidence in
the light most favorable of the jury’s verdict. Id. The evidence will be sufficient
to sustain a conviction if a reasonable trier of fact could find that it established the
defendant’s guilt beyond a reasonable doubt. Id. at 1284–85. When the
Government relies on circumstantial evidence, the conviction must be supported by
reasonable inferences, not mere speculation. United States v. Friske, 640 F.3d
1288, 1291 (11th Cir. 2011).
Defendant was convicted of aiding and abetting the brandishing of a firearm
during a crime of violence under § 924(c). Section 924(c) provides for a sentence
of not less than seven years if a defendant brandishes a firearm during or in relation
to a crime of violence. 18 U.S.C. § 924(c)(1)(A)(ii). In Rosemond v. United
States, the Supreme Court explained that to sustain a conviction for aiding and
abetting a § 924(c) charge, the Government must show that a defendant
(1) actively participated in the crime of violence and (2) had advance knowledge
that his confederates would bring a gun, such that he had an opportunity to
withdraw from the offense. 134 S. Ct. 1240, 1248–50 (2014). Defendant does not
appear to contest that he actively participated in the armed bank robbery. Instead,
9
Case: 17-12679 Date Filed: 04/25/2018 Page: 10 of 19
he argues only that the Government failed to establish that he had advance
knowledge that his co-defendants would be carrying guns. We disagree.
Based on the evidence presented at trial, a reasonable jury could infer that
Defendant had advance knowledge that his co-defendants would carry guns, even
though he did not carry a gun himself. At trial, Adeleye testified multiple times
that Defendant gave him the firearm that he used during the robbery. Adeleye also
testified that he and Defendant planned the robbery together and that they decided
to use guns so that the people in the bank would know it was an “actual robbery.”
This testimony was corroborated by bank employees, who stated that the robbery
appeared to be planned and coordinated because the robbers knew what to do and
each had assigned roles.
A reasonable jury could also infer that Defendant could see the guns as he
entered the bank—and therefore had a reasonable opportunity to turn around and
walk away. See Rosemond, 134 S. Ct. at 1249–50 (explaining that advance
knowledge means “knowledge at a time the accomplice can do something with it—
most notably, opt to walk away”). Witness testimony established that Adeleye and
Brown had their guns out as they entered the bank and that Defendant entered the
bank after them. In fact, surveillance footage showed Brown holding his gun on
the side facing Defendant as Defendant entered the bank.
10
Case: 17-12679 Date Filed: 04/25/2018 Page: 11 of 19
Further, Jordan Peyton, a personal banker, testified that Defendant remained
calm and did not seem surprised by the guns when he entered the bank. Instead,
Defendant immediately went behind the counter with Adeleye. Faniel, one of the
bank tellers, testified that at one point Defendant was “[p]robably like 3 feet” away
from where Adeleye was standing with the gun behind the counter. Given
Defendant’s calm demeanor and continued participation in the robbery after
entering the bank where Adeleye and Brown already had their guns out, the jury
could reasonably infer that Defendant had advance knowledge that his accomplices
would carry guns. See Rosemond, 134 S. Ct. at 1250 n.9 (“[I]f a defendant
continues to participate in a crime after a gun was displayed or used by a
confederate, the jury can permissibly infer from his failure to object or withdraw
that he had such knowledge.”).
Defendant argues that the Government presented insufficient evidence to
support his conviction because Adeleye was not a credible witness. Credibility
issues, however, are within the province of the jury, and we assume that the jury
resolved all such questions in the manner supporting the verdict. United States v.
Garcia-Bercovich, 582 F.3d 1234, 1238 (11th Cir. 2009). Although Defendant
identifies some inconsistencies in Adeleye’s testimony, that testimony was based
on first-hand knowledge and was largely consistent with the testimony of bank
employees regarding the sequence of events inside the bank. We are also not
11
Case: 17-12679 Date Filed: 04/25/2018 Page: 12 of 19
persuaded by Defendant’s contention that is impossible that Defendant would
provide Adeleye with a gun but not use a gun himself. See United States v.
Feliciano, 761 F.3d 1202, 1206 (11th Cir. 2014) (explaining that we may not
revisit credibility determinations unless the testimony is incredible as a matter of
law, meaning the witness could not have observed it or the testimony could under
have occurred in the laws of nature).
In short, a reasonable jury could have found beyond a reasonable doubt that
Defendant aided and abetted the brandishing of a firearm during a crime of
violence.
B. Physical-Restraint Enhancement
Defendant argues that the district court erred by applying the two-level
physical-restraint enhancement under U.S.S.G. § 2B3.1(b)(4)(B) because he did
not carry a gun during the robbery.
We review the district court’s application of the Sentencing Guidelines de
novo and its factual findings for clear error. United States v. Victor, 719 F.3d
1288, 1290 (11th Cir. 2013). Section 2B3.1(b)(4)(B) of the Sentencing Guidelines
provides that a two-level enhancement applies “if any person was physically
restrained to facilitate commission of the offense or to facilitate escape.” U.S.S.G.
§ 2B3.1(b)(4)(B). The enhancement applies in “robberies where a victim was
forced to accompany the defendant to another location, or was physically
12
Case: 17-12679 Date Filed: 04/25/2018 Page: 13 of 19
restrained by being tied, bound, or locked up.” Id., background. Our precedent
makes clear, however, that the enhancement is not limited to these examples, as we
have applied the enhancement when the defendant’s conduct “ensured the victims’
compliance and effectively prevented them from leaving a location.” Victor, 719
F.3d at 1290 (quotation omitted).
Here, the district court did not err by applying the physical-restraint
enhancement under § 2B3.1(b)(4)(B). The evidence presented at trial showed that
Adeleye pointed a gun at Faniel and demanded that he give him the funds from his
drawer. Whether or not that conduct would be sufficient to trigger the physical-
restraint enhancement, the conspirators did more. Specifically, Adeleye forced a
teller named David to lie face down on the ground and not move. Brown ordered
the personal bankers to put their hands up and to move away from their desks so
that they could not trigger the alarm. Because Adeleye’s and Brown’s conduct
ensured the victims’ compliance and effectively prevented them from leaving the
bank, the victims were physically restrained within the meaning of the Guidelines.
See Victor, 719 F.3d at 1290–91 (holding that the defendant physically restrained
the victim by threatening her with what she believed to be a gun to prevent her
escape); see also United States v. Jones, 32 F.3d 1512, 1519 (11th Cir. 1994)
(holding the physical-restraint enhancement applied where robbers forced credit
13
Case: 17-12679 Date Filed: 04/25/2018 Page: 14 of 19
union employees into the safe room at gun point and ordered them to lie on the
floor).
Defendant was found guilty of aiding and abetting Adeleye and Brown in
the brandishing of firearms during the armed bank robbery. The relevant conduct
provision of the Guidelines provides that specific offense characteristics—such as
the physical-restraint enhancement—are determined by all acts and omissions
aided and abetted by a defendant. U.S.S.G. § 1B1.3(a)(1)(A). Because Defendant
aided and abetted the actions of Adeleye and Brown, he is responsible for their
physical restraint of the bank occupants. See id.
We are not persuaded by Defendant’s argument that, given his conviction
under 924(c), the application of the two-level enhancement for physical restraint
constitutes impermissible double counting. “Impermissible double counting occurs
only when one part of the Sentencing Guidelines is applied to increase a
defendant’s punishment on account of a kind of harm that has already been fully
accounted for by application of another part of the Guidelines.” United States v.
Asante, 782 F.3d 639, 647 (11th Cir. 2015) (alteration accepted) (quotations
omitted). Defendant is not challenging the application of two different Guidelines
provisions. Instead, he is challenging the application of a Guidelines’
enhancement and a statutory-minimum sentence under § 924(c). See id.
Moreover, Defendant’s double-counting claim lacks merit. One can brandish a
14
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gun without necessarily physically restraining another person. Accordingly, the
district court did not err by applying the two-level enhancement under
§ 2B1.3(b)(4)(B).
C. Acceptance of Responsibility Reduction
Defendant also challenges the district court’s denial of a two-level reduction
for acceptance of responsibility under U.S.S.G. § 3E1.1. As noted, Defendant pled
guilty to two counts charged in the indictment: conspiracy to interfere with
commerce by robbery (Count 1) and armed bank robbery (Count 2). However, he
insisted on a trial as to Count 3, which charged him with aiding and abetting the
brandishing of a firearm during the above armed bank robbery. Defendant argues
that even though he went to trial as to Count 3 and did not accept responsibility for
that conduct, he should nonetheless receive a two-level reduction based on his plea
of guilty on Counts 1 and 2.
We review for clear error the district court’s denial of a reduction for
acceptance of responsibility. United States v. Amedeo, 370 F.3d 1305, 1320 (11th
Cir. 2004). Indeed, when it comes to reviewing a sentencing court’s decision
whether to award a reduction based on a defendant’s acceptance of responsibility,
we give “great deference” to that court’s decision “due to its unique position to
evaluate a defendant’s acceptance of responsibility.” United States v. Sammour,
15
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816 F.3d 1328, 1341 (11th Cir. 2016) (quoting United States v. Chukwura, 5 F.3d
1420, 1424 (11th Cir. 1993)).
A defendant who pleads guilty to only some of the charges against him,
while going to trial on other of those charges, typically faces an uphill battle in
persuading an appellate court to reverse the district court’s denial of credit for
acceptance of responsibility. In United States v. Thomas, 242 F.3d 1028, 1034
(11th Cir. 2001), we upheld the district court’s denial of a reduction for acceptance
of responsibility for a defendant who had pled guilty to the drug counts of an
indictment, but who had gone to trial on the charge alleging that the defendant, a
felon, had possessed a firearm. Id. at 1030. We held that “[a] defendant who fails
to accept responsibility for all of the crimes he has committed and with which he
has been charged is entitled to nothing under § 3E1.1.” Id. at 1034. We explained
that “[w]hen a defendant indicted on multiple counts goes to trial on any of those
counts, the systemic costs of trial are not obviated although they may be reduced to
some extent.” Id. Moreover, “a defendant who is unwilling to accept
responsibility for some of the charges against him has not really ‘come clean’ and
faced up to the full measure of his criminal culpability.” Id.; see also Sammour,
816 F.3d at 1341 (concluding that a defendant who pled guilty to two counts of
theft of public money had frivolously contested relevant conduct by going to trial
16
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on two counts of aggravated identity theft and was not entitled to a reduction for
acceptance of responsibility).
But even assuming that there might be some situations in which a defendant
is entitled to a reduction for acceptance of responsibility when he has pled to only
some of the charges against him while going to trial on others, this is not one of
those scenarios. Indeed, although entry of a guilty plea may typically imply an
acceptance of responsibility by a defendant, the impact of that guilty plea “may be
outweighed by conduct of the defendant that is inconsistent with such acceptance
of responsibility.” U.S.S.G. § 3E1.1, comment. (n.3). As to the standards that
guide a district court in its decision, § 3E1.1(a) of the Sentencing Guidelines
provides that a defendant is eligible for a two-level reduction in his offense level if
he clearly demonstrates acceptance of responsibility. U.S.S.G. § 3E1.1(a). To
determine whether a defendant has clearly accepted responsibility, a court may
consider whether the defendant has “truthfully admitt[ed] the conduct comprising
the offense(s) of conviction” and “truthfully admitt[ed] or not falsely den[ied] any
additional relevant conduct for which the defendant is accountable.” U.S.S.G.
§ 3E1.1, comment. (n.1(A)). The burden is on the defendant to demonstrate that he
has shown acceptance of responsibility and he must show more than just the entry
of a guilty plea. United States v. Sawyer, 180 F.3d 1319, 1323 (11th Cir. 1999).
17
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Here, the district court did not clearly err by denying Defendant a two-level
reduction for acceptance of responsibility under § 3E1.1(a) because Defendant did
not truthfully admit the conduct comprising the offenses of conviction. Although
Defendant pled guilty to Counts 1 and 2—thereby admitting that he conspired to
commit a robbery and that he aided and abetted the armed robbery—he went to
trial on Count 3, which charged him with aiding and abetting the use, carrying, or
brandishing of a firearm during the robbery. The jury found him guilty beyond a
reasonable doubt of this crime. Defendant did not truthfully admit to this fact,
which was one of the most aggravating aspects of the bank robbery in which he
was involved. Defendant’s refusal to acknowledge conduct that was an integral
part of the bank robbery and represented one of its most disturbing aspects
supports the district court’s decision not to reduce his sentence based on
acceptance of responsibility. 2
2
We further note that the Guidelines for robbery also include, as relevant conduct, the
possession or use of a firearm during the robbery. See U.S.S.C. § 2B3.1(b)(2). Specifically, if a
firearm was brandished, a defendant’s offense level shall be increased by 5 levels. U.S.S.C.
§ 2B3.1(b)(2)(C). Where a defendant is convicted of a separately-charged § 924(c) count based
on the brandishing of a weapon during the robbery, as was Defendant here, the mandatory
sentence called for by the statute substitutes for the enhancement that the Guidelines would
otherwise supply for this conduct. See U.S.S.G. § 2K2.4, comment. (n.4) (“If a sentence under
[U.S.S.G. § 2K2.4, the applicable guideline for a § 924(c) conviction] is imposed in conjunction
with a sentence for an underlying offense, do not apply any specific offense characteristic for
possession, brandishing, use, or discharge of an explosive or firearm when determining the
sentence for the underlying offense.”). In short, Defendant’s Guidelines’ calculation was not
increased based on the brandishing of a firearm during the offense because that conduct was
accounted for in the penalty called for as a result of the § 924(c) conviction.
18
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In short, Defendant has failed to show that the district court clearly erred
when it declined to award Defendant a reduction for acceptance of responsibility. 3
III. CONCLUSION
For the above reasons, Defendant’s convictions and sentences are
AFFIRMED.
3
Defendant mentions in his brief that the Sentencing Commission has proposed an amendment
to the Guidelines’ commentary under U.S.S.G. § 3E1.1. This amendment would give a
sentencing court greater leeway in awarding acceptance of responsibility when a defendant has
unsuccessfully challenged certain relevant conduct so long as the challenge is not frivolous. See
United States Sentencing Commission, Proposed Amendments to the Sentencing Guidelines 38,
(Aug. 25, 2017), available at https://www.ussc.gov/sites/default/files/pdf/amendment-
process/reader-friendly-amendments/20170824_rf_proposed.pdf. To the extent Defendant relies
on this proposed amendment, it does not control because it is only a proposed amendment that
has not yet gone into effect and was certainly not in effect when the district court imposed
sentence. Moreover, the proposed amendment does not deal with a situation in which a
defendant has pled to some counts, but nevertheless gone to trial on other counts of the
indictment.
19
| {
"pile_set_name": "FreeLaw"
} |
99 S.W.3d 360 (2003)
EXITO ELECTRONICS, CO., LTD., Appellant,
v.
Virginia TREJO, et al., Appellees.
No. 13-02-368-CV.
Court of Appeals of Texas, Corpus Christi-Edinburg.
February 13, 2003.
Rehearing Overruled March 20, 2003.
*364 Rick Lee Oldenettel, Oldenettel & Associates, Houston, for Appellant.
Brendan K. Mcbride, San Antonio, Dwayne Day, Houston, Prichard, Hawkins & Young, Joe W. Meyer, Nathan A. Steadman, Meyer, Knight & Williams, Houston, Juan A. Gonzalez, Patricia Kelly, Adams & Graham, Harlingen, Steven H. Beadles, Carol A. Swanda, Law Offices of Steven H. Beadles, Dallas, Byron C. Keeling, Holman & Keeling, Houston, David M. Prichard, San Antonio, Frank Sabo, Daw & Ray, Weslaco, Jaime A. Drabek, Drabek & Associates, Harlingen, Jose E. Garcia, Garcia, Villareal & Karam, Michael Zanca, Roerig, Oliveira & Fisher, L.L.P., McAllen, for Appellees.
Jaime A. Drabek, for Walmart Stores, Inc.
David M. Prichard, Dwayne Day and Brendan K. Mcbride, for Wood Industries, Inc.
Michael Zanca, for Valley Market d/b/a All Valley Flea Market.
Frank Sabo, for K-Mart Corporation.
Byron C. Keeling, Robert Alan York, Ruth B. Downes and John David Franz, for Pacific Electricord Co., Ltd.
John David Franz, Patricia Kelly and Juan A. Gonzalez, for Mega Electronics, Inc.
Steven H. Beadles, Mike Mills and Carol A. Swanda, for Thompson Multimedia, Inc.
Jose E. Garcia, for General Electric.
Before Justices HINOJOSA, YANEZ and CASTILLO.
OPINION
Opinion by Justice CASTILLO.
This is an interlocutory appeal from the trial court's order denying the special appearance of Exito Electronics Company, Ltd., appellant ("Exito").[1] Appellees are Virginia Trejo, individually and as representative of the estate of Paulino Trejo; Nadia Guadalupe Salvador Guzman, individually; and Aurelio Salvador Flores, individually and as representative of the estate of Juana Zuniga, deceased, and as next friend of Maria de la Luz Crecencia Salvador Guzman, a minor (together, "Trejo"). We affirm.
*365 I. RELEVANT FACTS AND PROCEDURAL BACKGROUND
On Christmas Day in 1998, Paulino Trejo, Juana Zuniga, and Maria de la Luz Crecencia Salvador Guzman died in a house fire in Hillsboro, Texas. Alleging that the fire resulted from a defective extension cord, relatives of the victims of the fire filed suit on September 9, 1999 against numerous alleged distributors and retailers of the product. On December 22, 2000, an amended pleading added Exito as a defendant. The amended pleading described Exito as a nonresident "manufacturer," alleged that Exito "is a foreign corporation organized under the laws of Taiwan and doing business in Texas, USA without an agent for service," and sought service under rule 108a(1)(c) of the rules of civil procedure pursuant to the Texas longarm statute as provided in sections 17.044 and 17.045 of the civil practice and remedies code. See Tex. Civ. Prac. & Rem.Code Ann. §§ 17.044, 17.045 (Vernon 1997 and Supp.2003); Tex.R. Civ. P. 108a(1)(c). The amended pleading also alleged that the fire was caused by a defective extension cord and that "[t]he extension cord in question was manufactured in whole or in part by Exito...."
On February 16, 2001, Exito filed a rule 11 agreement[2] in which Trejo's counsel agreed with Exito to "an extension until February 19, 2001 to file a responsive pleading" (the "Rule 11 agreement"). On March 5, 2001, Exito filed its verified special appearance objecting to personal jurisdiction. Attached to the special appearance are two verifications. The first is signed by "Courtney Duke," a person whose role and source of knowledge are not identified in the verification ("Duke"). The second verification was provided by Juan Kao, "the director of Exito Electronics, Co., Ltd." ("Kao"). In his affidavit, Kao attests that he is "knowledgeable about [Exito's] business activities" and that he has "personal knowledge of the facts stated" in the affidavit. He does not state that the facts are true and correct. Kao's signature purports to be on behalf of Exito. This corporate signature block is followed by a jurat, but the jurat does not contain a notary stamp, recite the name of the notary, or indicate where the verification was signed.
On March 6, 2001, Exito filed a motion to transfer venue from Hidalgo County, the venue where Trejo claimed the extension cord was purchased, to Hill County, where the fire had occurred. Exito then filed an answer on March 8, 2001. The parties engaged in discovery. Various codefendants filed cross-claims against Exito, who answered them. A hearing on the special appearance and on the motion to transfer venue was scheduled for June 7, 2001 but apparently was postponed.
On September 10, 2001, Trejo filed a motion to compel the deposition of Exito's corporate representative "in defense of special appearance." Exito responded to the motion to compel on September 18, 2001, expressly subject to and without waiving its special appearance, asserting that the deposition of Exito's designated corporate representative should be taken in Taiwan, not in Houston as noticed by Trejo. According to the docket sheet, the trial court signed an order on the motion on October 10, 2001, but the order itself is not included in the record.
On December 3, 2001, Exito filed a motion seeking to modify its answers to requests for admissions propounded by Trejo. On December 14, 2001, the trial court signed an order granting Exito's motion to modify its responses to the discovery. *366 Hearings on the special appearance and on the motion to transfer venue were scheduled for March 18, 2002 and May 31, 2002 but again were reset, the last time on the trial court's own motion to June 3, 2002. On that date, the trial court conducted a hearing on Exito's special appearance and motion to transfer venue. It denied both motions. On June 19, 2002, the trial court signed orders reflecting its rulings. The order denying Exito's special appearance recites findings of fact and conclusions of law. This appeal ensued.
II. THE STANDARD OF REVIEW
Whether a court has personal jurisdiction over a nonresident defendant is a question of law. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). However, the trial court frequently resolves questions of fact before deciding the personal-jurisdiction question. Id. If a trial court enters an order denying a special appearance and also issues findings of fact and conclusions of law, the nonresident defendant may challenge the fact findings on legal and factual sufficiency grounds. Id. Unchallenged fact findings are binding on the appellate court. Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 632 (Tex.App.-Dallas 1993, writ denied). We conduct a de novo review when applying the law to the facts. El Puerto de Liverpool, S.A. de C.V. v. Servi Mundo Llantero S.A. de C.V., 82 S.W.3d 622, 639 (Tex.App.-Corpus Christi 2002, pet. dism'd w.o.j.) (op. on rehearing).
Therefore, if an order on a special appearance is based on undisputed or established facts (such as where the nonresident defendant does not challenge the trial court's findings of fact), the exercise of personal jurisdiction is a question of law we review de novo. Happy Indus. Corp. v. Am. Specialties, Inc., 983 S.W.2d 844, 848 (Tex.App.-Corpus Christi 1998, pet. dism'd w.o.j.). We review for correctness the legal conclusions drawn by the trial court from the established facts. BMC, 83 S.W.3d at 794. If a conclusion of law is erroneous, but the trial court rendered the proper judgment, the erroneous conclusion of law does not require reversal. Id.
III. ANALYSIS
In two issues, Exito contends that: (1) appellees did not meet their burden of pleading personal jurisdiction; and (2) the Taiwanese corporation did not establish minimum contacts with the State of Texas sufficient for the exercise of either general or specific personal jurisdiction. We address first Exito's burden argument.
A. The Procedural Burdens Associated with Personal Jurisdiction
If a nonresident defendant purposefully avails itself of the privileges and benefits of conducting business in the State of Texas, this State has sufficient contacts to confer personal jurisdiction. Tex. Civ. Prac. & REM.CODE ANN. § 17.042 (Vernon 1997); BMC, 83 S.W.3d at 795. The nonresident defendant's minimum contacts with Texas may confer either general or specific personal jurisdiction. BMC, 83 S.W.3d at 795. General personal jurisdiction requires that the contacts in Texas be continuous and systematic but does not demand that the cause of action arise from or relate to activities conducted in Texas. Id. at 796. Specific personal jurisdiction requires that the alleged liability arise from or relate to an activity conducted in Texas. Id.
The plaintiff bears the initial burden of pleading sufficient allegations to bring a nonresident defendant within the personal jurisdiction of the State of Texas. Id. at 793; Frank A. Smith Sales, Inc., v. Atl. Aero, Inc., 31 S.W.3d 742, 746 (Tex. App.-Corpus Christi 2000, no pet.). A *367 nonresident defendant challenging a Texas court's personal jurisdiction must negate all jurisdictional bases. CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex.1996) (orig. proceeding); Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex.1985). In the absence of sufficient personal-jurisdiction allegations by the plaintiff, the defendant meets its burden of negating all potential bases of personal jurisdiction by presenting evidence that it is a nonresident. M.G.M. Grand Hotel, Inc. v. Castro, 8 S.W.3d 403, 408 n. 2 (Tex.App.-Corpus Christi 1999, no pet.); KPMG, 847 S.W.2d at 634.
Exito argues that Trejo did not plead facts adequate to establish personal jurisdiction over the corporation in Texas, so that Exito met its burden in its special appearance by proving its nonresidency. To the contrary, the amended pleading joining Exito as a defendant alleged that the company was doing business in Texas and had manufactured a product that was distributed in Texas, a defective extension cord that had caused a fire in this State in which the plaintiffs' relatives had perished. We hold that Trejo's pleadings were sufficiently clear with regard to personal-jurisdiction allegations related to Exito. See El Puerto, 82 S.W.3d at 629 (holding that allegations of doing business in Texas and commission of tort in Texas sufficiently alleged personal jurisdiction). Further, even if the pleadings were not sufficient to allege personal jurisdiction in Texas, we would conclude that Exito waived its complaint because it did not raise the issue in a motion to quash. Defective personal-jurisdiction allegations must be challenged by a motion to quash, not by a special appearance. Kawasaki Steel, 699 S.W.2d at 203; El Puerto, 82 S.W.3d at 629.
Next, Exito asserts that none of the "factors" in the trial court's order "are sufficient for a finding of either specific or general jurisdiction." The focus of Exito's argument is that it did not establish minimum contacts with the State of Texas sufficient for the exercise of personal jurisdiction. Exito has not challenged the trial court's factual findings. We thus interpret Exito's assertion as a challenge to the trial court's conclusions of law. Under BMC, we perform a de novo review of those legal conclusions for error. BMC, 83 S.W.3d at 794. However, we conclude that Exito waived its objection to the trial court's exercise of personal jurisdiction. Thus, an error analysis is unnecessary, and instead we perform a waiver analysis.
B. The Requirements of a Special Appearance under Rule 120a of the Texas Rules of Civil Procedure
A nonresident defendant must object, by sworn special appearance filed under rule 120a of the rules of civil procedure, to the exercise of personal jurisdiction by a Texas court. Tex.R. Civ. P. 120a. Rule 120a requires strict compliance with its procedures. Morris v. Morris, 894 S.W.2d 859, 862 (Tex.App.-Fort Worth 1995, no writ). Rule 120a contemplates at least three ways in which a nonresident defendant waives the protection of the rule and subjects itself to the personal jurisdiction of the court: (1) failure to comply with the rule's "due-order-ofpleading" requirement; (2) failure to obtain determination of the special appearance before any other issue is heard; and (3) if the nonresident defendant relies on affidavits to support the motion, failure to comply with the specific content requirements of the rule. Tex.R. Civ. P. 120a.1, a.2, and a.3. The waiver principles explicit in rule 120a recognize that a nonresident defendant enters a general appearance by undertaking activities that acknowledge an action is properly pending, invoking *368 the judgment of the court on any question other than the court's personal jurisdiction, or seeking affirmative action from the court. Angelou v. African Overseas Union, 33 S.W.3d 269, 276 (Tex.App.-Houston [14th Dist.] 2000, no pet.).
Like Angelou, other Texas courts have applied rule 120a's procedural requirements in concluding that waiver of the asserted special appearance did not occur. However, we find those cases distinguishable from this interlocutory appeal, and no Texas court has examined the interplay of personal-jurisdiction waiver principles we now address.[3]
1. The "Due-Order-of-Pleading" Requirement
A special appearance shall be filed "prior to motion to transfer venue or any other plea, pleading or motion." Tex.R. Civ. P. 120a.1. Rule 120a "makes matters in the same instrument and subsequent matters subject to the special appearance without an express statement to that effect for each matter." Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex.1998). The rule also mandates that "[e]very appearance prior to judgment, not in compliance with this rule is a general appearance." Tex.R. Civ. P. 120a.1. By filing a general appearance, a nonresident defendant submits to the exercise of personal jurisdiction by the court. Morris, 894 S.W.2d at 862.
Before filing its special appearance, Exito filed with the court the parties' Rule 11 agreement extending the corporation's answer date. The parties did not expressly make the extension agreement subject to any subsequent special appearance. The supreme court did not address this circumstance in its analysis of rule 120a.1's due-order-of-pleadings requirement in Dawson-Austin, where the challenged instruments were filed simultaneous with or subsequent to the special appearance. Dawson-Austin, 968 S.W.2d at 322.
Here, Exito filed the Rule 11 agreement first. We note that the Angelou court held that the filing of a rule 11 agreement extending an answer date did not seek affirmative action from the court *369 and thus was not a general appearance,[4] even though in that case, as here, the nonresident defendant did not condition the rule 11 agreement on a subsequent special appearance. Angelou, 33 S.W.3d at 275; cf. Antonio v. Rico Marino, S.A., 910 S.W.2d 624, 629 (Tex.App.-Houston [14th Dist.] 1995, no writ) (op. on rehearing) (holding that neither filing of notice of removal nor filing of stipulation to submit to another jurisdiction in compliance with court's instructions in dismissing case constituted general appearance). We respectfully disagree with the Angelou court that the determinative question is whether, in filing the Rule 11 agreement before filing its special appearance, Exito acknowledged that an action was properly pending, invoked the judgment of the trial court, or sought affirmative relief. Rather, the plain language of rule 120a specifies that "[e]very appearance prior to judgment, not in compliance with this rule is a general appearance." Tex.R. Civ. P. 120a.1. Rule 120a.1 contains no exception for rule 11 agreements. An unconditional rule 11 agreement filed prior to a special appearance is not filed in the same instrument or subsequent to the special appearance, and rule 120a.1 does not contemplate that it is considered subject to the special appearance.[5] We conclude that a nonresident defendant who files an unconditional rule 11 agreement prior to filing a special appearance enters a general appearance under the due-order-of-pleading requirement of rule 120a.1. Accordingly, we hold that Exito waived its challenge to the trial court's exercise of personal jurisdiction by filing an unconditional rule 11 agreement before filing its special appearance. Tex.R. Civ. P. 120a.1.
2. The "First-Determined" Requirement
Rule 120a further mandates that "[a]ny motion to challenge the jurisdiction provided for herein shall be heard and determined before a motion to transfer venue or any other plea or pleading may be heard." Tex.R. Civ. P. 120a.2. In Dawson-Austin, the supreme court also analyzed what constitutes invocation of the trial court's judgment in the context of the "first-determined" requirement of rule 120a.2. Dawson-Austin, 968 S.W.2d at 322-23. A motion filed after the special appearance by the nonresident defendant requested a continuance both of the special appearance hearing and of a hearing that had been set at the request of the opposing party on other motions filed by the defendant, each subject to the special appearance. Id. at 323. The trial court denied the continuance. Id. The supreme court held that the motion merely asked the court to defer action on all matters and did not waive the special appearance. Id. The determinative factor in the supreme court's analysis was that the motion for continuance did not seek relief inconsistent with the nonresident defendant's assertion that the court lacked personal jurisdiction, and in fact was consistent with the rights conferred by rule 120a with regard to discovery (pursuant to rule 120a.1) and to have the special appearance determined prior to other motions (pursuant to rule 120a.2). Id.
After the supreme court decided Dawson-Austin, this Court considered whether a nonresident defendant waived a special *370 appearance by arguing a motion for new trial before obtaining a determination of the special appearance. Landry v. Daigrepont, 35 S.W.3d 265, 267 (Tex.App.-Corpus Christi 2000, no pet.). After learning that a default judgment had been entered, the nonresident defendant filed a motion for new trial, which expressly stated that it was subject to the special appearance. Id. During the hearing, the nonresident defendant's counsel informed the judge that the hearing concerned "a motion for new trial preceded technically by a special appearance both being heard [at the same hearing]." Id. at 267-68. The defendant's counsel acknowledged that determination of the special appearance needed to precede any ruling by the court on the motion for new trial, but announced that he would begin with argument on the motion for new trial because it would be easier for the court to follow. Id. at 268. The trial court granted the motion for new trial and the special appearance. Id. This Court reversed, citing the "first-determined" requirement of rule 120a.2. Tex.R. Civ. P. 120a.2; Landry, 35 S.W.3d at 268. We concluded, because the defendant's counsel had argued the motion for new trial and had approved the court's order before the court determined the special appearance, that the defendant had waived the special appearance. Landry, 35 S.W.3d at 268; see Liberty Enters., Inc. v. Moore Transp. Co., Inc., 690 S.W.2d 570, 571-72 (Tex.1985) (holding that party waived special appearance by agreeing to trial court's order reinstating cause of action); see also Shapolsky v. Brewton, 56 S.W.3d 120, 140-41 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (holding that nonresident defendant waived special appearance by having motion for protection and for sanctions heard before court heard and determined special appearance).
Here, prior to hearing and determination of its special appearance, Exito engaged in discovery and participated in resolution by the trial court of two discovery matters: (1) Trejo's motion to compel the deposition of Exito's corporate representative; and (2) Exito's motion to modify its previous answers to requests for admissions propounded by Trejo. The trial court signed orders on both discovery disputes.
We note that rule 120a expressly provides that "[t]he issuance of process for witnesses, the taking of depositions, the serving of requests for admissions, and the use of discovery processes, shall not constitute a waiver of such special appearance." Tex.R. Civ. P. 120a.1. However, we also note that the plain language of rule 120a.2 mandates that "[a]ny motion to challenge the jurisdiction provided for herein shall be heard and determined before a motion to transfer venue or any other plea or pleading may be heard." Tex.R. Civ. P. 120a.2. Unlike rule 120a.1, rule 120a.2 does not except discovery matters from its requirements. We conclude that the "use of discovery" permitted by rule 120a.1 can be harmonized with the "first-determined" mandate of rule 120a.2 if: (1) the parameters of "use of discovery" extend only to participation in discovery by the nonresident defendant; and (2) once a discovery dispute arises, the special appearance must be heard and determined before the discovery motion is heard. Accordingly, we decline to extend Dawson-Austin beyond the particular circumstance presented there by the nonresident defendant's motion for continuance. Dawson-Austin, 968 S.W.2d at 323.
Finally, we note that instruments filed contemporaneous with or subsequent to a special appearance are subject to the special appearance without the necessity of an express statement to that effect. Id. *371 Nonetheless, the "subject to" proviso of rule 120a.1 is implicated only in the filing of instruments, not in the hearing and determination of contested matters pursuant to rule 120a.2. Compare Tex.R. Civ. P. 120a.1 with Tex.R. Civ. P. 120a.2. Thus, Exito's excess of caution in expressly filing its contested discovery response and motion "subject to" the special appearance negates any unintentional general appearance that might result from the duecourse-of-pleading requirement imposed by rule 120a.1, albeit unnecessarily, but no disclaimer will avoid the consequences of rule 120a.2's requirement that the special appearance be heard and determined first. See Landry, 35 S.W.3d at 267-68 (holding that arguing motion for new trial and approving order both constituted general appearances even though written motion was expressly subject to special appearance). We conclude that Exito, prior to any hearing and determination of its special appearance: (1) invoked the judgment of and sought affirmative action from the court on matters other than the question of personal jurisdiction, id. at 268; (2) submitted to the hearing and determination of discovery disputes by the court, thus recognizing that an action was properly pending, see Brewton, 56 S.W.3d at 140; see also Liberty Enters., 690 S.W.2d at 571-72; and, therefore, (3) acted inconsistent with its assertion that the court lacked personal jurisdiction, Dawson-Austin, 968 S.W.2d at 323. By participating in the court's hearing and determination of disputed discovery matters prior to determination of the special appearance, Exito entered a general appearance. Accordingly, we hold that Exito waived its challenge to the trial court's exercise of personal jurisdiction by not complying with the requirement of rule 120a.2 that the special appearance be heard and determined before the parties' discovery disputes were heard. Tex.R. Civ. P. 120a.2.
3. Affidavit Requirements
Rule 120a also provides:
The court shall determine the special appearance on the basis of the pleadings, any stipulations made by and between the parties, such affidavits and attachments as may be filed by the parties, the results of discovery processes, and any oral testimony. The affidavits, if any, shall be served at least seven days before the hearing, shall be made on personal knowledge, shall set forth specific facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify.
Tex.R. Civ. P. 120a.3.[6] An affidavit is defined as "a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer *372 oaths, and officially certified to by the officer under his seal of office." Tex. Gov't Code Ann. § 312.011(1) (Vernon 1998); De los Santos v. Southwest Tex. Methodist Hosp., 802 S.W.2d 749, 755 (Tex.App.-San Antonio 1990, no writ), disapproved on other grounds, Lewis v. Blake, 876 S.W.2d 314, 315 (Tex.1994). In plain terms, the person making the affidavit must swear to and sign the statement in front of a notary. De los Santos, 802 S.W.2d at 754-55. Without notarization, an unsworn statement is not an affidavit. Id.; Failing v. Equity Mgmt. Corp., 674 S.W.2d 906, 909 (Tex.App.-Houston [1st Dist.] 1984, no writ).
Moreover, an affidavit is legally insufficient if it does not positively and unqualifiedly represent the facts as disclosed in the affidavit to be true and within the affiant's personal knowledge. Humphreys v. Caldwell, 888 S.W.2d 469, 471 (Tex.1994) (orig. proceeding). Further, rule 120a requires an affidavit in support of a special appearance to set forth facts and show affirmatively how the affiant obtained personal knowledge of those facts. Tex.R. Civ. P. 120a.3. A more familiar application of a specific content requirement for affidavits appears in rule 166a, which, in the context of affidavits submitted in support of motions for summary judgment, contains language identical to rule 120a.3. Compare Tex.R. Civ. P. 120a.3 with Tex.R. Civ. P. 166a(f); Larson v. Family Violence and Sexual Assault Prevention Ctr. of S. Tex., 64 S.W.3d 506, 511 (Tex.App.-Corpus Christi 2001, pet. denied). Finally, with regard to the personal knowledge of corporate representatives, officers such as vice-presidents, secretaries, and board presidents may testify to facts regarding the corporation's activities. Larson, 64 S.W.3d at 512; Castro, 8 S.W.3d at 407.
On appeal, Exito relies on Kao's affidavit attached to its special appearance to meet its burden to negate all bases for general and specific personal jurisdiction. We find that both affidavits attached to Exito's special appearance are fatally defective under rule 120a.3. The Duke affidavit wholly fails to identify Duke's role or source of personal knowledge and, as a consequence, does not "show affirmatively that the affiant is competent to testify." Tex.R. Civ. P. 120a.3; see Larson, 64 S.W.3d at 511-12 (interpreting same requirement in rule 166a in summary-judgment context).
Similarly, the Kao affidavit does not explain how Kao's role as "director" in Exito, a Taiwanese corporation, provides a source of personal knowledge. A director may or may not have personal knowledge of facts regarding the corporation's activities. Tex.R. Civ. P. 120a.3; see Castro, 8 S.W.3d at 407 (noting that affidavit identifying affiant as corporate officer shows competency to testify because corporate officers occupy positions in which they acquire personal knowledge of corporate facts). In any event, Kao does not swear that the facts are true and correct, which is necessary for his statements to "be admissible in evidence" as required by rule 120a.3. Tex.R. Civ. P. 120a.3; see Humphreys, 888 S.W.2d at 470-71 (analyzing and rejecting as "legally invalid" affidavits submitted in support of claim of discovery privilege). Finally, the notary's jurat neither identifies the notary, states where the affidavit was signed, nor contains an official seal. Accordingly, the writing attached to the special appearance that purports to be Kao's affidavit does not meet the statutory definition of "affidavit" in Texas. Tex. Gov't Code Ann. § 312.011(1) (Vernon 1998). Thus, Kao's adoption of the facts recited in the special appearance is an unsworn statement, not an affidavit. De los Santos, 802 S.W.2d at 755; Failing, 674 S.W.2d at 909. We hold that Exito waived its challenge to the trial *373 court's exercise of personal jurisdiction by not submitting for consideration by the trial court support for its special appearance in compliance with rule 120a.3. Tex.R. Civ. P. 120a.3; see Humphreys, 888 S.W.2d at 470 (holding to be "of no probative value" defective affidavits submitted in support of claim of discovery privilege).[7]
In conclusion, even if Exito did not establish sufficient minimum contacts with the State of Texas to support the trial court's exercise of personal jurisdiction, we hold that denial of the special appearance is proper because Exito: (1) entered a general appearance by filing an unconditional rule 11 agreement before filing its special appearance as well as by appearing for the hearing and determination of disputed discovery matters before the trial court heard and determined the special appearance; and (2) did not provide, in compliance with rule 120a.3, support for its special appearance for consideration by the trial court. Accordingly, on waiver grounds alone, the trial court properly exercised personal jurisdiction over Exito. We hold that the trial court's denial of Exito's special appearance does not require reversal. BMC, 83 S.W.3d at 794. We overrule both of Exito's issues.
IV. CONCLUSION
We affirm the trial court's order denying Exito's special appearance.
NOTES
[1] Parties may challenge by interlocutory appeal trial courts' orders regarding special appearances. Tex. Civ. Prac. & Rem.Code Ann. § 51.014(7) (Vernon Supp.2003).
[2] Tex.R. Civ. P. 11.
[3] Some cases examine the circumstances in which a party files a motion that seeks affirmative relief but the trial court does not hear or rule on the motion. See, e.g., Silbaugh v. Ramirez, No. 01-02-01129-CV, ___ S.W.3d ___ ___ - ___, 2002 WL 31839227, 2002 Tex.App. LEXIS 9123 at *9-*10 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (holding that motion to stay discovery and motion to quash deposition were "use of the discovery process" that did not waive special appearance; nothing that motions were not heard or ruled on by trial court); Case v. Grammar, 31 S.W.3d 304, 311 (Tex.App.-San Antonio 2000, no pet.) (holding that defendant's participation in depositions and in seeking to compel plaintiff's responses to discovery did not waive special appearance where discovery dispute not heard by court), disapproved on other grounds, BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 n. 1 (Tex. 2002); Minucci v. Sogevalor, 14 S.W.3d 790, 800 (Tex.App.-Houston [1st Dist.] 2000, no pet.) (holding that neither engaging in discovery nor filing and setting contested matter for hearing waived special appearance where matter was not heard by court). Other cases interpret rule 120a.1 to permit determination of discovery disputes but do not discuss the "first-determined" requirement of rule 120a.2. See, e.g., Hotel Partners v. Craig, 993 S.W.2d 116, 123 (Tex.App.-Dallas 1994, writ denied) (holding that filing after special appearance of motion for protective order, response to motion to compel, and letter brief in support of position in discovery dispute did not waive special appearance); Int'l Turbine Serv., Inc. v. Amos Lovitt & Touche, Inc., 881 S.W.2d 805, 809 (Tex.App.-Fort Worth 1994, writ denied) (holding that motion for protective order to limit discovery to personal-jurisdiction matters that was resolved by agreed order did not waive special appearance).
[4] We note that a party does invoke the court's authority by filing a written rule 11 agreement, in the sense that filing must precede enforcement. Tex.R. Civ. P. 11.
[5] This appeal does not present, nor do we address, the circumstance where a rule 11 agreement to extend an answer date is entered into and filed expressly subject to an anticipated special appearance.
[6] The verifications of Exito's special appearance and the affidavits on which Exito relies to support its special appearance are the same instruments. We note that the verification requirement contained in rule 120a.1 is distinct from the provisions of rule 120a.3 that specify the requisite contents of affidavits submitted in support of a special appearance. Compare Tex.R. Civ. P. 120a.1 (providing that special appearance "shall be made by sworn motion ....") with Tex.R. Civ. P. 120a.3. By the rule's plain wording, the affidavit requirements of rule 120a.3 do not apply to verifications by which motions challenging personal jurisdiction are sworn pursuant to rule 120a.1. We also note that an unsworn special appearance may be amended to cure defects at any time before a general appearance, including an amendment to cure the absence of a verification. Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex.1998). Trejo did not object in the trial court to the verifications, so Exito was not presented with a necessity to amend. Accordingly, in the absence of an objection in the trial court to the verifications, we do not address whether Exito's special appearance, of itself, constituted a general appearance because of defects in the verifications.
[7] The lack of a properly notarized signature is a substantive defect, not a defect as to form. Elam v. Yale Clinic, 783 S.W.2d 638, 643 (Tex.App.-Houston [14th Dist.] 1989, no writ). Unlike rule 120a.1, which expressly permits amendment to cure defects in the verification of a sworn special appearance, rule 120a.3 does not provide that defects in an affidavit considered by a trial court in determining a special appearance may be cured. Compare Tex.R. Civ. P. 120a.1 with Tex.R. Civ. P. 120a.3. Thus, defects in an affidavit provided under rule 120a.3, unlike defects in a verification filed under rule 120a.1, cannot be waived by failing to bring the affidavit's defects to the trial court's attention. See Yale Clinic, 783 S.W.2d at 643 (refusing to consider defective affidavits as competent summary judgment evidence).
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604 F.2d 220
30 Fair Empl.Prac.Cas. 1479,20 Empl. Prac. Dec. P 30,255Robert E. SMITH, Appellant,v.JOS. SCHLITZ BREWING COMPANY.
No. 77-1745.
United States Court of Appeals,Third Circuit.
Submitted under Third Circuit Rule 12(6) July 6, 1979.Decided July 12, 1979.
Appeal from United States District Court for the District of New Jersey, Herbert J. Stern, Judge.
Robert E. Smith, pro se.
Garrett E. Brown, Jr., Newark, N. J., Stryker, Tams & Dill, Newark, N. J., of counsel, Rody P. Biggert, Thomas P. Gies, Chicago, Ill., Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., of counsel, for appellee Jos. Schlitz Brewing Co.
Carin Ann Clauss, Sol. of Labor, Donald S. Shire, Associate Sol., Lois G. Williams, Kerry L. Adams, Attys. U. S. Dept. of Labor, Washington, D. C., Francis V. La Ruffa, Regional Sol., New York City, for Secretary of Labor as amicus curiae.
Before SEITZ, Chief Judge, and ROSENN and GARTH, Circuit Judges.
OPINION ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
PER CURIAM.
1
Robert E. Smith brought this action in the district court against his former employer, the Jos. Schlitz Brewing Co.1 He alleged that his involuntary retirement at age 62 violated the prohibition against age discrimination contained in the Age Discrimination in Employment Act of 1967.2 Schlitz moved for summary judgment, and the district court granted that motion on the sole ground that Smith had not complied with section 14(b) of the Act3 by first commencing proceedings before the New York State Human Rights Division.
2
On Smith's appeal, we held that section 14(b) does not require prior resort to state age discrimination remedies. Smith v. Jos. Schlitz Brewing Co., 584 F.2d 1231 (3d Cir. 1978); See Holliday v. Ketchum, MacLeod & Grove, Inc., 584 F.2d 1221 (3d Cir. 1978). We therefore reversed the order of the district court and remanded the case for further proceedings. Schlitz filed a petition for certiorari in the Supreme Court.
3
On May 21, 1979, the Supreme Court, --- U.S. ----, 99 S.Ct. 2819, 61 L.Ed.2d 273, granted Schlitz's petition (No. 78-419) and vacated this court's judgment, remanding the case for further consideration in light of Oscar Mayer & Co. v. Evans, --- U.S. ----, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979). In that case, decided on the same date, the Supreme Court construed section 14(b) as a requirement that "a grievant not bring suit in federal court under § 7(c) of the ADEA until he has first resorted to appropriate state administrative proceedings."4 Although Evans admitted that he had not commenced proceedings before the appropriate state agency, the Supreme Court held that his complaint should not be dismissed; instead, it remanded the case with instructions that it be held in abeyance until Evans complied with the requirements of section 14(b).5
4
Since the interpretation of section 14(b) which we adopted in Jos. Schlitz Brewing Co. and in Holliday v. Ketchum has not been accepted by the Supreme Court, our prior judgment in this case must therefore be vacated to the extent that it remanded the case to the district court "for proceedings not inconsistent with this opinion." 584 F.2d at 1234. That portion of the order was predicated upon our holding that prior resort to state proceedings is not required. Oscar Mayer has now instructed us that it is required. But Oscar Mayer also tells us that:
5
" . . . respondent may yet comply with the requirements of § 14(b) by simply filing a signed complaint with the (New York State Human Rights Division). The (New York State Human Rights Division) must be given an opportunity to entertain respondent's grievance before his federal litigation can continue. Meanwhile the federal suit should be held in abeyance. If, as respondent fears, his state complaint is subsequently dismissed as untimely, respondent may then return to federal court. But until that happens, or until 60 days have passed without a settlement, respondent must pursue his state remedy."
6
--- U.S. at ----, 99 S.Ct. at 2076 (footnote omitted).
7
Therefore our previous order will be modified to provide that Smith's case be remanded to the district court, which is to hold his action in abeyance until Smith has complied with the mandate of section 14(b). See Oscar Mayer & Co. v. Evans, --- U.S. ----, ----, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979).
1
The facts and the procedural history of this case are set out in our prior opinion. Smith v. Jos. Schlitz Brewing Co., 584 F.2d 1231 (3d Cir. 1978)
2
29 U.S.C. §§ 621 Et seq
3
29 U.S.C. § 633(b)
4
--- U.S. at ----, 99 S.Ct. at 2076
5
--- U.S. at ----, 99 S.Ct. 2066
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231 Wis.2d 58 (1999)
604 N.W.2d 902
STATE of Wisconsin, Plaintiff-Appellant,
v.
Willie E. JOHNSON, Defendant-Respondent.[]
No. 98-2881-CR.
Court of Appeals of Wisconsin.
Submitted on briefs August 20, 1999.
Decided October 13, 1999.
*60 On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James E. Doyle, attorney general and David J. Becker, assistant attorney general.
On behalf of the defendant-respondent, the cause was submitted on the brief of Douglas I. Henderson of Kenosha.
Before Nettesheim, Anderson and Snyder, JJ.
¶ 1. ANDERSON, J.
The State appeals from an order dismissing its second complaint charging Willie E. Johnson with robbery and bail jumping in violation of §§ 943.32(1) and 946.49(1)(b), STATS. Arguing against the dismissal of its complaint, the State contends that it presented new and unused evidence supporting probable cause at the second preliminary hearing. We agree and reverse.
BACKGROUND
¶ 2. Johnson was charged with the robbery of a gas station. In a February 18, 1998 complaint, the State alleged that Johnson "placed his right hand near his back pocket and twice asked [the gas station attendant] to open up the cash register while he moved behind the counter." Scared and feeling that Johnson was reaching for a weapon, the attendant opened the cash register. Johnson took money from the register and fled on a red bicycle. At the time of the robbery, Johnson was on bail with a condition that he not engage in criminal activity; as a result, he was charged *61 with bail jumping in addition to robbery. See §§ 943.32(1)(a), 946.49(1)(b), STATS.
¶ 3. At the preliminary hearing, the State presented two witnesses to demonstrate that probable cause existed to charge Johnson with the crimes. The first witness, Suzanne Surber, was the gas station attendant. Surber testified that the robber came to the counter to purchase a couple of items and asked her to open the register. When she did not respond, the robber repeated himself and reached his arm around his back as if moving it toward his back pocket. Believing that the robber was moving his arm to pull out a weapon, Surber immediately opened the register. Surber also stated that the robber moved towards her, coming around from the front of the counter towards the cash register located behind the counter. The robber grabbed some cash from the register and left the station.
¶ 4. The second witness, Marvin Durr, was walking to the gas station at the time of the robbery. He observed the robber fleeing the station and identified Johnson as this person.
¶ 5. Johnson objected to being bound over for trial on the robbery charge, arguing that the State's evidence did not sufficiently demonstrate that he used or threatened to use force during the robbery. Without proving this element of the crime, Johnson contended that the State failed to show probable cause that he had committed a felony.[1] The court commissioner *62 agreed. He noted that the gas station attendant's testimony did not allege that Johnson threatened the use of force. The court commissioner stated:
Where is the imminent use of force or the use of force? ... I recognize that [the attendant] was afraid .... But that in and of itself does not give rise to facts that support [threatening the use of force]. Where am I going to find that? There's no statement made by him, there's nothing that she saw that led her to believe there was something in his pocket. He moved his hand in the area of his back pocket. What does that mean?
Consequently, the court commissioner dismissed the criminal complaint.
¶ 6. Contending that it had new and unused evidence against Johnson, the State reissued the complaint on February 26, 1998. At the second preliminary hearing about the robbery, the State presented four witnesses against Johnson.
¶ 7. The first witness testified to observing Johnson leave the gas station immediately before the attendant dashed out yelling that the station had been robbed. The witness described Johnson as "a big guy" at five feet and ten or eleven inches tall, and 200 pounds.
¶ 8. The State's next witness was an inmate who had shared a prison cell with Johnson. He testified that Johnson "said he bought like a soda and a pack of cigarettes, and that he went up to the cash register with his hands behind his back and told her to give him *63 money; and once she did, he got on his bike and rode and took off."
¶ 9. Surber testified again at the second preliminary hearing, offering a more detailed description of the robbery. She stated that she was a "5 foot" tall, "petite" person and Johnson was "a big guy." She described and demonstrated the robbery's events to the court.
A Okay. He started to say, "I'm going to ask you to open up the register." Only this time, he was reaching in back of him like that; and he started to take a step the counter is right here and so, now, he is taking a step towards
Q Around the counter?
A Right.
....
[PROSECUTOR]: Your Honor, request the record show that the witness had stepped forward one step; that she had her right hand reached behind her back; and that she was saying that ... [Johnson] was stepping around the counter....
THE COURT: And the record would reflect that she placed her hand in a motion behind her back and was to the right rear pocket area.
¶ 10. The State's final witness was Durr, who again testified that Johnson was the person who left the gas station immediately after the robbery.
¶ 11. This time the court commissioner concluded that the State had shown that probable cause existed that Johnson had committed a felony. In analyzing the additional evidence presented by the State, the court commissioner found Surber's demonstration of Johnson stepping toward her while reaching behind his back to be compelling evidence. He also noted that *64 the inmate's testimony showed that Johnson was attempting to convey an impression that he had a weapon. The court commissioner concluded that this evidence sufficiently demonstrated that Johnson had threatened the use of force and satisfied that element of the felony charge of robbery.
¶ 12. Johnson filed a motion to dismiss, arguing that he was bound over for trial after the second preliminary hearing without the State presenting any new or unused evidence. After reviewing the record, the circuit court concluded that the State's evidence consisted of only cumulative and corroborative testimonies and granted Johnson's dismissal motion. The State appeals.
DISCUSSION
[1, 2]
¶ 13. The purpose of a preliminary hearing is to determine whether there is probable cause to believe that a felony has been committed by the defendant. See § 970.03(1), STATS. It is not a full evidentiary hearing but rather is intended to be a summary hearing where the magistrate considers if the State has presented sufficient evidence establishing a reasonable probability that the defendant committed the felony. See Cranmore v. State, 85 Wis. 2d 722, 735, 271 N.W.2d 402, 409-10 (Ct. App. 1978). The preliminary hearing acts as a screening device, protecting defendants from groundless or malicious prosecutions, see State v. Dunn, 117 Wis. 2d 487, 491, 345 N.W.2d 69, 71 (Ct. App.) aff'd, 121 Wis. 2d 389, 359 N.W.2d 151 (1984), and thus also conserving our judicial resources. Therefore, if the magistrate determines that the defendant probably did not commit the charged crime, the State's *65 complaint will be dismissed. See Cranmore, 85 Wis. 2d at 735, 271 N.W.2d at 409.
[3]
¶ 14. After a complaint is dismissed at a preliminary hearing, a second complaint can be filed against the defendant if additional evidence exists or is discovered. See § 970.04, STATS. Reissuance of the complaint is permitted because the dismissal after the preliminary hearing does not have the same effect as an acquittal after a trial on the merits. See State v. Brown, 96 Wis. 2d 258, 266, 291 N.W.2d 538, 542 (1980). More specifically, a complaint may be reissued against a defendant when "new or unused evidence" would support a finding of probable cause. See id.
¶ 15. In this case, the State's primary contention against the dismissal of its second complaint is that it presented "new and unused evidence" to support a finding of probable cause that Johnson committed a felony. Supporting this argument, it makes two contentions. First, it asserts that our appropriate standard of review is de novo. Second, by applying this standard to the evidence presented at the second preliminary hearing, it argues that sufficient new or unused evidence, demonstrating that Johnson threatened the gas station attendant with the use of force, was presented to the court commissioner. We will begin by addressing the State's standard of review argument.
A. Standard of Review
¶ 16. Previously, we have determined that our appellate review is de novo when considering a magistrate's probable cause decision at an initial preliminary hearing. See State v. Sauceda, 163 Wis. 2d 553, 566, 472 N.W.2d 798, 803 (Ct. App. 1991), rev'd on other grounds, 168 Wis. 2d 486, 485 N.W.2d 1 (1992). To *66 date, we have not considered what the appropriate standard should be to review a circuit court's reversal of a court commissioner's finding that the State presented new and unused evidence to support issuing a second complaint against a defendant. The State advances that our review in this situation should be de novo. And, Johnson does not dispute this point.
¶ 17. When presented with a similar situation the appellate review of a circuit court's reversal of a court commissioner's determination regarding the existence of probable cause at the preliminary hearing we reasoned as follows:
The focus of a preliminary hearing is to ascertain whether the facts and the reasonable inferences drawn therefrom support the conclusion that the defendant probably committed a felony. A reviewing court plays a limited role in reviewing a magistrate's finding as to the existence of probable cause at a preliminary hearing. A reviewing court examines the evidence only sufficiently to discover whether there was any substantial ground for the exercise of judgment by the committing magistrate. Where a trial court reviews the magistrate's decision, the court must apply the same test for review as would the appellate court. Upon appellate review of the trial court's review, we owe no deference to the trial court's determination.
....
... [W]hile trial court review of the magistrate's decision is first necessary, appellate review of the magistrate's decision is de novo. We need not give deference to the trial court's decision because the court was in no better position than we to assess the preliminary hearing evidence.
Id. at 566-67, 472 N.W.2d at 803 (citations omitted).
*67 [4]
¶ 18. In sum, we resolved that the appellate court does not give deference to the circuit court when it reviews a court commissioner's probable cause decision because both courts are reviewing the transcripts and record made before the court commissioner; therefore, both courts are in the same position when conducting their reviews. This logic also applies to our review of the present situation the circuit court's reversal of the court commissioner's decision that the State presented new and unused evidence to support issuing a second complaint. Our review of this issue will be identical to that of the circuit court: we will examine the record made before the court commissioner. For this reason, we will conduct our review without deference to the circuit court's conclusion.
B. New or Unused Evidence
¶ 19. After the initial preliminary hearing, the court commissioner dismissed the complaint filed against Johnson because he found that the State failed to sufficiently establish that Johnson probably threatened the use of force while conducting the robbery, an essential element of the crime. The State reissued the complaint and presented new witnesses at the subsequent preliminary hearing. At the close of the second preliminary hearing, the court commissioner concluded that the State, through its witnesses' testimonies, had presented new and unused evidence showing that Johnson had probably threatened the use of force during the robbery. To the contrary, the circuit court, considering Johnson's motion to dismiss the complaint, disagreed because it determined that the State's evidence consisted only of cumulative and corroborative testimonies. We now conduct our own *68 independent review of the second preliminary hearing record, examining if the State presented "new or unused" evidence to sustain the second complaint.
¶ 20. What constitutes new or unused evidence is not easily definable. See Wittke v. State ex. rel Smith, 80 Wis. 2d 332, 344, 259 N.W.2d 515, 520 (1977). It is not evidence that is "merely cumulative or corroborative." See Brown, 96 Wis. 2d at 267, 291 N.W.2d at 543. But, on the other hand, it may be evidence that was previously presented to the court but not considered by it in its decision. See State v. Twaite, 110 Wis. 2d 214, 219-20, 327 N.W.2d 700, 703 (1983). We are directed to apply our common sense to this issue, as our supreme court has suggested that "there is no reason to believe that ... courts will be unable to give [the concept] substance." Wittke, 80 Wis. 2d at 344, 259 N.W.2d at 520.
¶ 21. Based upon our independent review of the record, we conclude that the court commissioner was correct in finding that the State presented new and unused evidence that Johnson committed robbery. First, the gas station attendant gave a more detailed description, including a demonstration, of Johnson's words and gestures during the robbery. The attendant testified that Johnson stepped toward her demanding that she open the cash register while moving his arm behind him and reaching for his back pocket. Johnson's cell mate, a new witness, also averred that Johnson confessed the robbery to him and described how he had his hands behind his back when he ordered the attendant to open the cash register. This evidence was not originally before the court commissioner. We determine that it is not cumulative evidence, but is new evidence.
*69 ¶ 22. Moreover, we conclude that the new evidence shows a reasonable probability that Johnson threatened the use of force while stealing. The threat of force element does not require express threats of bodily harm. It is met "if the taking of the property [is] attended with such circumstances of terror, or such threatening by menace, word, or gesture as in common experience is likely to create an apprehension of danger and induce a [person] to part with property for [his or her] safety." See Washington v. Collinsworth, 966 P.2d 905, 907 (Wash. Ct. App. 1997), review denied, 959 P.2d 127 (Wash. 1998) (quoted source omitted). We are persuaded that Johnson's words and gestures were intended to create an impression that he would use force, if necessary, to take the property. In fact, we can think of no other purpose for Johnson to have included the "hands behind his back" detail in his rendition of the robbery to his cell mate other than to convey that he threatened the attendant with the possible use of force if she did not comply with his requests.
[5]
¶ 23. In addition to this new evidence, the State also re-presented evidence at the second preliminary hearing that was not considered at the first preliminary hearing. A witness at the scene of the robbery and the gas station attendant both testified to Johnson's physical size. They described him as "a big guy" while the attendant described herself as petite and five feet tall. By presenting evidence of the comparative physical sizes of the attendant and Johnson, the State sought to underscore why the attendant rationally felt Johnson was dangerous and feared that he might harm her if he used force against her. Although evidence regarding Johnson's large build was presented at the initial preliminary hearing, the court commissioner did *70 not consider it in his decision. Evidence that has been presented to the court but not taken into account when the court made its decision during the initial preliminary hearing is considered "unused," and the State may use such evidence as support for its reissuance of a complaint. See Twaite, 110 Wis. 2d at 220, 327 N.W.2d at 703. Accordingly, we determine that unused evidence was before the court commissioner that supported the State's reissuance of the complaint against Johnson. Because we conclude that both new and unused evidence was offered at the second preliminary hearing to support probable cause that Johnson committed the robbery, we reverse the circuit court's dismissal of that complaint and remand the case for further proceedings.
By the Court. Order reversed and cause remanded with directions.
NOTES
[] Petition to review denied.
[1] The crime of robbery occurs when an individual takes property from another with the intent to steal and uses or threatens the use of imminent force against the individual with the intent to overcome any physical resistance to the taking or carrying away of the property. See § 943.32(1), STATS. This crime is classified as a felony. If an individual does not use or threaten the use of force when stealing the property, then his or her actions constitute the misdemeanor offense of theft. See § 943.20, STATS.
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63 U.S. 341 (1859)
22 How. 341
ALEXANDER REY, WILLIAM R. MARSHALL, AND JOSEPH M. MARSHALL PARTNERS UNDER THE NAME, STYLE, AND FIRM, OF MARSHALL & CO., PLAINTIFFS IN ERROR,
v.
JAMES W. SIMPSON.
Supreme Court of United States.
*346 It was argued by Mr. Stevens, upon a brief submitted by himself and Mr. Brisbin, for the plaintiffs in error, and by Mr. Bradley for the defendant.
Mr. Justice CLIFFORD delivered the opinion of the court.
This is a writ of error to the Supreme Court of the Territory of Minnesota.
According to the transcript, the suit was commenced by James W. Simpson, the present defendant, on the twenty-first day of December, 1855, in the District Court of the Territory, for the second judicial district, against the plaintiffs in error, who were the original defendants. It was an action of assumpsit, and was brought upon a certain promissory note for the sum of three thousand five hundred and seventeen dollars and seven and a half cents, bearing date at St. Paul, in that Territory, on the fourteenth day of June, 1855, and was made payable to the order of the plaintiff six months after date, for value received. At the period of the date of the note, as well as at the time the suit was instituted, two of the defendants, *347 William R. Marshall and Joseph M. Marshall, were partners, doing business under the style and firm of Marshall & Company.
As appears by the declaration, the note was made and signed by the defendant first named in the original suit, at the time and place it bears date.
And the plaintiff further alleges in the declaration, that, after making and signing the note, the same defendant then and there delivered the note to the other two defendants; and that they then and there, by their partnership name, endorsed the same, by writing the name of their firm on the back of the note, and then and there redelivered the same to the first-named defendant, who afterwards, and before the maturity of the note, delivered it so endorsed to the plaintiff. He also alleges that the defendants, William R. Marshall and Joseph M. Marshall, so endorsed the note for the purpose of guarantying the payment of the same, and of becoming sureties and security to him, as the payee thereof, for the amount therein specified; and that he, relying upon their endorsement, took the note, and paid the full consideration thereof to the first-named defendant.
Other matters, such as due presentment, non-payment, and protest, are also alleged in the declaration, which it is unnecessary to notice at the present time, as the questions to be determined arise out of the allegations previously mentioned and described.
Personal service was made on each of the defendants, but the one first named did not appear; and after certain interlocutory proceedings, conforming to the laws of the Territory and the practice of the court, he was defaulted.
On the thirty-first day of December, 1855, the counsel of the other two defendants served notice of a motion to strike out all that part of the declaration which sets forth the purpose for which it is alleged they endorsed the note, and so much of the declaration, also, as alleges that the plaintiff took the note as payee, relying upon the endorsement, and paid to the first-named defendant the full consideration thereof, as before stated. That motion was subsequently heard before *348 the court; and on the ninth day of February, 1856, was denied and wholly overruled. After the motion was overruled, the defendants, whose firm name is on the back of the note, demurred specially to the declaration.
None of the causes of demurrer need be stated, as they will be sufficiently brought to view in considering the several propositions assumed by the counsel on the one side and the other, in the argument at the bar. Suffice it to say, that the demurrer was overruled; and on the tenth day of July, 1856, judgment was entered for the plaintiff against all of the defendants for the amount of the note, with interest and costs.
On the eighteenth day of September, 1856, the defendants sued out a writ of error, and removed the cause into the Supreme Court of the Territory, where the judgment of the District Court was in all things affirmed; and on the fourth day of February, 1857, a final judgment was entered for the plaintiff, that he recover the amount of the judgment rendered in the District Court, with interest, costs, and ten per cent. damages, amounting in the whole to the sum of four thousand three hundred seventy-one dollars and ninety-seven cents. Whereupon the defendants sued out a writ of error to this court, which was properly docketed at the December term, 1857.
All civil suits in the courts of Minnesota are commenced by complaint; and suitors are enjoined by law, in framing their declarations, to give a statement of the facts constituting the cause of action; which statement is required to be expressed in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.
Pursuant to that requirement, and the practice of the courts of the Territory at the time the suit was commenced, the plaintiff in this case set forth the facts already recited as contained in the complaint or declaration.
Facts thus stated in the declaration, pursuant to the directions of the law of the Territory, and which were material to the understanding of the rights of the parties to the controversy, could not properly be suppressed by the court. Irrespective, *349 therefore, of the question whether or not the motion of the defendants to strike out that part of the declaration was waived, because not pressed in the Supreme Court of the Territory, no doubt is entertained by this court that the motion was properly overruled by the District Court upon the merits.
Proof of the attending circumstances under which the defendants, William R. Marshall and Joseph M. Marshall, had placed their firm name upon the back of the note, would clearly have been admissible in a trial upon the general issue; and if so, no reason is perceived why it was not proper for the plaintiff, under the peculiar system of pleading which prevailed in the courts of the Territory at the time the suit was commenced, to state those circumstances in the declaration. Beyond question, they were a part of the facts constituting the cause of action; and if so, they were expressly required to be stated by the law of the Territory prescribing the rules of pleading in civil cases. And having been alleged in pursuance to such a requirement, and being material to a proper understanding of the rights of the parties to the suit, it must be considered, by analogy to the rules of pleading at common law, that they are admitted by the demurrer.
By the admitted facts, then, it appears the defendants, William R. Marshall and Joseph M. Marshall, placed their firm name on the back of the note at its inception, and before it had been passed or offered to the plaintiff. They placed their firm name there at the request of the other defendant, knowing that the note had not been endorsed by the payee, and with a view to give credit to the note, for the benefit of the immediate maker, at whose request they became a party to the same.
Whatever diversities of interpretation may be found in the authorities, where either a blank endorsement or a full endorsement is made by a third party on the back of a note, payable to the payee or order, or to the payee or bearer, as to whether he is to be deemed an absolute promissor or maker, or guarantor or endorser, there is one principle upon the subject almost universally admitted by them all, and that is, that the interpretation of the contract ought in every case to be *350 such as will carry into effect the intention of the parties; and in most instances it is conceded that the intention of the parties may be made out by parol proof of the facts and circumstances which took place at the time of the transaction. Story on Prom. Notes, secs. 58, 59, and 479.
When a promissory note, made payable to a particular person or order, as in this case, is first endorsed by a third person, such third person is held to be an original promissor, guarantor, or endorser, according to the nature of the transaction and the understanding of the parties at the time the transaction took place. If he put his name on the back of the note at the time it was made, as surety for the maker, and for his accommodation, to give him credit with the payee, or if he participated in the consideration for which the note was given, he must be considered as a joint maker of the note. On the other hand, if his endorsement was subsequent to the making of the note, and he put his name there at the request of the maker, pursuant to a contract with the payee for further indulgence or forbearance, he can only be held as a guarantor. But if the note was intended for discount, and he put his name on the back of it with the understanding of all the parties that his endorsement would be inoperative until it was endorsed by the payee, he would then be liable only as a second endorser in the commercial sense, and as such would clearly be entitled to the privileges which belong to such endorsers.
Decided cases are referred to by the counsel of the defendants, which seemingly deny that such parol proof of the attending circumstances of the transaction is admissible in evidence; but the weight of authority is greatly the other way, as is abundantly shown by the cases cited on the other side. Whenever a written contract is presented for construction, and its terms are ambiguous or indefinite, it is always allowable to weigh its language in connection with the surrounding circumstances and the subject matter, and we see no reason, as question of principle, why any different rule should be adopted in a case like the present. Such evidence has always been received in the courts of Massachusetts, as appears from *351 numerous decisions, and the same rule prevails in most of the other States at the present time. 1 Am. Lea. Cas., (4th ed.,) 322. Repeated decisions to the same effect have been made in the courts of New York, and until within a recent period it appears to have been the settled doctrine in the courts of that State.
Recent decisions, it must be admitted, wear a different aspect; but they have not had the effect to produce a corresponding change in other States, and, in our view, deny the admissibility of parol evidence in cases where it clearly ought to be received. Hawkes v. Phillips et al., 7 Grey, 284.
Applying these principles to the present case, it is obvious that the contract of the two defendants whose firm name is upon the back of the note was an original undertaking, running clear of all questions arising out of the statute of frauds.
They placed their names there at the inception of the note, not as a collateral undertaking, but as joint promissors with the maker, and are as much affected by the consideration paid by the plaintiff, and as clearly liable in the character of original promissors, as they would have been if they had signed their names under the name of the other defendant upon the inside of the instrument. Numerous decisions in the State courts might be cited in support of the proposition as stated, but we think it unnecessary, as they will be found collated in the elementary works to which reference has already been made, and in many others which treat of this subject.
Another objection to the right of recovery in this case deserves a brief notice. It is insisted by the counsel of the defendants that the complaint or declaration is not sufficient to maintain this suit against these defendants as original promissors. That objection must be considered in connection with the system of pleading which prevailed in the courts of the Territory at the time the suit was commenced. By that system, suitors were only required to state the facts which constituted the cause of action. In this case the plaintiff followed that mode of pleading, and we think he has set forth enough to constitute a substantial compliance with the law of the Territory and the practice of the court where the suit was instituted. *352 He alleges, among other things, that the defendants whose firm name is on the back of the note placed it there for the purpose of becoming sureties and security to him as payee for the amount therein specified. That allegation, to use the language of the statute of Minnesota, is expressed in ordinary and concise language, and in such a manner as to be easily understood, and that is all which is required by the law of the Territory prescribing the rules of pleading in civil cases. Under the system of pleading which prevailed in the courts of the Territory, the objection cannot be sustained.
The judgment of the Supreme Court of the Territory is therefore affirmed with costs
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734 F.2d 1245
Deborah MORAN, Plaintiff-Appellant,v.Daniel BEYER, Defendant-Appellee.
No. 83-1667.
United States Court of Appeals,Seventh Circuit.
Argued Dec. 5, 1983.Decided May 21, 1984.
1
Ted K. Yasuda, Sidley & Austin, Chicago, Ill., for plaintiff-appellant.
2
Dennis J. Mank, Van Kecke & Mank, S.C., Milwaukee, Wis., for defendant-appellee.
3
Before BAUER, FLAUM, Circuit Judges, and EVANS, District Judge.1
4
TERENCE T. EVANS, District Judge.
5
At issue on this appeal is the constitutionality of Illinois' interspousal tort immunity statute. The district court, on a motion for summary judgment, rejected the constitutional challenge to the statute and dismissed those portions of Deborah Moran's suit against her husband in which she alleged that he had beaten her. We reverse.
I.
6
Ms. Moran alleges in her complaint that, a short time after she was married to Daniel Beyer, he became increasingly hostile towards her. Her complaint details a number of disputes between the two which ended in physical injury to her. The injuries included cuts, bruises and a broken nose. Beyer's answer admits his part in the violence Moran describes, but replies that his actions were justified. He claims extreme provocation and self-defense. By Christmas of the year after the marriage, Moran had moved away from Beyer. At the time this action was commenced, the two were no longer married. In her suit, Moran alleged one count of assault and battery and one count of intentional infliction of emotional distress. Beyer counterclaimed, alleging the same.
7
Had the paths of these two individuals crossed under any circumstances other than marriage, the district court2 would have proceeded to weigh their allegations and decide who, on the basis of the evidence, should win the case. However, since Moran and Beyer were married, the district court was confronted with Ill.Rev.Stat., ch. 40, Sec. 1001 (1980), which was controlling at that time, and which commanded that:
8
A married woman may, in all cases, sue and be sued without joining her husband with her, to the same extent as if she were unmarried; provided, that neither husband nor wife may sue the other for a tort to the person committed during coverture.3
9
Beyer moved for summary judgment on the ground that Moran's action was barred by this provision of Illinois law. The trial court was persuaded, summary judgment was granted in Beyer's favor, and this appeal was commenced. The thrust of Moran's appeal is that her Fourteenth Amendment right to equal protection of the laws is violated by a statute which prohibits a married person from pursuing the same remedy for the same kind of injuries which an unmarried person is free to pursue.
II.
10
In evaluating ch. 40, Sec. 1001 under the Equal Protection Clause, "we must first determine what burden of justification the classification created thereby must meet, by looking to the nature of the classification and the individual interests affected." Memorial Hospital v. Maricopa County, 415 U.S. 250, 253, 94 S.Ct. 1076, 1080, 39 L.Ed.2d 306 (1974). Moran argues that the statute is constitutionally suspect under both the "strict judicial scrutiny" standard and the less rigorous "rational relationship" test. See San Antonio School District v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16 (1973).
A.
11
We decline the invitation to declare that the interests upon which ch. 40, Sec. 1001 impinges are so fundamental that they justify the protections of strict judicial scrutiny4. It is true, as Moran argues, that the courts have come to confer this heightened protection upon certain decisions relating to marriage. See Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967) (right to marry); Boddie v. Connecticut, 401 U.S. 371, 376-377, 91 S.Ct. 780, 785-786, 28 L.Ed.2d 113 (1971) (right to divorce); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541-542, 62 S.Ct. 1110, 1113-1114, 86 L.Ed. 1655 (1942) (procreation); Eisenstadt v. Baird, 405 U.S. 438, 453-454, 92 S.Ct. 1029, 1038-1039, 31 L.Ed.2d 349 (1972) (contraception); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944) (family relationships); Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (child rearing and education).
12
However, not every choice made in the context of marriage implicates the privacy and family interests which make certain marital decisions fundamentally important. See Califano v. Jobst, 434 U.S. 47, 54, 98 S.Ct. 95, 99, 54 L.Ed.2d 228 (1978). The decision to bring suit against a spouse does not so strategically advance privacy or family interests that the decision itself accedes to the status of a fundamental right. Nor does a statute limiting the exercise of this choice constitute a direct legal obstacle to marriage. Also, the statute does not so significantly discourage marriage that it merits the "rigorous scrutiny" which has been applied to other regulations qualifying marital rights. See Zablocki v. Redhail, 434 U.S. 374, 386, 387 n. 12, 98 S.Ct. 673, 681, 682 n. 12, 54 L.Ed.2d 618 (1978). Accordingly, strict scrutiny of the statute is not required.
B.
13
Thus, we turn to Moran's second line of argument. She contends that there is no rational relationship between the statutory classification and the Illinois legislature's purpose in enacting it. The pertinent inquiry is whether the scheme, which prevents a married person from seeking a remedy which is available to an unmarried person, "advances a reasonable and identifiable governmental objective." Schweiker v. Wilson, 450 U.S. 221, 235, 101 S.Ct. 1074, 1083, 67 L.Ed.2d 186 (1981). The analysis breaks down into two questions: (1) whether the statute's purpose is reasonable, and (2) whether the statute rationally advances that purpose.
14
Without question the purpose behind creating interspousal tort immunity is reasonable. Maintaining marital harmony is an admirable goal, especially considering the numerous social problems to which marital strife gives rise.5
15
However, we cannot agree with the district court that ch. 40, Sec. 1001, is rationally related to this goal. It truly would take "something more than the exercise of strained imagination," Logan v. Zimmerman Brush Co., 455 U.S. 422, 442, 102 S.Ct. 1148, 1161, 71 L.Ed.2d 265 (1982) (Blackmun, J., concurring), to find some objective basis for believing that depriving a physically battered spouse of a civil remedy for her injuries will advance some sense of "harmony" with the person who inflicted the injury. Dean Prosser eloquently dismantled this justification when he observed that the "domestic harmony" rationale rests upon
16
the bald theory that after a husband has beaten his wife, there is a state of peace and harmony left to be disturbed; that if she is sufficiently injured or angry to sue him for it, she will be soothed and deterred from reprisals by denying her the legal remedy--and even though she has left him or divorced him for that very ground[.]
17
Prosser, Torts, 863 (4th ed. 1972). The immunity rule confuses cause and effect. Because the immunity rule leaves unchecked the actual cause of marital discord--such as the assault and battery committed in this case--it can do absolutely nothing to further marital harmony. Indeed, for a knowledgeable couple leery of marriage, the statute may do more to retard the institution than further it: unmarried persons living together can still resort to the courts for protection from a "partner", while a married person has no such protection against his or her spouse. Finally, added to these inconsistencies is the fact that nothing in the statute prevents one spouse from undermining domestic tranquility altogether by swearing out a criminal complaint against the other.
18
Other rationales which have been advanced in support of the statute are even less tenable under the circumstances of this case. While there is a danger of fraud or collusion between spouses where insurance proceeds or the like are at stake, as there is in almost every case involving third party insurance, that danger is very low in the case of intentional torts involving serious physical injury. Similarly, the fear of a flood of frivolous suits wasting limited judicial resources is unfounded. This flood does not appear to have materialized in states which permit suits between spouses. See, e.g., Flores v. Flores, 84 N.M. 601, 506 P.2d 345, 347 (1973).
19
For his part, Beyer urges us to yield to the wisdom of the Illinois legislature. This is the restrained position which Illinois courts have taken in construing ch. 40, Sec. 1001. See Steffa v. Stanley, 39 Ill.App.3d 915, 350 N.E.2d 886 (1979)6. We do not share the reluctance of these state courts. To begin with, we are faced with facts of a more egregious character than Steffa, which arose out of an automobile accident. Furthermore, we cannot find it at all rational to believe that the Illinois legislature's desire to protect marital harmony is fulfilled by ch. 40, Sec. 1001, which does little more than grant one spouse almost unconditional license to make his marriage partner a sparring partner. We are, therefore, compelled to declare it unconstitutional.
20
Accordingly, the decision of the District Court is REVERSED, the judgment entered on behalf of Beyer is VACATED, and this action is REMANDED to the district court for further proceedings.
1
The Honorable Terence T. Evans, Judge of the United States District Court for the Eastern District of Wisconsin, is sitting by designation
2
Most cases of this sort would, of course, be resolved in state court. This one is in the federal system because the parties, at the time the suit was commenced, lived in different states
3
The statute has since been altered to abrogate interspousal immunity in cases of intentional tort. In 1981, the Illinois Domestic Violence Act, Pub. Act 82-621, 1981 Ill.Laws 3200 (1981), effective March 1, 1982, amended the statute to read:
A married woman may, in all cases, sue and be sued without joining her husband with her, to the same extent as if she were unmarried; provided that neither husband nor wife may sue the other for a tort to the person committed during coverture, except for an intentional tort where the spouse inflicted physical harm.
Id. at Sec. 403; Codified as Ill.Rev.Stat., ch. 40, Sec. 1001 (1982).
4
Although strict scrutiny is also appropriate in certain cases involving suspect classes, Moran does not argue that married persons constitute such a class
5
Moran submits that marital harmony is not the actual purpose behind the statute, but rather a post hoc justification. Moran's argument traces the statute to its archaic common law roots, where husband and wife were treated as a legal unit, incapable of suing itself. Without disputing the considerable authority supporting this position, we choose to give the benefit of the doubt to the purpose put forth by contemporary defenders of the statute
6
This respect for legislative sagacity has not tempered the courts' criticism of the rule itself. One court described the immunity rule as a "devious attempt to save that which is already lost," Schenk v. Schenk, 100 Ill.App.2d 199, 203, 241 N.E.2d 12 (4th Dist.1968). See also Steffa, 350 N.E.2d at 889 ("interspousal tort immunity is an outmoded concept based upon ... common law fiction")
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Opinion filed November 19, 2009
Opinion filed November 19,
2009
In The
Eleventh
Court of Appeals
____________
No. 11-08-00105-CR
__________
PAUL EVIN POPE, Appellant
V.
STATE
OF TEXAS, Appellee
On
Appeal from the 118th District Court
Howard
County, Texas
Trial
Court Cause No. 12074
M
E M O R A N D U M O P I N I O N
The
jury convicted Paul Evin Pope of the offense of felony driving while
intoxicated and assessed his punishment at confinement for nine years and a
$5,000 fine. We affirm.
Appellant
presents two issues for review. In the first issue, he contends that the
evidence is legally insufficient to support his conviction because his prior
DWI convictions were too remote to be used without evidence of an intervening
conviction. Appellant relies upon the remoteness provision found in former Tex. Penal Code ' 49.09(e),[1]
which was repealed in 2005, to support his argument. Appellant asserts that,
although the primary offense in the present case occurred on July 4, 2007,
former Section 49.09(e) applies to this case because the prior DWI convictions
used to enhance the primary offense to a felony occurred in 1992 -- prior to
the repeal -- and are elements of the current felony DWI offense. We note that
the current version of Tex. Penal Code
Ann. ' 49.09
(Vernon Supp. 2009) does not contain any such remoteness provision.
We
disagree with appellant=s
contention. Although the prior DWI convictions are elements of a felony DWI
offense, the dates of the prior DWI convictions are not. Vanderhorst v.
State, 52 S.W.3d 237, 242 (Tex. App.CEastland
2001, no pet.); see State v. Mason, 980 S.W.2d 635, 641 (Tex. Crim. App.
1998). The exact contention made by appellant in this issue was considered and
rejected by our sister court in Tietz v. State, 256 S.W.3d 377 (Tex.
App.CSan Antonio 2008,
pet. ref=d). We agree
with the reasoning and the holding of the San Antonio court. Because the
offense for which appellant was being tried was committed after the effective
date of the repeal of former Section 49.09(e) and because the dates of the
prior DWI convictions are not elements of the current felony DWI offense, the
prior DWI convictions were properly used to enhance appellant=s present DWI offense to a
felony. Tietz, 256 S.W.3d at 380. Appellant=s first issue is overruled.
In
his second issue, appellant contends that he received ineffective assistance of
counsel at trial because trial counsel advised appellant to stipulate to the
remote DWI convictions that were used to enhance the present offense to a
felony. Appellant=s
contention is based upon his belief that the prior DWI convictions were too
remote to be used for enhancement. As discussed in regard to appellant=s first issue, the
remoteness provision found in former Section 49.09(e) does not apply to this
case because this offense was committed after repeal of that provision.
Appellant asserts no other reason for trial counsel=s alleged ineffectiveness. Because the prior
DWI convictions used to enhance the present DWI offense were admissible for
that purpose, we cannot hold that appellant has shown that counsel=s performance fell below an
objective standard of reasonableness for advising appellant to enter into a
stipulation as to those prior convictions. Consequently, appellant has not met
the first prong of the test for ineffective assistance of counsel as outlined
in Strickland v. Washington, 466 U.S. 668 (1984), and Hernandez
v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). Appellant=s second issue is
overruled.
The
judgment of the trial court is affirmed.
JIM R. WRIGHT
CHIEF JUSTICE
November 19,
2009
Do not publish.
See Tex. R. App. P.
47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
[1]Former Section 49.09(e) provided that a conviction
could not be used for purposes of enhancing a DWI to a felony if the prior
conviction occurred more than ten years before the commission of the primary
offense unless the defendant had a qualifying intervening conviction.
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251 F.2d 133
ENGINEERS ASSOCIATION, Petitioner-Appellee,v.SPERRY GYROSCOPE COMPANY, DIVISION OF SPERRY RAND CORPORATION, Respondent-Appellant.
No. 38.
Docket 24605.
United States Court of Appeals Second Circuit.
Argued October 14, 15, 1957.
Decided December 27, 1957.
Roosevelt & Freidin, New York City (Emanuel L. Gordon, New York City, of counsel), for appellant.
Mayer, Weiner & Mayer, New York City (Henry Mayer, Abraham Weiner, New York City, of counsel), for appellee.
Before MEDINA, HINCKS and WATERMAN, Circuit Judges.
WATERMAN, Circuit Judge.
1
Engineers Association (EA), a labor organization representing the non-supervisory professional engineers and technicians employed by Sperry Gyroscope Co. at the latter's plant in Great Neck, New York, proceeded in the District Court to compel Sperry to submit to arbitration in accordance with the terms of a collective bargaining agreement between the parties. The court, after a hearing, granted the relief requested and Sperry appeals. Reversal is sought on the grounds that (1) the District Court lacked jurisdiction, (2) the demand for arbitration was premature because of the failure of the union to exhaust the grievance procedure as required by the contract, and (3) under the terms of the contract the dispute is not arbitrable.
2
In March 1956, Sperry and EA entered into a collective bargaining agreement governing the terms and conditions of employment of the employees represented by the union. Several months later Sperry began construction of a new plant in Salt Lake City, Utah; and, in connection therewith, requested a number of its employees to transfer to a customer installation unit in Pasadena, California. It was understood that employees consenting to the transfer were to be assigned to the Utah plant when the construction of that plant was completed. There is no indication in the record as to how many employees Sperry approached about this program, but, in any event, twenty-eight employees consented to the transfer. Sixteen of these twenty-eight received an increase in salary. EA alleges that the salary increases were granted to provide an incentive to transfer to the new plant. Consequently, it contends, the salary increases violated that provision of the collective bargaining agreement which specifies that "Salary increases for individual employees * * * shall be on a merit basis only." Sperry denies that the salary increases were granted for considerations other than merit; and, in addition, asserts that the granting by it of merit increases is not arbitrable under the contract. In support of this assertion it relies upon the recital in the contract that "merit increases are at the sole discretion of the Employer * * *"
3
EA invoked the jurisdiction of the District Court under "Section 301 of the Labor Management Relations Act, 1947, U.S.C. Title 29, Section 185 and the United States Arbitration Act, U.S.C. Title 9." We need not determine whether jurisdiction might be sustained under the latter act, cf. Signal-Stat Corp. v. Local 475, 2 Cir., 1956, 235 F.2d 298, certiorari denied, 354 U.S. 911, 77 S.Ct. 1293, 1 L.Ed.2d 1428, since it is clear that Section 301 of the Labor Management Relations Act confers power upon the District Courts to compel arbitration in accordance with the terms of a collective bargaining agreement. Textile Workers Union v. Lincoln Mills, 1957, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972.
4
Sperry urges, however, that the present proceeding was commenced by Petition and Notice of Motion, a procedure it claims is authorized only by the Federal Arbitration Act. Hence, it contends, the present proceeding was not a suit commenced under Section 301, and Lincoln Mills is, therefore, not dispositive of the jurisdictional issues presented on this appeal. We may assume, without so deciding, that Sperry is correct in its contention that proceedings under Section 301 must be commenced by the filing of a complaint and the service of a summons. Nevertheless, the petition clearly invoked the jurisdiction of the District Court under Section 301. Sperry failed to object to the manner in which the proceeding had been commenced; and within twenty days following service upon it of the Petition and Notice of Motion filed its answer, denying that an arbitrable dispute existed and alleging that EA's demand for arbitration was premature. The answer did not state that there had been any impropriety in commencing the proceeding by petition. The failure to do so is a waiver by Sperry and it is precluded from asserting this contention at this time. See Rule 12(h), Fed.Rules Civ.Proc., 28 U.S.C.
5
A clause of the collective bargaining agreement at issue here requires as a condition precedent to arbitration that the grievance procedure elsewhere provided for in the contract be exhausted prior to a demand for arbitration.1 In compliance with this requirement EA filed a grievance2 with Sperry and therein stated its objections to the salary increases that are the basis of the present dispute. The employer denied the charges made by the union. During the next several months the parties discussed the subject matter of the grievance and exchanged correspondence. These negotiations failed to result in a settlement of the grievance. Finally EA notified Sperry of its intention to submit the dispute to arbitration, and, upon the latter's failure to comply with the demand, initiated the within proceeding. The District Court found that each step of the grievance procedure provided for in the contract had been completed. Sperry alleged that there had been an agreement between the parties to modify the prescribed grievance procedure so that Sperry might file a supplemental answer to EA's claim. On this issue the findings of the District Court rejecting Sperry's allegation are fully supported by the record.
6
The principal issue on this appeal is whether the dispute between the parties that caused EA to file its grievance is an arbitrable dispute under the language of the collective bargaining agreement. Merely because the dispute was "grievable," it does not necessarily follow that it was also arbitrable. The grievance procedure established by the contract covers a wider range of controversies than the arbitration clause. The former extends to "all disputes, differences or grievances that may arise between the Association and the Employer * *" The latter clause is more limited. It provides for the submission to arbitration of "all disputes, differences, or grievances arising out of the interpretation or application of the provisions of this agreement * * *" Hence Sperry contends that since, under the contract, the granting of merit increases is a matter within its sole discretion, the union's grievance does not give rise to an arbitrable dispute. EA replies, and we think correctly, that this contention begs the question. EA contends that even if merit increases are at the sole discretion of the employer, the issue here is whether the salary increases were in fact granted for merit, or whether in fact they were granted as an incentive for employees to transfer to the Utah plant. If the increases were granted on the latter basis they were increases that were prohibited by the collective bargaining agreement. A determination of their true nature is properly arbitrable under the contract.
7
EA argues that although merit increases are at the sole discretion of the employer, the present dispute concerns the interpretation of the phrase "on a merit basis only" as that phrase applies to the particular increases objected to. Hence, it concludes, the dispute "arises out of the interpretation or application" of the agreement, and is, therefore, arbitrable. In reply, Sperry asserts that under the contract it retains the right to grant merit increases, and that such increases are not reviewable by an arbitrator. It urges that the union should not be permitted to obtain a review of such increases merely by the device of attaching a foreign label to them, i. e., by calling them "transfer increases," for if EA were permitted to create an arbitrable dispute merely by asserting that salary increases have been granted on the basis of considerations other than merit, the purpose underlying the "sole discretion" clause would be largely nullified. Sperry argues that it has bargained not merely for the right to grant merit increases, but also for the right to do so without being called before an arbitrator whenever EA disagrees with the increases granted. Consequently, Sperry contends, the court should not compel arbitration unless EA produces evidence which tends to justify its assertion that the salary increases were not granted for merit, and were granted for other reasons. Since, in Sperry's view, the union has failed to produce such evidence, the grievance does not give rise to an arbitrable dispute.
8
Proceedings under Section 301 are governed by federal law, Textile Workers Union v. Lincoln Mills, supra. The section does not contain any guides for decision, and therefore, limited only by the policy of our national labor laws, we must fashion the applicable rules from other sources. "State law, if compatible with the purposes of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy." Lincoln Mills, supra, 353 U.S. at page 457, 77 S.Ct. at page 918. Also, we may look to the Federal Arbitration Act which, though not binding upon us in suits brought under Section 301, General Electric Co. v. Local 205, 1957, 353 U.S. 547, 77 S.Ct. 921, 1 L.Ed.2d 1028, does provide a "guiding analogy." Textile Workers v. American Thread Co., D.C.Mass.1953, 113 F.Supp. 137.
9
Under New York law, the law which would govern this dispute were it not for the power granted the federal courts by Section 301, arbitration will not be compelled unless the party demanding it introduces evidence of the existence of an arbitrable dispute. General Electric Co. v. United Electrical Radio & Machine Workers, 1949, 300 N.Y. 252, 90 N.E.2d 181; Application of Berger, 1948, 191 Misc. 1043, 78 N.Y.S.2d 528. The difficulty in the present case, as the court below recognized, is that a determination of the arbitrability of the grievance depends upon the same facts relevant to a decision by an arbitrator upon the merits of the grievance. If the wage increases granted by Sperry were "on a merit basis only," then Sperry has not only not violated the contract, but the present dispute is not arbitrable. If, on the other hand, the increases were granted on the basis of considerations other than merit, Sperry has violated the contract and the dispute is arbitrable. But, merely because there is an identity of issues in the two proceedings, the court is not relieved of its duty to determine whether an arbitrable dispute exists. In construing the provisions of the Federal Arbitration Act, we have stated that after determining that the parties have entered into an arbitration agreement, the duty of the court is to determine "whether any of the issues raised in the suit were within the reach of that agreement." Kulukundis Shipping Co. v. Amtorg Trading Corp., 2 Cir., 1942, 126 F.2d 978, 988. This duty cannot be adequately performed unless the court examines the facts upon which the demand for arbitration is based as those facts relate to the language of the agreement. See Industrial Trades Union v. Woonsocket Dyeing Co., D.C.R.I.1954, 122 F. Supp. 872. To make out a case for arbitration, Sperry's alleged breach must be "put in issue by facts, as distinguished from unsupported charges * * *" Application of Berger, supra, 78 N.Y.S.2d at page 532; General Electric Co. v. United Electrical Radio and Machine Workers, supra.
10
It should be observed, however, that even in a case such as the present one, where the same facts are determinative of both arbitrability and the merits of the controversy, an order compelling the parties to submit to arbitration does not impinge upon the power of the arbitrator to decide the merits of the dispute. The difference between the two proceedings is in the quantum of proof necessary for the moving party to obtain relief. In the arbitration hearing, the party seeking relief must fully establish his claim that the opposing party has violated the contract. Determination of arbitrability only requires that the moving party produce evidence which tends to establish his claim. Once the tendency of the evidence to support the claim has been established, it is then the function of the arbitrator to weigh all the evidence and to then determine whether the contract was broken.
11
An examination of the record indicates that EA has introduced evidence which tends to support its claim that the parties are engaged in a dispute that is arbitrable under the contract. Sixteen of the twenty-eight employees consenting to transfer to the Utah plant received salary increases. Eight of these sixteen were promoted to a higher classification. Sperry asserts, and EA does not deny, that salary increases accompanying promotion to a higher classification have always been treated as merit increases. But, the other eight employees who received salary increases were not promoted; they were merely given positions of higher responsibility. EA contends that salary increases granted under these circumstances are not granted on "a merit basis only." This contention gives rise to a substantial problem in the interpretation of the agreement. EA is entitled to have an arbitrator determine whether it is correct in its contention or whether the sole discretion retained by Sperry in connection with the granting of merit increases permits the latter to grant increases to employees assuming positions of higher responsibility.
12
The record also reveals that each of the sixteen employees who received salary increases immediately received those increases, even though their promotions or their assumptions of higher responsibility were not effective until they transferred to Utah, transfers which apparently have not occurred yet. Without passing upon the weight to be given this evidence, we think that EA may legitimately argue that the timing of the increases gives rise to a likely inference that the purpose of the increases was to provide an incentive to transfer and not to compensate for meritorious performance of duty.
13
We conclude that EA has established the existence of an arbitrable dispute. Whether it is correct in contending that the salary increases were granted for considerations other than merit is a question which the parties have agreed to submit to an arbitrator, and the court below properly ordered such a submission.
14
Affirmed.
Notes:
1
Immediately following that portion of the contract setting forth the grievance procedure, the contract provides:
"F. Arbitration
"1. Unless otherwise provided elsewhere in this Agreement, all disputes, differences or grievances arising out of the interpretation or application of the provisions of this Agreement that shall not have been satisfactorily settled within two weeks following the procedure hereinabove set forth shall, at the request of either party, be promptly submitted to arbitration."
2
A dispute such as the present one is termed by the contract an "Association-Employer Grievance." The procedure for dealing with such disputes is set forth in Article 20 of the contract which provides, in pertinent part:
"B. Association-Employer Grievances
"1. All disputes, differences or grievances that may arise between the Association and the Employer, or between the Employer and the Association, shall be taken up between the Association Grievance Committee and the Vice Presidents for Operations and for Industrial Relations, or their duly designated representative or representatives. Subsequent handling of such disputes, differences, and grievances shall be in accordance with the provisions of paragraphs (b) and (c) of Part A above."
The pertinent portion of paragraph (b) states that "The Employer shall notify the Association in writing within two weeks after this meeting of its decision" and paragraph (c) provides that "In the event that the Association does not accept the Employer's answer, it shall, within two weeks after the receipt thereof, notify the Employer of its intention to submit the same for arbitration."
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Order Michigan Supreme Court
Lansing, Michigan
April 1, 2008 Clifford W. Taylor,
Chief Justice
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
136121 (9) Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman,
Justices
JOHN CORRION,
Plaintiff-Appellant,
v SC: 136121
CoA: 284024
LIVINGSTON COUNTY JUDGE,
Defendant-Appellee.
___________________________________
On order of the Chief Justice, the motion to waive fees is considered and it
is DENIED because MCL 600.2963 requires that a prisoner pursuing a civil action be
liable for filing fees.
Within 21 days of the certification of this order, plaintiff shall pay to the
Clerk of the Court the initial partial filing fee of $8.00, shall submit a copy of this order
with the payment, and shall refile the copy of the pleadings which is being returned
with this order. Failure to comply with this order shall result in the appeal not being
filed in this Court.
If plaintiff timely files the partial fee and refiles the pleadings, monthly
payments shall be made to the Department of Corrections in an amount of 50 percent of
the deposits made to plaintiff’s account until the payments equal the balance due of
$367.00. This amount shall then be remitted to this Court.
Pursuant to MCL 600.2963(8) plaintiff shall not file further appeals in this
Court until the entry fee in this case is paid in full.
The Clerk of the Court shall furnish two copies of this order to plaintiff and
return plaintiff’s pleadings with this order.
I, Corbin R. Davis, 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.
April 1, 2008 _________________________________________
jm Clerk
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Opinion issued March 17, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00595-CV
———————————
CHARLES THIELEMANN, Appellant
V.
BLINN BOARD OF TRUSTEES, Appellee
On Appeal from the 335th District Court
Washington County, Texas
Trial Court Case No. 35485
MEMORANDUM OPINION
Charles Thielemann appeals the trial court’s order sanctioning him for filing
a frivolous suit against the Blinn Board of Trustees pursuant to section 11.161 of
the Texas Education Code. In his sole issue, Thielemann argues that the trial court
abused its discretion when it imposed sanctions against him. We reverse the trial
court’s award of sanctions against Thielemann and render judgment that the Blinn
Board of Trustees take nothing.
Background
Charles Thielemann filed suit, pro se, against the Blinn Board of Trustees
(“the Board”) alleging that the Board, acting in its official capacity as the
governing board of Blinn College, violated Education Code section 130.0032(d)(2)
when it set out-of-district tuition rates for students because the rates caused
Thielemann and the other taxpayers of Washington County to shoulder a
disproportionate amount of the cost. 1 Thielemann argued that, in addition to
violating section 130.0032, the Board’s refusal to comply with this mandatory
provision of the Education Code also amounted to an abuse of official capacity in
violation of Texas Penal Code section 39.02. See TEX. PENAL CODE § 39.02 (West
2011). Thielemann argued that the Board did not believe that it was required to
comply with section 130.0032(d) and he asked the court to interpret this section
using the general rules of statutory construction and order the Board to refund
approximately $870,000 in “illegal taxes” to the taxpayers of Washington County
for past violations of section 130.0032(d), and order the Board to comply with
1
Section 130.0032(d) provides that “[t]he governing board of a junior college
district shall establish the rate of tuition and fees charged to a student who resides
outside the district by considering factors such as . . . the extent to which the rate
will ensure that the cost to the district of providing educational services to a
student who resides outside the district is not financed disproportionately by the
taxpayers residing within the district.” TEX. EDUC. CODE ANN. § 130.0032(d)(2)
(West Supp. 2014).
2
section 130.0032(d) when setting tuition rates in the future. Thielemann
acknowledged that the Board claimed that his suit was barred by the doctrine of
governmental immunity and argued that “there is no Government Immunity when
Public Servants violate a law.”
The Board filed a motion to dismiss for lack of jurisdiction on the basis that
no private civil cause of action existed under the Education Code or Penal Code
and that Thielemann had failed to affirmatively demonstrate sufficient facts to
waive the Board’s governmental immunity. After the court granted the Board’s
motion to dismiss, the Board filed a motion for sanctions pursuant to Education
Code section 11.161 seeking reimbursement of its attorney’s fees and costs. After
conducting a non-evidentiary hearing on the sanctions motion, the trial court
granted the Board’s motion and awarded the Board $9,055.50 in attorney’s fees
and costs. This appeal followed.
Sanctions
In his sole issue, Thielemann argues that the trial court abused its discretion
by granting the Board’s motion for sanctions filed pursuant to section 11.161 of the
Texas Education Code.
We review the trial court’s award of sanctions pursuant to section 11.161 for
an abuse of discretion. Ollie v. Plano Indep. Sch. Dist., 383 S.W.3d 783, 793 (Tex.
App.—Dallas 2012, pet. denied) (reviewing award of attorney’s fees under section
3
11.161 of Education Code for abuse of discretion); Kessling v. Friendswood Indep.
Sch. Dist., 302 S.W.3d 373, 387 (Tex. App.—Houston [14th Dist.] 2009, pet.
denied) (same). “The test for an abuse of discretion is not whether, in the opinion
of the reviewing court, the facts present an appropriate case for the trial court’s
action, but ‘whether the court acted without reference to any guiding rules and
principles.’” Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004) (quoting
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)).
The trial court’s ruling should be reversed only if it was arbitrary or unreasonable.
Downer, 701 S.W.2d at 242.
Sanctions are reserved for “those egregious situations where the worst of the
bar uses our honored system for ill motive without regard to reason and the guiding
principles of the law.” Thielemann v. Kethan, 371 S.W.3d 286, 295 (Tex. App.—
Houston [1st Dist.] 2012, pet. denied) (quoting Dyson Descendant Corp. v. Sonat
Exploration Co., 861 S.W.2d 942, 951 (Tex. App.—Houston [1st Dist.] 1993, no
writ)). A trial court may not base sanctions solely on the legal merit of a pleading
or motion. Thielemann, 371 S.W.3d at 294 (citing Elkins v. Stotts–Brown, 103
S.W.3d 664, 668 (Tex. App.—Dallas 2003, no pet.)). Instead, the trial court must
examine the facts available to the litigant and the circumstances existing at the time
the pleading was filed. Id.
4
Section 11.161 of the Education Code allows school districts to recover
reasonable attorney’s fees and costs if “(1) the court finds that the suit is frivolous,
unreasonable, and without foundation; and (2) the suit is dismissed or judgment is
for the defendant.” TEX. EDUC. CODE ANN. § 11.161 (West 2012). A “frivolous”
suit is generally understood to mean one that does not have a reasonable basis in
law or fact. See Gen. Elec. Credit Corp. v. Midland Cent. Appraisal Dist., 826
S.W.2d 124, 125 (Tex. 1991) (per curiam) (stating suit is not frivolous so long as it
has “reasonable basis in law and constituted an informed, good-faith challenge”);
see generally TEX. R. CIV. P. 13 (authorizing sanctions against party or party’s
attorney for filing “groundless” pleading; defining “groundless” pleading as one
that has “no basis in law or fact and [is] not warranted by good faith argument for
the extension, modification, or reversal of existing law.”).
Under Texas law, a public community college, such as Blinn College, is a
political subdivision of the state and, thus, protected by governmental immunity.
See Lone Star Coll. Sys. v. Immigration Reform Coal. of Tex. (IRCOT), 418
S.W.3d 263, 267 n.7 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); Wood v.
Coastal Bend Coll., 13-09-00253-CV, 2010 WL 2136621, at *2 (Tex. App.—
Corpus Christi May 27, 2010, pet. denied); see also TEX. CIV. PRAC. & REM. CODE
ANN. § 101.001(3)(A) & (B) (West Supp. 2014). Additionally, an individual, such
as a trustee, sued in his official capacity enjoys the protections of governmental
5
immunity to the same extent as those available to his employer. See City of El Paso
v. Heinrich, 284 S.W.3d 366, 380 (Tex. 2009). Therefore, if the governmental unit
would be immune due to governmental immunity, so is the governmental official
sued in his official capacity. See id.
Governmental immunity, however, does not bar suits seeking to require state
officials to comply with statutory or constitutional provisions. See id. at 372; see
also Bell v. City of Grande Prairie, 221 S.W.3d 317, 325 (Tex. App.—Dallas
2007, no pet.) (stating that request for injunction requiring “City’s officers to
follow the law in the future . . . is not barred by the City’s immunity to suit”). To
properly plead under this “ultra vires” exception to governmental immunity,
Thielemann was required to allege that a state official acted without legal authority
or failed to perform a purely ministerial act. See Heinrich, 284 S.W.3d at 372. A
successful claimant in an ultra vires suit against a government official may obtain
prospective declaratory or injunctive relief, but it may not recover retrospective
relief, such as monetary damages. See id. at 373–76.
Liberally construing Thielemann’s pleading, it is apparent that Thielemann
is asking for retrospective monetary damages based on the Board’s failure to
comply with Education Code section 130.0032(d) in the past, as well as
prospective injunctive relief (i.e., a court order requiring the Board to comply with
6
Education Code section 130.0032(d) in the future). 2 See Washington v. Bank of
N.Y., 362 S.W.3d 853, 854 (Tex. App.—Dallas 2012, no pet.) (stating that courts
liberally construe pro se pleadings and briefs). As the Board acknowledged in its
motion to dismiss, Thielemann’s pleading “does, in essence, seek declaratory
relief” from the trial court. Although Thielemann’s request for retrospective
monetary damages is barred by governmental immunity, his request for
prospective injunctive relief is not barred if Thielemann is able to satisfy the ultra
vires exception. See Heinrich, 284 S.W.3d at 373–76.
Here, Thielemann alleged that the Board, acting in its official capacity, set
out-of-district tuition rates and fees without considering the disproportionate
impact the rates were having on district taxpayers, as set forth in section
130.0032(d)(2), and he asked the trial court to order the Board to comply with
section 130.0032(d)(2) in the future. See id. at 372–73 (holding ultra vires
exception applies only to state officials sued in their official capacities, not to
governmental entities). Section 130.0032(d) provides:
The governing board of a junior college district shall establish the rate
of tuition and fees charged to a student who resides outside the district
by considering factors such as . . . the extent to which the rate will
ensure that the cost to the district of providing educational services to
2
Because Thielemann is not challenging the dismissal of his suit for lack of
jurisdiction on appeal, we are considering Thielemann’s pleading for the limited
purpose of evaluating the trial court’s finding that Thielemann’s suit was
“frivolous, unreasonable, and without foundation.”
7
a student who resides outside the district is not financed
disproportionately by the taxpayers residing within the district.
TEX. EDUC. CODE ANN. § 130.0032(d)(2) (West Supp. 2014) (emphasis added).
Thielemann alleged that although the Board was required to consider this factor
when it set tuition rates and fees, it failed to do so. Such allegations are arguably
sufficient to plead an ultra vires exception to governmental immunity. See
Heinrich, 284 S.W.3d at 372. Therefore, we cannot say that Thielemann’s suit
lacked a reasonable basis in law. See Gen. Elec. Credit Corp., 826 S.W.2d at 125
(stating suit is not frivolous so long as it has “reasonable basis in law and
constituted an informed, good-faith challenge”); Dyson Descendant Corp, 861
S.W.2d at 951 (stating sanctions should only be assessed “in those egregious
situations where the worst of the bar uses our honored system for ill motive
without regard to reason and the guiding principles of the law”). Although the
Board argued in its motion for sanctions that Thielemann’s declaratory judgment
action was barred by governmental immunity because the acts that he was
complaining about were, in the Board’s opinion, “clearly discretionary,” there is no
case law expressly addressing the question of whether the duties imposed by
section 130.0032(d) are discretionary in nature and the statute’s use of the term
“shall” arguably lends some support to Thielemann’s alternate interpretation. 3
3
The Board also argued that Thielemann’s declaratory judgment action was barred
because he was seeking retrospective damages, not prospective injunctive relief.
8
The Board argues that this case is similar to Davison v. Plano Independent
School District, a case in which the Dallas Court of Appeals upheld the award of
sanctions pursuant to section 11.161 because the record demonstrated that the
plaintiff knew before she filed suit that a state agency had previously dismissed her
claims for failure to exhaust her administrative remedies and that the school
district’s counsel had specifically notified the plaintiff that her claims were barred
by immunity and the failure to exhaust her administrative remedies. No. 05-12-
01308-CV, 2014 WL 1018212, at *8 (Tex. App.—Dallas Feb. 20, 2014, no pet.).
Like in Davison, the Board argued in its sanctions motion that it provided
Thielemann with case law regarding the issue of immunity when Thielemann filed
a petition for presuit discovery and that appellees’ counsel “repeatedly told
[Thielemann] that the College and its Board members are protected by
governmental immunity in telephone conversations and again” during a meeting
with Thielemann that was held before the Board filed its motion to dismiss. The
Board argued that the fact that Thielemann “continued to litigate this matter even
after he was provided considerable authority proving that claims against the Board
[were] barred by immunity which has not been waived is ample evidence that
[Thielemann’s] lawsuit was frivolous, unreasonable and without foundation.”
As previously discussed, Thielemann’s petition sought both forms of relief. See
Heinrich, 284 S.W.3d at 372 (“[I]t is clear that suits to require state officials to
comply with statutory or constitutional provisions are not prohibited by sovereign
immunity, even if a declaration to that effect compels the payment of money.”).
9
Unlike in Davison, however, none of these arguments were supported by
evidence offered at the hearing. The sanctions hearing consisted entirely of
arguments of Thielemann and counsel; no testimony or exhibits were admitted into
evidence during the hearing. Motions and arguments of counsel do not constitute
evidence for purposes of a sanctions proceeding. See Thielemann, 371 S.W.3d at
295. At the conclusion of the non-evidentiary hearing, the trial court took judicial
notice of “the filings” and the Board’s attorney’s affidavit attesting only to the
amount and reasonableness of attorney’s fees incurred. The “filings” in this case,
however, do not include Thielemann’s Rule 202 petition or the Board’s complete
response to that petition which were filed under a different trial court case number.
See TEX. R. CIV. P. 202 (authorizing presuit discovery in civil cases under limited
circumstances). Thielemann attached documents to his petition that generally
referenced the Rule 202 petition and the Board’s response, as well as one page
from the Board’s response. While the page from the Board’s response addressed
the issue of immunity, it did not address Thielemann’s declaratory judgment action
or the ultra vires exception to governmental immunity.
More importantly, unlike in Davison, Thielemann’s requested declaratory
judgment relief seeking interpretation of section 130.0032(d) and an order
requiring the Board to comply with section 130.0032(d) is arguably supported by
case law as an attempt to require state officials to comply with statutory or
10
constitutional provisions. See Heinrich, 284 S.W.3d at 372; see also Bell, 221
S.W.3d at 325. Accordingly, Davison is distinguishable on its facts.
Having determined that Thielemann’s declaratory judgment claim had an
arguably reasonable basis in law, we hold that the court abused its discretion when
it sanctioned Thielemann for filing suit against the Board and awarded the Board
attorneys’ fees and costs pursuant to section 11.161. See Thielemann, 371 S.W.3d
at 295 (reversing sanctions against party for filing groundless pleading because,
although party did not prevail, case law arguably supported party’s claims); see
also GTC Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993)
(holding trial court abused discretion in awarding sanctions when no proof that
party before filing pleading was aware of evidence discrediting pleading); Elkins,
103 S.W.3d at 669 (holding trial court abused discretion in granting sanctions
when movant did not “put on any evidence at the hearing”).
Conclusion
We reverse the trial court’s award of sanctions against Thielemann and
render judgment that the Board take nothing.
Russell Lloyd
Justice
Panel consists of Chief Justice Radack and Justices Brown and Lloyd.
11
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3 N.Y.3d 766 (2004)
PEOPLE v. NUNEZ
Court of Appeals of the State of New York.
Decided November 18, 2004.
Motion for extension of time to apply for permission to appeal pursuant to CPL 460.20 granted.
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99 F.3d 1158
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.ISAChester WOZNIEWSKI, Petitioner,v.DEPARTMENT OF VETERANS AFFAIRS, Respondent.
No. 96-3102.
United States Court of Appeals, Federal Circuit.
Sept. 23, 1996.
69 M.S.P.R. 194.
REMANDED.
ORDER
1
Upon reading and consideration of the Department of Veterans Affairs' motion to remand this case to the Merit Systems Protection Board ("MSPB"),
IT IS ORDERED THAT:
2
The motion is granted, and this case is remanded to the MSPB for a hearing on the issue of whether Mr. Wozniewski breached his last-chance settlement agreement.
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[Cite as State ex rel. Mooney v. Irving, 2011-Ohio-686.]
COURT OF APPEALS
HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, EX REL. JUDGES:
SANDRA L. MOONEY Hon. John W. Wise, P. J.
Hon. Julie A. Edwards, J.
Relator Hon. Patricia A. Delaney, J.
-vs-
JANE IRVING, JUDGE OF THE Case No. 10 CA 021
HOLMES COUNTY MUNICIPAL
COURT
Respondent OPINION
CHARACTER OF PROCEEDING: Petition for Writ of Procedendo
JUDGMENT: Denied
DATE OF JUDGMENT ENTRY: February 15, 2011
APPEARANCES:
For Relator For Respondent
JOSEPH F. SALZGEBER STEPHEN D. KNOWLING
Post Office Box 799 PROSECUTING ATTORNEY
Brunswick, Ohio 44212-0799 CHRISTINE C. WILLIAMS
ASSISTANT PROSECUTOR
164 East Jackson Street
Millersburg, Ohio 44654
Holmes County, Case No. 10 CA 021 2
Wise, P. J.
{¶1} Relator, Sandra Mooney, has filed a petition requesting this Court issue a
writ of procedendo compelling Judge Jane Irving of the Holmes County Municipal Court
to issue a sentencing entry in Case Number CRB 0800431.
{¶2} The instant complaint was filed on November 9, 2010. The trial court
issued a ruling on the motion in the criminal cases on September 14, 2010, however, it
does not appear Relator was aware of the fact the entry had been issued. Since the
filing of this Complaint, Relator has become aware of the entry and was granted leave
to pursue a delayed appeal in Holmes County Case Number 10CA22. Despite having
been granted leave to pursue the appeal, Relator has not dismissed the instant case,
therefore, we will address the merits of the petition.
{¶3} The Supreme Court has held, “Neither procedendo nor mandamus will
compel the performance of a duty that has already been performed. State ex rel. Grove
v. Nadel (1998), 84 Ohio St.3d 252, 253, 703 N.E.2d 304, 305.” State ex rel. Kreps v.
Christiansen (2000), 88 Ohio St.3d 313, 318, 725 N.E.2d 663, 668.
{¶4} Because the requested relief has already been obtained, we find the
petition for writ of procedendo is moot and deny the Petition.
Holmes County, Case No. 10 CA 021 3
{¶5} PETITION DENIED.
{¶6} COSTS TO RELATOR.
{¶7} IT IS SO ORDERED.
By: Wise, P. J.
Edwards, J., and
Delaney, J., concur.
___________________________________
___________________________________
___________________________________
JUDGES
JWW/d 0114
Holmes County, Case No. 10 CA 021 4
IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, EX REL. :
SANDRA L. MOONEY :
:
Relator :
:
-vs- : JUDGMENT ENTRY
:
JANE IRVING, JUDGE OF THE :
HOLMES COUNTY MUNICIPAL COURT :
:
Respondent : Case No. 10 CA 021
For the reasons stated in our accompanying Memorandum-Opinion, the petition
for writ of procedendo is moot and the petition is denied.
Costs assessed to Relator.
___________________________________
___________________________________
___________________________________
JUDGES
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UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 95-30388
Summary Calendar
_____________________________________
JAMES EARL COOLEY,
Petitioner-Appellant,
VERSUS
RICHARD P. IEYOUB, Attorney General,
State of Louisiana, and BURL CAIN,
Acting Warden, Louisiana State Penitentiary,
Respondents-Appellees.
______________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(92-CV-2234 A)
______________________________________________________
November 6, 1995
Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:1
Cooley appeals from the district court's order denying his
petition for a writ of habeas corpus. He argues that his guilty
plea was induced by a promise, made by both the state trial judge
and his court-appointed attorney, that he would be released from
prison after service of ten years, six months. The alleged promise
was never fulfilled. Appellant filed this federal action in 1992,
1
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
seven years after the final denial of his state habeas petition and
twenty years after entering his plea of guilty to murder.
The district court denied the petition on two grounds. First,
it determined the state had demonstrated that the seven year delay
had caused it prejudice and was the result of the defendant's
failure to act with reasonable diligence. Rule 9(a) of the Rules
Governing Section 2254 Cases, therefore, required dismissal of the
petition. Second, it concluded that Cooley was not entitled to
relief on the merits. When a petitioner alleges that an unkept
promise induced him to plead guilty, he must prove: (1) the exact
terms of the alleged promise; (2) when, where, and when such a
promise was made; and (3) the indentity of an eyewitness to the
promise. Smith v. Blackburn, 785 F.2d 545, 548 (5th Cir. 1986)
(citing Blackledge v. Allision, 431 U.S. 63, 76 (1977)). By the
time of this petition, the state trial judge who had accepted
Cooley's plea, his defense counsel, and the prosecutor were all
dead. And the transcript of the 1972 hearing had been destroyed.
Cooley and his brother, however, testified that the promise had
been made and was discussed in open court. The judge's minutes
clerk, on the other hand, stated that if the court had said Cooley
would be entitled to release after ten years and six months he
would have recorded it. No such statement appears in the record.
The district court found the clerk's testimony more credible than
that of the appellant or his brother and dismissed the petition.
We affirm on the merits rather than on procedural grounds.
The state may well have suffered prejudice from Cooley's inordinate
2
delay in filing his federal habeas petition. The record suggests,
however, that the defendant may not have received adequate notice
of the state's intent to move for dismissal on Rule 9(a) grounds.
See McDonnell v. Estelle, 666 F.2d 246, 253 (5th Cir. 1982). We
therefore decline to affirm on this ground. However, the district
court did not clearly err in finding that appellant failed to carry
his burden of proof as to the existence of the alleged promise.
This court defers to the district court when factual determinations
are based on credibility. Williams v. Fab-Con, Inc., 990 F.2d 228,
239 (5th Cir. 1993). We therefore affirm on the merits. Cooley v.
Whitley, No. 92-CV-2234 A (E.D.La. Mar. 31, 1995).
AFFIRMED.
3
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624 F.Supp. 590 (1984)
Walter I. BECHTEL, Plaintiff,
v.
PENSION BENEFIT GUARANTY CORPORATION, Defendant.
Civ. A. No. 83-0121.
United States District Court, D. Columbia.
July 10, 1984.
*591 Jeffrey L. Gibbs, Washington, D.C., for plaintiff.
Renae R. Hubbard, Office of the General Counsel, Pension Ben. Guar. Corp., Washington, D.C., for defendant.
MEMORANDUM
GASCH, District Judge.
This case presents the question of whether payments in excess of statutorily guaranteed benefits made by the Pension Benefit Guaranty Corporation (PBGC) to participants in terminated employee pension plans constitute overpayments that can be recouped by the PBGC. The payments here in question were made in the interim between the termination of the inadequately funded pension plan for employees of the bankrupt Alan Wood Steel Company of Conshohocken, Pennsylvania, and the time when payments were reduced to statutorily guaranteed amounts. The Court denied the plaintiff's motion for preliminary injunction, and the case is now before the Court on the parties' cross-motions for summary judgment.
BACKGROUND
On June 10, 1977, the Alan Wood Steel Company filed a Chapter XI bankruptcy petition in the Eastern District of Pennsylvania. Alan Wood had maintained a pension plan pursuant to a pension agreement between it and the United Steel Workers of America, AFL-CIO (USWA). All steelmaking operations at Alan Wood ceased and all Alan Wood employees were laid off by November 1, 1977. At that time, employees who were eligible for pension benefits under the plan were receiving pension benefits at levels specified in the plan.
Alan Wood filed a Notice of Intent to Terminate with the PBGC on May 26, 1978, proposing June 5, 1978 as the date of termination. In a letter from PBGC to the Alan Wood Pension Advisory Committee, dated June 22, 1978, PBGC indicated that the proposed date would not necessarily be the date of the plan's termination and that the Advisory Committee could continue making payments to participants and beneficiaries who had been receiving pension benefits when the Notice of Termination was filed and could commence payments to those who subsequently became eligible for benefits for reasons other than the plan's termination. The PBGC's letter went on to state:
In the course of the statutory termination procedure it may become necessary to adjust or recapture a portion of the amounts paid to participants or their beneficiaries if such amounts are in excess of benefits guaranteed under [ERISA]. Therefore, we recommend that you advise all participants receiving benefits that their benefits may be subject to adjustment or recapture if plan assets ... are insufficient to satisfy guaranteed benefits.
In July 1978, PBGC wrote to the advisory committee recommending discontinuance of monthly Social Security supplemental benefit payments[1] because such payments would not be guaranteed under ERISA. Pursuant to this request, payment of the Social Security supplements was discontinued effective August 1, 1978.
By agreement effective January 5, 1979, PBGC and Alan Wood established November 1, 1977, as the date of plan termination. By that agreement, PBGC also became trustee of the plan. Following this agreement, the participants' benefits continued to be paid at the same levels as those immediately prior to January 5, 1979. On February 27, 1979, PBGC hired Milliman & Robertson, Inc., an actuarial consulting firm, to calculate guaranteed benefits for *592 plan participants. The plan provides for a complicated benefit structure, making calculations difficult.
By letter dated July 19, 1979, PBGC informed participants that it had become trustee of the plan and that the plan termination date was November 1, 1977. The letter stated that no additional benefits would accrue after the termination date, that the guaranteed provisions of ERISA became effective on that date, and that PBGC could pay only those benefits guaranteed by ERISA.
On November 6, 1979, PBGC informed participants who had been receiving benefits in excess of guaranteed amounts that payments would be cut back to guaranteed levels. PBGC also informed participants that they would have to repay amounts received in excess of guaranteed amounts during the period since the date of plan termination. The letter further stated that repayment could be in a lump sum or by pro rata reduction of future payments. Payments at guaranteed levels began in January 1980. On or about November 16, 1982, PBGC notified each participant who had received the November 1979 letter that only excess payments received after June 5, 1978, would be recouped. Recoupment from participants who did not make lump sum repayments began with the February 1, 1983, benefit checks. As of September 13, 1983, PBGC was recouping benefit overpayments by a reduction in benefit payments to 635 Alan Wood participants.
DISCUSSION
The Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., is designed to protect participants in employee benefit plans. See 29 U.S.C. § 1001. Title IV of ERISA insures employees against a complete loss of pension benefits in the event their employee pension plans terminate. 29 U.S.C. § 1301 et seq. Section 1301[2] creates the PBGC to administer this insurance program.
If a pension plan terminates without sufficient assets to pay all vested benefits, the PBGC pays the benefits within certain limits. Section 1322(b) imposes limits on the amounts guaranteed to participants in inadequately funded terminated plans. Section 1361 provides that the PBGC cannot pay benefits above and beyond the limits imposed by Section 1322(b) and the other sections in subtitle B of ERISA.
Section 1342 empowers the PBGC to appoint a trustee to administer a terminating plan until the termination is complete. Between the time the plan is entrusted to the trustee and the time it is terminated, Section 1342(d) grants the trustee the power to "continue payment of some or all of the benefits which were being paid prior to his appointment." The issue presented by this suit is whether this portion of the statute, empowering the trustee to pay the full measure of benefits the plan's participants had been receiving prior to the trustee's appointment is inconsistent with Section 1322(b)(3), which places ceilings on the amount of benefits the PBGC may pay to employees whose pension plans are terminating without sufficient funds to cover all payments due.
In this case, the PBGC, as trustee of the terminating Alan Wood plan, paid to the employees amounts equal to the amounts the employees were receiving before the plan terminated. Once PBGC calculated actual guaranteed benefits, it sought to recoup the amount by which the interim payments exceeded guaranteed levels. The government[3] has broad powers to *593 recoup monies owing it as a result of overpayments. United States v. Wurtz, 303 U.S. 414, 415, 58 S.Ct. 637, 638, 82 L.Ed. 932 (1938). It is, therefore, only necessary to inquire whether the payment of the benefits in question constituted overpayments such that the government is empowered to recoup them.
Because the PBGC is statutorily liable for, and the employees are statutorily entitled to, only the amount of benefits that Section 1322(b)(3) guarantees, any payments made above and beyond the guaranteed amount prior to the plan's termination are recoupable as overpayments. There is a limit on what the PBGC can pay and that limit applies while the plan is being administered by a trustee. This fact is reinforced by the dictate of Section 1361 that the PBGC's payment of benefits under terminated plans be subject to the limitations in Section 1321 through Section 1341a. Under this statutory scheme, amounts paid above guaranteed amounts constitute overpayments.
Because the rights and obligations of the parties are fixed on the date the plan terminates, Audio Fidelity Corp. v. Pension Benefit Guaranty Corp., 624 F.2d 513, 517 (4th Cir.1980), a participant's benefit level is determined as of that date. Yet the nature of pension plans is such that it may take some time to go through the complex calculations needed to determine exact guaranteed benefit levels for each employee. Such was, in fact, the case here.
Because of the difficulty in making the necessary computations, preliminary estimates of guaranteed levels at the time of termination in this case was impossible. PBGC has proposed a regulation to deal with this difficulty. 48 Fed.Reg. 211 (Monday, October 31, 1983). This regulation provides methods for calculating guaranteed benefits at the time of termination. It also prescribes rules for PBGC's recoupment of overpayments made after termination from plan participants or beneficiaries, such as the plaintiff in this case. In the present case, however, it was inevitable under this statutory scheme that between the plan termination date and the date by which guaranteed levels had been calculated, payments would be made at a level other than the guaranteed level. By imposing limits on the amount PBGC may pay, the statute necessarily anticipates that such overpayments will be recouped.
CONCLUSION
The provision empowering the plan trustee to pay out amounts at the same rates received prior to plan termination does not alter the statutory limits imposed on the amount of benefits to be paid by the PBGC. The amounts paid in excess of those limits are overpayments subject to ultimate recoupment now that statutory benefit entitlement calculations are complete. Accordingly, summary judgment is entered for the defendant.
NOTES
[1] Social Security supplemental benefits were available to certain retirees who had not yet become entitled to Social Security benefits.
[2] All references to sections are to Title 29 of the United States Code.
[3] The PBGC is an agency of the federal government, 29 U.S.C. § 1302, and PBGC monies are intermingled, for reporting purposes, with the regular budget of the federal government. 29 U.S.C. § 1305. The plaintiff has noted that the monies in question are not from the federal budget the way, for example, tax monies are Whether or not the PBGC is considered to be a government agency is important to the plaintiff's case. This is because the standard for whether a party is empowered to recoup monies owing it differs depending on whether the party is an individual or a government. The court finds that the PBGC is a government agency for purposes of this analysis, and thus has the broad recoupment power accruing to the federal government.
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SIXTH DIVISION
June 20, 1997
No. 1-96-3859
W.C. RICHARDS COMPANY, INC., ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County
)
v. )
)
HARTFORD ACCIDENT AND INDEMNITY )
COMPANY, ) Honorable
) Stephen A. Schiller,
Defendant-Appellee. ) Judge Presiding.
PRESIDING JUSTICE GREIMAN delivered the opinion of the
court:
In a declaratory judgment action, plaintiff W.C. Richards Company, Inc., the insured, appeals the trial court's order granting summary judgment to defendant Hartford Accident and Indemnity Company, the insurer, and finding that defendant did not owe plaintiff a duty to defend relating to certain environmental issues. The issue on appeal is whether, under California law, the defendant insurer had a duty to defend the plaintiff insured in a matter initiated by a state environmental regulatory agency,
i.e.
, the California Regional Water Quality Control Board (the Board).
We reverse and find that defendant had a duty to defend.
The facts are not in dispute. From 1960 to 1991, plaintiff owned and operated an industrial paint manufacturing facility in Anaheim, California (the Anaheim site). By letter dated August 14, 1990, the Board informed plaintiff that the Anaheim site was determined to be a possible source of pollutants found in nearby groundwater. The outcome of the instant appeal is determined by whether or not the Board letter triggered defendant's duty to defend.
The Board letter, entitled "REQUEST FOR TECHNICAL REPORT," informed plaintiff that "a statewide sampling program to determine the extent and nature of volatile organic contamination in groundwater throughout the state" had been conducted pursuant to a legislative directive. Plaintiff's Anaheim site was under the jurisdiction of the Board for the Santa Ana region (Regional Board). The letter then stated as follows:
"Results obtained from the sampling of wells in this geographical area indicate that chlorinated volatile organic contaminants (VOCs) are present in the groundwater.
The Regional Board is conducting a follow up investigation to determine the source of these pollutants. Regional Board staff has been investigating current and past industrial users of chlorinated organic chemicals, such as solvents, in Anaheim. As a result, we have found that there has been historical use of chlorinated solvents at your facility and that poor handling and disposal practices, which could have resulted in discharges of wastes, have existed. From the information gathered during our investigation, your facility has been determined to be one of the possible sources of the pollutants found in the groundwater near this site.
Since your company is the current operator of the facility and owner of the site, your company is responsible for any wastes that may have been discharged there. Therefore, in accordance with Section 13267 of the California Water Code, we request that you submit a technical report. The technical report must be signed by a registered engineering geologist or engineer with a minimum of 5 years experience in hydrogeology."
The Board letter then outlined the information that should be included in the report. The letter further advised plaintiff "that if this investigation finds that contaminants are present that could adversely impact groundwater, additional investigations or remedial measures may be necessary." Subsequently, plaintiff submitted the Board letter to defendant and requested that defendant provide a defense based on this letter. The relevant language of the insurance policy that applies to defendant's duty to defend states as follows:
"The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
Coverage A - bodily injury or
Coverage B - property damage
to which this insurance applies, caused by an occurrence, and the company shall have the right and
duty to defend any suit
against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company's liability has been exhausted by payment of judgments or settlements." (Emphasis added.)
Defendant did not defend plaintiff in the Board matter.
Subsequently, plaintiff filed a complaint and a first amended complaint for declaratory judgment and other relief, alleging that defendant breached its duty to defend. Plaintiff and defendant filed cross-motions for summary judgment. Following a hearing on these motions, the trial court issued a written opinion on October 1, 1996. The trial court granted summary judgment in favor of defendant and held as follows:
"This court therefore rules that the action taken by the [Board]
in this case
was not the equivalent of a 'suit.' The [Board's] actions did not implicate the same 'immediate and severe' consequences that the Ninth Circuit found to invoke an insured's right to a defense in
Pintlar
[
Aetna Casualty & Surety Co. v. Pintlar Corp.
, 948 F.2d 1507 (9th Cir. 1991)]. Because there was no 'suit,' there was no resulting duty to defend, and therefore summary judgment is granted in favor of the insurer, Hartford." (Emphasis in original.)
On appeal, plaintiff asserts that the trial court erred and argues that, under California law, the Board administrative action constituted a suit for purposes of the duty to defend. Defendant counters that the language of the Board letter was insufficient to trigger its duty to defend because the language was investigatory in nature and did not threaten or invoke severe and immediate consequences.
Our review of rulings on a motion for summary judgment is
de
novo
.
Outboard Marine Corp. v. Liberty Mutual Insurance Co.
, 154 Ill. 2d 90, 102 (1992). Summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.
Outboard Marine
, 154 Ill. 2d at 102.
Initially we find, and the parties agree, that the substantive issues in this case are governed by California law. Where the insurance policy does not contain an express choice of law, as in the present case, the policy provisions are "'governed by the location of the subject matter, the place of delivery of the contract, the domicile of the insured or of the insurer, the place of the last act to give rise to a valid contract, the place of performance, or other place bearing a rational relationship to the general contract.'"
Lapham-Hickey Steel Corp. v. Protection Mutual Insurance Co.
, 166 Ill. 2d 520, 526-27 (1995), quoting
Hofeld v. Nationwide Life Insurance Co.
, 59 Ill. 2d 522, 528 (1975). The application of these factors in the present case establishes that California law governs because the site at issue is located in California, the insurance policy was delivered to plaintiff's Anaheim plant, and the policies were countersigned by defendant's agent in California. Moreover, the matter at issue (the Board claim) concerned a facility located in California and is based upon a California regulatory agency. Accordingly, we look to California law to determine whether or not the Board letter triggered defendant's duty to defend.
The parties correctly direct particular attention to the decisions of the ninth circuit in
Pintlar
and the California Court of Appeals in
Haskel, Inc. v. Superior Court
, 33 Cal. App. 4th 963, 39 Cal. Rptr. 2d 520 (1995).
In
Pintlar
, the ninth circuit addressed an insurer's duty to defend an insured that received a notification from the Environmental Protection Agency (EPA) deeming the insured to be a potentially responsible party (PRP) in connection with environmental contamination pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 42 U.S.C.A. 9601
et
seq
. (West 1991).
Pintlar
, 948 F.2d 1507. The ninth circuit held:
"the EPA's administrative claims against the insureds triggered insurers' duty to defend. Coverage should not depend on whether the EPA may choose to proceed with its administrative remedies or go directly to litigation. A fundamental goal of CERCLA is to encourage and facilitate voluntary settlements. [Citation.] It is in the nation's best interests to have hazardous waste cleaned up effectively and efficiently. But the insured is not required to submit to, and may in fact wish to oppose the threat. In either event, the insurer's duty to defend may well be triggered."
Pintlar
, 948 F.2d at 1517.
In
Haskel
,
the California court of appeal cited
Pintlar
with approval.
Haskel
, 33 Cal. App. 4th at 971, 39 Cal. Rptr. 2d at 523. In
Haskel
, the plaintiff insured was named as a PRP by the EPA for groundwater contamination and similarly accused by the Board for soil and groundwater contamination. Both the EPA and the Board directed the plaintiff to take certain action. The
Haskel
court observed that "[t]hese federal and state administrative directives were the only actions taken against [plaintiff] (and are hereinafter referred to as the 'underlying action'). No judicial proceeding has yet been filed."
Haskel
, 33 Cal. App. 4th at 971, 39 Cal. Rptr. 2d at 523. In a footnote following this statement, the
Haskel
court provided the following guidance:
"The record before us reflects no consideration of the question of whether the threatened administrative action constitutes a 'suit' within the meaning of Haskel's CGL [comprehensive general liability] coverage. Although the issue is not before us, we note, for the assistance of the trial court, that the issue was addressed in [
Pintlar
], where the court [was] faced with this very question ***."
Haskel
, 33 Cal. App. 4th at 971 n.3, 39 Cal. Rptr. 2d at 523 n.3.
The
Haskel
court then directly quoted the holding of
Pintlar
as stated above.
Following the opinion in
Haskel
in 1995, California courts heeded the assistance provided in
Haskel
and found that Board letters triggered an insurer's duty to defend. See Wynn's International, Inc. v. Continental Insurance Co., No. C-94-3766-CAL-ENE (N.D. Cal.) (August 14, 1995) (order for partial summary judgment); GrayBill Terminals Co. v. Fireman's Fund Insurance Co., No. 677722 (Sup. Ct., San Diego County) (December 19, 1995) (order granting summary adjudication of duty to defend); Varian Associates, Inc. v. Aetna Casualty & Surety Co., No. 944196 (Sup. Ct., San Francisco City and County) (February 27, 1996) (order on motion for summary adjudication).
In Wynn's International, the plaintiff insured (a die casting plant) received both a PRP letter from the EPA and directives from the Board. After noting the decisions in
Pintlar
and
Haskel
, the United States District Court specifically held "that the EPA and Board notices were 'suits' under California law for purposes of triggering the insurer's duty to defend." Wynn's International, slip op. at 14.
In GrayBill Terminals, a California superior court ruled that the duty to defend was triggered by a "Site Assessment Order" issued by the CRWQCB. The court specifically held "[a]s a matter of law [the insurer] had a duty to defend [the insured] in the proceedings initiated by the California Regional Water Quality Control Board [CRWQCB]." GrayBill Terminals, slip op. at 3.
In Varian Associates, a California superior court ruled that the plaintiff insured had presented a
prima
facie
case that the insurer had a duty to defend in four administrative actions concerning environmental contamination at four separate sites,
i.e.
, one site in Utah, one site in Massachusetts, and two sites in California. The court noted that the insured had incurred response costs pursuant to the California Water Code and that such costs are damages, relying on
Aerojet-General Corp. v. Superior Court
, 211 Cal. App. 3d 216, 237, 257 Cal. Rptr. 621, 634 (1989). Although the four administrative agencies that initiated the environmental claims are not named, the decision obviously signifies that the Board was involved for the two California sites because it bears the responsibility for enforcing the California Water Code.
Prior to the California Court of Appeal's decision in
Haskel
, the United States District Court, Central District of California, interpreted
Pintlar
differently and found that the insurers had a duty to defend the insureds in administrative proceedings initiated by CERCLA PRP letters but not in administrative matters initiated by the Board. McDonnell Douglas Corp. v. Allstate Insurance Co., No. CV-93-6290-RSWL (EEx) (C.D. Cal.) (October 27, 1994) (
McDonnell Douglas
). The court in
McDonnell Douglas
, however, specifically noted that the California courts of appeal had not yet examined the issue of whether initiation of a Board administrative proceeding triggers an insured's right to a defense.
In light of the subsequent decision issued by the California Court of Appeal in
Haskel
,
McDonnell Douglas
would be considered wrongly decided. The task of speculating on how a certain court may rule when faced with a clean slate, as was the court in
McDonnell Douglas
, is difficult at best. Faced with a similar clean-slate conundrum and conflicting outcomes in different jurisdictions, the sixth circuit found that Michigan law would hold that a PRP letter did not trigger a duty to defend in
Ray Industries, Inc. v. Liberty Mutual Insurance Co.
, 974 F.2d 754 (6th Cir. 1992). After the Michigan Supreme Court addressed the issue, however, a different result obtained (
Michigan Millers Mutual Insurance Co. v. Bronson Plating Co.
, 445 Mich. 558, 519 N.W.2d 864 (1994)), and the conclusion reached by the sixth circuit in
Ray Industries
was effectively nullified by the sixth circuit in
Anderson Development Co. v. Travelers Indemnity Co.
, 49 F.3d 1128, 1131 (6th Cir. 1995).
We, however, do not have a clean slate and believe that
McDonnell Douglas
misinterpreted the holding in
Pintlar
. Our own supreme court found that
Pintlar
"determined that the
receipt
of a PRP letter invokes an insurer's duty to defend." (Emphasis added.)
Lapham-Hickey Steel
, 166 Ill. 2d at 530. Our supreme court, however, held that a "suit" requires an action in a court of law. Were we applying Illinois law, we acknowledge that a different result would obtain under
Lapham-Hickey
.
Most notably, however, the same district court that issued
McDonnell Douglas
(Central District of California) subsequently interpreted
Pintlar
to hold that an administrative proceeding with a
state
or federal agency can trigger the duty to defend. Zero Corp. v. Employers Insurance of Wausau, No. CV 94-3164 (JGx) (C.D. Cal.) (December 16, 1994). In Zero Corp., the insured was notified by both the EPA and the Board regarding environmental contamination. In addressing the duty to defend, the court interpreted and relied with approval on
Pintlar
:
"Finally, on the issue of whether a 'PRP' letter or some other administrative proceeding can trigger the duty to defend despite policy language specifying the need for a 'suit,' the Ninth Circuit [in
Pintlar
] has answered that litigation is
not
needed.
* * *
As a preliminary matter, the Court agrees with the Ninth Circuit's holding in [
Pintlar
] that the PRP notice could and did trigger the duty to defend here.
Pintlar
is well-reasoned and, as a result, leaves little doubt that [the insured] found itself in an adversarial relationship with the state and federal agencies. Although other jurisdictions have declined to consider a PRP notice to be a 'suit' under comprehensive general liability policies, the Court believes that such an approach exalts form over substance." (Emphasis in original.) Zero Corp., slip op. at 11-13.
As stated in Zero Corp., we find no discernable difference between state and federal agencies regarding environmental concerns. Empowered by statute, a state, such as California, can impose severe sanctions and penalties similar to the power exercised by federal agencies. An "insured's defense coverage should not depend
solely
on the whim of the drafter of the claim, that is, on whether the claim contains the word 'encourage' instead of 'demand' or 'voluntary' instead of 'mandatory.'"
EDO Corp. v. Newark Insurance Co.
, 898 F. Supp. 952, 960 (D. Conn. 1995) (citing
Pintlar
, 948 F.2d 1507, with approval).
The letter is not merely a request for information. The language employed imposes a significant allegation of liability when it suggests that "poor handling and disposal practices" could have resulted in discharge of wastes and that the facility is a possible "source of pollutants found in groundwater." The letter further states that since plaintiff is the owner of the site, it "is responsible for any wastes discharged there." Plaintiff is additionally advised that it may be required to provide "remedial measures."
The reality is that the Board letter in the instant case, like a PRP letter, constitutes a coercive effort to obtain plaintiff's response. An insured, like the instant plaintiff, is compelled to take action to avoid or lessen its liability whether the impetus derives from a state or federal agency and an insurer's duty to defend is the same.
We believe that
Haskel
, following the holding of
Pintlar
, and the subsequent California court decisions demonstrate that California law would find that the Board letter was sufficient to trigger defendant's duty to defend. Accordingly, we reverse the trial court's order granting summary judgment to defendant.
Reversed and remanded.
THEIS and QUINN, JJ., concur.
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Case: 16-50708 Document: 00513947571 Page: 1 Date Filed: 04/11/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-50708
Fifth Circuit
FILED
Summary Calendar April 11, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
MARCUS A. GARZA,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:12-CR-323-1
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
Marcus A. Garza pleaded guilty to one count of bank fraud and one count
of failure to file income tax returns. The district court imposed a total sentence
of 30 months and restitution of $681,943.27. On direct appeal, we vacated the
restitution order and remanded the case for assessment of restitution. On
remand, the district court denied motions by Garza seeking to withdraw his
* 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: 16-50708 Document: 00513947571 Page: 2 Date Filed: 04/11/2017
No. 16-50708
guilty plea and to expand resentencing beyond the issue of restitution. The
district court amended the judgment of conviction to reflect $0 in restitution.
Garza argues that the district court erred by refusing to address the
validity of his plea or the calculation of his sentence on remand. Garza did not
challenge either the validity of his conviction or the calculation of his prison
sentence on direct appeal. As neither issue had been challenged before this
court, neither was subject to examination by the district court on remand or by
this court in this subsequent appeal. See United States v. Teel, 691 F.3d 578,
583 (5th Cir. 2012).
In this second appeal, Garza first argues that the district court was
without jurisdiction to convict him because the Government failed to allege and
prove an element of the offense. Defects in an indictment, such as insufficient
factual allegations, do not deprive the district court of subject matter
jurisdiction. United States v. Cotton, 535 U.S. 625, 630-31 (2002); United
States v. Scruggs, 714 F.3d 258, 263 (5th Cir. 2013).
AFFIRMED.
2
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941 F.Supp. 629 (1996)
James C. DANIELS, Plaintiff,
v.
R.E. MICHEL CO., INC., Defendant.
Civil Action No. 95-339.
United States District Court, E.D. Kentucky.
October 25, 1996.
*630 Joseph R. Lane, Pillersdorf, DeRossett & Barrett, Prestonsburg, KY, for plaintiff.
James E. Cleveland, III, Huddleston, Bolen, Beatty, Porter & Copen, Ashland, KY, for defendant.
MEMORANDUM OPINION AND ORDER
HOOD, District Judge.
This matter is before the Court upon the motion of the defendant R.E. Michel Co., Inc., for summary judgment and the motion of the plaintiff James C. Daniels for partial summary judgment. [Record Nos. 21, 22]. Being fully briefed, these motions are ripe for consideration.
FACTUAL BACKGROUND
The facts giving rise to this action are largely undisputed. In August of 1994, Daniels was employed by R.E. Michel at its facility in Ivel. In the course and scope of his employment, he sustained a work-related injury on August 9. As a consequence of this injury, Daniels was temporarily totally disabled for a period of approximately four months until, on December 9, his physician released him for "trial light duty." R.E. Michel paid temporary total disability benefits until November 2.
*631 During Daniels' absence, R.E. Michel found it necessary to hire someone to perform Daniels' job. In accordance with its personnel policy, a replacement worker was hired sometime in October. On October 18, Daniels was formally terminated from his position. The formal notification, signed by the manager of the Ivel facility, Tommy Taulbee, indicates the following: the last day Daniels worked was August 9; the reason for termination was Code number 1816, Disability Job Related; and as a further explanation for the termination the notice states, "Had to hire someone to assume duties, could not wait any longer." [Exhibit A, Record No. 21].
Sometime in 1994 or early 1995, Daniels returned to the facility with his doctor's excuse. He was then told by Taulbee that he had been terminated. Taulbee provided Daniels with an employment application, but the application was not received until May 31, 1995.
On September 13, 1995, Daniels filed a complaint related to his termination in the Floyd Circuit Court. Daniels' sole claim is that "[t]he termination ... is a per se violation of KRS 342.197(1)." [Exhibit A, page 3, ¶ 10, Record No. 1]. On October 10, R.E. Michels removed the action to this Court based on diversity jurisdiction.
DISCUSSION
In justifying the actions that it took, R.E. Michel relies on its personnel policy as set forth in the Employee Handbook. The relevant policy essentially provides that if an employee is absent for more than one month due to an accident, that employee must reapply to return to work with R.E. Michel. In full, the provision states:
RETURN TO WORK AFTER AN EXTENDED ABSENCE
Whenever an employee has been absent from the Company for more than one month, due to illness, accident, military service or any other reason, that individual must reapply to return to the Company. The reason for this is simply that the Company may have had to hire someone to assume the duties of the absent employee, and therefore may no longer have a position open. Certainly every effort will be made to rearrange existing personnel to take back the employee who gives notice that he or she would like to return to work, but the Company is under no obligation to rehire anyone who has been off the job for an extended period of time.
[Record No. 23, page 2].
The parties apparently do not dispute the applicability of this provision to the matter at hand. Daniels had been absent from the Company due to his accident. He had been absent for a period of more than one month when he was terminated. When he spoke with Taulbee about getting his job back he was given an application to reapply. Rather, the parties contest the consistency of this policy with KRS 342.197(1).
KRS 342.197(1) prohibits any sort of discriminatory action by an employer against an employee for filing a claim for workers' compensation. In part, the statute provides:
(1) No employee shall be harassed, coerced, discharged, or discriminated against in any manner whatsoever for filing and pursuing a lawful claim under this chapter.
KRS 342.197. To make out a claim for retaliation, an employee "must prove that the workers' compensation claim was a `substantial and motivating factor but for which the employee would not have been discharged.'" Southerland v. Hardaway Management, Inc., 41 F.3d 250, 256 (6th Cir.1994) (citing First Property Management Corp. v. Zarebidaki, 867 S.W.2d 185, 188 (Ky.1994)). Although not relevant to this matter, no formal claim need be filed in order for the protections afforded against retaliation to apply. Zarebidaki, 867 S.W.2d at 189.
As explained by the Kentucky Court of Appeals in Overnite Transportation Co. v. Gaddis, 793 S.W.2d 129 (Ky.App.1990), "the legislature's purpose in enacting KRS § 342.197 was to protect persons who were entitled to benefits under the workers' compensation laws and to prevent them from being discharged for taking steps to collect such benefits." The statute does not require *632 that an employer keep a job open indefinitely until the employee is able to return to work. It does not create a sort of open-ended job security. Rather, it prohibits discrimination in retaliation for pursuing a workers' compensation claim. The pursuit of such claim, as opposed to the condition of the employee, must be a "substantial motivating factor but for" in the chain of causation.
Having examined the arguments of counsel and the case law cited therein,[1] the Court is persuaded that the R.E. Michel policy is not a per se violation of KRS 342.197(1) because it does not turn on the pursuit of a claim. Daniels' argument is founded on his situation as he sees it. He claims that the policy put him in the position of facing an impermissible choice having to "choose between continuing to receive temporary total disability benefits or lose his job." Put another way, Daniels takes issue with the fact that under the policy he had to return to work within 30 days and thereby renounce his right to benefits.
Daniels' argument misses the mark. The policy does not turn on an employee pursuing workers' compensation benefits; it does not force the employee to choose between benefits and his job. Instead, the policy turns on the condition of the worker, a neutral factor over which the employee has little, if any, control. If the worker is not in a condition to return to work within the one month period, the policy allows the company to heed the demands of the workplace and replace that employee. It is the condition of the worker, not his or her choice as to pursuing benefits, which is dispositive. That the worker may also be pursuing a workers' compensation claim is incidental. In brief, the policy does not operate on the causal connection prohibited by KRS 342.197(1).
The conclusion that the policy is not a per se violation does not end our inquiry. There still remains the question of whether sufficient evidence of discrimination or retaliation exists to submit this matter to a jury. Although the Court is unable to locate any Kentucky cases which incorporate the McDonnell Douglas shifting burdens model commonly used in federal employment discrimination and retaliation cases (and Kentucky civil rights cases under KRS 344) in actions for retaliation for workers' compensation claims, this model is instructive in assessing the evidence presented here.
Daniels has the burden of coming forward with evidence to establish the he was discharged in retaliation for pursuing his workers' compensation claim. Zarebidaki, 867 S.W.2d at 188. This burden is met by "proving that retaliation for filing or pursuing a workers' compensation claim was a substantial motivating factor in causing his discharge." Id. at 189.
Daniels has not pointed to any evidence which would support his prima facie claim. First, the termination form itself stated that Daniels was being terminated due to a job related disability. Nothing is said regarding Daniels' pursuit of his workers' compensation claim. In fact, the comments section indicates that the reason for discharge was that Daniels had been absent for over one month and that R.E. Michels could not wait any longer to fill his position. This evidence dovetails with the nondiscriminatory explanation offered, to wit, the absence policy.
Second, that the conversation between Taulbee and Sheryl Atkinson of the human resources department may "possibly" have touched upon Daniels' workers' compensation status does not establish an inference of discrimination. Indeed, a closer examination of the gist of this conversation, according to Atkinson, reveals that "Tom was concerned because Mr. Daniels had been out for quite a long period of time and he was feeling that he needed someone in there to do the job that Mr. Daniels had been doing prior to his injury." Thus it seems apparent that the real concern was with Daniels' absence and the policy.
Even assuming that Daniels has somehow established a prima facie case, he has not offered any evidence to rebut R.E. Michel's reliance on the policy as a neutral nondiscriminatory explanation for the termination. Thus, the policy serves as a separate and *633 independent basis upon which R.E. Michels is entitled to summary judgment.
CONCLUSION
Given that the return to work after absence policy of R.E. Michels turns not on whether an employee is pursuing a workers' compensation claim but rather on absence for any reason, the necessary causal nexus required by KRS 342.197(1) is not violated per se.
Daniels has offered no evidence to establish an inference of discriminatory animus on the part of R.E. Michels in terminating his employment. Indeed, the evidence in the record repeatedly points to the absence policy as the nondiscriminatory reason for termination. Daniels has been unable to turn this tide of evidence thereby dooming his claim.
Accordingly,
IT IS ORDERED:
(1) That the motion of the plaintiff James C. Daniels for partial summary judgment [Record No. 22] be, and the same hereby is, DENIED;
(2) That the motion of the defendant R.E. Michels Co., Inc., for summary judgment [Record No. 21] be, and the same hereby is, GRANTED;
(3) That this matter be, and the same hereby is, DISMISSED WITH PREJUDICE and STRICKEN FROM THE ACTIVE DOCKET.
This is a final and appealable Order and there is no just cause for delay.
NOTES
[1] Counsel is directed to Local Rule 7(e).
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-09-00128-CR
William Mear, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW OF BASTROP COUNTY
NO. 43,848, HONORABLE BENTON ESKEW, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant William Mear filed his pro se notice of appeal on March 5, 2009. The
clerk’s record was filed on April 22. On April 29, the court reporter informed this Court that she had
received neither a designation of nor payment for the reporter’s record. We sent appellant notice that
if he did not arrange to pay for the record or otherwise respond to our notice by May 11, we would
consider the appeal without the reporter’s record. See Tex. R. App. P. 37.3(c). On June 4, having
received no response, we informed appellant that we would consider the appeal without the
reporter’s record and that his brief was due by July 6. On July 21, having received still no response,
we informed appellant that his brief was overdue and that we would refer the matter to the trial court
for a hearing if we did not receive a response by July 31.
To date, appellant’s brief has not been filed and he has not responded to our notices.
We therefore abate the appeal. The trial court shall hold a hearing to determine whether appellant
wishes to pursue his appeal, whether he is indigent and entitled to appointed counsel,1 see Tex. Code
Crim. P. Ann. art. 1.051 (West Supp. 2008), and, if not, whether he has retained counsel who has
abandoned the appeal. See Tex. R. App. P. 38.8(b). The trial court shall make appropriate findings
and recommendations, and a supplemental record from this hearing, including copies of all findings
and orders and a transcription of the court reporter’s notes, shall be forwarded to this clerk of this
Court no later than November 6, 2009. See Tex. R. App. P. 38.8(b)(3).
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear and Pemberton
Abated
Filed: October 7, 2009
Do Not Publish
1
The clerk’s record reflects that appellant filed a pretrial affidavit of indigence and was
appointed counsel. Upon his conviction, appellant’s appointed counsel filed a motion to withdraw
and for appointed counsel on appeal. The trial court granted the motion in part, allowing counsel
to withdraw, but declined to appoint appellate counsel.
2
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300 U.S. 227 (1937)
AETNA LIFE INSURANCE CO.
v.
HAWORTH ET AL.
No. 446.
Supreme Court of United States.
Argued February 4, 1937.
Decided March 1, 1937.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
*228 Mr. E.R. Morrison, with whom Messrs. Berkeley Cox and Douglas Stripp were on the brief, for petitioner.
Mr. Rees Turpin for respondents.
*236 MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
The question presented is whether the District Court had jurisdiction of this suit under the Federal Declaratory Judgment Act. Act of June 14, 1934, 48 Stat. 955; Jud. Code, § 274D; 28 U.S.C. 400.[1]
The question arises upon the plaintiff's complaint which was dismissed by the District Court upon the ground that it did not set forth a "controversy" in the constitutional sense and hence did not come within the legitimate scope of the statute. 11 F. Supp. 1016. The decree of dismissal was affirmed by the Circuit Court of Appeals. 84 F. (2d) 695. We granted certiorari. November 16, 1936.
*237 From the complaint it appears that plaintiff is an insurance company which had issued to the defendant, Edwin P. Haworth, five policies of insurance upon his life, the defendant Cora M. Haworth being named as beneficiary. The complaint set forth the terms of the policies. They contained various provisions which for the present purpose it is unnecessary fully to particularize. It is sufficient to observe that they all provided for certain benefits in the event that the insured became totally and permanently disabled. In one policy, for $10,000, issued in 1911, the company agreed, upon receiving the requisite proof of such disability and without further payment of premiums, to pay the sum insured, and dividend additions, in twenty annual installments, or a life annuity as specified, in full settlement. In four other policies issued in 1921, 1928 and 1929, respectively, for amounts aggregating $30,000, plaintiff agreed upon proof of such disability to waive further payment of premiums, promising in one of the policies to pay a specified amount monthly and in the other three to continue the life insurance in force. By these four policies the benefits to be payable at death, and the cash and loan values to be available, were to be the same whether the premiums were paid or were waived by reason of the described disability.
The complaint alleges that in 1930 and 1931 the insured ceased to pay premiums on the four policies last mentioned and claimed the disability benefits as stipulated. He continued to pay premiums on the first mentioned policy until 1934 and then claimed disability benefits. These claims, which were repeatedly renewed, were presented in the form of affidavits accompanied by certificates of physicians. A typical written claim on the four policies is annexed to the complaint. It states that while these policies were in force, the insured became *238 totally and permanently disabled by disease and was "prevented from performing any work or conducting any business for compensation or profit"; that on October 7, 1930, he had made and delivered to the company a sworn statement "for the purpose of asserting and claiming his right to have these policies continued under the permanent and total disability provision contained in each of them"; that more than six months before that date he had become totally and permanently disabled and had furnished evidence of his disability within the stated time; that the annual premiums payable in the year 1930 or in subsequent years were waived by reason of the disability and that he was entitled to have the policies continued in force without the payment of premiums so long as the disability should continue.
With respect to the policy first mentioned, it appears that the insured claimed that prior to June 1, 1934, when he ceased to pay premiums, he had become totally and permanently disabled, that he was without obligation to pay further premiums and was entitled to the stipulated disability benefits including the continued life of the policy.
Plaintiff alleges that consistently and at all times it has refused to recognize these claims of the insured and has insisted that all the policies had lapsed according to their terms by reason of the non-payment of premiums, the insured not being totally and permanently disabled at any of the times to which his claims referred. Plaintiff further states that taking loans into consideration four of the policies have no value and the remaining policy (the one first mentioned) has a value of only $45 as extended insurance. If, however, the insured has been totally and permanently disabled as he claims, the five policies are in full force, the plaintiff is now obliged to pay the accrued installments of cash disability benefits for which two of the policies provide, and the insured *239 has the right to claim at any time cash surrender values accumulating by reason of the provisions for waiver of premiums, or at his death, Cora M. Haworth, as beneficiary, will be entitled to receive the face of the policies less the loans thereon.
Plaintiff thus contends that there is an actual controversy with defendants as to the existence of the total and permanent disability of the insured and as to the continuance of the obligations asserted despite the non-payment of premiums. Defendants have not instituted any action wherein the plaintiff would have an opportunity to prove the absence of the alleged disability and plaintiff points to the danger that it may lose the benefit of evidence through disappearance, illness or death of witnesses; and meanwhile, in the absence of a judicial decision with respect to the alleged disability, the plaintiff in relation to these policies will be compelled to maintain reserves in excess of $20,000.
The complaint asks for a decree that the four policies be declared to be null and void by reason of lapse for nonpayment of premiums and that the obligation upon the remaining policy be held to consist solely in the duty to pay the sum of $45 upon the death of the insured, and for such further relief as the exigencies of the case may require.
First. The Constitution limits the exercise of the judicial power to "cases" and "controversies." "The term `controversies,' if distinguishable at all from `cases,' is so in that it is less comprehensive than the latter, and includes only suits of a civil nature." Per Mr. Justice Field in In re Pacific Railway Comm'n, 32 Fed. 241, 255, citing Chisholm v. Georgia, 2 Dall. 419, 431, 432. See Muskrat v. United States, 219 U.S. 346, 356, 357; Old Colony Trust Co. v. Commissioner, 279 U.S. 716, 723, 724. The Declaratory Judgment Act of 1934, in its limitation to "cases of actual controversy," manifestly *240 has regard to the constitutional provision and is operative only in respect to controversies which are such in the constitutional sense. The word "actual" is one of emphasis rather than of definition. Thus the operation of the Declaratory Judgment Act is procedural only. In providing remedies and defining procedure in relation to cases and controversies in the constitutional sense the Congress is acting within its delegated power over the jurisdiction of the federal courts which the Congress is authorized to establish. Turner v. Bank of North America, 4 Dall. 8, 10; Stevenson v. Fain, 195 U.S. 165, 167; Kline v. Burke Construction Co., 260 U.S. 226, 234. Exercising this control of practice and procedure the Congress is not confined to traditional forms or traditional remedies. The judiciary clause of the Constitution "did not crystallize into changeless from the procedure of 1789 as the only possible means, for presenting a case or controversy otherwise cognizable by the federal courts." Nashville, C. & St. L. Ry. Co. v. Wallace, 288 U.S. 249, 264. In dealing with methods within its sphere of remedial action the Congress may create and improve as well as abolish or restrict. The Declaratory Judgment Act must be deemed to fall within this ambit of congressional power so far as it authorizes relief which is consonant with the exercise of the judicial function in the determination of controversies to which under the Constitution the judicial power extends.
A "controversy" in this sense must be one that is appropriate for judicial determination. Osborn v. United States Bank, 9 Wheat. 738, 819. A justifiable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot. United States v. Alaska S.S. Co., 253 U.S. 113, 116. The controversy must be definite and concrete, touching the legal relations of parties having *241 adverse legal interests. South Spring Gold Co. v. Amador Gold Co., 145 U.S. 300, 301; Fairchild v. Hughes, 258 U.S. 126, 129; Massachusetts v. Mellon, 262 U.S. 447, 487, 488. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. See Muskrat v. United States, supra; Texas v. Interstate Commerce Comm'n, 258 U.S. 158, 162; New Jersey v. Sargent, 269 U.S. 328, 339, 340; Liberty Warehouse Co. v. Grannis, 273 U.S. 70; New York v. Illinois, 274 U.S. 488, 490; Willing v. Chicago Auditorium Assn., 277 U.S. 274, 289, 290; Arizona v. California, 283 U.S. 423, 463, 464; Alabama v. Arizona, 291 U.S. 286, 291; United States v. West Virginia, 295 U.S. 463, 474, 475; Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 324. Where there is such a concrete case admitting of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged, the judicial function may be appropriately exercised although the adjudication of the rights of the litigants may not require the award of process or the payment of damages. Nashville, C. & St. L. Ry. Co. v. Wallace, supra, p. 263; Tutun v. United States, 270 U.S. 568, 576, 577; Fidelity National Bank v. Swope, 274 U.S. 123, 132; Old Colony Trust Co. v. Commissioner, supra, p. 725. And as it is not essential to the exercise of the judicial power that an injunction be sought, allegations that irreparable injury is threatened are not required. Nashville, C. & St. L. Ry. Co. v. Wallace, supra, p. 264.
With these principles governing the application of the Declaratory Judgment Act, we turn to the nature of the controversy, the relation and interests of the parties, and the relief sought in the instants case.
*242 Second. There is here a dispute between parties who face each other in an adversary proceeding. The dispute relates to legal rights and obligations arising from the contracts of insurance. The dispute is definite and concrete, not hypothetical or abstract. Prior to this suit, the parties had taken adverse positions with respect to their existing obligations. Their contentions concerned the disability benefits which were to be payable upon prescribed conditions. On the one side, the insured claimed that he had become totally and permanently disabled and hence was relieved of the obligation to continue the payment of premiums and was entitled to the stipulated disability benefits and to the continuance of the policies in force. The insured presented this claim formally, as required by the policies. It was a claim of a present, specific right. On the other side, the company made an equally definite claim that the alleged basic fact did not exist, that the insured was not totally and permanently disabled and had not been delivered of the duty to continue the payment of premiums, that in consequence the policies had lapsed, and that the company was thus freed from its obligation either to pay disability benefits or to continue the insurance in force. Such a dispute is manifestly susceptible of judicial determination. It calls, not for an advisory opinion upon a hypothetical basis, but for an adjudication of present right upon established facts.
That the dispute turns upon questions of fact does not withdraw it, as the respondent seems to contend, from judicial cognizance. The legal consequences flow from the facts and it is the province of the courts to ascertain and find the facts in order to determine the legal consequences. That is every day practice. Equally unavailing is respondent's contention that the dispute relates to the existence of a "mutable fact" and a "changeable condition the state of the insured's health." The insured *243 asserted a total and permanent disability occurring prior to October, 1930, and continuing thereafter. Upon that ground he ceased to pay premiums. His condition at the time he stopped payment, whether he was then totally and permanently disabled so that the policies did not lapse, is not a "mutable" but a definite fact. It is a controlling fact which can be finally determined and which fixes rights and obligations under the policies. If it were found that the insured was not totally and permanently disabled when he ceased to pay premiums and hence was in default, the effect of that default and the consequent right of the company to treat the policies as lapsed could be definitely and finally adjudicated. If it were found that he was totally and permanently disabled as he claimed, the duty of the company to pay the promised disability benefits and to maintain the policies in force could likewise be adjudicated. There would be no difficulty in either event in passing a conclusive decree applicable to the facts found and to the obligations of the parties corresponding to those facts. If the insured made good his claim, the decree establishing his right to the disability benefits, and to the continuance of the policies in force during the period of the proved disability, would be none the less final and conclusive as to the matters thus determined even though a different situation might later arise in the event of his recovery from that disability and his failure after that recovery to comply with the requirements of the policies. Such a contention would present a distinct subject matter.
If the insured had brought suit to recover the disability benefits currently payable under two of the policies there would have been no question that the controversy was of a justifiable nature, whether or not the amount involved would have permitted its determination in a federal court. Again, on repudiation by *244 the insurer of liability in such a case and insistence by the insured that the repudiation was unjustified because of his disability, the insured would have "such an interest in the preservation of the contracts that he might maintain a suit in equity to declare them still in being." Burnet v. Wells, 289 U.S. 670, 680; Cohen v. N.Y. Mutual Life Ins. Co., 50 N.Y. 610, 624; Fidelity National Bank v. Swope, supra. But the character of the controversy and of the issue to be determined is essentially the same whether it is presented by the insured or by the insurer. Whether the District Court may entertain such a suit by the insurer, when the controversy as here is between citizens of different States or otherwise is within the range of the federal judicial power, is for the Congress to determine. It is the nature of the controversy, not the method of its presentation or the particular party who presents it, that is determinative. See Gully v. Interstate Natural Gas Co., 82 F. (2d) 145, 149; Travelers Insurance Co. v. Helmer, 15 F. Supp. 355, 356; New York Life Insurance Co. v. London, 15 F. Supp. 586, 589.
We have no occasion to deal with questions that may arise in the progress of the cause, as the complaint has been dismissed in limine. Questions of burden of proof or mode of trial have not been considered by the courts below and are not before us.
Our conclusion is that the complaint presented a controversy to which the judicial power extends and that authority to hear and determine it has been conferred upon the District Court by the Declaratory Judgment Act. The decree is reversed and the cause is remanded for further proceedings in conformity with this opinion.
Reversed.
NOTES
[1] The Act provides:
"(1) In cases of actual controversy the courts of the United States shall have power upon petition, declaration, complaint, or other appropriate pleadings to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed, and such declaration shall have the force and effect of a final judgment or decree and be reviewable as such.
"(2) Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application shall be by petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party, whose rights have been adjudicated by the declaration, to show cause when further relief should not be granted forthwith.
"(3) When a declaration of right or the granting of further relief based thereon shall involve the determination of issues of fact triable by a jury, such issues may be submitted to a jury in the form of interrogatories, with proper instructions by the court, whether a general verdict be required or not."
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628 P.2d 1198 (1981)
STATE of Oregon, Respondent-Petitioner,
v.
Scott Hunter CURRAN, Appellant-Petitioner.
CA 14335; SC 27038; SC 27046.
Supreme Court of Oregon, In Banc.[*]
Argued and Submitted October 7, 1980.
Decided June 2, 1981.
*1199 Howard R. Lonergan, Portland, filed the brief and argued the cause for appellant-petitioner. With him on the brief were Clint A. Lonergan and Richard L. Lonergan, Portland.
Jan P. Londahl, Asst. Atty. Gen., Salem, argued the cause for respondent-petitioner. With him on the brief were James M. Brown, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.
LENT, Justice.
After defendant's conviction following a jury trial and sentence upon a charge of unlawful possession of a controlled substance, cocaine,[1] the district attorney filed a motion for an order forfeiting[2] a certain motor vehicle allegedly belonging to defendant. The supporting affidavit alleged *1200 that the vehicle belonged to defendant, that defendant used the vehicle "in the unlawful possession and transportation" of the cocaine, and that such possession and transportation constituted a part of the criminal transaction which was the basis of the conviction.
The trial court held that defendant was not entitled to a jury trial and, after hearing, ordered the vehicle forfeited. Defendant appealed,[3] contending the proceedings were a nullity because the Code of Criminal Procedure did not prescribe the procedure for forfeiture and contending that he was entitled to a jury trial of the forfeiture proceedings. The Court of Appeals held against defendant on the first contention but for him on the right to a jury trial and reversed and remanded for a jury trial. State v. Curran, 45 Or. App. 859, 609 P.2d 427 (1980).
Both defendant and the state petitioned for review, which we allowed, ORS 2.520, 289 Or. 587 (1980), to consider the basis for appellate jurisdiction and whether a trial by jury is required.
Jurisdiction
As we have noted in the past, appellate jurisdiction is limited and springs from statute. Smallwood v. Erlandson, 281 Or. 699, 576 P.2d 374 (1978). As a direct appeals court, we have dismissed upon our own motion for want of appellate jurisdiction; indeed, such dismissal must take place despite the wishes of the parties when there is no jurisdiction on appeal. See Longee v. Carter, 283 Or. 93, 582 P.2d 1 (1978). As a review court, we have held, on our own motion, that a case in which we have allowed review must be dismissed for want of appellate jurisdiction in the Court of Appeals. Ragnone v. Portland School District No. 1J, 289 Or. 339, 613 P.2d 1052 (1980); J. Gregcin, Inc. v. City of Dayton, 287 Or. 709, 601 P.2d 1254 (1979). Consequently, we asked the parties in this case to address that matter in addition to the questions presented by their respective petitions for review.
The state answered, by first seeming to question whether any proceeding under ORS 471.660 and 471.665[4] is required at all *1201 to forfeit a vehicle found to carry a controlled substance when the owner has been convicted of an offense "in connection with the seizure." The state contended that if a proceeding under those code sections is required, it is a "special statutory proceeding for forfeiture in connection with a violation of a law enacted under the police power." That being so, asserted the state, this is an appeal "in a special statutory proceeding" under ORS 19.010(4).[5]
Defendant answered that a proceeding for forfeiture may be either criminal or civil; accordingly,
"In either case, criminal or civil the statutes providing appeals from judgments in criminal actions ORS 138.040, or of judgments in civil actions, ORS 19.010, provide for appeals where forfeitures are determined in either manner. Here it was done in the criminal action and the criminal appeal statute applies."
This answer, although tempting to adopt and thereby avoid having precisely to fix the source of appellate jurisdiction, will not do because of our discussion below of the nature of this proceeding, and the fact that this appeal was not taken from a "judgment on a conviction." ORS 138.040.
The judgment on a conviction in this case was embodied in the document entitled "SENTENCE" dated and entered March 22, *1202 1979. See note 2, supra. No timely appeal was taken from that judgment. No attempt was made by defendant to question the validity of that judgment. Despite defendant's characterization of the document of May 4, 1979, as an "amended judgment," see note 3, supra, it did not purport to, and did not, amend the document entered March 22, 1979. ORS 137.010(6)[6] indicates that an order exercising the authority to decree a forfeiture "may be included as a part of the judgment of conviction," but that was not done here.
Quite simply, this is not an appeal from a judgment on a conviction, and we cannot look to ORS 138.040 as the source of appellate jurisdiction.
ORS 138.020 is arguably applicable. That section provides:
"* * * [T]he defendant may as a matter of right appeal from a judgment in a criminal action * * *."
We resort to ORS 131.005(6) for the definition of a "criminal action":
"`Criminal action' means an action at law by means of which a person is accused and tried for the commission of an offense."
By the time the district attorney filed his motion for an order of forfeiture, the defendant had already been accused, tried and sentenced upon conviction of the offense. We are of the opinion that appellate jurisdiction does not arise from ORS 138.020.[7]
One facet remains to be explored. ORS 137.010 is found in that group of code sections dealing with sentencing and judgment on conviction. ORS 137.010(6) prescribes:
"This section does not deprive the court of any authority conferred by law to decree a forfeiture of property, suspend or cancel a license, remove a person from office or impose any other civil penalty. An order exercising that authority may be included as part of the judgment of conviction."
Neither party has cited or argued the applicability of this subsection, but we think it has significance. It indicates that the legislature viewed the remedy of forfeiture as being a civil penalty. The inclusion of the subsection in the Criminal Procedure Code indicates that the court having jurisdiction to try the criminal action could, also, proceed to the matter of exercise of authority to decree a forfeiture. The subsection allows, but does not require, the decree of forfeiture to be made a part of the judgment of conviction.
We conclude the trial court was authorized to proceed with the matter of forfeiture without the necessity of resort by the district attorney to a new and separate cause either under ORS 30.410 to 30.450, pertaining to recovery of fines and forfeitures, or by way of an in rem proceeding.
All of this leads us to the conclusion that if appellate jurisdiction obtains, the source must be found in ORS 19.010. It will be *1203 recalled that the defendant argued that if this is a "civil action," that section applies, but he specified no particular part of the section. The state took the position that this was a special statutory proceeding and ORS 19.010(4), therefore, was the source of appellate jurisdiction. ORS 19.010, in possible pertinent part, is as follows:
"(1) A judgment or decree may be reviewed on appeal as prescribed in ORS 19.005 to 19.026 and 19.029 to 19.200.
"(2) For the purpose of being reviewed on appeal the following shall be deemed a judgment or decree:
"* * *.
"(c) A final order affecting a substantial right, and made in a proceeding after judgment or decree.
"* * *.
"(4) An appeal may be taken from the circuit court in any special statutory proceeding under the same conditions, in the same manner and with like effect as from a judgment, decree or order entered in an action or suit, unless such appeal is expressly prohibited by the law authorizing such special statutory proceeding."
We have reached the conclusion that ORS 19.010(2)(c) is applicable. The order of May 4, 1979, was final in disposing of the motion for an order of forfeiture. It affected a substantial right and was made in a proceeding after the judgment of conviction. Having reached that conclusion, we need not, and do not, express any opinion as to whether ORS 19.010(4) also may authorize this appeal, but we do note that it is arguably applicable.
Forfeiture Procedure
Defendant has argued that the absence of any procedure for effectuating forfeiture in the Code of Criminal Procedure makes the proceedings actually used a nullity. The premise for that position is that forfeiture is a criminal proceeding.
Historically, the concept of a forfeiture is founded on the idea that a chattel attains some guilt in the commission of a criminal act. The concept dates back to biblical times, was part of the Roman system, and was carried over into the English common law. Under early English common law, property which caused death, i.e., a deodand, was forfeited to the Crown to be put to use to provide relief to the dependents of the deceased. This forfeiture action was abolished in England in the mid-nineteenth century and was not carried over into the law of the United States.
Traditionally, the purpose of forfeiture legislation is not merely to punish criminal activity but to make it unprofitable. Forfeiture of Property Used in Connection with Criminal Acts, 25 Wayne L.R. 83, 84 (1978); see also, Forfeiture of Derivative Contraband Under the Contraband Seizure Act and the Comprehensive Drug Abuse and Control Act of 1970, 40 Ohio St.L.J. 1007, 1009 (1979). Other justifications for forfeiture include removing equipment necessary to the carrying on of the illegal activity and recouping some of the costs of law enforcement. See, Forfeiture of Derivative Contraband, supra.
In forfeiture proceedings a distinction is traditionally made between contraband per se and derivative contraband. Derivative contraband is property which, when used in the normal course of affairs, is legal to possess. Derivative contraband is afforded greater legal protection than is contraband. See, e.g., State v. 1920 Studebaker Touring Car, et al., 120 Or. 254, 267, 271, 251 P. 701, 50 A.L.R. 81 (1927); accord, United States v. U.S. Coin and Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971). This court, in Studebaker, established that a motor vehicle is derivative contraband subject to greater protection than is property inherently injurious to the public welfare. 120 Or. at 271, 251 P. 701.
Defendant has argued that despite their designation as civil actions, forfeiture proceedings should be subject to the Code of Criminal Procedure because a forfeiture is not truly civil but is like a fine and is an additional penalty for the charge.[8] In support *1204 of this proposition he cites United States v. U.S. Coin and Currency, supra. The precise language from U.S. Coin reads:
"But as Boyd v. United States, 116 U.S. 616, 634 [6 S.Ct. 524, 534, 29 L.Ed. 746] (1886), makes clear, `proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal.'" (Emphasis ours.)
401 U.S. at 718, 91 S.Ct. at 1043. What U.S. Coin makes clear is that while the effect of a forfeiture may be criminal in nature, the form of the forfeiture proceeding is essentially civil. This is consistent with the United States Supreme Court's continued disinclination to apply the full panoply of criminal procedural safeguards to forfeiture proceedings.[9]One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972) (double jeopardy does not preclude subsequent forfeiture proceedings); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974) (refusing to extend full due process rights to forfeiture proceedings).
In Oregon, the remedy of forfeiture of a vehicle used in the transportation or concealment of controlled substances is set forth in ORS 167.247(2). See text in note 2, supra. ORS 471.665, to which ORS 167.247 refers, provides that, upon conviction of the person arrested and subject to the ownership rights of innocent third parties, the court shall order either a sale at public auction of the seized property or transfer of title to the seizing agency for official law enforcement use. For text, see note 4 supra.
It is defendant's claim that application of the forfeiture statutes is limited to those situations in which the person arrested is convicted of transporting controlled substances. It is true that ORS 471.660 to 471.665 allow for forfeiture of a vehicle only upon conviction of a person arrested under ORS 471.660, i.e., discovered in the act of transporting alcoholic liquors in violation of law. Sections 471.660 to 471.665 apply to forfeiture of vehicles involved in the illegal transportation of alcoholic liquors. The procedure for vehicle forfeiture contained in those statutes is incorporated into ORS 167.247 regarding forfeiture of vehicles used in crimes involving controlled substances. By incorporating ORS 471.660 to 471.665, ORS 167.247 provides a procedural framework on which to proceed in forfeiture cases involving controlled substances. However, the underlying crimes which permit vehicle forfeiture in a controlled substance case are broader than the single violation of illegal transportation which determines forfeiture in liquor cases. ORS 167.247(2) refers to forfeiture for unlawful transportation or concealment of controlled substances involving a vehicle used by or with the knowledge of the owner. ORS 167.247(2) permits forfeiture for transportation or concealment, a broader range of underlying offenses than the liquor statutes to which ORS 167.247(2) refers for procedure.
We conclude that the trial court proceedings were not a nullity for want of a *1205 procedure prescribed by the Code of Criminal Procedure, and we further conclude that it is of no avail to defendant that transportation of a controlled substance is not a crime.
Right to Jury Trial in Forfeiture Proceedings
The relevant statutes do not explicitly require a trial by jury in this forfeiture proceeding. Defendant relies upon Or. Const. Art. I, § 17, which provides: "In all civil cases the right of Trial by Jury shall remain inviolate." This court has interpreted Art. I, § 17, as follows:
"This court, like others, has recognized that constitutional provisions such as those just cited assure trial by jury in the classes of cases wherein the right was customary at the time the constitution was adopted but do not extend it into other areas."
Moore Mill & Lbr. Co. v. Foster, 216 Or. 204, 336 P.2d 39, 337 P.2d 810 (1959).
This court has previously considered the question of jury trial in a forfeiture proceeding in a somewhat different factual situation in State v. 1920 Studebaker Touring Car, et al., supra, in which the court found that the right to a jury trial did apply to forfeiture proceedings. The case at bar differs from Studebaker because in that case there was no underlying conviction upon which the forfeiture was based, nor did the forfeiture statute at that time require conviction on the underlying charge as a prerequisite to forfeiture. 120 Or. at 255, 257, 251 P.2d 701. As the court noted:
"If, under the provisions of this act, the property which was made the subject of forfeiture had consisted of intoxicating liquor, gambling devices, or anything which in its nature is injurious to the public welfare, or if the act had required, as a condition of the forfeiture, the conviction of the offending person, the question would be different, but where as here, the lawful property of an innocent person may be forfeited to the state without the previous conviction of anyone, and without the opportunity of a jury trial at any stage of the proceedings, we think the act in so far as it provides that the forfeiture shall be tried by the court without the intervention of a jury is unconstitutional and void, because denying a trial by jury as guaranteed by the state Constitution. A majority of the court are of the opinion that in so far as the statute directs that a forfeiture may be had without a trial by jury, the direction is merely surplusage, and beyond the power of the legislature to enact, but that the remainder of the act should stand. * * *"
120 Or. at 271, 251 P.2d 701.
In apparent response to the Studebaker decision, the legislature amended the forfeiture statute to require a conviction of the person arrested prior to forfeiture. Or. Laws 1933 (Second Special Session), ch. 17, § 39. The requirement of prior conviction is retained in the present statute. ORS 471.665. We are, therefore, now confronted with the "different question" alluded to by the court in Studebaker, and are asked to decide whether the addition of a prior conviction requirement in forfeiture proceedings is sufficient to remove such proceedings from the purview of Or.Const. Art. I, § 17. We hold that it is not.
The absence of a prior conviction requirement was not the sole basis for the decision in Studebaker. As Justice Rand stated in his exhaustive historical analysis of forfeiture proceedings in Studebaker,
"There can be no doubt that at the time of the adoption of our state Constitution, in cases where the seizure was made on land, property such as a `boat, vehicle or other conveyance,' could not be forfeited by way of penalty or punishment for the violation of law, except in actions triable by jury. `Where a proceeding is authorized which may result in a judgment that operates upon the property of the individual, either by way of forfeiture, or by means of execution, the uniform rule of law has always been, that before judgment can pass, the individual is entitled to a jury trial, unless he waives the same.' [Citations omitted.]"
120 Or. at 260, 251 P.2d 701; accord, Civil and Criminal Penalties and Forfeitures: A Framework for Constitutional Analysis, 60 *1206 Minn.L.R. (Part I) 379, 494 (1976). And later in the Studebaker opinion:
"Courts of law administer justice according to the rules of the common law, and are held for the trial of civil causes with the presence and aid of a jury, and where there are issues of fact to be determined, the trial ordinarily must be by jury."
120 Or. at 262, 251 P.2d 701. Under the Studebaker analysis, even with a conviction requirement added to the statute, we are required to determine whether there are issues of fact unique to the forfeiture proceeding which would bring Or.Const. Art. I, § 17, into play. Were this a case in which the issues of fact necessary to a forfeiture proceeding were the same as those necessary for the underlying conviction, defendant's argument might be less compelling, but such is not the case.
The jury, by finding defendant guilty, found that he was in possession of cocaine. The policeman's testimony was that he stopped the vehicle because it had no front license plate and because he was suspicious as to what the vehicle was doing in a totally residential area at 1:30 a.m. On approaching the vehicle he noticed a set of two hemostats, which may be used as drug paraphernalia, hanging from the dashboard. Conversation outside the vehicle resulting from this observation led to defendant producing cocaine from his pocket and wallet and relating to the officer that there was additional cocaine in the vehicle.
The factual issues which must be decided in the state's favor to warrant forfeiture of a vehicle are that (1) the vehicle was employed in the unlawful transportation or concealment of controlled substances and that (2) such use was by or with the knowledge of the owner of the vehicle. ORS 167.247(2).[10] Defendant here was convicted of possession of controlled substances. The evidence against him at trial included testimony of the arresting officer that cocaine was found on his person as well as in the van. It is impossible to determine from the verdict of the jury whether the conviction for possession was based upon a factual determination that defendant had cocaine on his person or in the vehicle or both. The issue of ownership and use of the vehicle were not germane to the underlying conviction and remain factual issues as yet unresolved by any jury.
Under Or.Const. Art. I, § 17, a jury trial is required in a forfeiture proceeding where issues of fact germane to the forfeiture were not resolved in the underlying criminal action.
Affirmed.
NOTES
[*] Howell, J., retired November 30, 1980. Linde, J., did not participate in this decision.
[1] Defendant was prosecuted under ORS 475.992(4):
"It is unlawful for any person knowingly or intentionally to possess a controlled substance * * *. Any person who violates this subsection with respect to:
"* * *.
"(b) A controlled substance in Schedule II, is guilty of a Class C felony.
"* * *."
[2] The district attorney relied upon ORS 167.247(2):
"Any boat, vehicle or other conveyance used by or with the knowledge of the owner, operator or person in charge thereof for the unlawful transportation or concealment of controlled substances shall be forfeited to the state in the same manner and with like effect as provided in ORS 471.660 and 471.665. * * *."
ORS 471.660 and 471.665 provide conditions and manner of seizure of vehicles "transporting alcoholic liquors in violation of law," and for forfeiture of such vehicles.
[3] Defendant's notice of appeal stated that the appeal was from the "judgment, order or decree" entered on May 4, 1979. The document entered that date was entitled "FINDINGS AND ORDER FORFEITING VEHICLE." The notice of appeal further stated: "Attached are copies of judgment and amended judgment appealed from." Attached were a copy of the document entered May 4, 1979, and a copy of a document entitled "SENTENCE" entered March 22, 1979. Despite attachment of the last named document, defendant made no argument in his brief in the Court of Appeals questioning the validity of his conviction on the criminal charge. We mention the unusual nature of the notice of appeal because of our discussion later in the opinion that this is not an appeal from a "judgment on a conviction" under ORS 138.040 and that this proceeding is not in a "criminal action." ORS 138.020, 131.005(6) and (7), 137.010(6).
[4] ORS 471.660 provides:
"(1) When any peace officer discovers any person in the act of transporting alcoholic liquors in violation of law, in or upon any vehicle, boat or aircraft, or conveyance of any kind, he shall seize any alcoholic liquor found therein, take possession of the vehicle or conveyance and arrest any person in charge thereof.
"(2) The officer shall at once proceed against the person arrested, under the Liquor Control Act, in any court having competent jurisdiction, and shall deliver the vehicle or conveyance to the sheriff of the county in which such seizure was made.
"(3) If the person arrested is the owner of the vehicle or conveyance seized, it shall be returned to him upon execution by him of a good and valid bond, with sufficient sureties in a sum double the value of the property, approved by the court and conditioned to return the property to the custody of the sheriff at a time to be specified by the court.
"(4) If the person arrested is not the owner of the vehicle or conveyance seized, the sheriff shall make reasonable effort to determine the name and address of the owner. If the sheriff is able to determine the name and address of the owner, he shall immediately notify the owner by registered or certified mail of the seizure and of the owner's rights and duties under this section and ORS 471.665.
"(5) A person notified under subsection (4) of this section, or any other person asserting a claim to rightful possession of the vehicle or conveyance seized, except the defendant, may move the court having ultimate trial jurisdiction over any crime charged in connection with the seizure to return the vehicle or conveyance to the movant.
"(6) The movant shall serve a copy of the motion upon the district attorney of the county in which the vehicle or conveyance is in custody. The court shall order the vehicle or conveyance returned to the movant, unless the court is satisfied by clear and convincing evidence that the movant knowingly consented to the unlawful use that resulted in the seizure. If the court does not order the return of the vehicle or conveyance, the movant shall obtain the return only as provided in subsection (3) of this section.
"(7) If the court orders the return of the vehicle or conveyance to the movant, the movant shall not be liable for any towing or storage costs incurred as a result of the seizure.
"(8) If the court does not order the return of the vehicle or conveyance under subsection (6) of this section, and the arrested person is convicted for any offense in connection with the seizure, the vehicle or conveyance shall be subject to forfeiture as provided in ORS 471.665."
ORS 471.665 provides in part:
"(1) The court, upon conviction of the person arrested under ORS 471.660, shall order the alcoholic liquor delivered to the commission, and shall, subject to the provisions of subsection (3) of this section, and the ownership rights of innocent third parties, order a sale at public auction by the sheriff of the county of the property seized. The sheriff, after deducting the expense of keeping the property and the cost of sale, shall pay all the liens, according to their priorities, which are established by intervention or otherwise at such hearing or in other proceedings brought for that purpose, and shall pay the balance of the proceeds into the general fund of the county. No claim of ownership or of any right, title or interest in or to such vehicle that is otherwise valid shall be held invalid unless the state shows to the satisfaction of the court, by clear and convincing evidence, that the claimant had knowledge that the vehicle was used or to be used in violation of law. All liens against property sold under this section shall be transferred from the property to the proceeds of the sale.
"* * *.
"(3) In the case of any boat, vehicle or other conveyance seized pursuant to ORS 167.247 the boat, vehicle or other conveyance may, in the discretion of the seizing law enforcement agency, following conviction of the person arrested but prior to public auction, be claimed by the seizing law enforcement agency by giving timely notice to the sheriff of the county in which the seizure was made, that the seizing law enforcement agency intends to retain the boat, vehicle or other conveyance for official use. On receipt of notice of such claim, the sheriff shall determine the expense of keeping the boat, vehicle or other conveyance, and all the liens. The seizing agency may then pay the total of the expenses and liens to the sheriff of the county in which the seizure was made. The sheriff shall pay all the liens, according to their priorities, and all other expenses incurred in the seizing and keeping of the boat, vehicle or other conveyance. Upon payment of the liens and expenses, the boat, vehicle or other conveyance shall be delivered to the possession of, and title to the conveyance shall rest in, the seizing agency. The seizing agency then shall put the boat, vehicle or other conveyance to official law enforcement use."
[5] ORS 19.010(4):
"An appeal may be taken from the circuit court in any special statutory proceeding under the same conditions, in the same manner and with like effect as from a judgment, decree or order entered in an action or suit, unless such appeal is expressly prohibited by the law authorizing such special statutory proceeding."
[6] ORS 137.010(6):
"This section does not deprive the court of any authority conferred by law to decree a forfeiture of property, suspend or cancel a license, remove a person from office or impose any other civil penalty. An order exercising that authority may be included as part of the judgment of conviction."
[7] We are somewhat troubled by the possible applicability of ORS 131.005(7):
"`Criminal proceeding' means any proceeding which constitutes a part of a criminal action or occurs in court in connection with a prospective, pending or completed criminal action."
This was not a proceeding which was a part of the criminal action, but it could be argued that the proceeding occurred in court in connection with a completed criminal action. We looked to the official commentary contained in the Final Draft and Report (November, 1972) of the Proposed Oregon Criminal Procedure Code, published by the Criminal Law Revision Commission, for some guidance and at page 3 found this statement:
"(6) `Criminal action' and (7) `criminal proceeding' are self-explanatory and are important in the application of the general provisions of the proposed code."
Assuming, arguendo, that this was a "criminal proceeding," we find nothing in ORS ch. 138 providing for an appeal from an order resulting from such criminal proceeding.
Neither party has argued the applicability of ORS 131.005(7) to this issue of jurisdiction, and we leave elaboration of the meaning and place of this "self-explanatory" term to another day.
[8] The United States Supreme Court has indeed taken a "quasi-criminal" approach to forfeiture proceedings. See, e.g., Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886).
The Court has even been criticized for its failure to make forfeiture truly criminal:
"Some writers have criticized the [U.S. Supreme] Court's failure to extend criminal safeguards not only to infamous punishments but to all punishment which is not de minimus not only imprisonment but also substantial fines and forfeitures which are not criminally labelled. Such penalties can produce greater burdens than usually result from criminal prosecutions arising out of the same offense."
Clark, Civil and Criminal Penalties and Forfeitures: A Framework for Constitutional Analysis, 60 Minn.L.R. (Part I) 379, 404 (1976).
[9] See n. 8. The U.S. Supreme Court has afforded some criminal procedural safeguards to forfeiture proceedings while declining to recognize others. See, e.g., United States v. U.S. Coin and Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), applying the Fifth Amendment right against self-incrimination to forfeiture proceedings.
"Forfeitures are considered criminal penalties for purposes of triggering certain constitutional rights. Nevertheless, the statutes are deemed predominantly civil * * *."
Forfeiture of Derivative Contraband Under the Contraband Seizure Act and the Comprehensive Drug Abuse and Control Act of 1970, 40 Ohio St.L.J. 1007, 1010 (1979).
[10] See also, ORS 167.247(4):
"(4) No conveyance is subject to forfeiture under this section by reason of any act or omission committed or omitted without the knowledge or consent of the owner.
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[Cite as Miller v. Miller, 2012-Ohio-4361.]
COURT OF APPEALS
HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SUSAN R. MILLER, ET AL. : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiffs-Appellees : Hon. John W. Wise, J.
: Hon. Julie A. Edwards, J.
-vs- :
:
DWIGHT MILLER, ET AL. : Case No. 11CA025
:
Defendants-Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 10CV001
JUDGMENT: Affirmed/Reversed in Part
DATE OF JUDGMENT: September 20, 2012
APPEARANCES:
For Plaintiffs-Appellees For Defendants-Appellants
STEVEN J. SHROCK THOMAS R. GILMAN
138 East Jackson Street 133 South Market Street
Millersburg, OH 44654 Loudonville, OH 44842
Holmes County, Case No. 11CA025 2
Farmer, J.
{¶1} Appellants, Dwight and Sue Ann Miller, and appellees, Susan and James
Miller, own lots in an area known as Lakeview Park in the Lake O'Dell subdivision in
Washington Township, Ohio. There are two roadways in the subdivision, Lakeview
Drive and Park Driveway. A dispute arose between the parties regarding the use of the
two roadways.
{¶2} On December 30, 2009, appellees filed a complaint against appellants
seeking a declaratory judgment, a permanent injunction, an easement by prescription,
and damages for trespass regarding the two roadways.
{¶3} On August 31, 2011, appellees filed a motion for partial summary
judgment, claiming the subject roadways were dedicated public roadways, their use
could not be restricted or obstructed, and appellants could not adversely possess the
roads. By decision filed November 29, 2011, the trial court agreed and granted the
motion. Thereafter, appellees dismissed all of their remaining claims against
appellants.
{¶4} Appellants filed an appeal on December 27, 2011 and assigned the
following errors:
I
{¶5} "THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING
PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND DECLARING
LAKEVIEW DRIVE AND PARK DRIVEWAY TO BE DEDICATED PUBLIC ROADS."
Holmes County, Case No. 11CA025 3
II
{¶6} "THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING
PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT IN DISMISSING
DEFENDANTS' CLAIM FOR ADVERSE POSSESSION."
III
{¶7} "THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING
PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT IN ORDERING THAT
NEITHER PARTY MAY ENCUMBER THE ROADWAY IN ANY MANNER."
{¶8} Appellees filed a cross-appeal on January 6, 2012 and assigned the
following error:
CROSS-ASSIGNMENT OF ERROR I
{¶9} "THE TRIAL COURT ERRED AS A MATTER OF LAW IN ISSUING A
DECLARATORY JUDGMENT ON AN ISSUE NOT BEFORE IT, NAMELY WHETHER
THE WASHINGTON TOWNSHIP TRUSTEES HAD A DUTY TO IMPROVE CERTAIN
PUBLIC ROADWAYS."
{¶10} This matter is now before this court for consideration.
I, II
{¶11} Appellants claim the trial court erred in granting partial summary judgment
to appellees as it was error to find Lakeview Drive and Park Driveway to be dedicated
public roads, and erred in dismissing their claim for adverse possession. We disagree.
{¶12} Summary Judgment motions are to be resolved in light of the dictates of
Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.
Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:
Holmes County, Case No. 11CA025 4
{¶13} "Civ.R. 56(C) provides that before summary judgment may be granted, it
must be determined that (1) no genuine issue as to any material fact remains to be
litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it
appears from the evidence that reasonable minds can come to but one conclusion, and
viewing such evidence most strongly in favor of the nonmoving party, that conclusion is
adverse to the party against whom the motion for summary judgment is made. State
ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,
citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472,
364 N.E.2d 267, 274."
{¶14} As an appellate court reviewing summary judgment motions, we must
stand in the shoes of the trial court and review summary judgments on the same
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30
Ohio St.3d 35.
{¶15} In its judgment entry filed November 29, 2011, the trial court found the
following:
{¶16} "It follows that the dedication of the streets and alleys on the plat in
question was complete before the recent amendment of section 3583 and that such
amendment can therefore not apply.
{¶17} "I am of the opinion, therefore, that where a plat of an allotment outside of
a municipality, which is not required to be approved by a city planning commission, was
prepared, certified, acknowledged and recorded prior to the amendment of section
3583, General Code, and the enactment of section 3583-1, General Code, in
accordance with the statutes then in force, no acceptance by any public authority is
Holmes County, Case No. 11CA025 5
necessary to complete the dedication of the land therein expressed, named, or intended
for public use, and such dedication having been completed prior to the effective date of
the amendment, such amendment cannot apply therein."
{¶18} In their motion for partial summary judgment filed August 31, 2011,
appellees argued Lakeview Drive and Park Driveway were dedicated public roadways
pursuant to common law. In support of this claim, appellees point to language in the
original plat of 1923 that states, "I hereby certify that I am the Proprietor and Owner of
the Sub-Division shown on this Plat and the grounds shown hereon as roads, drives or
streetes [sic] are hereby dedicated for public use." See, Motion for Partial Summary
Judgment at 2. This dedication was approved and accepted by the Commissioners of
Holmes County (Journal 16, Page 81, dated July 15, 1929). See, Shrock aff. at ¶5,
attached to Motion for Partial Summary Judgment as Exhibit B, and Commissioners'
Journal attached as Exhibit 3.
{¶19} In 1989, a re-plat of the roadway with an updated legal description was
filed. See, Shrock aff. at ¶3 and Exhibit 1. Further, the legal descriptions of appellants'
parcels in their deeds contain the following notations on the record:
{¶20} Tract 1 – "This parcel contains 2.269 acres, but subject to all easements
of record.***See Holmes County Plat Book 19, Page 161 for survey."
{¶21} Tract 2 – "Lots 14, 15, 16, 17, 18, 19, 20, 21, 22, 45, 46, 47, 48, 59, 60,
61, 62, 63, 64 and 65, in said J. L. Regne's second sub-division as recorded in Plat
Volume 2, Page 3. Also known as Lakeview Park Subdivision 2."
{¶22} Tract 3 - "Plat Vol. 10, Page 428." See, Exhibit B attached to Complaint
filed December 30, 2009.
Holmes County, Case No. 11CA025 6
{¶23} Appellants argue there was no acceptance of the purported roadway
dedication in the 1929 plat by a public authority (1928 OAG No. 2118). Further,
appellants argue the acceptance language advanced by appellees via the
Commissioners' Journal in 1929 was insufficient:
{¶24} " 'Approval of a subdivision plat by county commissioners or township
trustees does not make the roads delineated thereon county or township roads.' State
ex rel. Schmardebeck v. Bay Township Board of Trustees, 1993 Ohio App. LEXIS 6440,
citing Krzewinski v. Eaton Homes, Inc. (1958), 108 Ohio App. 175, citing Section
711.041, Revised Code. In this statement, the court simply paraphrases Ohio Revised
Code 711.041 which states '[t]he approval of a plat by the board of county
commissioners shall not be deemed to be an acceptance of the dedication of any public
street, road, or highway dedicated on such plat.' " Appellants' September 22, 2011
Response to Motion for Partial Summary Judgment at 4.
{¶25} Appellees point out that because the plat was filed and "accepted" in
1929, the provisions of subsequent statutes and case law do not affect the legality of
the acceptance. The trial court determined, and we concur, that the binding law of this
case as to the 1929 recording and platting is the law in existence at that time. As
appellees stated in their brief at 4:
{¶26} "In 1932, the Ohio Attorney General opined that when the plat of an
allotment outside a municipality was prepared, certified, acknowledged, and recorded
prior to the enactment of the predecessor to R.C. §711.05 (cited by Defendants) in
accordance with the statutes effective at the time, no acceptance by any public authority
was necessary to complete the dedication of the land. 1932 OAG No. 4686 (1932). In
Holmes County, Case No. 11CA025 7
other words, the enactment of the statute cited by Defendants did not impose additional
requirements upon prior roadway dedications already completed."
{¶27} In Robinson v. Swing (1939), 70 Ohio App. 83, 89, our brethren from the
First District stated the following in dicta:
{¶28} "However, section 6906-1, General Code, is directly in point. The gist of
this section is that the road in question is 'under the control and supervision of the board
of commissioners of the county', and that means are provided for 'the maintenance of
the streets in such newly platted territory, until such time as such streets shall have
been permanently improved.'
{¶29} "Our attention is directed by the defendants to section 6886, General
Code, which provides that persons may dedicate land for road purposes to the county
with the approval of the county commissioners."
{¶30} The Robinson court at 86-87 noted the language relative to county roads
was included in Section 3583 of the General Code:
{¶31} "Section 3583, General Code, provides: 'After the plat or map is
completed, it shall be certified by the surveyor, and acknowledged by the owner or
owners before an officer authorized to take the acknowledgment of deeds, who shall
certify his official act on the plat or map. If any owner is a non-resident of the state, his
agent, authorized by writing, may make the acknowledgment. Such plat or map, and if
the execution is by agent, his written authority, shall thereupon be recorded in the office
of the county recorder. Provided, however, that no plat or map certifying lands outside
of a municipal corporation, wherein the proprietor shall dedicate public highways, shall
be entitled to be recorded without the approval thereon of the county commissioners of
Holmes County, Case No. 11CA025 8
the county wherein such lands are situated, upon the filing of any such plat for record
the approval of the county commissioners endorsed thereon shall operate as an
acceptance and confirmation of the dedication of the public highways, contained
therein, except, however, that nothing herein contained shall be construed to apply to
such plats or maps as are required by G.C. § 3586-1 to be approved by a city planning
commission.' "
{¶32} We note a challenge that the acknowledgment by the owner was missing
or to the 1929 plat in question was not made until appellants' brief to this court. " 'It is
well established that a party cannot raise any new issues or legal theories for the first
time on appeal.' " Carrico v. Drake Construction, Stark App. No. 2005 CA 00201, 2006-
Ohio-3138, ¶37, quoting Dolan v. Dolan, Trumbull App. Nos.2000-T-0154 and 2001-T-
0003, 2002-Ohio-2440, ¶ 7. See also, Cincinnati Insurance Company v. Colelli &
Associates, Inc. (June 17, 1998), Wayne App. No. 97CA0042 ("The purpose of a reply
brief is to respond to matters raised by an opponent's brief.") We conclude the
challenge to the plat for lack of acknowledgment or endorsement by the Commissioners
is waived.
{¶33} Based upon the case law at the time of the filing of the plat and the
notations on appellants' own deeds, that the property was subject to the public
highways and/or easements of record, we conclude that although not technically
correct, the platting, filing for record, and acceptance of the plat by the Commissioners
were sufficient to establish the roads as public roads.
{¶34} Appellants further argue the trial court erred in not addressing their claim
for adverse possession. We find this claim fails once the decision is affirmed that the
Holmes County, Case No. 11CA025 9
plat was accepted and the subject roads constitute public roadways. One cannot make
a claim of adverse possession on a dedicated and re-platted roadway. Heddleston v.
Hendricks (1895), 52 Ohio St. 460; Law v. Lake Metroparks, Lake App. No. 2006-L-072,
2006-Ohio-7010.
{¶35} Assignments of Error I and II are denied.
III
{¶36} Appellants claim the trial court erred in ordering that neither party may
encumber the road.
{¶37} In its judgment entry filed November 29, 2011, the trial court found the
following:
{¶38} "***In addition, the township would be only responsible to do minimal
maintenance on the road to allow passage, and neither party shall encumber said
roadway in any manner."
{¶39} We find the language to be superfluous to the judgment entry and not
within the scope of the prayer for relief.
{¶40} Assignment of Error III is granted.
Cross-Assignment of Error I
{¶41} Appellees argue certain language in the judgment entry is unnecessary
and should be stricken. We concur.
{¶42} The township trustees were not a party to the action and therefore any
language binding them or relieving them of responsibility is unlawful.
{¶43} Pursuant to App.R. 12, the following language is stricken from the
November 29, 2011 judgment entry:
Holmes County, Case No. 11CA025 10
{¶44} "***In regard to the public road the Court is not going to place any
unnecessary burden upon Washington Township beyond the road as it exists in its
present condition. The trustees are not required to make any unnecessary
improvements on said road nor construct additional roadways that were not completed
when the lots were laid out.
{¶45} "The Court finds this would be prohibitive as cost basis against the
township. In addition, the township would be only responsible to do minimal
maintenance on the road to allow passage***."
{¶46} Cross-Assignment of Error I is granted.
{¶47} The judgment of the Court of Common Pleas of Holmes County, Ohio is
hereby affirmed in part and reversed in part.
By Farmer, P.J.
Wise, J. and
Edwards, J. concur.
s / Sheila G. Farmer_______________
s/ John W. Wise__________________
s / Julie A. Edwards_______________
JUDGES
SGF/sg 808
[Cite as Miller v. Miller, 2012-Ohio-4361.]
IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SUSAN R. MILLER, ET AL. :
:
Plaintiffs-Appellees :
:
-vs- : JUDGMENT ENTRY
:
DWIGHT MILLER, ET AL. :
:
Defendants-Appellants : CASE NO. 11CA025
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Holmes County, Ohio is affirmed in part and
reversed in part. Costs to appellants.
s / Sheila G. Farmer_______________
s/ John W. Wise__________________
s / Julie A. Edwards_______________
JUDGES
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 4, 2009
No. 08-13083 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 91-00033-CR-ORL-18-DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ETHEL MAE JACKSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 4, 2009)
Before CARNES, MARCUS, and ANDERSON, Circuit Judges.
PER CURIAM:
Ethel Mae Jackson, through counsel, appeals the district court’s denial of her
motion to reduce her sentence pursuant to 18 U.S.C. § 3582(c)(2). Jackson’s
§ 3582(c)(2) motion was based on Amendment 706 to the sentencing guidelines,
which reduced the base offense levels applicable to crack cocaine. Jackson
contends that the district court erred in denying her motion because: (1) the
Sentencing Commission effectively, if not expressly, reduced the base offense
level applicable to her offense; and (2) the court possessed the authority under
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), to treat the
guidelines as advisory in her case.
“We review de novo a district court’s conclusions about the scope of its
legal authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d
983, 984 (11th Cir. 2008). A district court may modify a term of imprisonment
where a defendant has been sentenced based on a sentencing range that has
subsequently been lowered by the Sentencing Commission. 18 U.S.C. §
3582(c)(2). Any reduction, however, must be “consistent with applicable policy
statements issued by the Sentencing Commission.” Id. Where a defendant’s
guideline range remains unchanged by Amendment 706 because her offense
involved 4.5 kilograms or more of crack cocaine, a district court is not authorized
to reduce the defendant’s sentence under § 3582(c)(2). United States v. Jones, 548
F.3d 1366, 1369 (11th Cir. 2008), cert. denied, Jones v. United States, No. 08-8865
2
(Mar. 23, 2009).
Jackson’s offense involved at least 15 kilograms of crack cocaine. As a
result, Amendment 706 did not lower her guidelines range and she was not eligible
for a sentence reduction under § 3582(c)(2). See U.S.S.G. § 2D1.1(c)(1); Jones,
548 F.3d at 1369. Moreover, the Supreme Court’s decision in Booker neither gave
the district court authority to treat the guidelines as advisory in Jackson’s
§ 3582(c)(2) proceeding, United States v. Melvin, 556 F.3d 1190, 1192–93 (11th
Cir. 2009), petition for cert. filed, No. 08-8664 (Feb. 10, 2009), nor provided an
independent jurisdictional basis for a sentence reduction under § 3582(c)(2).
United States v. Moreno, 421 F.3d 1217, 1220–21 (11th Cir. 2005). The district
court did not err in denying Jackson’s § 3582(c)(2) motion.
AFFIRMED.
3
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239 U.S. 139 (1915)
SUI
v.
McCOY, INSULAR COLLECTOR OF CUSTOMS OF THE PHILIPPINE ISLANDS.
No. 54.
Supreme Court of United States.
Submitted November 1, 1915.
Decided November 29, 1915.
APPEAL FROM THE SUPREME COURT OF THE PHILIPPINE ISLANDS.
*140 Mr. Clement L. Bouve for appellant.
Mr. S.T. Ansell for appellee.
MR. CHIEF JUSTICE WHITE delivered the opinion of the court.
Chieng Ah Soon, a Chinese merchant residing in Manila, proposing to go to China, took a certificate which was susceptible of being used to identify him for the purpose of reentry in case of his return. About a year afterward, July 19, 1910, Ah Soon returned accompanied by two persons asserted to be his minor sons, one Ah Luy, said to be twenty, and the other, Ah Sui, to be sixteen years of age. His right to land was at once conceded, but the right of the two others being questioned, the Insular Collector referred the matter for inquiry and report to a board which was charged with the duty of considering such question. At once this board heard the testimony offered to prove the right to admission and concluded that Ah Luy had established such right, but that Ah Sui had not. An appeal was prosecuted to the Collector, but before the matter was decided by him on the merits a rehearing was granted presumably by the board and it again heard the matter on July 23, 1910. At the rehearing additional testimony was offered by Ah Sui, but after reexamination of the matter and considering such testimony, the board adhered to its former conclusion. An appeal was taken *141 to the Collector and once more before it was decided a second rehearing was allowed and on August 10, 1910, after hearing additional testimony, the original order was again re-affirmed. This last decision was on September 3, 1910, affirmed on appeal by the Insular Collector and on September 15 an application for rehearing was refused and Ah Sui remained, therefore, in the custody of the Collector for deportation.
At once he applied for habeas corpus to the Court of First Instance of the City of Manila asserting the illegality of his detention for deportation and his right to land as a minor son of Ah Soon, on the following grounds: (a) An entire want of power in the Insular Collector to have referred the right to land to the board of inquiry and the resulting absolutely void character of the proceedings, whether appellate or otherwise, taken thereunder; (b) Even upon the assumption of existence of power, the absolutely void character of the action of the board and the Collector because of the entire disregard by both of the testimony establishing the paternity of Ah Soon and the resulting right of Ah Sui to land. Although ruling against the assertion of want of power, the trial court yet granted the writ of habeas corpus and directed the release of the applicant on the ground of a gross abuse of discretion by the board and the Collector in refusing to give effect to the testimony showing the right to enter, although there was nothing in the proof tending to the contrary. On appeal, the court below, after reviewing the testimony, held that there was no ground to support the conclusion reached by the trial court of arbitrary action and abuse of discretion by the board and the Collector in passing upon the right to land and therefore reversed the order releasing Ah Sui, thus leaving him in custody subject to deportation. 22 Phil. Isld. Rep. 361.
Our jurisdiction is invoked, first, upon the theory that the construction of statutes of the United States is necessarily *142 involved in the assertion of the want of all authority of the Insular Collector of Customs to have appointed the board which primarily determined the right to admission, and second, an assumed violation of the due process of law secured in the Philippine Islands by act of Congress arising from the action taken below because of its asserted arbitrary character caused by the alleged absolute disregard of the testimony establishing the right to enter and the absence of any testimony to the contrary. We come to dispose of these contentions separately.
1. That the Immigration and Chinese Exclusion Laws of the United States have been by act of Congress carried to the Philippine Islands and authorized to be there put into effect under appropriate legislation by the Insular Government, is not disputed. That such government has put such laws into effect and in doing so has in express terms conferred the general supervisory authority required for that purpose to be exerted upon the Insular Collector of Customs, is also not disputed. And that such officer under that authority has provided for a board of examiners primarily to determine, subject to his review, questions arising under the Immigration and Chinese Exclusion Laws, is also not disputed. The contention is based upon the supposed repugnancy to the act of Congress caused by the action of the Collector in giving to such board primary authority to examine under the Chinese Exclusion Acts. The argument is that although under the Immigration Acts provision is made for a board of examiners, no such provision is found in the Chinese Exclusion Acts, since under the latter, although an examination is provided for, it is left to be conducted under rules and regulations adopted by the appropriate authority and in the exercise of that power in the United States examining agents and not an examining board or boards are provided for by the regulations. Upon this and this alone is the conclusion rested that the making of a primary *143 examination under the Exclusion Acts by a board was in conflict with the United States statutes.
The extremity of the argument is well illustrated by considering the extent of the administrative power conferred by the Insular Government upon the Collector in delegating to him the authority to enforce the Chinese Exclusion Acts since by § 1 of Act No. 702 of the Philippine Commission enacted March 17, 1903, it is provided that "the Collector of Customs for the Philippine Archipelago is hereby authorized and directed . . . to employ for that purpose the personnel of the Philippine Customs Service, the provincial and military officers hereinafter provided, and such other persons as may be necessary." But aside from this we are of the opinion that the mere statement of the supposed conflict answers itself, since there is no room for real contention that there was a want of power in the Collector to appoint the board instead of an agent to aid him in the discharge of the duties devolving upon him. And we are also of the opinion that there was no ground whatever for the contention that a conflict arose between the act of Congress and the action of the Collector because the board selected was one in whom the power had been already lodged to act under the supervision of the Collector concerning matters of immigration.
2. So far as concerns the assertion that there was a violation of the due process of law secured in the Philippine Islands by act of Congress both because of the want of a hearing and the disregard of the testimony we are of the opinion that the first on the face of the record is completely answered by the statement we have made of the abundant opportunity which was afforded for a hearing, of the rehearings granted, and of the reiterated considerations which resulted by the board and the Collector, especially in view of the judicial consideration of the subject of the complaint made in the proceedings which culminated *144 in the decree which is before us for review. As to the charge of the total disregard of all the testimony, we might well content ourselves with referring to the opinion of the court below, but in view of the character of the case we say that from an examination of the record we think such contention is devoid of all merit.
Affirmed.
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886 A.2d 321 (2005)
Blake McSPADDEN, Petitioner
v.
DEPARTMENT OF CORRECTIONS, Respondent.
Commonwealth Court of Pennsylvania.
Submitted on Briefs September 30, 2005.
Decided November 4, 2005.
*322 Blake McSpadden, petitioner, pro se.
Nicole L. Adams, Asst. Counsel and Barbara Adams, General Counsel, Camp Hill, for respondent.
BEFORE: McGINLEY, Judge, LEAVITT, Judge, FLAHERTY, Senior Judge.
OPINION BY Judge McGINLEY.
This present matter is before this Court on remand from the Pennsylvania Supreme Court.
Before this Court are the preliminary objections of the Pennsylvania Department of Corrections (DOC) to Blake McSpadden's (McSpadden) petition for review in this Court's original jurisdiction. Also, before this Court is McSpadden's application for summary relief.
McSpadden is incarcerated with DOC at the State Correctional Institution at Albion. On December 23, 1992, McSpadden was sentenced for a burglary conviction to a term of four to twenty-three months to be followed by one year of probation by the Court of Common Pleas of Philadelphia County (trial court). McSpadden was incarcerated until April 23, 1993. On October 8, 1993, McSpadden was found to have violated the terms of his parole and was sentenced to an in-patient drug program. While awaiting a bed at a treatment program, McSpadden was incarcerated from October 8, 1993, until March 4, 1994. McSpadden only completed one of the scheduled nine months in the in-patient drug program and was again found in violation. McSpadden was then incarcerated from May 28, 1994, to August 2, 1995. McSpadden alleges that he then began to serve the probation portion of his sentence. On September 21, 1995, McSpadden was found to be in violation of his probation. The trial court resentenced him to a new sentence of eleven and one-half months to twenty-three months followed by one year of probation. McSpadden was incarcerated from September 21, 1995, to September 6, 1996.
On March 16, 1997, McSpadden was arrested. The trial court found him in violation of his probation and resentenced him to serve three to ten years effective April 10, 1997. The trial court issued an amended order dated July 22, 1998, which gave McSpadden credit for the periods of December 23, 1992, to April 23, 1993; October 8, 1993, to March 4, 1994; May 28, 1994, to August 2, 1995; September 21, 1995, to September 6, 1996; and March 16, 1997, to April 10, 1997.
William J. Wolfe (Wolfe), superintendent of DOC, informed the trial court by letter dated October 28, 2003:
The time from 12/23/92 to 04/23/93, 10/08/93 to 03/04/94, 05/28/94 to 08/02/95 and 9/21/95 to 09/06/96 was previously credited towards the original sentence of 4 months to 23 months (with a consecutive 1 years [sic] probation). We have not credited this inmate with this credit.... A letter was sent to your Honor on August 4, 2003 requesting an adjustment on Mr. McSpadden's commitment credit as stated above. The inmate is now back as a Parole Violator and we have sentenced the inmate only awarding him credit from 03/16/97 to 04/10/97, please notify us if your Honor wants the inmate to have the additional credit as stated above.
Letter from William J. Wolfe, October 28, 2003, at 1-2.
*323 In response, the trial court informed Wolfe: "Please be advised that my sentence of April 10, 1997 of 3 years to 10 years was with all appropriate credit for time served. I do not want any additional credit to accrue to the defendant [McSpadden]." (Emphasis in original). Letter from the trial court, November 3, 2003, at 1.
When McSpadden became aware that he did not receive as much credit as originally ordered he made an Inmate's "Request to Staff Member." P. Thompson responded that under the Split Sentence rule "when an inmate is sentenced on the same indictment bill to a term of confinement with a CS [consecutive] term of probation it is known as a split sentence when you violated probation and are resentenced you are not entitled to all the credit served on the original sentence." Inmate's Request to Staff Member, Response, November 3, 2003, at 1. McSpadden filed a grievance regarding his loss of credit which was denied.
McSpadden requests this Court to order DOC to award him 1,050 days of credit. McSpadden alleges that his rights under the Pennsylvania and United States Constitutions were violated when DOC took away the credit of 1,050 days. McSpadden further alleges:
36. Petitioner [McSpadden] contends that when the D.O.C. took away his credit time, it turned one sentence into three separate sentences for a single offense. (4 to 23 months, 1 year probation) (11.5 to 23 months, one year probation) (3 to 10 years).
37. This action violates the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution, which protects against multiple punishments for the same offense....
....
46. Petitioner [McSpadden] also states that he should not be subjected to a (2001) ruling, when he received his credit time in 1998. This would violate the Ex Post Facto law of the Pennsylvania and U.S. Constitutions.
....
53. Petitioner [McSpadden] states that the D.O.C. is responsible for this action not the trial court. They have a mandatory duty to return the Petitioner's [McSpadden] credit because they are in control of computing an inmate's exact time he is entitled to on that sentence.
54. Petitioner [McSpadden] prays that this Court hear this Petition for Review since it's dealing with a legality of a sentence ... and because the Petitioner [McSpadden] has no other appropriate and adequate remedy. (Citations omitted).
Petition for Review, September 3, 2004, Paragraphs 36-37, 46, and 53-54 at 6-8. McSpadden also applies for summary relief because he alleges that no material facts are in dispute, his right to relief is clear, and he is entitled to summary relief as a matter of law.
On October 7, 2004, DOC preliminarily objected in the nature of a demurrer on the basis that McSpadden fails to state a claim upon which relief may be granted.[1] DOC states:
*324 29. In Petitioner's [McSpadden] case, he has not established a clear legal right to relief or a corresponding duty for the Department of Corrections to act.
30. Petitioner [McSpadden] posits his `right' to this credit on his beliefs that Respondent [DOC] has violated his right to due process, violated the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, will subject him to Cruel and Unusual Punishment, violated Pennsylvania Statute 42 Pa.C.S. § 9760; acted contrary to the holding of Commonwealth v. Williams, 443 Pa.Super. 479, 662 A.2d 658 (1995); and violated the Ex-Post Facto Clauses of the United States and Pennsylvania Constitutions; and acted contrary to the dissenting opinion in Commonwealth v. Bowser, 783 A.2d 348 (Pa.Super.2001)....
....
34. In Williams, the Pennsylvania Superior Court interpreted 42 Pa.C.S. § 9760 and held that the inmate's probation sentence must be credited with the time previously served....
35. The court reached this conclusion because Williams' sentence would have exceeded the maximum time to which he could have been originally sentenced had he not received credit for the prior time served.... A sentence that exceeds the maximum would have been illegal pursuant to 42 Pa.C.S. § 9760....
36. In Bowser, the Pennsylvania Superior Court found that the holding in Williams did not apply.... [T]he court stated that in Bowser's case, his combined sentence did not equal the maximum amount of time to which he could have been sentenced....
37. The court held that Bowser had received this credit that he sought once, and that he was not able to receive duplicate credit in the second component of his sentence.
....
38. The Respondent [DOC] argues that the facts of Petitioner's [McSpadden] case are most similar to the facts of Bowser, especially regarding the length of the permissible sentence. Petitioner was sentenced to serve three to ten years of incarceration for Burglary....
39. Petitioner [McSpadden] could have been sentenced to serve a maximum of twenty years of incarceration for burglary....
40. Therefore, because Petitioner [McSpadden] seeks to have only approximately two and one-half years credited to his three to ten year sentence, denying Petitioner [McSpadden] that amount of credit would not force him to serve a sentence greater than the maximum amount allowed, and the court should find in favor of the Respondent [DOC]. (Citations omitted).
Preliminary Objections, October 7, 2004, Paragraphs 29-30, 34-40 at 6-8.
In considering preliminary objections, this Court must consider as true all the well-pleaded material facts set forth in the petitioner's petition and all reasonable inferences that may be drawn from those facts. Mulholland v. Pittsburgh National Bank, 405 Pa. 268, 271-272, 174 A.2d 861, 863 (1961). Preliminary objections will be sustained only in cases clear and free from doubt that the facts pleaded are legally insufficient to establish a right to relief. Werner v. Zazyczny, 545 Pa. 570, 681 A.2d 1331 (1996).
Mandamus is an extraordinary writ designed to compel performance of a ministerial act or mandatory duty where there exists a clear legal right in the plaintiff, a corresponding duty in the defendant and want of any other adequate and appropriate *325 remedy. Princeton Sportswear Corp. v. Redevelopment Authority, 460 Pa. 274, 333 A.2d 473 (1975).
In ruling on an application for summary relief, this Court must view the evidence of record in the light most favorable to the non-moving party and enter judgment only if there are no genuine issues as to any material facts and the right to judgment is clear as a matter of law. Buehl v. Horn, 761 A.2d 1247 (Pa.Cmwlth.2000).
Section 9760(2) of the Judicial Code, 42 Pa.C.S. § 9760(2), provides:
After reviewing the information submitted under section 9737 (relating to report of outstanding charges and sentences) the court shall give credit as follows:
....
(2) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody under a prior sentence if he is later reprosecuted and resentenced for the same offense or for another offense based on the same act or acts. This shall include credit in accordance with paragraph (1) of this section for all time spent in custody as a result of both the original charge and any subsequent charge for the same offense or for another offense based on the same act or acts.
In McSpadden v. Department of Corrections, 870 A.2d 975 (Pa.Cmwlth.2005), this Court previously ruled on this controversy and dismissed the preliminary objections of DOC and granted McSpadden's application for summary relief and directed DOC to credit McSpadden for the following periods: December 23, 1992, to April 23, 1993; October 8, 1993, to March 4, 1994; May 28, 1994, to August 2, 1995; September 21, 1995, to September 6, 1996; and March 16, 1997, to April 10, 1997.
In reaching this decision, this Court relied on McCray v. Pennsylvania Department of Corrections, 807 A.2d 938 (Pa.Cmwlth.2002). In McCray, Michael McCray (McCray) was arrested and incarcerated after being charged with twenty-seven crimes. On November 5, 1997, he entered a plea agreement where he pled guilty to three charges of aggravated assault, one charge of firearms not to be carried without a license and one charge of criminal conspiracy. McCray was sentenced to eleven and one-half months to twenty months in the Philadelphia County Prison and ten years of concurrent probation with credit for time served. McCray petitioned for reconsideration of his sentence which was granted. McCray's sentence was changed to "Time in to 23 months at the Phila. County Prison. Credit for time served. Immediate parole is Granted. Plus (10) years Probation to run concurrent to be supervised under the State Parole Board." McCray, 807 A.2d at 940.
McCray's probation was revoked and he was sentenced to two to four years of incarceration to run concurrently on the original aggravated assault and criminal conspiracy charges followed by five years of probation on one of the aggravated assault charges. McCray requested that DOC credit his time served under the "time in to twenty-three months ..." sentence. DOC denied the request. McCray then filed a petition for review in this Court's original jurisdiction and alleged that DOC had calculated his sentence incorrectly when DOC failed to credit him for time he served from May 1, 1996 to January 7, 1998, toward his new sentence of two to four years. McCray then applied for summary relief and argued that he received two separate sentences of incarceration *326 and, unless DOC credited the time served under the initial sentence to the time to be reserved under his new sentence, the sentence would violate the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution. McCray, 807 A.2d at 939-940.
For support, McCray relied on Commonwealth v. Williams, 443 Pa.Super. 479, 662 A.2d 658 (1995). In Williams, John Williams (Williams) pled guilty to attempted theft by unlawful taking and was sentenced to eleven and one-half to twenty-three months incarceration plus three years probation. Williams served the entire twenty-three months and was then placed on probation. His probation was subsequently revoked, and he was sentenced to serve three and one-half to seven years, the maximum allowed on the attempted theft charge. Williams was not credited with the twenty-three months he served. Our Pennsylvania Superior Court held that because Williams had served the entire twenty-three months on the attempted theft charge, and the three and one-half to seven year term was the maximum sentence allowed by law, to impose the additional twenty-three months would violate 18 Pa.C.S. § 1103(3)[2] which established the maximum at seven years. The Superior Court credited Williams with the twenty-three months already served as well as eight months and twenty-three days he served on a probation violation detainer. Williams, 662 A.2d at 659.
In McCray, this Court granted McCray's application for summary relief in mandamus and agreed with McCray that Williams controlled:
Williams controls because 42 Pa.C.S. § 9760(2) specifies that credit shall be given for all time spent in custody under a prior sentence if a defendant is later reprosecuted and resentenced for the same offense. Even if Williams only stands for the proposition that an inmate should be credited for time served if his prior sentence and his current sentence do not exceed the maximum sentence permitted under law, McCray would be entitled to credit because the maximum sentence he could have received was 20 years on the original charge ..., and his sentence of 2-4 years plus the 23 months already served does not exceed the maximum possible sentence that could have been imposed. Because McCray served the entire 23 months for the underlying offense and did not receive any credit for that time served, he should have received credit for the 23 months served against his sentence of 2-4 years. (Citation omitted. Emphasis in original).
McCray, 807 A.2d at 942.
DOC appealed to our Pennsylvania Supreme Court in both McCray and the present case.
In McCray v. Pennsylvania Department of Corrections, 582 Pa. 440, 872 A.2d 1127 (2005), our Pennsylvania Supreme Court reversed:
The Department [DOC] also contends that McCray should have sought relief in the sentencing court rather than the Commonwealth Court because the Department may not alter a sentence. On September 17, 1999, the court imposed a term of two to four years' incarceration plus five years' probation without referring *327 to a credit for time served. We agree with the Department that McCray should have expressed his concerns about this matter by raising an objection, which would have allowed the trial court to clarify its decision. This would also have preserved the issue for appellate review. Instead, McCray failed to avail himself of the remedy available to him.
....
We must next determine whether McCray had a clear right to relief.... Here, the trial court convicted McCray of three counts of aggravated assault graded as a first-degree felony. First-degree felonies are punishable by up to twenty years in prison.... The court also found him guilty of conspiracy, which is a second-degree felony punishable by up to ten years in prison.... The trial court's probation revocation sentence of four concurrent terms of two to four years of incarceration for the three aggravated assault convictions and the criminal conspiracy conviction plus a consecutive term of five years probation for the criminal conspiracy conviction is significantly less than the maximum probation revocation sentence of thirty-five to seventy years of incarceration. Therefore, as in [Commonwealth v.] Bowser [783 A.2d 348 (Pa.Super.2001), petition for allowance of appeal denied, 568 Pa. 733, 798 A.2d 1286 (2002)], the concerns regarding the imposition of an illegal sentence that were present in Williams, are not at issue in this case. McCray's position echoes that of Judge Olszewski in his dissenting opinion in Bowser in which he expressed his belief that Section 9760(1) of the Sentencing Code mandates that an inmate is entitled to credit on any sentence `for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed....' Considering the existence of the Williams and Bowser decisions, and the fact that Section 9760 appears in Subchapter E of the Sentencing Code governing `Imposition of Sentence' and not in Subchapter F governing `Further Judicial Action,' which includes Section 9771 (Modification or revocation of order of probation), it cannot be said that McCray had a clear right to relief.
....
It is beyond cavil that the Department has a duty to credit McCray, as well as all inmates, for all statutorily mandated periods of incarceration.... However, this does not end the matter. The Department is an executive branch agency that is charged with faithfully implementing sentences imposed by the courts. As part of the executive branch, the Department lacks the power to adjudicate the legality of a sentence or to add or delete sentencing conditions. Reviewing the sentence imposed by the trial court reveals that the Department has computed McCray's maximum release date in accordance with the sentencing order of the trial court. The sentence imposed by the trial court upon probation revocation, does not indicate that McCray is to receive credit for time served.... Accordingly, the Department did not have a duty to credit McCray for the time previously served because the probation revocation judge did not order credit for time served and the Department is without authority to alter sentencing conditions. (Citations omitted).
McCray v. Pennsylvania Department of Corrections, 582 Pa. at 449-450, 872 A.2d at 1132-1133.
Our Pennsylvania Supreme Court decided McCray on April 27, 2005. On May 13, 2005, DOC applied for remand in the present *328 case. On June 1, 2005, our Pennsylvania Supreme Court granted the application for remand and remanded for reconsideration in accordance with the Supreme Court's decision in McCray.
Here, DOC asserts that McSpadden could have been sentenced to a term of twenty years for burglary. Instead, he was originally sentenced to a term of four to twenty-three months followed by a consecutive one-year period of probation. He was released on parole on April 23, 1993. After he violated his parole, he was reincarcerated from October 8, 1993, to March 4, 1994, and again from May 28, 1994, to August 2, 1995. On September 21, 1995, McSpadden violated the terms of his probation and received a new sentence of eleven and one-half months to twenty-three months followed by a year of probation. He served time from September 21, 1995, to September 6, 1996. After again violating his probation, McSpadden received a new sentence of three to ten years effective April 10, 1997. The trial court issued an amended order dated July 22, 1998, which gave McSpadden credit for the periods of December 23, 1992, to April 23, 1993; October 8, 1993, to March 4, 1994; May 28, 1994, to August 2, 1995; September 21, 1995, to September 6, 1996; and March 16, 1997, to April 10, 1997.
DOC argues that, under McCray, an individual is not entitled to receive sentence credit toward a second term of incarceration unless credit is necessary to avoid a term of confinement in excess of the maximum term that could have been imposed for the crime. Because the confinement to which McSpadden has been sentenced plus the amount already served is less than the maximum of sentence of twenty years for robbery, DOC asserts that McSpadden has no clear right to relief.
The present controversy differs from McCray in one significant respect. In McCray, McCray's sentence for the violation of his probation did not mention credit for time served. Here, the trial court awarded McSpadden specific credit for time served and listed the dates for which credit was awarded. In McCray, our Pennsylvania Supreme Court also determined that DOC is "an executive branch agency that is charged with faithfully implementing the sentences imposed by the courts. As part of the executive branch, the Department [DOC] lacks the power to adjudicate the legality of a sentence or to add or delete sentencing conditions." McCray, 582 Pa. at 450, 872 A.2d at 1133. Here, DOC did not faithfully implement the sentence imposed by the trial court. Instead, DOC requested clarification of the sentence. The trial court responded that the sentence was with all appropriate time served. DOC took that to mean that McSpadden was not entitled to the credit the trial court had awarded him. This Court does not believe that DOC has the authority to delete the proviso of specific time served contained in the trial court's sentence.[3]
Accordingly, this Court dismisses the preliminary objections of DOC and grants *329 McSpadden's application for summary relief and directs DOC to credit McSpadden for the following periods: December 23, 1992, to April 23, 1993; October 8, 1993, to March 4, 1994; May 28, 1994, to August 2, 1995; September 21, 1995, to September 6, 1996; and March 16, 1997, to April 10, 1997.
ORDER
AND NOW, this 4th day of November, 2005, the preliminary objection of the Department of Corrections is dismissed. It is hereby ordered that the application for summary relief of Blake McSpadden is granted.
NOTES
[1] DOC also preliminarily objected on the basis that McSpadden improperly served the Petition. On October 12, 2004, this Court per curiam ordered McSpadden to serve the petition for review on DOC and the Pennsylvania Attorney General by October 27, 2004, or the petition would be dismissed. On October 26, 2004, McSpadden filed a certificate of service with this Court which indicated that McSpadden had complied with the October 12, 2004, order. On October 27, 2004, this Court overruled the preliminary objection relating to service.
[2] 18 Pa.C.S. § 1103(3) provides:
Except as provided in 42 Pa.C.S. § 9714 (relating to sentences for second and subsequent offenses), a person who has been convicted of a felony may be sentenced to imprisonment as follows: (3) In the case of a felony of the third degree, for a term which shall be fixed by the court at not more than seven years.
[3] This Court is aware of Aviles v. Pennsylvania Department of Corrections, 875 A.2d 1209 (Pa.Cmwlth.2005). In Aviles, Carlos Aviles (Aviles) received a sentence of three to twenty-three months imprisonment and a consecutive term of one year probation. Aviles was paroled effective July 12, 1995, and began serving his probation term. In January 1999, Aviles was found to be in violation or probation. His probation was revoked. He received a new sentence of eleven and one-half to twenty-three months imprisonment and a consecutive term of five years probation. On November 8, 2000, Aviles was released from prison after he served twenty-three months. In January 2003, Aviles again violated his probation and was sentenced to a term of three to six years with credit for time served. Aviles, 875 A.2d at 1210-1211.
Aviles filed a mandamus action and asked this Court to direct DOC to credit him with 873 days he previously served. DOC preliminarily objected in the nature of a demurrer. This Court sustained the preliminary objection and dismissed Aviles's petition based on McCray:
Aviles lacks a clear right to the credit he seeks. The trial court originally convicted Aviles on a drug charge punishable by up to 15 years in prison.... The original sentence contained a total confinement component of up to 23 months. Then, the second VOP [violation of probation] sentence contained a total confinement component of up to 23 months. Then, the second VOP [violation of probation] sentence contained a total confinement component of up to six years. The combined total confinement components of all his sentences for this crime are less than 10 years, well within the statutory maximum. As in McCray and Bowser, concerns about the imposition of an illegal sentence are simply not present here. As in McCray, Aviles lacks a clear right to the credit he seeks. (Citation and footnote omitted).
Aviles, 875 A.2d at 1213.
The present case differs from Aviles because here the trial court specified the exact periods for which it assessed credit for time served where the court in Aviles did not award such credit with specificity.
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955 F.Supp. 945 (1997)
Hubert HILL, Plaintiff,
v.
Salvador A. GODINEZ, Mark Franklin, and Arthur Brewer, M.D., Defendants.
No. 94 C 4499.
United States District Court, N.D. Illinois, Eastern Division.
February 6, 1997.
*946 Hubert D. Hill, Menard, IL, pro se.
Vincent J. Vigil, Vigil, Berkley & Gordon, P.C., Skokie, IL, for Hubert D. Hill.
Sebastian N. Danziger, Illinois Attorney General's Office, Chicago, IL, Susan Takata O'Leary, Illinois Dept. of Corrections, Chicago, IL, for Salvador Godinez and Mark Franklin.
Sebastian N. Danziger, Illinois Attorney General's Office, Chicago, IL, for A. Brewer.
*947 MEMORANDUM OPINION AND ORDER
SHADUR, District Judge.
Hubert Hill ("Hill") originally sued defendants Salvador Godinez ("Godinez"), Mark Franklin ("Franklin") and Dr. Arthur Brewer under 42 U.S.C. § 1983 ("Section 1983") for failing to protect Hill from physical harm and for denying him essential medical treatment during his incarceration at Stateville Correctional Center ("Stateville") in 1992. Hill has since withdrawn his claims against Godinez, and both remaining defendants have now moved for summary judgment. For the reasons set forth in this memorandum opinion and order, the motion is granted as to Hill's denial-of-medical-treatment claim against Dr. Brewer but is denied as to Hill's failure-to-protect claim against Franklin.
Facts
Hill, who has been incarcerated at various prison facilities within the Illinois Department of Corrections since 1984, was at Stateville from September 2, 1992 to June 22, 1994. At the time of the relevant events Franklin was a counselor in the protective custody unit and Dr. Brewer was Medical Director.
Before he arrived at Stateville Hill had had several prison run-ins with gangs, including among others the North Siders and the Gangster Disciples. For example, in August 1984 he had been placed in protective custody at Menard Correctional Center ("Menard") after he turned in two homemade knives that the North Siders had demanded he make. In February 1987 he was again placed in protective custody there when, as a member of a "prison biker gang" known as the Menard Brotherhood, he refused an order to stab another inmate. In December 1988 he was placed in protective custody yet again after revealing that the North Siders were once more demanding that he make homemade knives.
Shortly after that Hill became indebted to a member of the Gangster Disciples to the tune of $250 after losing at poker. As a result of that gambling debt, the Gangster Disciples threatened him on several occasions from December 1988 until March 1989. Hill was then transferred to Pontiac Correctional Center ("Pontiac") and was placed in protective custody after reporting his past problems with gangs, including the gambling debt. Hill remained in protective custody at Pontiac until he was transferred to Graham Correctional Center in October 1989.
In January 1990 Hill was sent to Hill Correctional Center ("HCC"), where members of the Gangster Disciples knew about the gambling debt and tried to get him to make "hooch" to pay it off. Hill reported their demand to prison officials and was placed in protective custody. Two years later, after several additional transfers, Hill arrived at Illinois River Correctional Center ("Illinois River"). There a member of the Menard Brotherhood threatened his life. After Hill reported the incident, he was granted a transfer out of Illinois River. Hill arrived at Stateville in September 1992, where he requested placement in the protective custody unit.
On September 14, 1992 Franklin interviewed Hill about his protective custody request. Just what information Hill gave to Franklin is disputed. According to Hill, he told Franklin about his past placements in protective custody at other facilities and about the gambling debt, and he also said that the Gangster Disciples had a "hit"[1] on him. According to Franklin, Hill said only that three years earlier at Menard he had an altercation with the "Folks" (which Franklin understood to mean an unidentified gang) while drunk and that the Folks had a "hit" on him. Franklin contends that he did not determine until after the interview that the Folks were the Gangster Disciples.
After the interview, Franklin reviewed Hill's "rather large" prison file for about 15 minutes. Whether he read the forms relating to Hill's past placements in protective custody is not clear. In any event, based upon his observation of Hill's physical size and his demeanor during the interview (Hill is not of small stature and did not appear frightened), Hill's inability to identify specifically *948 any inmate at Stateville who was a threat to him and Hill's level of "institutional sophistication" (that is, his experience with prison life), Franklin denied Hill's request.
That resulted in Hill's placement in Unit X, where inmates who had been denied protective custody were housed while they appealed that decision to the Prison Review Board. There Hill was placed on an eight-cell gallery in which each cell housed two inmates. Hill was familiar with gang colors, symbols and clothing, and on that basis he recognized one of the two inmates already in his gallery as a Gangster Disciple. In the days that followed three more Gangster Disciples were assigned to the gallery until all the cells had been filled.
On October 11, 1992 the inmates in Hill's gallery were released from their cells for "Day Room," a recreation period. Cells in Unit X had to be unlocked by a guard with a key, and for Day Room recreation that was done in such a manner that all inmates in a gallery were released from their cells into the hallway virtually simultaneously. That day two inmates assaulted Hill and three others assaulted his cellmate. One of the two inmates who attacked Hill was known to prison authorities as a Gangster Disciple, but the other had no reported gang affiliation.
Hill suffered a broken nose and numerous cuts and bruises. He was taken to the Stateville Health Care Unit ("Health Care") for treatment and remained there for ten days. When he first saw a doctor the day after the assault, that doctor recommended that he be seen by an ear, nose and throat specialist for treatment of a broken nasal bone. On October 16, 1992 Hill was seen by such a specialist, Dr. Robert J. Kramer, who prescribed nasal surgery. He noted in Hill's chart that Hill had a nasoseptal fracture with an obstruction on the left side and would need a septoplasty. Dr. Kramer also told the Health Care staff that Hill should have the surgery within seven or eight days so that the broken bone in Hill's nose would not set on its own, failing which prompt surgery the bond would have to be re-broken during any later surgery. That request was recorded by a Health Care staff member.
Hill swears that he saw Dr. Brewer on October 21 and November 4, 1992 and told him of Dr. Kramer's recommendation of prompt surgery. Dr. Brewer denies that he saw Hill on those occasions and contends that he first learned of and approved Dr. Kramer's recommendation on November 18. Shortly thereafter Hill contracted an eye infection that required postponement of the surgery. There is a dispute as to when the eye infection cleared up: Hill says it was on January 8, 1993, while defendants contend it was March 26, 1993. Hill further says that he sent Dr. Brewer a letter about the surgery in February 1993, enclosing a copy of Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Hill did not have the septoplasty until April 6, 1993, and his nasal bone had to be re-broken during the operation, something that Hill claims caused him additional pain. It is undisputed that Hill's nose has healed completely and that he suffers no permanent damage to it.
Hill's Third Amended Complaint ("TAC") sets out a claim of failure to protect against Franklin (Count I) and failure to provide adequate medical care against Dr. Brewer (Count II). Although the TAC was framed against defendants in both their official and individual capacities, Hill has withdrawn his official-capacity claims as barred by the Eleventh Amendment. Hill has also withdrawn an intentional infliction of emotional distress claim (Count III).
Summary Judgment Principles
Rule 56(c) permits summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." For that purpose this Court does not weigh the evidence submitted by the parties or determine the truth where a conflict exists (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986)). All facts must be viewed and all reasonable inferences drawn in the light most favorable to the non-movant (Transamerica Ins. Co. v. South, 975 F.2d 321, 327 (7th Cir.1992)). "If no reasonable *949 jury could find for the party opposing the motion, it must be granted" (Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir.1995), citing Anderson, 477 U.S. at 248, 106 S.Ct. at 2510).
Under those principles each defendant's Rule 56 motion will be viewed through a lens favoring Hill. This opinion will first address Franklin's motion, then will turn to Dr. Brewer's.
Failure To Protect Hill
Under the Eighth Amendment[2] "prison officials have a duty ... to protect prisoners from violence at the hands of other prisoners" (Farmer v. Brennan, 511 U.S. 825, 833, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994)). But "an Eighth Amendment violation exists only if `deliberate indifference by prison officials effectively condones the attack by allowing it to happen'" (Langston v. Peters, 100 F.3d 1235, 1237 (7th Cir.1996), quoting Haley v. Gross, 86 F.3d 630, 640 (7th Cir.1996)). Langston, id., again quoted Haley to amplify that standard:
Deliberate indifference in the prison context requires: "First, the danger to the inmate must be objectively serious, posing a substantial risk of serious harm. Second, the prison official must have a sufficiently culpable stated of mind one of `deliberate indifference' to inmate health or safety." Haley, 86 F.3d at 640-41 (citing Farmer, 511 U.S. at 834, 114 S.Ct. at 1977).... "[I]t is not enough that the official `should have known' of a substantial risk or that a reasonable officer in the situation would have known of the risk." Id. (quoting Farmer, 511 U.S. at 837, 114 S.Ct. at 1979).
In other words, "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference" (Farmer, 511 U.S. at 837, 114 S.Ct. at 1979). "In failure to protect cases, `[a] prisoner normally proves actual knowledge of impending harm by showing that he complained to prison officials about a specific threat to his safety'" (Pope v. Shafer, 86 F.3d 90, 92 (7th Cir.1996) (per curiam)).
Franklin argues that he is entitled to summary judgment because Hill cannot establish an Eighth Amendment violation as to his being denied protective custody. Franklin contends that his decision not to place Hill in protective custody was reasonable based upon the information that Hill provided during the interview. But what Hill actually told Franklin during the interview is disputed, and so Franklin's argument succeeds only if this Court accepts his version of the facts. That would turn matters on their head: It is Franklin who has moved for summary judgment, requiring that Hill's version be credited for now. It will be recalled that according to Hill he told Franklin about his history of placement in protective custody, about his gambling debt owed to the Gangster Disciples and about the gang's "hit" on him. It is undisputed both that Franklin was aware that there were many Gangster Disciples in the prison population at Stateville and that he knew what a "hit" was.
This case contrasts sharply with a situation (as in Langston, 100 F.3d at 1238) in which an inmate was assaulted at random under circumstances in which prison officials had no way of knowing that the inmate would be targeted. Based upon Hill's evidence that he told Franklin not only about his peril from the Gangster Disciples but also about his history of protective custody, it may reasonably be inferred that he informed Franklin about the Gangster Disciples' past effort to force him to make "hooch" at HCC as repayment of the gambling debt as well.
In short, Hill apparently did everything except identify by name the specific Stateville inmates who were likely to assault him. As a result of Franklin's denial of Hill's request, Hill was assigned to Unit X and placed in a cell near several Gangster Disciples, including one whose gang affiliation was *950 recorded in his prison file. It was that inmate who assaulted Hill when the inmates were released from their cells at the same time. Hill has surely tendered enough evidence to establish (at a minimum) that there is a genuine issue of material fact as to whether Franklin was deliberately indifferent to a substantial risk of serious harm to Hill. That compels the rejection of Franklin's summary judgment motion as a factual matter.
Franklin also contends that he is sheltered from liability by qualified immunity. Given the clearly established principles of deliberate indifference in the failure-to-protect context at the time that Franklin acted (see Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987)), he cannot succeed on qualified immunity grounds. No new legal trails have been blazed such that Franklin's deliberate indifference is being evaluated ex ante. Hill had a clearly established right not to be subjected through a correctional officer's deliberate indifference to a risk of serious harm from fellow prisoners, such as in the circumstances involved here (see, e.g., the numerous pre-1992 cases cited in Farmer, 511 U.S. at 833 & n. 2, 114 S.Ct. at 1977 & n. 2; and see Estate of Stevens v. City of Green Bay, 105 F.3d 1169, 1173 (7th Cir.1997) for the most recent restatement of the qualified immunity test by our Court of Appeals).
This Court has already concluded that a rational factfinder could conclude that Franklin was deliberately indifferent (in the sense that was already established before October 1992) to a substantial risk of serious harm to Hill because he did not take reasonable steps in response to that known risk. Surely a reasonable officer in Franklin's position had to understand that what he did violated Hill's already-defined and clearly established constitutional right. That being so, as aptly summarized in Hamilton v. Endell, 981 F.2d 1062, 1066 (9th Cir.1992):
A finding of deliberate indifference necessarily precludes a finding of qualified immunity.
Franklin's motion is therefore denied as to Count I. That facet of Hill's lawsuit must go to trial.
Denial of Medical Care
Prison officials' obligations to inmates under the Eighth Amendment also prohibit their "deliberate indifference to serious medical needs of prisoners" (Estelle, 429 U.S. at 104, 97 S.Ct. at 291). Dr. Brewer argues among other things that Hill's claim against him is barred by the two-year statute of limitations applicable to all Illinois-based Section 1983 actions (see Kalimara v. Illinois Dep't of Corrections, 879 F.2d 276, 277 (7th Cir.1989) (per curiam)). This opinion addresses only that issue because it is dispositive of the claim.
Resolution of the question whether Hill's claim is timely depends upon when it accrued. Federal law, which determines when a Section 1983 claim accrues (Wilson v. Giesen, 956 F.2d 738, 740 (7th Cir.1992)), teaches (id. (citation omitted)):
Generally, a claim accrues when the plaintiff knows or has reason to know of the injury giving rise to the cause of action. Civil rights claims, therefore, accrue when the plaintiff knows or should know that his or her constitutional rights have been violated.
As stated earlier, Dr. Kramer examined Hill on October 16, 1992 and prescribed a septoplasty, recommending that the surgery be performed within seven or eight days. Hill admittedly knew of that recommendation, for he claims to have informed Dr. Brewer about it on October 21 and November 4. Indeed, it will be remembered that Hill contends that in February 1993 he sent Dr. Brewer a letter inquiring about the surgery and enclosing a copy of Estelle. Yet Hill first named Dr. Brewer as a defendant in this action on March 23, 1995.
Hill's Estelle-based claim of deliberate indifference to his serious medical needs can only be read as challenging Dr. Brewer's failure to provide the surgery within the time frame recommended by Dr. Kramer, for it is undisputed that the surgery was eventually performed. It was on October 16 (the only *951 day that he saw Hill) that Dr. Kramer recommended that the surgery be done within seven or eight days. Because Hill knew of that recommendation not later than October 21 by his own admission, he necessarily knew before the end of October that the surgery had not been performed at the time recommended. And he did not sue Dr. Brewer until well over two years (nearly 2½ years) later.
Hill attempts to escape the limitations bar by making two arguments. First his Mem. 14 contends:
There remains a question of fact as to whether, at such an early date, the Plaintiff had knowledge of the physical suffering he would endure as occasioned by Brewer's denial of necessary medical care, and whether the Plaintiff had the requisite knowledge as to the causal connection between his suffering stemming from a denial of medical care, and the denial itself.
That argument is both circular and incoherent. Apparently Hill is contending that he somehow did not know in October 1992 that the pain "stemming from" a denial of medical care was caused by the denial of medical care. That of course is untenable, because "stemming from" is synonymous with "caused by." Moreover, because it is undisputed that Hill knew that he did not receive the surgery within the time frame recommended by Dr. Kramer, the cause of his pain necessarily must have been obvious to him in Wilson's terms, he then "kn[e]w or ha[d] reason to know of the injury giving rise to the cause of action." That was enough to trigger the commencement of the limitations period.
Hill's Mem. 14-15 next urges that Dr. Brewer's failure to provide the surgery throughout the period from October 24, 1992 to April 6, 1993 (with the exception of the period when Hill suffered from the eye infection) constituted a continuous course of longterm negligent medical treatment, so that the limitations clock did not begin to tick until the surgery took place. Even apart from the fact that negligent treatment does not give rise to a Section 1983 claim to begin with,[3] the fallacy of Hill's argument is that such a deferral of medical treatment is not itself a form of treatment (negligent or otherwise) it is rather the absence of medical treatment.
Here Dr. Brewer did not engage during that time frame in some form of treatment of Hill's broken nose. Instead even on the premise favorable to Hill's position Dr. Brewer failed to ensure that Hill received treatment within the short time needed to avoid the re-breaking of Hill's nose. Thus there was no "last date of medical treatment" other than the October 1992 date, as Hill posits. Once Dr. Brewer failed to ensure that the surgery was performed within the recommended time frame, the die was cast Hill's claim had accrued, and the lapse of more time before the actual surgery took place became irrelevant.
It is clear from the undisputed facts that Hill knew of the assertedly unconstitutional denial of medical treatment more than two years before he brought suit against Dr. Brewer, and his claim against Dr. Brewer is therefore barred by the statute of limitations. Dr. Brewer's motion for summary judgment is granted as to Count II.
Conclusion
Hill's claims in the Third Amended Complaint against Salvador Godinez and against all defendants in their official capacities have been withdrawn. Hill's intentional infliction of emotional distress claim (Count III) has also been withdrawn.
There is no genuine issue of material fact as to Hill's Count II claim, and Dr. Brewer is entitled to a judgment as a matter of law on that claim. Count II is therefore dismissed. But the existence of factual issues compels the denial of Franklin's motion on Count I. At the status hearing previously scheduled for February 10, 1997 the parties should be prepared to discuss:
1. whether a Rule 54(b) determination should be made as to the dismissed claims and parties (see National *952 Metalcrafters v. McNeil, 784 F.2d 817, 821 (7th Cir.1986)); and
2. what procedures remain to bring the still-surviving Count I claim to trial.
NOTES
[1] Franklin acknowledged his understanding (Franklin Dep. 70) that a "hit" meant "an inmate fear[ed] that there might be a reprisal of physical violence against him by a certain group."
[2] In accordance with the uniform practice exemplified by Farmer, this opinion adheres to the conventional and convenient (though technically imprecise) practice of referring to the underlying Bill of Rights provision (which of course imposes limitations only on the federal government) rather than to the Fourteenth Amendment (which applies to state actors and has been construed to embody such Bill of Rights guaranties).
[3] Estelle and its progeny emphasize that the "cruel and unusual punishment" prohibition of the Eighth Amendment is not breached by mere medical malpractice by mere negligence (see, e.g., Sellers v. Henman, 41 F.3d 1100, 1102 (7th Cir.1994)).
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Filed 4/10/14 (Unmodified opinion attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
CITY OF SAN JOSE et al., H039498
(Santa Clara County
Petitioners, Super. Ct. No. 1-09-150427)
v. ORDER
THE SUPERIOR COURT OF
SANTA CLARA COUNTY,
Respondent,
TED SMITH,
Real Party in Interest.
THE COURT:
The above captioned opinion, filed on March 27, 2014, is hereby modified as
follows:
Page 6, second full paragraph, lines nine-eleven, delete the following: "Federated
University Police Officers Association v. Superior Court (2013) 218 Cal.App.4th 18, 27
[names of police officers using pepper spray on protesters not protected under any CPRA
exemption category] and."
There is no change in the judgment.
____________________________
ELIA, J.
_____________________________ ____________________________
RUSHING, P. J. PREMO, J.
Filed 3/27/14 Unmodified opinion
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
CITY OF SAN JOSE et al., H039498
(Santa Clara County
Petitioners, Super. Ct. No. 1-09-150427)
v.
THE SUPERIOR COURT OF
SANTA CLARA COUNTY,
Respondent,
TED SMITH,
Real Party in Interest.
In this proceeding the City of San Jose (City), the City's mayor, and 10 city
council members seek a writ of mandate or prohibition overturning an order that denied
their summary judgment motion and granted that of real party Ted Smith, plaintiff in the
underlying action.1 The summary judgment ruling granted declaratory relief to Smith,
who had asserted the right to inspect specified written communications (including e-mail
and text messages) sent or received by public officials and employees on their private
electronic devices using their private accounts. The issue presented is whether those
1 Also named in Smith's complaint were the San Jose Redevelopment Agency and Harry
Mavrogenes, the agency's executive director. The Redevelopment Agency, however, was
later dissolved and succeeded by the City itself.
private communications, which are not stored on City servers and are not directly
accessible by the City, are nonetheless "public records" within the meaning of the
California Public Records Act (CPRA or the Act) (Gov. Code, § 6250 et seq.).2 We
conclude that the Act does not require public access to communications between public
officials using exclusively private cell phones or e-mail accounts. We will therefore
grant the requested relief.
Background
The CPRA defines "public records" to include any writing relating to the public's
business if it is "prepared, owned, used, or retained by any state or local agency."
(§ 6252, subd. (e).) In June 2009, Smith submitted a request to the City, seeking 32
categories of public records involving specified persons and issues relating to downtown
San Jose redevelopment. The City complied with all but four categories of requests,
namely items 27-30. These four requests were essentially for "[a]ny and all voicemails,
emails or text messages sent or received on private electronic devices used by Mayor
Chuck Reed or members of the City Council, or their staff, regarding any matters
concerning the City of San Jose, including any matters concerning Tom McEnery, John
McEnery IV, Barry Swenson, Martin Menne, Sarah Brouillette, or anyone associated
with Urban Markets LLC or San Pedro Square Properties." The City disclosed
responsive non-exempt records sent from or received on private electronic devices using
these individuals' City accounts, but not records from those persons' private electronic
devices using their private accounts (e.g., a message sent from a private gmail account
using the person's own smartphone or other electronic device). The City took the
position that these items were not public records within the meaning of the CPRA.
2 Further statutory references are to the Government Code except as otherwise indicated.
2
Smith brought this action for declaratory relief3 in August 2009, seeking a
judgment entitling him to disclosure of the disputed information under the CPRA. The
parties filed cross-motions for summary judgment, which were heard by the superior
court in March 2013. Petitioners argued that messages sent from or to private accounts
using private electronic devices are not "public records" under the CPRA, and that
individual officials and employees are not included within the definition of "public
agency" under the Act. In their view, only those records "within the public entity's
custody and control" would be subject to disclosure under the Act.
Smith maintained that communications prepared, received, or stored on City
officials' private electronic devices are public records under the CPRA, since local
agencies "can only act through their officials and employees." Those officials and
employees, he argued, are acting on behalf of the City, and therefore their disclosure
obligations are "indistinguishable" from those of the City.
In its March 19, 2013 order, the superior court rejected petitioners' arguments,
noting that "there is nothing in the [CPRA] that explicitly excludes individual officials
from the definition of 'public agency,' " and a city is an " 'artificial person' " that can
" 'only act through its officers and employees.' " Thus, a record that is "prepared, owned,
used, or retained" by an official is "prepared, owned, used, or retained" by the City. The
court further reasoned that if petitioners' interpretation were accepted, "a public agency
could easily shield information from public disclosure simply by storing it on equipment
it does not technically own." Accordingly, the court denied petitioners' motion for
summary judgment and granted that of Smith.
Petitioners then requested a writ of mandate or prohibition in this court. We
issued a stay of the lower court's order and invited preliminary opposition. Smith chose
3 The complaint was titled "Complaint for Declaratory and Injunctive Relief," but only
one cause of action was stated, for a judicial declaration of the parties' rights and duties.
3
not to submit such opposition. Upon the issuance of an order to show cause, however,
Smith filed a return.
Discussion
The issue before us is whether the definition of "public records" in section 6252,
subdivision (e), encompasses communications "prepared, owned, used, or retained" by
City officials and employees on their private electronic devices and accounts.
Underlying this dispute is the question of whether those officials and employees are
"agents" of the City, as Smith contends. Petitioners, together with the League of
California Cities (League) as amicus curiae, renew their argument that private
communications are excluded from the statutory definition of "public records" under the
CPRA. Smith, joined by representatives of the news media as amici curiae,4 maintains
that individual City officials and employees must be deemed public agencies, thus
making their communications public records regardless of what devices and accounts are
used to send and receive those messages.
1. Standard of Review
An order directing disclosure by a public official under the CPRA is not
appealable, but it is immediately reviewable through a petition to the appellate court for
issuance of an extraordinary writ. (§ 6259, subd. (c).) "The purpose of the provision
limiting appellate review of the trial court's order to a petition for extraordinary writ is to
prohibit public agencies from delaying the disclosure of public records by appealing a
trial court decision and using continuances in order to frustrate the intent of the Act.
[Citation.] The Legislature's objective was to expedite the process and make the
appellate remedy more effective." (Filarsky v. Superior Court (2002) 28 Cal.4th 419,
4 Arguing as amici curiae in opposition to the petition are the First Amendment
Coalition, California Newspaper Publishers Association, Los Angeles Times
Communications LLC, McClatchy Newspapers, Inc., and California Broadcasters
Association.
4
426-427.) Because this petition calls for interpretation and application of statutory
provisions to undisputed facts, our review is de novo. (County of Los Angeles v. Superior
Court (2012) 211 Cal.App.4th 57, 62; Lorig v. Medical Board (2000) 78 Cal.App.4th
462, 467; see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 [ruling on
summary judgment reviewed independently].)
2. Policy Objectives of the CPRA
The CPRA was modeled on the federal Freedom of Information Act (FOIA) (5
U.S.C. § 552). Their common purpose "is to require that public business be conducted
'under the hard light of full public scrutiny' [citation], and thereby 'to permit the public to
decide for itself whether government action is proper.' [Citation.] . . . For both the FOIA
and the Act, 'disclosure, not secrecy, is the dominant objective.' [Citation.]" (Times
Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1350; City of San Jose v. Superior
Court (1999) 74 Cal.App.4th 1008, 1016.)
In enacting the CPRA the Legislature expressly declared that "access to
information concerning the conduct of the people's business is a fundamental and
necessary right of every person in this state." (§ 6250.) "Thus, the Act was passed 'to
ensure public access to vital information about the government's conduct of its
business.' " (City of San Jose v. Superior Court, supra, 74 Cal.App.4th at p. 1016,
quoting CBS, Inc. v. Block (1986) 42 Cal.3d 646, 656; Gilbert v. City of San Jose (2003)
114 Cal.App.4th 606, 610.) As the California Supreme Court has explained, "[o]penness
in government is essential to the functioning of a democracy. 'Implicit in the democratic
process is the notion that government should be accountable for its actions. In order to
verify accountability, individuals must have access to government files. Such access
permits checks against the arbitrary exercise of official power and secrecy in the political
process.' " (International Federation of Professional and Technical Engineers, Local 21,
AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 328-329 (International Federation),
quoting CBS, Inc. v. Block, supra, 42 Cal.3d at p. 651.)
5
"California voters endorsed that policy in 2004 by approving Proposition 59,
which amended the state constitution to explicitly recognize the 'right of access to
information concerning the conduct of the people's business' and to provide that 'the
writings of public officials and agencies shall be open to public scrutiny.' (Cal. Const.,
art. 1, § 3, subd. (b)(1)." (County of Santa Clara v. Superior Court (2009) 170
Cal.App.4th 1301, 1320; International Federation, supra, 42 Cal.4th at p. 329.)
"Subdivision (b)(2) [of California Constitution, article I, section 3] provides guidance on
the proper construction of statutes affecting this right of access: 'A statute, court rule, or
other authority, including those in effect on the effective date of this subdivision, shall be
broadly construed if it furthers the people's right of access, and narrowly construed if it
limits the right of access.' " (Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 166.)
Although the term "public records" encompasses a wide range of communications,
disclosure "has the potential to impact individual privacy." (City of San Jose v. Superior
Court, supra, 74 Cal.App.4th at p. 1016.) The Legislature acknowledged this fact by
stating in section 6250 that it is "mindful of the right of individuals to privacy."
Accordingly, section 6254 provides a number of exemptions that " 'protect the privacy of
persons whose data or documents come into governmental possession.' [Citation.]"
(Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1282 [holding police
officer's disciplinary records not subject to disclosure under section 6254, subdivisions
(c) and (k) and Penal Code section 832.7; but see Federated University Police Officers
Association v. Superior Court (2013) 218 Cal.App.4th 18, 27 [names of police officers
using pepper spray on protesters not protected under any CPRA exemption category] and
International Federation, supra, 42 Cal.4th 319, 346 [peace officers' names and salary
information were not protected from CPRA disclosure under exemption of section 6254,
subd. (c), or by Penal Code sections 832.7 and 832.8].) "Thus, the express policy
declaration at the beginning of the Act 'bespeaks legislative concern for individual
privacy as well as disclosure.' [Citation.] 'In the spirit of this declaration, judicial
6
decisions interpreting the Act seek to balance the public right to access to information,
the government's need, or lack of need, to preserve confidentiality, and the individual's
right to privacy. . . .' [Citation.]" (Copley Press, Inc. v. Superior Court, supra, 39
Cal.4th at p. 1282.) Likewise, the right of access declared in article I, section 3(b)(1), of
the California Constitution is qualified by the assurance that this right of access does not
supersede an individual's right of privacy.5
Petitioners argue that the Legislature has not expanded the reach of the Act to
personal devices and accounts because it recognizes the privacy rights of this state's
citizens: "A requirement that the government search individuals' personal computers and
other devices for information potentially responsive to [CPRA] requests would run
counter to California's strong policy favoring privacy." Smith counters that officials
"lose any expectation of privacy" when they choose "to send and receive messages
regarding public business from their personal electronic devices and accounts."
The League acknowledges that public officials and employees have a diminished
expectation of privacy, as illustrated by statutory duties to report certain personal
financial information (§ 87200 et seq.) and the Brown Act requirement that legislative
meetings be open and public (§ 54953). The League notes, however, that the Brown Act
(section 54950, et seq.)— which "serves the same democratic purposes" as the CPRA
(International Federation, supra, 42 Cal.4th at p. 333, fn. 6) -- permits private
conversations about the public's business by fewer than a majority of its members outside
of a public meeting (§ 54952.2, subd. (a)), and it does not apply to "individual contacts or
conversations between a member of a legislative body and any other person that do not
violate subdivision (b)." (§ 54952.2, subd. (c)(1).) In addition, the League reasons, the
5 Article I, section 3, subdivision (b)(3), states, in pertinent part, "Nothing in this
subdivision supersedes or modifies the right of privacy guaranteed by Section 1 or affects
the construction of any statute, court rule, or other authority to the extent that it protects
that right to privacy . . . ." (Cal. Const. art. I, § 3(b)(3).)
7
ability to discuss public issues privately and confidentially allows dissident members of a
legislative body to air "unpopular views" and develop "strategies for challenging the
status quo or the powers that be." The superior court's ruling, by contrast, would destroy
"this carefully crafted private space" and "could have a chilling effect on citizens who
wish to exercise their constitutional rights to instruct their representatives and petition
government for redress of grievances." The League also suggests that the trial court's
ruling is potentially incongruous with the Brown Act; for example, "a meeting between a
public official and a constituent that would not be directly subject to public review under
the Brown Act could be indirectly subject to public review under the Public Records Act,
if the public official made notes of the meeting. This cannot be the rule. The twin pillars
of open government law in California, the Public Records Act and the Brown Act, must
be interpreted so as to be reasonably consistent with one another." Finally, addressing
the superior court's concern that a city "could easily shield information from public
disclosure simply by storing it on equipment it does not technically own," the League
contends that we must presume under Evidence Code section 664 that the "public
officials are conducting City business in the public's best interest, and not willfully
dodging applicable laws and regulations."
We observe, however, that in recognizing "the right of individuals to privacy" in
section 6250, the Legislature did not distinguish between the privacy right of City
officials and that of third parties whose personal information may be disclosed when
records are accessed. (Compare City of San Jose v. Superior Court, supra, 74
Cal.App.4th at pp. 1018-1025 [balancing test under catch-all exception of section 6255,
subd. (a), favors privacy interests of citizens complaining about airport noise over public
interest in disclosure] and Regents of University of California v. Superior Court (2013)
222 Cal.App.4th 383, 399) [public entity has no obligation to obtain fund information
from private investment firms] with International Federation, supra, 42 Cal.4th 319, 346
[peace officers' names and salary information not protected from CPRA disclosure under
8
exemption of section 6254, subd. (c), or by Penal Code sections 832.7 and 832.8]; cf.
Sander v. State Bar of California (2013) 58 Cal.4th 300, 326-327 [information in state
bar admissions database accessible if privacy of applicants can be protected and no
legitimate public interest outweighs public interest in disclosure].)
Both the City and the League supplement their privacy concerns with practical
considerations. Petitioners suggest that if local agencies were required to search the
personal electronic accounts of their employees, "the burden and cost would be
overwhelming." Indeed, petitioners suggest, "without the requisite custody or control of
such records, it is difficult to imagine how the City would be able to implement such
searches if employees declined to cooperate." The League likewise emphasizes that
without access to and control over private messaging accounts and electronic devices, a
public agency has no "viable, legal means of searching for and producing private
documents of its employees and officials." The superior court's interpretation is
unworkable, the League argues, because a records request would require the City to
conduct an active search not only of devices and accounts stored in its system or under its
control, but also of all private computers, phones, tablets, and other electronic devices of
its employees and officials. And those searches, the League points out, would intrude
into private conversations with family members or friends that happen to include some
discussion of a public issue. As the League sees it, "[n]either the Legislature nor the
electorate has demonstrated an intent that the Act reach those purely private
communications."
In defending the lower court's ruling Smith and the media representatives also rely
on policy objectives. They emphasize that section 6252, subdivision (e), must be
construed broadly "if it furthers the people's right of access, and narrowly construed if it
limits the right of access." (Cal. Const., art. I, § 3, subd. (b)(2).) The media suggest that
petitioners' interpretation of "public records" is unreasonable and arbitrary because it
would allow officials to "conceal evidence of error or malfeasance on a whim by storing
9
information relating to the public's business on their personal accounts or devices. They
could also distort the truth by storing only records that tell a favorable tale on accounts or
devices owned by a state or local agency." Smith adds, relying on Commission On Peace
Officer Standards And Training v. Superior Court (2007) 42 Cal.4th 278 (CPOST), "If
petitioners' interpretation were to hold sway, an email, text or other communication
concerning the public's business that was stored solely on a City Council member's cell
phone would be exempt from disclosure. And yet, if the same email, text, or
communication was [sic] stored on a City computer server, then it would be a public
record. Petitioners' attempt to make the 'public' nature of a record dependent upon its
storage location, rather than its content, is completely arbitrary and patently
unreasonable."
None of the parties' policy-based arguments informs our analysis of whether the
requested communications are public records within the meaning of section 6252. We
are bound to interpret statutory language as written and avoid any encroachment on the
province of the Legislature to declare public policy. As the Supreme Court has reminded
us, "the Legislature, and not the courts, is vested with the responsibility to declare the
public policy of the state. [Citations.]" (Green v. Ralee Engineering Co. (1998) 19
Cal.4th 66, 71-72; see also Copley Press, Inc. v. Superior Court, supra, 39 Cal.4th at p.
1299 [it is for the Legislature, not the courts, to weigh competing policy considerations].)
Indeed, " ' "public policy" as a concept is notoriously resistant to precise definition, and
. . . courts should venture into this area, if at all, with great care and due deference to the
judgment of the legislative branch' in order to avoid judicial policymaking." (Green v.
Ralee Engineering Co, supra, 19 Cal.4th at p. 76; Silo v. CHW Medical Foundation
(2002) 27 Cal.4th 1097, 1104.) Whether personal accounts and devices of an individual
must be deemed accessible for purposes of a CPRA request must be determined, if
possible, by reading the language of the statute itself.
10
3. The Scope of "Public Records"
Under the CPRA, "[p]ublic records are open to inspection at all times during the
office hours of the state or local agency and every person has a right to inspect any public
record, except as hereinafter provided." (§ 6253, subd. (a).) As noted earlier, the term
"public records" is defined in section 6252, subdivision (e), to include any writing
relating to the public's business if it is "prepared, owned, used, or retained by any state or
local agency."6 "This broad definition is designed to protect the public's need to be
informed regarding the actions of government . . . ." (Poway Unified School Dist. v.
Superior Court (Copley Press) (1998) 62 Cal.App.4th 1496, 1501; accord, California
State University v. Superior Court (2001) 90 Cal.App.4th 810, 824.) The Act defines a
"local agency" to include "a county; city, whether general law or chartered; city and
county; school district; municipal corporation; district; political subdivision; or any
board, commission or agency thereof; other local public agency; or entities that are
legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section
54952." (§ 6252, subd. (a).)
In order to apply section 6253 in light of the expressed intent of section 6250 to
ensure access to information relating to public business, we must first determine whether
a written communication7 transmitted to or from a city official's private electronic device
using his or her private account is a "public record" within the meaning of the CPRA.
Both sides submit cogent arguments in support of their respective positions. Petitioners,
6 A "writing" is defined in section 6252, subdivision (g) as "any handwriting,
typewriting, printing, photostating, photographing, photocopying, transmitting by
electronic mail or facsimile, and every other means of recording upon any tangible thing
any form of communication or representation, including letters, words, pictures, sounds,
or symbols, or combinations thereof, and any record thereby created, regardless of the
manner in which the record has been stored."
7 No party disputes that a "writing," as used in the Act, encompasses e-mail and text
messages. (§ 6252, subd. (g).)
11
joined by the League as amicus curiae, rely on the exact language of section 6252, which
applies the disclosure mandate to writings "prepared, owned, used, or retained" by a local
or state agency, not by the agency's officials or employees. Petitioners argue that the
superior court "encroached on the province of the Legislature" by expanding the reach of
the statute to records of individual council members rather than those "prepared, owned,
used, or retained" by the City itself. The League also argues that section 6253.9, which
prescribes disclosure procedures for electronically stored information,8 "unmistakably
envisions a system of access to electronic records that are in the possession of the agency,
not on the home computer of a city council member. It bolsters the conclusion that the
Act means what it says in limiting the definition of public records to records 'prepared,
owned, used, or retained' by the local agency."
As he did below, Smith asserts that because "local agencies are inanimate bodies,
they can only act through their officials and employees; therefore, records 'prepared,
owned, used, or retained' by a 'local agency' presumptively includes records 'prepared,
owned, used, or retained' by City officials and employees." Thus, in Smith's view, the
City and its "agents" -- that is, the individual members of San Jose's city council and their
staff -- are "indistinguishable under these circumstances." This was the reasoning
adopted by the superior court in its ruling.
Close examination of Smith's argument reveals its logical weakness. Even if we
accept the first premise, that a local agency can act only through its officials, it does not
follow that every act of an official is necessarily an act of the agency. Smith further
8 Section 6253.9 sets forth specific procedures for complying with its overall mandate,
which states: "Unless otherwise prohibited by law, any agency that has information that
constitutes an identifiable public record not exempt from disclosure pursuant to this
chapter that is in an electronic format shall make that information available in an
electronic format when requested by any person and, when applicable, shall comply with
the following . . . ." (Gov. Code, § 6253.9, subd. (a).)
12
asserts, quoting San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762, 774
(San Gabriel) that " '[a]ny record required by law to be kept by an officer, or which he
keeps as necessary or convenient to the discharge of his official duty, is a public record.' "
This point, taken from San Gabriel out of context, merely begs the question of whether
the information sought is a public record.
Determining the scope of "public records" must be made in light of the
constitutional mandate of article I, section 3, and the intent expressed by the Legislature
in the statutory scheme, particularly section 6250. "When we interpret a statute, '[o]ur
fundamental task . . . is to determine the Legislature's intent so as to effectuate the law's
purpose. We first examine the statutory language, giving it a plain and commonsense
meaning. We do not examine that language in isolation, but in the context of the
statutory framework as a whole in order to determine its scope and purpose and to
harmonize the various parts of the enactment. If the language is clear, courts must
generally follow its plain meaning unless a literal interpretation would result in absurd
consequences the Legislature did not intend." (Sierra Club, supra, 57 Cal.4th at pp. 165-
166; Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th
733, 737.) We remain mindful, however, of the " 'strong public policy of the people's
right to information concerning the people's business (Gov. Code, § 6250), and the
constitutional mandate to construe statutes limiting the right of access narrowly (Cal.
Const., art. I, § 3, subd. (b)(2)).' " (Sierra Club, supra, 57 Cal.4th at p. 166.)
Accordingly, if there is ambiguity in the meaning or intent of the statutory language, "the
California Constitution requires us to 'broadly construe[ ]' the PRA to the extent 'it
furthers the people's right of access' and to 'narrowly construe[ ]' the PRA to the extent 'it
limits the right of access.' (Cal. Const., art. I, § 3, subd. (b)(2).)" (Ibid.)
Guided by these principles, we examine the language of section 6252—
specifically, its definition of "public records" as "any writing containing information
relating to the conduct of the public's business prepared, owned, used, or retained by any
13
state or local agency regardless of physical form or characteristics." (§ 6252, subd. (e),
italics added.) If a "local agency" and its officials are, as Smith portrayed them below,
"one and the same," then any writing prepared, owned, used, or retained by the official is
deemed that of the agency itself. The statute's definition of "local agency," however,
does not mention individual members or representatives of any public body; it refers to
government bodies themselves, including counties, cities, "any board, commission or
agency thereof; other local public agency; or entities that are legislative bodies of a local
agency pursuant to subdivisions (c) and (d) of Section 54952."9 The plain language of
this provision thus denominates the legislative body as a whole; it does not appear to
incorporate individual officials or employees of those entities. Had the Legislature
intended to encompass such individuals within the scope of "public records," it could
easily have done so. (Cf. D'Amato v. Superior Court (2008) 167 Cal.App.4th 861, 873
[had Legislature intended section 1090 proscription against financial interests in contracts
to apply to entire board, it would have worded statute differently].) And, in fact, it did so
in defining "state agency" to include "officer." (§ 6252, subd. (f).)
We therefore cannot agree with Smith that individual city council members and
their staff must be considered equivalent to the City for purposes of providing public
access to their writings on public business. Because it is the agency—here, the City—
that must prepare, own, use, or retain the writing in order for it to be a public record,
9 Section 54952 defines "Legislative body" in part as "(a) The governing body of a local
agency or any other local body created by state or federal statute. [¶] (b) A commission,
committee, board, or other body of a local agency, whether permanent or temporary,
decisionmaking or advisory, created by charter, ordinance, resolution, or formal action of
a legislative body. However, advisory committees, composed solely of the members of
the legislative body that are less than a quorum of the legislative body are not legislative
bodies, except that standing committees of a legislative body, irrespective of their
composition, which have a continuing subject matter jurisdiction, or a meeting schedule
fixed by charter, ordinance, resolution, or formal action of a legislative body are
legislative bodies for purposes of this chapter."
14
those writings that are not accessible by the City cannot be said to fall within the statutory
definition. The City cannot, for example, "use" or "retain" a text message sent from a
council member's smartphone that is not linked to a City server or City account. Thus,
relying on the plain meaning of the language used in section 6252, subdivisions (a) and
(e), we believe that the CPRA does not extend its disclosure mandate to writings of
individual city officials and employees sent or received on their private devices and
accounts.
That city council members may conceal their communications on public issues by
sending and receiving them on their private devices from private accounts is a serious
concern; but such conduct is for our lawmakers to deter with appropriate legislation. It
does not make a literal interpretation necessarily "arbitrary, unreasonable, and absurd," as
Smith and the media contend. "It is our task to construe, not to amend, the statute. 'In the
construction of a statute . . . the office of the judge is simply to ascertain and declare what
is in terms or in substance contained therein, not to insert what has been omitted or omit
what has been inserted . . . .' [Citation.] We may not, under the guise of construction,
rewrite the law or give the words an effect different from the plain and direct import of
the terms used." (California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11
Cal.4th 342, 349; cf. McLeod v. Parnell (2012) 286 P.3d 509 [declining to depart from
literal meaning of "public records" in Alaska's Public Records Act, as legislature may
allow agency employees to decide what documents should be "preserved"].)
Smith, along with the media, cites CPOST, supra, 42 Cal.4th 278, for the assertion
that "the location in which public records are stored does not diminish their public
character." The media draw from CPOST the inference that "the Legislature meant to
exclude from the definition of public records only writings 'totally devoid of reference to
government activities' based on their content."
But CPOST does not assist us in interpreting the language of section 6252. In
CPOST, the issue was whether the information sought by a newspaper was exempt from
15
disclosure under section 6254, not whether it met the definition of a public record under
section 6252. Indeed, it was undisputed that the requested information was a public
record; rather, it was the scope of "personnel records" as used in Penal Code sections
832.7 and 832.8 that was at issue. (Id. at p. 288.) It was in this context that the high
court determined that it was "unlikely the Legislature intended to render documents
confidential based on their location, rather than their content." (Id. at p. 291.) The
Supreme Court rejected the appellate court's interpretation of "personnel records" in
Penal Code section 832.8, because "[u]nder the Court of Appeal's interpretation, the
circumstance that a document was placed into a file that also contained the type of
personal or private information listed in the statute would render the document
confidential, regardless of whether the document at issue was of a personal or private
nature, and regardless of whether it was related to personnel matters." (Id. at p. 290.) In
other words, the location of a document should not be the basis for determining whether
personnel records may be withheld, because it would be too easy to shield unprotected
information in a "file" that contains protected material. "Furthermore, if records are
stored in a computer in electronic form, it would be difficult, if not impossible, to
determine which records are contained in the same virtual 'file.' " (Id. at p. 291.) The
Supreme Court concluded that "[b]ecause section 832.7 deems peace officer personnel
records and information obtained from those records to be 'confidential,' they are exempt
from disclosure under the Act." (Id. at p. 289.) As the court had no occasion in CPOST
to determine the scope of "public records" under section 6252, subdivision (e)(2), Smith's
and the media's reliance on that case is misplaced.
The media offer a similarly flawed argument, relying on San Gabriel, supra, 143
Cal.App.3d at page 774, for the proposition that the scope of "public record" excludes
only personal information unrelated to the public's business. But that point goes to the
public nature of the writing, which is not at issue here. (Cf. Braun v. City of Taft (1984)
154 Cal.App.3d 332, 340 [personnel records of city firefighter were public records, as
16
they "clearly related to the conduct of the City's business"].) We are not concerned here
with disclosure requests for messages of purely personal content because it is undisputed
that the records sought relate to City business; thus, the issue is not properly framed as
one of location vs. content.
Nor does the media's reliance on International Federation, supra, 42 Cal.4th 319
compel a different result. In that case the Supreme Court held that peace officers' names
and salary information were not protected from CPRA disclosure under exemption of
section 6254, subdivision (c), or by the confidentiality provisions of Penal Code sections
832.7 and 832.8 The issue was not whether that information constituted a public record;
the parties agreed that it did. Instead, the court primarily addressed the question of
whether any exemption applied under section 6254, subdivision (c), pertaining to
" '[p]ersonnel, medical, or similar files, the disclosure of which would constitute an
unwarranted invasion of personal privacy.' " (Id. at p. 329.)
Both parties have cited Flagg v. City of Detroit (E.D. Mich. 2008) 252 F.R.D. 346
to support their positions. In Flagg, a federal district court ruled that text messages
exchanged by city officials and employees were not protected from civil discovery by the
federal Stored Communications Act (18 U.S.C. § 2701 et seq.). The messages were
exchanged by means of text messaging devices issued to city officials and employees
under the city's contract with Skytel, its service provider. Because Skytel stored the
messages under that contract, the city was presumed to have access to and control over
them. Notably, the discovery request was based on a federal rule of civil procedure
which permitted the requesting party to inspect documents "in the responding party's
possession, custody, or control." (Fed. Rules Civ.Proc., rule 34, 28 U.S.C.)
Smith sets up a false comparison between the situation presented in Flagg and the
facts before us, by arguing that here the City has control over its employees simply "by
virtue of the parties' [sic] relationship." There is no analogous control here. Section 6252
contains no description of public records that includes the element of control. Any
17
control the City has over its employees' behavior is not equivalent to control over, or
even access to, the text messages and e-mail sent to and from its employees' private
devices and accounts. Furthermore, it is noteworthy that the Flagg court regarded
materials as under an agency's control if the agency had the legal right to obtain them.
To apply that point here would make Smith's argument circular: we should deem the
requested records to be within the City's control as a matter of law because it had the
legal right to obtain them. Unquestionably, Flagg has no application here. (Cf.
MacKenzie v. Wales Tp. (Mich. Ct. App. 2001) 635 N.W.2d 335, 339 [township may not
avoid Freedom of Information Act obligation to release property tax roll information by
contracting with outside preparer]; Consolidated Irr. Dist. v. Superior Court (2012) 205
Cal.App.4th 697, 710-711 [city lacked actual or constructive possession of records under
§ 6253(c) because it did not control the subconsultant files].)
Petitioners, on the other hand, cite California State University, Fresno Assn., Inc.
v. Superior Court (Fresno Assn) (2001) 90 Cal.App.4th 810 to support their argument
that the plain language of section 6252, subdivision (e), excludes communications from
officials' personal accounts and devices. The issues before the Fifth District in that case
are not comparable to those before us. In Fresno Assn a local newspaper sought from a
state university and a university-affiliated nonprofit association records revealing the
identity of those who had bought luxury suites in a new sports arena on the state
university campus. The Fifth District determined that those records held by the
university, a "state agency," were public records, because they were "unquestionably
'used' and/or 'retained' " within the meaning of section 6252, subdivision (e). (Id. at p.
825.) The association, on the other hand, was not a "state agency" for purposes of the
Act. (Ibid.) The most we can derive from Fresno Assn is confirmation that the CPRA,
like any statute, should be construed according to the language used by the Legislature,
even when "our conclusion seems to be in direct conflict with the express purposes of the
18
CPRA—'to safeguard the accountability of government to the public. . . . ' " (Id. at p.
830.)
Howell Ed. Ass'n, MEA/NEA v. Howell Bd. of Ed. (2010) 789 N.W.2d 495, also
cited by petitioners, is likewise not helpful. There the plaintiff, a teachers' union, sought
a judgment declaring that both personal and union-related e-mail relating to union
business did not constitute a public record under Michigan's FOIA. The appellate court
held that personal e-mails were not rendered public records merely because they were
stored or retained by the defendant board of education in its e-mail system. These
messages were not subject to disclosure unless they were used "in the performance of an
official function," as called for in the statute. (Id. at p. 500.) Howell has nothing to do
with the issue presented here, whether a writing that undisputedly is related to official
business is subject to disclosure when it is outside the public body's electronic
communication system.
Some courts have considered whether a public official's messages using a private
device are public records if made during official public meetings. In a Michigan
township, a letter read aloud in a township meeting and incorporated into the minutes
became a public record under that state's FOIA because it was "used . . . in the
performance of an official function." (Walloon Lake Water System, Inc. v. Melrose Tp.
(Mich. Ct. App. 1987) 415 N.W.2d 292, 294 [163 Mich.App. 726, 730]; compare
Hopkins v. Duncan Tp. (Mich. Ct. App. 2011) 812 N.W.2d 27, 33 [294 Mich.App. 401,
411] [board member's personal notes during meeting not a public record where they were
never read into the minutes or used by the township board].) In City of Champaign v.
Madigan (Ill. App. 2013) 992 N.E.2d 629, 639, the appellate court determined that text
messages and e-mail sent or received by a city council member during council meetings
constituted public records under Illinois's FOIA. The Illinois court accepted the city's
argument that the individual council members were not themselves the "public body"
within the meaning of the Act, where that legislation defined "public records" as
19
communications "pertaining to the transaction of public business, regardless of physical
form or characteristics, having been prepared by or for, or having been or being used by,
received by, in the possession of, or under the control of any public body." (5 Ill. Comp.
Stat. Ann. 140/2, subd. (a).) The court noted that this definition did not include members
of a public body, and that "[i]ndeed, an individual city council member, alone, cannot
conduct the business of the public body." (City of Champaign v. Madigan, supra, 992
N.E.2d at p. 639.) The court then deviated from this line of reasoning by assuming that if
the message is forwarded to enough council members to constitute a quorum, the
individual member's messages become those of the entire "public body." (Ibid.) To hold
otherwise, the court held, would "subvert the Open Meetings Act" and the FOIA "simply
by communicating about city business during a city council meeting on a personal
electronic device." (Id. at p. 640.)
The question of when a privately transmitted communication made during a public
meeting becomes that of a "public body"—or in this case, a public "local agency"— is
not presented in this writ proceeding. Smith did not confine his request to writings
exchanged during city council meetings, but sought all communications transmitted
during an unspecified period regarding "any matters concerning the City of San Jose,"
particularly those pertaining to the development of downtown San Pedro Square.
More comparable to the issue before us was the more general request submitted to
a Pennsylvania township in In re Silberstein (Pa. Commw. Ct. 2011) 11 A.3d 629. In
that case Stacey MacNeal requested electronic communications between citizens and
commissioners serving on the township board. The township produced writings in its
possession and control, but it did not consider those made on computers maintained
solely by a commissioner. Like Smith, MacNeal argued that an elected official should
not be permitted to shield public records relating to township activity by using a third-
party e-mail address on a personal computer. Also like Smith, MacNeal reasoned that
public officials "are agency actors and are subject to York Township control." (Id. at p.
20
632.) The trial court, however, ruled that those communications were not "public
records" under Pennsylvania's "Right-To-Know Law" (RTKL).10
The Commonwealth Court of Pennsylvania affirmed, holding that "a distinction
must be made between transactions or activities of an agency which may be a 'public
record' under the RTKL and the emails or documents of an individual public office
holder. As pointed out by the trial court, Commissioner Silberstein is not a governmental
entity. He is an individual public official with no authority to act alone on behalf of the
Township. [¶] Consequently, emails and documents found on Commissioner
Silberstein's personal computer would not fall within the definition of record[,] as any
record personally and individually created by Commissioner Silberstein would not be a
documentation of a transaction or activity of York Township, as the local agency, nor
would the record have been created, received or retained pursuant to law or in connection
with a transaction, business or activity of York Township. In other words, unless the
emails and other documents in Commissioner Silberstein's possession were produced
with the authority of York Township, as a local agency, or were later ratified, adopted or
confirmed by York Township, said requested records cannot be deemed 'public records'
within the meaning of the RTKL as the same are not 'of the local agency.' " (In re
Silberstein, supra, 11 A.3d at p. 633.)
Smith asserts that Silberstein is inapposite because the RTKL defined a "public
record" as a non-exempt record of a commonwealth or local agency, and Silberstein
lacked authority to act alone on behalf of the township. That distinction is not helpful.
The central premise of Smith's position is that the records of a City official are those of
10 The RTKL defined a public record as a nonexempt record of a commonwealth or local
agency. (65 Pa. Stat. Ann. § 67.102.) A "record" was information, "regardless of
physical form or characteristics, that documents a transaction or activity of an agency and
that is created, received or retained pursuant to law or in connection with a transaction,
business or activity of the agency . . . ." (Ibid.)
21
the City, so it makes no difference that the RTKL, and not the CPRA, uses the word "of"
in defining "public record." Also unsupported is the implicit assumption that a member
of the city council or other official does, in contrast to Silberstein, have authority to act
alone on behalf of the City.11
We thus find no reason to reject the plain language of section 6252 under the rules
of statutory construction or parallel authority from other states' versions of the FOIA.
The writings sought by Smith were not "prepared, owned, used, or retained" by a "local
agency" as called for by section 6252.
The First District, Division Two, reached the same conclusion recently in Regents
of University of California v. Superior Court, supra, 222 Cal.App.4th 383. The issue in
that case was whether Reuters America LLC (Reuters) was entitled to confidential
information regarding investments made by the Regents of the University of California.
The superior court recognized that the information was not directly owned, retained, or
used by the university Regents, but it nonetheless granted the petition of Reuters for
fund-specific information because the Regents had not " 'demonstrated that the Fund
Level Information does not relate to the conduct of the people's business or that it does
not have constructive possession of that information.' " (Id. at pp. 394-395.) The court
ordered the Regents to make a reasonable effort to obtain the requested information.
11 The Pennsylvania court later distinguished Silberstein in circumstances involving the
e-mail correspondence between council members rather than, as in Silberstein, between
the township commissioner and members of the public. (Barkeyville Borough v. Stearns
(Pa. Commw. Ct. 2012) 35 A.3d 91, 97; see also Mollick v. Township of Worcester (Pa.
Commw. Ct. 2011) 32 A.3d 859, 872 [e-mail exchanges on township business between
township supervisors constituting a quorum are records of the township].) In Barkeyville
the court further reasoned (in words similar to those of the trial court below) that the
Borough "created the information sought because . . . the individual Council members
make up the Borough government. As a result, the Borough has ownership in the
emails." (35 A.3d at p. 97.) We find this reasoning strained; but more importantly, the
communications requested in the case before us were not confined to those made
exclusively between city council members.
22
The reviewing court granted writ relief to the Regents, holding that a literal
interpretation of section 6252, subdivision (e), is consistent with the purpose of the Act as
a whole but also with the FOIA, on which the CPRA was modeled. (Id. at p. 400.) Just
as in the FOIA, the court concluded, "no language in the CPRA creates an obligation to
create or obtain a particular record when the document is not prepared, owned, used, or
retained by the public agency." (Ibid.) Once the superior court decided that the Regents
had not directly "prepared, owned, used, or retained" the requested information, it should
not have gone further to require the Regents to produce records in its constructive
possession.
We agree with amici curiae from the media that Regents is not entirely comparable
to the facts before us; the records sought in that case were held by private companies
rather than parties to the case. (See also City of San Jose v. Superior Court, supra, 74
Cal.App.4th at p. 1025 [public interest in protecting privacy of people complaining about
airport noise "clearly outweighs" public interest in disclosure of their names, addresses,
and telephone numbers].) Obviously there could also have been no suggestion that the
Regents and the private companies were "indistinguishable." But the reviewing court's
emphasis on avoiding judicial additions to the statutory language is one we endorse as
well. And just as the superior court in Regents improperly bypassed the definition of
"public record" by relying on the agency's "constructive possession," here too we must
reject Smith's argument that the CPRA permits disclosure of the requested
communications on the theory that the City has "constructive control" over the records of
its employees and officials. (Regents of University of California v. Superior Court,
supra, 222 Cal.App.4th at p. 400.) Moreover, there is no evidence in either party's
separate statement of undisputed facts that the City has actual or constructive control over
the privately stored communications of its officials.
Smith also attempts to rebut a position not taken by petitioners, that their personal
accounts and devices are protected from disclosure by one or more exemptions listed in
23
section 6254. Petitioners do not invoke any of these statutory grounds. Consequently,
we need not address Smith's assertion that petitioners waived the issue of whether any
section 6254 exemption applies, nor his contention that petitioners failed to meet their
burden to demonstrate the applicability of a statutory exemption.
Conclusion
We conclude that the language of the CPRA does not afford a construction that
imposes on the City an affirmative duty to produce messages stored on personal
electronic devices and accounts that are inaccessible to the agency, or to search those
devices and accounts of its employees and officials upon a CPRA request for messages
relating to City business. Whether such a duty better serves public policy is a matter for
the Legislature, not the courts, to decide. In addition, it is within the province of the
agency to devise its own rules for disclosure of communications related to public
business.12 The obstacles noted by petitioners and the League— the legal and practical
impediments attendant to the extra task of policing private devices and accounts —
would also be addressed more appropriately by the Legislature or the agency, not the
courts.
Disposition
Let a peremptory writ of mandate issue directing respondent court to vacate the
order granting Smith's motion for summary judgment and to enter a new order denying
12 The record in this case, for instance, contains minutes of the City's adoption of a
resolution addressing this very issue after Smith filed the action. Although we may take
judicial notice of Resolution No. 75293 and its adoption on March 2, 2010 (Evid. Code,
§ 452, subd. (b); § 459), those documents are not relevant to an interpretation of the
language of section 6252. (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24
Cal.4th 415, 422, fn. 2.) If this court were to take judicial notice of them, as did the
superior court, it would be solely to illustrate the point that cities are free to adopt their
own policies and mandates regarding public access to private communications on public
issues, whether made during or outside official meetings.
24
that motion and granting the summary judgment motion of petitioners. Upon finality of
this decision, the temporary stay order is vacated. Costs in this original proceeding are
awarded to petitioners.
______________________________
ELIA, J.
WE CONCUR:
______________________________
RUSHING, P. J.
______________________________
PREMO, J.
25
Trial Court: Santa Clara County Superior Court
Trial Judge: Hon. James P. Kleinberg
Attorneys for Petitioners: Richard Doyle,
City Attorney,
Nora Frimann,
Assistant City Attorney and
Margo Laskowska,
Sr. Deputy City Attorney
Attorneys for Amicus Curiae
In support of Petitioners: Best, Best & Krieger and
Shawn D. Hagerty and
Hong Dao Nguyen
No Appearance for Respondent
Attorneys for Real Party
In Interest: McManis Faulkner and
James McManis,
Matthew Schechter,
Christine Peek, and
Jennifer Murakami
Attorneys for Amici Curiae in
Support of Real Party in
Interest: Ram, Olson, Cereghino & Kopczynski and
Karl Olson
McClatchy Company and
Juan F. Cornejo
Jeffrey D. Glasser
James W. Ewert
City of San Jose, et al. v. Superior Court; RPI: Smith
H039498
26
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560 F.Supp.2d 983 (2008)
Wilhelm STRAUBE, Petitioner,
v.
Michael CHERTOFF, Secretary of the Department of Homeland Security, et al., Respondents.
Case No. 07 CV 1751 JM (NLS).
United States District Court, S.D. California.
May 14, 2008.
*984 James Fife, Esq., Federal Defenders of San Diego, San Diego, CA, for Petitioners.
Samuel William Bettwy, Esq., U.S. Attorney's Office Southern District of California, Civil Division, San Diego, CA, for Respondents.
ORDER PARTIALLY GRANTING PETITION FOR WRIT OF HABEAS CORPUS AND ORDERING BAIL HEARING WITHIN 60 DAYS
JEFFREY T. MILLER, District Judge.
Petitioner Wilhelm Straube, a Guatemalan native, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging his federal detention. The court granted Petitioner's motion to proceed in forma pauperis and motion for appointment of counsel. For the reasons set forth below, the court hereby GRANTS the petition in part and ORDERS Respondents to provide Petitioner with a bail hearing.
I. BACKGROUND
Petitioner unlawfully entered the United States in 1976. (See Return, Exhs. at 2 (Order to Show Cause dated Oct. 19, 1988).) On October 20, 1987, he was convicted of three counts of burglary and sentenced to six years in prison. (See id. at 1.) On August 24, 1995, he was convicted of unlawful taking of a vehicle. (See id. at 14.) On June 9, 1998, he was convicted of petty theft with a prior and sentenced to six years in prison. (See id. at 7-13.) Respondents took Petitioner into custody on January 26, 2004, upon his release from prison. Petitioner remains in their custody.
On July 22, 2004, an immigration judge ("IJ") ordered Petitioner deported to Guatemala. Respondents charged Petitioner with removability under 8 U.S.C. § 1227(a)(2)(A)(i), which provides that an alien is deportable if the alien is convicted of a crime of moral turpitude (1) committed within five years of entry into the country and (2) for which a sentence of one year or longer may be imposed. The IJ found this provision inapplicable because Petitioner's earliest criminal conviction involved a crime committed ten years after Petitioner entered the country. Respondents amended their charge, alleging that Petitioner was removable under § 1227(a)(1)(B) because his presence in the country violated the immigration laws. The IJ ordered Petitioner deported based on this charge. The IJ also rejected Petitioner's request for asylum and withholding or removal.
On January 13, 2005, the Board of Immigration Appeals ("BIA") denied Petitioner's appeal as untimely. On February 3, 2005, Petitioner filed a timely appeal in the Ninth Circuit. (See Straube v. Mukasey, No. 05-70573 (9th Cir. filed Feb. 3, 2005).) The court consolidated this appeal with another petition for review (see Straube v. Mukasey, No. 05-73317 (9th Cir. filed Jun. 6, 2005)) and granted Petitioner's motion to stay deportation. After conducting oral argument on August 7, 2007, the court deferred submission of the *985 appeal and allowed the parties to seek reopening of the case in the BIA. The parties filed a joint motion to reopen and the IJ appears to have granted the motion and reissued its decision, enabling Petitioner to file a timely appeal with the BIA. (See Traverse, Exhs. B, C.) The appeal in Case No. 05-70573 is now in abeyance.
Petitioner has also filed numerous § 2241 petitions in this district, including Straube v. Dep't of Homeland Sec, No. 05cv0292 JAH (POR) (S.D. Cal. filed Feb. 10, 2005); Straube v. Immigration and Naturalization Serv., No. 05cv2113 IEG (POR) (S.D. Cal. filed Nov. 14, 2005); Straube v. Immigration and Naturalization Serv., No. 06cv1367 IEG (JMA) (S.D.Cal. Jul. 5, 2006); and Straube v. Chertoff No. 07cv0949 JM (JMA) (S.D.Cal. May 24, 2007). On August 16, 2007, this court dismissed the petition in Case No. 07cv0949 for lack of subject matter jurisdiction.
II. DISCUSSION
A. Successive Petitions and Abuse of the Writ
Respondents argue that the court should deny the current petition as successive and an abuse of the writ. Petitioner disputes both contentions.
Respondents claim that the current petition is successive in light of Petitioner's § 2241 petition in Case No. 07cv0949. While the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996 bars "second or successive" habeas petitions, 28 U.S.C. § 2244(b), these prohibitions do not apply to § 2241 habeas petitions filed by DHS detainees. Barapind, v. Reno, 225 F.3d 1100, 1111 (9th Cir.2000). The non-AEDPA standards provide that "a habeas court must adjudicate even a successive habeas claim when required to do so by the `ends of justice.'" Schlup v. Delo, 513 U.S. 298, 319, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (quoting Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963)). As Petitioner notes, the petition in the instant case challenges solely the length and validity of his detention. In contrast, the court dismissed the earlier petition for lack of jurisdiction in part due to Petitioner's challenge to his deportation order. The court agrees that any challenge to the length or validity of his detention in Case No. 07cv0949 was not squarely addressed by either party and was incidental to the attack on the validity of the removal order. Furthermore, as Petitioner also argues, the merits of a challenge to a prolonged detention "depend on a varying calculation of when the detention becomes excessive. Each given unit of additional, unjustified detention presents a new factual situation." (Traverse at 5.) The court therefore finds that, even if the instant petition is successive, the "ends of justice" require the court to review the petition. See Lema v. United States Immigration and Naturalization Serv., 341 F.3d 853, 857 n. 9 (9th Cir.2003) (denying § 2241 petition where removal was not significantly likely in reasonably foreseeable future, but noting that "ends of justice" may require review of successive petition challenging indefinite detention, if brought in good faith).
Respondents also argue that the court should deny the petition under the abuse-of-the-writ doctrine. They claim that Petitioner could have raised his claim and arguments in his earlier habeas proceedings. "Generally the abuse of the writ doctrine `forbids the reconsideration of claims that were or could have been raised in a prior habeas petition.'" Petrocelli v. Angelone, 248 F.3d 877, 884 (9th Cir.2001) (quoting Calderon v. United States Dist. Court, 163 F.3d 530, 538 (9th Cir.1998) (en banc)); see also McCleskey v. Zant, 499 U.S. 467, 479-96, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (explaining doctrine). *986 The court rejects this argument for the same reasons it rejects the argument that the petition is successive. Petitioner raises arguments that he did not and could not raise in the previous case. Accordingly, the court finds that the petition does not constitute an abuse of the writ.
B. Controlling Detention Statute
The parties disagree as to the statute under which Petitioner is detained. The government states that Petitioner is detained pursuant to 8 U.S.C. § 1226(a), which provides that the Attorney General may arrest and detain an alien pending a decision on whether the alien should be removed from the United States. (Return at 9 n. 9.) Petitioner initially appears to agree with the government. He explains in his petition that, during his removal proceedings, he admitted he was removable under § 1227(a)(1)(B) because he was present in the country in violation of the immigration laws. (Pet. at 3.) Accordingly, § 1226(a)(1) would authorize his detention. In his traverse, however, Petitioner argues that his detention is authorized by § 1226(c)(1)(C), which provides for the detention of criminal aliens deportable under 8 U.S.C. § 1227(a)(2)(A)© "on the basis of an offense for which the alien has been [sentenced] to a term of imprisonment of at least 1 year[.]" 8 U.S.C. § 1227(c)(1)(C). (See Traverse at 13-14.)
Contrary to the argument in Petitioner's traverse, § 1226(c)(1)(C) cannot authorize Petitioner's detention because an alien becomes deportable under § 1227(a)(2)(A)(i) only upon conviction of a crime, of moral turpitude within five years after, admission. See 8 U.S.C. § 1227(a)(2)(A)(i)(I). Petitioner entered the country in 1976 and was convicted in 1987 for a crime committed in 1986. Because he did not commit a crime within five years of entry, § 1226(c)(1)(C) does not apply. The court therefore finds that § 1226(a)(1) provides the authority for Petitioner's detention.
C. Applicability of Zadvydas, Tijani, and Nadarajah
The parties also dispute the applicability in this case of the principles set forth in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), Tijani v. Willis, 430 F.3d 1241 (9th Cir.2005), and Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir.2006).
In Zadvydas, the Court held the Attorney General may not indefinitely detain an alien following a final order of removal. 533 U.S. 678, 682, 121 S.Ct. 2491. After the 90-day statutory removal period authorized by 8 U.S.C. § 1231(a)(2), the Attorney General may only detain an alien under 8 U.S.C. § 1231(a)(6) for "a period reasonably necessary to bring about the alien's removal from the United States." Zadvydas, 533 U.S. at 689, 121 S.Ct. 2491. The Court instructed that continued detention is unreasonable and unauthorized by statute where "removal is not reasonable foreseeable." Id. at 699-700, 121 S.Ct. 2491. The Court also held that a six-month detention is presumptively reasonable. Id. at 701, 121 S.Ct. 2491 (beyond six months, government must rebut presumption of unreasonableness).
The Ninth Circuit cited Zadvydas in Tijani in which the Attorney General had detained an alien pursuant to 8 U.S.C. § 1226(c) for two years and eight months. Tijani 430 F.3d at 1242. The court stated, "it is constitutionally doubtful that Congress may authorize imprisonment of [two years and eight months] for lawfully admitted residents who are subject to removal." Id. To avoid reaching the constitutional issue, the court held that 8 U.S.C. § 1226(c) requires expedited removal and that two years and eight months was not expeditious. Tijani, 430 F.3d at 1242. *987 The court also noted that "the foreseeable process in this court, where the government's brief in Tijani's appeal of the removal has not yet been filed, is a year or more." Id.
In Nadarajah, the Ninth Circuit followed Zadvydas and its progeny in holding that the general immigration detention statutes, 8 U.S.C. §§ 1225(b)(1)(B)(ii) and (b)(2)(A), do not authorize indefinite detention. Nadarajah, 443 F.3d at 1076, 1078. The plaintiff in Nadarajah had been detained for almost five years, during which he applied for immigration relief and prevailed at every level of administrative review. Id. at 1071, 1076. The court reasoned that the existence of statutes specifically authorizing lengthy detention of suspected terrorists demonstrates that, by contrast, the general detention statutes "must be construed as being brief and reasonable[.]" Id. at 1079.
Petitioner argues that Tijani and Nadarajah govern his detention in light of the "trend ... to bring all classes of indefinitely detained aliens under the due process protections recognized in Zadvydas." (Pet. at 8.) Respondents claim that Tijani and Nadarajah do not apply here because those cases apply only to mandatory detention pending administrative removal proceedings. (Return at 6.) Here, Respondents argue, Petitioner's administrative removal proceedings have ended and his detention is the voluntary "result of his choice to remain in the United States pending judicial review of his removal order." (Id. at 9.)
Having considered the parties' arguments and the relevant authorities, the court finds that Tijani and Nadarajah apply to Petitioner's detention. Respondents direct the court to no authority demonstrating that § 1226(a) authorizes a more prolonged period of detention than § 1226(c), which calls for "expedited removal." Tijani 430 F.3d at 1242; see also Zadvydas, 533 U.S. at 696-99, 121 S.Ct. 2491 (neither statute nor its legislative history contained clear indication of congressional intent to authorize indefinite detention); of. Man v. Chertoff, 549 F.Supp.2d 1247, 1251 (S.D.Cal.2008) (reaching same conclusion). To the contrary, both § 1226(a) and § 1226(c) implicate the concerns regarding indefinite detention addressed in Zadvydas and its progeny. Furthermore, Tijani does not support the contention that its holding applies only to aliens whose administrative proceedings have not concluded. As Petitioner notes, the Tijani court considered as part of the "foreseeable process" the time during which the court would consider his appeal of removal. Tijani 430 F.3d at 1242. The court therefore agrees with Chief Judge Gonzalez's holding in Man:
the Nadarajah court's conclusion that "the general immigration detention statutes do not authorize ... indefinite [incarceration]" [is] equally applicable in characterizing both sections 1226(a) and 1226(c). Like section 1226(c), the Court finds detention under section 1226(a) is only authorized for a "reasonable period" and only if there is a "significant likelihood of removal in the reasonably foreseeable future[.]"
Man, 549 F.Supp.2d at 1251 (quoting Nadarajah, 443 F.3d at 1079-80).
The court likewise rejects the argument that Petitioner's detention is voluntary. Among other concerns, the court observes that, should Petitioner's appeal result in a remand to the IJ or BIA, Petitioner's ability to participate in his administrative removal proceedings would be severely curtailed. See 8 U.S.C. §§ 1229a(b)(5) (consequences of failure to appear at removal proceedings), (b)(7) (limitation on discretionary relief for failure to appear); 8 C.F.R. §§ 1003.3(e) (departure before taking appeal waives right to appeal), 1003.4 (departure after taking appeal but before decision thereon constitutes withdrawal *988 or appeal). Under these circumstances, Petitioner's detention is not voluntary.[1]
D. Likelihood of Removal in the Reasonably Foreseeable Future
Petitioner argues that no significant likelihood of removal exists in the reasonably foreseeable future. His detention of more than four years significantly exceeds the presumptively-reasonable six-month period articulated in Zadvydas. See Zadvydas, 533 U.S. at 701, 121 S.Ct. 2491; see also Nadarajah, 443 F.3d at 1080 ("A detention of nearly five years ... is plainly unreasonable under any measure."). The Ninth Circuit has placed his appeal of removal in abeyance, the IJ has reissued the removal order, and Petitioner now appears to have commenced his appeal to the BIA. As in Tijani, the "foreseeable process ... is a year or more." Tijani, 430 F.3d at 1242. The government fails to rebut the claim that Petitioner's removal is reasonably foreseeable. The court therefore finds that Petitioner's removal is not significantly likely to occur in the reasonably foreseeable future.
E. Bail Hearing
Petitioner requests that the court order Respondents to release him from custody under the conditions of supervision set forth in 8 U.S.C. § 1231(a)(3). Alternatively, he requests that the court order a release hearing to evaluate Petitioner's eligibility for supervision under appropriate conditions.
Because the court finds that no significant likelihood of removal exists in the reasonably foreseeable future, the hereby orders Respondents to provide Petitioner a hearing within 60 days of this order before an Immigration Judge with the power to grant him bail unless the government establishes that he is a flight risk or will be a danger to the community. See Tijani 430 F.3d at 1242 (remanding with directions to grant writ unless bail hearing provided in 60 days); Man, 549 F.Supp.2d at 1253.
III. CONCLUSION
For the foregoing reasons, the court hereby GRANTS in part the petition for writ of habeas corpus. Respondents are ORDERED to provide Petitioner a hearing within 60 days of this order before an Immigration Judge with the power to grant him bail unless the government establishes that he is a flight risk or will be a danger to the community.
IT IS SO ORDERED.
NOTES
[1] Accordingly, the court denies Respondents' request for a stay in anticipation of the Ninth Circuit's ruling in Casas-Castrillon v. Lockyer, No. 07-56261 (9th Cir. Notice of Appeal filed Aug. 21, 2007). (See Return at 9-10.)
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-2875
___________
Brian Hughes, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
James Banks, Warden, North Central *
Unit, ADC; Darryl Golden, Assistant * [UNPUBLISHED]
Warden, North Central Unit, ADC; *
Curtis Meizner, Major, North Central *
Unit, ADC; Ronald Gillihan, Captain, *
North Central Unit, ADC; Eddie *
Selvey, Captain, North Central Unit, *
ADC; David Beaty, Lt., North Central *
Unit, ADC; Marvin Baird, Lt., North *
Central Unit, ADC; William Truax, *
Sft., North Central Unit, ADC; *
Stanley Robinson, Sft., North Central *
Unit, ADC; Diane Peppers, Sgt., North *
Central Unit, ADC; Chester Pool, Sft., *
North Central Unit, ADC; Patrick *
Miller, Sgt., North Central Unit, ADC; *
Ronald Klein, Corporal, North Central *
Unit, ADC; Edward Yarnell, Corporal, *
North Central Unit, ADC; C. E. *
Johnson, Corporal, North Central Unit, *
ADC; Sam Guiltner, Corporal, North *
Central Unit, ADC; Steven Gill, *
Corporal, North Central Unit, ADC; *
Larry Norris, Director, Arkansas *
Department of Correction; Ray Hobbs, *
Chief Deputy Director, Arkansas *
Department of Correction; Larry May, *
Manager, North Central Unit, ADC, *
*
Appellees. *
_______________
Submitted: May 28, 2008
Filed: September 3, 2008
_______________
Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
Arkansas inmate Brian Hughes appeals the district court’s 28 U.S.C. § 1915A
dismissal of his 42 U.S.C. § 1983 action for failure to state a claim, and has moved to
proceed in forma pauperis (IFP) on appeal. We grant Hughes’s motion to proceed
IFP, see Henderson v. Norris, 129 F.3d 481, 484-85 (8th Cir. 1997) (per curiam), and
we affirm in part and reverse in part.
In his complaint and attachments, Hughes claimed defendants violated his right
to substantive and procedural due process, equal protection, and free exercise of
religion, and subjected him to cruel and unusual punishment under the Eighth
Amendment. His claims were based on his allegations that, following a confrontation
with guards, he was issued a disciplinary report and placed on staff-precaution status,
under which he was required to kneel, face the wall, and place his hands behind his
back when guards delivered his meals. Each time he refused to comply with the staff-
precaution procedure when the guards asked him to do so, he was not given a meal,
which caused him to miss meals during Ramadan.
The magistrate judge screened the complaint pursuant to section 1915A, and
recommended dismissing it for failure to state a claim. In particular, the magistrate
judge concluded that Hughes had not explained how staff-precaution status implicated
due process, and that being required to kneel, face the wall, and place his hands
-2-
behind his back for short periods of time did not amount to cruel and unusual
punishment. Hughes filed written objections, complaining that the magistrate judge
had not addressed all his claims. As relevant, he asserted that Caucasian and African
American inmates on staff-precaution status were treated differently: a Caucasian
inmate received meals in his cell regardless of his compliance with the staff-
precaution requirements, and if he missed three consecutive meals, he was advised of
the hunger-strike policy and dangers to his health from not eating and was medically
monitored, whereas when Hughes (who is African American) did not comply with the
staff-precaution requirements, he received no meal, and when he missed three
consecutive meals he was not advised of the hunger-strike policy or dangers to his
health and he was not medically monitored.1 The district court adopted the
magistrate’s report in its entirety.
We find that the due process and free exercise claims were properly dismissed.
See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004) (pro se complaints are to be
liberally construed, but they must allege sufficient facts to support claims advanced);
Cooper v. Schriro, 189 F.3d 781, 783 (8th Cir. 1999) (per curiam) (de novo review of
§ 1915A dismissal). However, we conclude that because Hughes’s objections
reframed the bases for his Eighth Amendment and equal protection claims, they
should have been treated as a motion for leave to amend the complaint. See Thornton
v. Phillips County, Ark., 240 F.3d 728, 729 (8th Cir. 2001) (per curiam).
1
Hughes’s objections reiterated assertions contained in attachments to his
complaint, including affidavits and grievance responses. See Fed. R. Civ. P. 10(c)
(copy of written exhibit to pleading is part of pleading for all purposes); Meehan v.
United Consumers Club Franchising Corp., 312 F.3d 909, 913 (8th Cir. 2002) (court
may consider exhibits attached to complaint in determining if complaint states claim
for relief).
-3-
Accordingly, we affirm the dismissal of the due process and free exercise
claims, and we remand to the district court to consider the motion for leave to amend,
and to allow defendants to respond to the motion.
______________________________
-4-
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BLD-018 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-1187
___________
RAUL WILFREDO MAYORGA-BARRENO
a/k/a Rafael Nunez-Mayorga
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
Raul Mayorga,
Petitioner
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A096-539-978)
Immigration Judge: Honorable Susan G. Roy
____________________________________
Submitted on Respondent’s Motion for Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
October 20, 2011
Before: SCIRICA, SMITH and CHAGARES, Circuit Judges
(Filed: November 9, 2011)
_________
OPINION OF THE COURT
_________
PER CURIAM.
Raul Wilfredo Mayorga-Barreno has filed a petition for review of an order of the
Board of Immigration Appeals (“BIA”) denying his motion to reconsider its earlier
decision summarily affirming an Immigration Judge’s (“IJ”) decision to pretermit his
application for cancellation of removal. After Mayorga-Barreno filed his brief with this
Court, the Government moved for summary action. See 3d Cir. LAR 27.4; 3d Cir. I.O.P.
10.6. Because Mayorga-Barreno=s brief contains no argument that the BIA erred in
denying petitioner’s reconsideration motion, and instead takes issue solely with the
conclusions of the IJ, he has waived review of the only issues viable in this proceeding.
Accordingly, we will grant the Government’s motion and summarily deny Mayorga-
Barreno=s petition for review.
Because the parties are familiar with the facts, we present them only in brief
summary here. Mayorga-Barreno is a native and citizen of Ecuador who was admitted to
the United States on October 10, 1999, as a nonimmigrant visitor. Mayorga-Barreno
stayed beyond the permissible period and was served with a Notice to Appear on April
12, 2007, charging him as an overstay. Petitioner, through counsel, conceded
removability, and applied for relief in the form of cancellation of removal and,
alternatively, voluntary departure. However, Mayorga-Barreno had a criminal record and
had been found guilty of, inter alia, theft in violation of Mont. Code Ann. § 45-6-301(1).
Petitioner’s counsel agreed with the IJ that Mayorga-Barreno’s theft conviction is a crime
involving moral turpitude, thus rendering him ineligible for cancellation of removal as a
matter of law under INA § 240A(b)(1)(C), 8 U.S.C. § 1229b(b)(1)(C). Accordingly, the
IJ pretermitted petitioner’s application for cancellation of removal in an Oral Decision
and Order issued on April 21, 2009.
2
Additionally, the IJ found that the record evidence and counsel’s concession
supported the conclusion that Mayorga-Barreno failed to establish the continuous
physical presence requirement that would demonstrate an eligibility for cancellation of
removal. The IJ thus pretermitted petitioner’s application for cancellation of removal on
this alternate basis as well. Finally, given petitioner’s numerous convictions and the fact
that he provided several aliases to various law enforcement officials, the IJ exercised her
discretion to deny Mayorga-Barreno’s application for voluntary departure, and petitioner
was ordered removed to Ecuador. The BIA affirmed the IJ’s decision, without opinion, in
an order dated April 12, 2010.
Mayorga-Barreno returned to the BIA with a timely motion seeking
reconsideration of its earlier decision. Petitioner provided no substantive argument, but
simply asserted that reconsideration was warranted on the basis of the decisions by the
United States Supreme Court in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), and the New
Jersey Supreme Court in State v. Nunez-Valdez, 975 A.2d 418 (N.J. 2009), dealing with
claims of ineffective assistance for counsel’s failure to advise clients of the immigration
consequences of their guilty pleas. The BIA denied petitioner’s reconsideration motion in
an order issued on December 28, 2010. The BIA noted that Mayorga-Barreno has
multiple convictions in different jurisdictions and failed to provide any evidence that his
state convictions have been vacated on account of counsel’s ineffective representation.
The BIA concluded that reconsideration was not warranted given that it had nothing
before it other than petitioner’s “generic collateral attacks on criminal convictions, which
3
are supported by no more than a bare assertion that the convictions were improper” under
Padilla and Nunez-Valdez. BIA’s Order of 12/28/10 at 1. On January 24, 2011,
Mayorga-Barreno filed this petition for review.
In his opening brief, Mayorga-Barreno challenges the IJ’s decision to pretermit his
application for cancellation of removal. Specifically, Mayorga-Barreno argues that the IJ
erred in concluding that his misdemeanor theft conviction precluded him from applying
for cancellation of removal, and that the IJ should have allowed him to present evidence
regarding the hardship his son would face if he is removed. Unfortunately for petitioner,
this Court does not have jurisdiction to review the BIA=s April 12, 2010 order summarily
affirming the IJ’s decision because Mayorga-Barreno did not file his petition for review
within thirty days of that order.1 See 8 U.S.C. ' 1252(b)(1) (providing that a petition for
review must be filed not later than thirty days after the date of the final order of removal).
The petition for review was, however, timely with respect to the BIA=s December 28,
2010 order declining to reconsider its previous dismissal of the appeal. Therefore, this
Court has jurisdiction to review the BIA=s December 28, 2010 order.
That said, Mayorga-Barreno=s counseled brief does not contain any argument
whatsoever pertaining to the BIA=s December 28, 2010 order. Rather, as noted above,
Mayorga-Barreno=s brief focuses solely on the IJ=s decision underlying the BIA’s earlier
order of April 12, 2010. We thus deem any challenge to the December 28, 2010 order to
1
Mayorga-Barreno=s motion for reconsideration did not toll the time for filing a
petition for review of the BIA=s April 12, 2010 decision. Stone v. Immigration &
Naturalization Serv., 514 U.S. 386, 405 (1995).
4
be waived. See Dwumaah v. Att’y Gen., 609 F.3d 586, 589 n.3 (3d Cir. 2010) (citing Lie
v. Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir. 2005)); see also Ghana v. Holland, 226 F.3d
175, 180 (3d Cir. 2000) (holding that appellate arguments may not be raised for the first
time in a reply brief).
Because Mayorga-Barreno has abandoned the only issues available to him in this
proceeding, his petition for review presents us with “no substantial question.” 3d Cir.
I.O.P. 10.6. Accordingly, we will grant the Government=s motion and summarily deny the
petition for review.
5
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T.C. Memo. 2007-365
UNITED STATES TAX COURT
HAILU YOHANNES AWLACHEW, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 23914-05L. Filed December 11, 2007.
Hailu Yohannes Awlachew, pro se.
Michael R. Fiore, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
MARVEL, Judge: Pursuant to section 6330(d),1 petitioner
seeks review of respondent’s determination sustaining the filing
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect at all relevant times. Some
monetary amounts are rounded to the nearest dollar.
- 2 -
of a notice of Federal tax lien with respect to petitioner’s
unpaid 2000 and 2001 Federal income tax liabilities.
FINDINGS OF FACT
Some of the facts have been stipulated. We incorporate the
stipulated facts into our findings by this reference. Petitioner
resided in Cambridge, Massachusetts, when his petition in this
case was filed.
Petitioner timely filed Forms 1040, U.S. Individual Income
Tax Return, for 2000 and 2001. On his 2000 tax return,
petitioner reported a total tax liability of $105,934, which
included an alternative minimum tax (AMT) liability of $64,675
attributable to his exercise of incentive stock options during
that year.2 Petitioner reported tax due of $72,576 for 2000 and
sent a $10,000 payment with his 2000 return. On his 2001 tax
return, petitioner reported a total tax liability of $77,579 and
a tax due of $70,258. The ordinary income reported on
petitioner’s 2001 return included income from his disposition of
incentive stock options during 2001.3
2
Secs. 421 and 422 provide for deferred tax treatment of the
qualifying exercise of an incentive stock option. However, the
favorable tax treatment does not apply for AMT calculation
purposes. Sec. 56(b)(3).
3
Deferred tax treatment under secs. 421 and 422 is not
available on the exercise of an incentive stock option if the
taxpayer disposes of the share of stock received pursuant to the
option within 2 years of the grant of the option or within 1 year
of receipt of the share. Sec. 422(a)(1). Petitioner admits that
(continued...)
- 3 -
On June 4, 2001, respondent assessed the tax reported on
petitioner’s 2000 tax return as well as statutory interest and a
section 6651(a)(2) addition to tax. That same day, respondent
issued to petitioner a statutory notice of balance due. On June
26, 2001, petitioner made another $10,000 payment toward his
unpaid 2000 tax liability.
On July 20, 2001, petitioner entered into an installment
agreement with respondent. The record does not disclose the
details of the agreement, but beginning on September 20, 2001,
petitioner began making monthly payments to respondent. Between
September 20, 2001, and January 27, 2003, petitioner made
payments totaling $52,600 toward his unpaid 2000 tax liability.
Petitioner did not make any voluntary payments toward his 2000
tax liability after January 27, 2003.
On October 18, 2002, respondent assessed the tax reported on
petitioner’s 2001 tax return, as well as statutory interest and
sections 6651(a)(2) and 6654 additions to tax. The record does
not disclose whether petitioner made any payments toward his 2001
tax liability.
On or around May 29, 2003, petitioner submitted an offer-in-
compromise to respondent. The record does not disclose the
3
(...continued)
he disposed of shares received as a result of the exercise of his
incentive stock options before he had held them for 1 year.
- 4 -
details of petitioner’s offer. On July 29, 2003, respondent
rejected petitioner’s offer.
On September 13, 2003, respondent issued to petitioner a
Final Notice, Notice of Intent to Levy and Notice of Your Right
to a Hearing (levy notice), in which respondent announced his
intention to levy to collect petitioner’s unpaid 2000 and 2001
tax liabilities. The levy notice also advised petitioner of his
right to a hearing with respondent’s Appeals Office. Petitioner
received the levy notice on or about September 22, 2003, but he
did not request a hearing with respondent.
On or around September 17, 2003, petitioner submitted a
second offer-in-compromise. The record does not disclose the
details of petitioner’s second offer. On December 22, 2003,
respondent rejected petitioner’s second offer-in-compromise.
On March 19, 2004, petitioner submitted a third offer-in-
compromise. The record does not disclose the details of
petitioner’s third offer.
On July 14, 2004, respondent issued to petitioner a Notice
of Federal Tax Lien Filing and Your Right to a Hearing Under IRC
6320 (lien notice). The lien notice informed petitioner that he
had a right to request a hearing to appeal the collection action
and to discuss optional payment methods. The lien notice also
advised petitioner how to request a hearing and how to obtain a
release of the Federal tax lien.
- 5 -
On or about August 16, 2004, petitioner mailed to respondent
a Form 12153, Request for a Collection Due Process Hearing
(Request). In his Request, petitioner stated that he had lost
all of the value of the stock from which his tax liability
originated and that the loss was beyond his control because it
resulted from a downturn in the economy. Petitioner also claimed
that his job security was uncertain, that he was in debt, and
that he was a loyal taxpayer. Petitioner asked respondent not to
place a lien on his property because of his precarious financial
condition.
By letter dated November 10, 2004, respondent’s Appeals
Office informed petitioner that his Request had been received and
that a telephone hearing had been scheduled for December 9, 2004.
On November 24, 2004, respondent received a letter from
petitioner requesting a face-to-face hearing. Petitioner
attached to his request a Form 433-A, Collection Information
Statement for Wage Earners and Self-Employed Individuals, and
documentation to substantiate the figures on his Form 433-A. On
his Form 433-A, petitioner reported assets of $16,000 ($6,000 in
cash and $10,000 in investments), $18,500 in credit card debt,
and a monthly net income of $2,230.4
4
On his Form 433-A, petitioner reported monthly income from
salaries of $6,280 and monthly expenses of $4,050. Petitioner’s
monthly expenses included other expenses of $1,500.
- 6 -
On December 14, 2004, petitioner participated in a face-to-
face hearing with a settlement officer. Petitioner and the
settlement officer also communicated through correspondence. By
letter dated January 25, 2005, the settlement officer informed
petitioner that she was sustaining the previous rejection of
petitioner’s most recent offer-in-compromise.5 The settlement
officer offered petitioner the opportunity to enter into an
installment agreement requiring a monthly payment of $1,215.
Petitioner rejected the settlement officer’s offer, complaining
that the amount was too high. By letter dated February 10, 2005,
the settlement officer provided petitioner a copy of his
previously submitted Form 433-A and a blank Form 433-A and
informed petitioner that he had until February 25, 2005, to
submit any additional information to assist her in making her
determination.
By letter dated February 24, 2005, petitioner again
requested relief from the additions to tax and interest that had
been assessed for 2000 and 2001 because of his precarious job and
financial situations. Petitioner also submitted an updated Form
433-A showing $13,000 in assets ($2,000 in cash and $11,000 in
investments), $18,500 in credit card debt, and monthly net income
of approximately $355.
5
We assume that this was a rejection of petitioner’s third
offer-in-compromise (submitted in March 2004).
- 7 -
By letter dated March 16, 2005, the settlement officer
informed petitioner that she had adjusted his monthly expenses to
meet the national standard for one person.6 As a result, the
settlement officer determined that petitioner was able to make
monthly payments of $1,475. The settlement officer also denied
petitioner’s request for abatement of interest and for relief
from the additions to tax. The settlement officer gave
petitioner until March 30, 2005, to accept the proposed
installment agreement.
By letter dated March 27, 2005, petitioner rejected the
proposed installment agreement. Petitioner disputed the
settlement officer’s adjustments to his monthly expenses as
reported on his updated Form 433-A, and he inquired whether any
of the AMT that he had paid could be used to offset his unpaid
tax liabilities. By letter dated July 21, 2005, the settlement
officer offered petitioner a reduced installment agreement with
monthly payments of $1,250. She gave petitioner until August 5,
2005, to respond.
By letter dated August 3, 2005, petitioner rejected the
installment agreement and once again requested relief based on
6
Respondent informed petitioner that he could claim expenses
for only himself because he did not claim his spouse’s income.
Petitioner never argued that his spouse was unemployed or that he
was otherwise supporting his spouse. However, he did testify
that he was supporting two aging parents and an ill niece. The
record does not disclose any detail of petitioner’s support of
these individuals.
- 8 -
the poor economy, his lack of knowledge of the tax law, and his
fear of losing his job. Petitioner requested guidance on
obtaining an abatement of interest and relief from the additions
to tax. By letter dated August 9, 2005, the settlement officer
detailed the requirements for a request for relief from additions
to tax,7 informed petitioner that respondent was required by
statute to assess interest in his case and that the interest
could not be abated, and referred petitioner to the Internal
Revenue Manual for further information. By letter dated August
29, 2005, petitioner once again requested the abatement of
interest and relief from the additions to tax because of the
downturn in the economy and his lack of knowledge regarding the
tax implications of employee stock options.
On November 18, 2005, respondent issued to petitioner a
Notice of Determination Concerning Collection Action(s) Under
Section 6320 and/or 6330 (notice of determination). The notice
of determination stated that respondent had verified that all
statutory and administrative requirements had been met, that
respondent had addressed all of petitioner’s arguments raised at
the face-to-face hearing, and that respondent had determined that
the lien appropriately balanced the Government’s need for the
efficient collection of taxes and petitioner’s concern that the
7
The settlement officer used the term “penalties” in the
letter, but she was referring to additions to tax.
- 9 -
action not be more intrusive than necessary in light of
petitioner’s circumstances.
On December 19, 2005, petitioner’s petition contesting
respondent’s determination was filed. The case was scheduled for
trial, and a trial was held on October 23, 2006.
OPINION
All property and rights to property of a taxpayer become
subject to a lien in favor of the United States on the date a tax
liability is assessed against the taxpayer, if the taxpayer fails
to meet the Commissioner’s demand for payment of the tax
liability. Secs. 6321 and 6322. Until a lien notice is filed, a
lien is without validity and priority against certain persons,
such as judgment lien creditors of the taxpayer. Sec. 6323(a).
After the Secretary files the lien notice, the Secretary must
provide the taxpayer with written notice of the filing, informing
the taxpayer of the right to request an administrative hearing on
the matter. Sec. 6320(a)(1), (3)(B). Section 6320(c) requires
that the administrative hearing be conducted pursuant to section
6330(c), (d) (other than paragraph (2)(B) thereof), and (e).
At the hearing, a taxpayer may raise any relevant issue,
including appropriate spousal defenses, challenges to the
appropriateness of the collection action, and collection
alternatives, such as an offer-in-compromise. Sec.
6330(c)(2)(A). Additionally, at a hearing, a taxpayer may
- 10 -
contest the existence and amount of the underlying tax liability
if the taxpayer did not receive a notice of deficiency for the
tax liability in question or did not otherwise have an
opportunity to dispute the tax liability. Sec. 6330(c)(2)(B);
see also Sego v. Commissioner, 114 T.C. 604, 609 (2000).
Following the hearing, the Appeals Office is required to
issue a notice of determination regarding the disputed lien
notice. In so doing, the Appeals Office is required to take into
consideration the verification presented by the Secretary, the
issues raised by the taxpayer, and whether the proposed
collection action appropriately balances the need for efficient
collection of taxes with the taxpayer’s concerns regarding the
intrusiveness of the proposed collection action. Sec.
6330(c)(3). The taxpayer may petition the Tax Court for judicial
review of the Appeals Office’s determination. Sec. 6330(d).
If the taxpayer files a timely petition for judicial review,
the applicable standard of review depends on whether the
underlying tax liability is at issue. The phrase “underlying tax
liability” includes the tax deficiency, any penalties and
additions to tax, and statutory interest. Katz v. Commissioner,
115 T.C. 329, 339 (2000). If the underlying tax liability is
properly at issue, the Court reviews any determination regarding
the underlying tax liability de novo. Sego v. Commissioner,
- 11 -
supra at 610. The Court reviews all other administrative
determinations for abuse of discretion. Id.
I. Petitioner’s Challenge to the Underlying Tax Liabilities
Section 6330(c)(2)(B) provides that a taxpayer may dispute
the existence or amount of his unpaid tax liability if he did not
receive a notice of deficiency or otherwise have an opportunity
to dispute such tax liability. The “opportunity to dispute such
tax liability” includes a conference with the Appeals Office that
was offered either before or after the tax liability was
assessed. Sec. 301.6320-1(e)(3), Q&A-E2, Proced. & Admin. Regs.
Most of petitioner’s arguments are directed to collection
alternatives and do not raise challenges to the underlying tax
liabilities for 2000 and 2001. However, during the
administrative proceeding, petitioner inquired about the
possibility of offsetting his unpaid liabilities with the AMT
that he had paid. The record contains no evidence that the
settlement officer specifically answered his inquiry. In this
proceeding, petitioner has again raised the question of whether
he can reduce his unpaid tax liabilities by the amount of AMT he
paid. Although his argument is very unclear, we interpret it as
an assertion that he is entitled to a credit under section 53.
Section 53 authorizes a taxpayer to claim a credit for net
minimum tax paid in prior years, adjusted for specified items.
The minimum tax credit allowable under section 53 is the excess
- 12 -
if any of the adjusted net minimum tax imposed for all prior
taxable years beginning after 1986, over the amount allowable as
a credit under section 53(a) for such prior taxable years. Sec.
53(b). The section 53 credit, however, is limited to the amount
by which a taxpayer’s regular tax liability for the year the
credit is claimed, less allowable credits, exceeds his tentative
minimum tax for the year. Sec. 53(c).
Petitioner did not claim a section 53 credit on either his
2000 or 2001 income tax return, and he did not present any
information to the settlement officer that he was entitled to
claim such a credit. His inquiry about the possibility of a
credit, which he made in one of his letters to the settlement
officer during his section 6320/6330 hearing, was insufficient to
demonstrate either that he was claiming a section 53 credit for
2000 and/or 2001 or that he was entitled to such a credit.
In addition, even if we treat petitioner’s inquiry as a
claim for a section 53 credit, petitioner is precluded from
pursuing his claim by the fact that he had an earlier opportunity
to assert his claim and he did not do so. Petitioner received
the September 13, 2003, levy notice, but he did not request a
hearing under section 6330 regarding the levy notice.
Petitioner’s failure to do so precludes him from asserting his
claim in this proceeding. See sec. 301.6320-1(e)(3), Q&A-E7,
- 13 -
Proced. & Admin. Regs.; see also Bell v. Commissioner, 126 T.C.
356 (2006); Castleman v. Commissioner, T.C. Memo. 2007-143.
Because petitioner had an earlier opportunity to dispute his
underlying tax liability by asserting a claim for a credit under
section 53, his underlying tax liability was not properly at
issue before the settlement officer considering the lien, and it
is not properly before us now.8
II. Petitioner’s Challenge to Respondent’s Determination To File
a Lien
Although petitioner’s arguments are not clear, petitioner
appears to argue that respondent erred by rejecting collection
alternatives he raised and by offering petitioner an installment
agreement requiring monthly payments of $1,215. Petitioner
appears to argue that his financial condition is so dire that he
cannot afford to pay his 2000 and 2001 tax liabilities.
Although section 6330(c) requires respondent to consider
relevant issues properly raised by petitioner, including a claim
8
In a posttrial conference call with this Court, petitioner
raised a question regarding whether the Tax Relief and Health
Care Act of 2006 (TRHCA), Pub. L. 109-432, 120 Stat. 2922,
authorizes petitioner to claim a refundable credit under sec. 53
(as amended by TRHCA) that he could then apply against his unpaid
tax liabilities for 2000 and 2001. By order, we gave the parties
time to explore the effect of TRHCA on this case and to file a
joint written status report summarizing their positions. In a
joint status report filed on June 1, 2007, respondent stated that
TRHCA has no impact on this case, and he explained why.
Petitioner simply asserted that he has an AMT credit that he has
never used and that he will use any refundable credit he may
receive under the new law to pay his 2000 and 2001 tax
liabilities.
- 14 -
that a collection alternative such as an installment agreement or
offer-in-compromise is more appropriate, respondent is not
required to offer petitioner a collection alternative acceptable
to petitioner before determining that a lien is an appropriate
collection tool. In this case, petitioner had the burden of
demonstrating that a collection alternative was appropriate and
that respondent abused his discretion by rejecting the collection
alternative.
On the record before us, we cannot conclude that the
settlement officer abused her discretion in determining that the
lien was appropriate to safeguard respondent’s collection of
petitioner’s unpaid taxes. Petitioner did not argue at his
hearing or at trial that respondent should have accepted one or
more of his three offers-in-compromise, and he did not introduce
the offers into evidence at trial. Petitioner made payments for
approximately a year and a half of about $1,000 per month. After
2 full years of nonpayment, petitioner submitted several Forms
433-A showing net monthly income ranging from more than $2,000
per month to $355 per month. The settlement officer finally
determined that petitioner could pay $1,250 per month.9
9
Although petitioner subsequently submitted a revised Form
433-A showing monthly net income of $355, we are satisfied that
the settlement officer did not abuse her discretion in concluding
that petitioner could pay $1,250 per month. Petitioner estimated
his expenses and did not apply the applicable national and local
(continued...)
- 15 -
Petitioner did not establish that the settlement officer’s
determination was an abuse of discretion. We hold, therefore,
that the settlement officer did not abuse her discretion by
determining that the lien on petitioner’s property was
appropriately filed and would remain in effect until petitioner’s
2000 and 2001 tax liabilities were satisfied.
To reflect the foregoing,
Decision will be entered
for respondent.
9
(...continued)
standards promulgated by respondent for use in calculating a
taxpayer’s allowable expenses.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4172
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RONALD E. WILKERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Liam O’Grady, District
Judge. (3:10-cr-00207-LO-1)
Submitted: August 25, 2011 Decided: August 29, 2011
Before MOTZ, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Carolyn V.
Grady, Assistant Federal Public Defender, Caroline S. Platt,
Appellate Attorney, Richmond, Virginia, for Appellant. Brandon
Michael Santos, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ronald E. Wilkerson was found guilty of possession of
a firearm by a convicted felon, under 18 U.S.C. § 922(g) (2006),
and possession of a controlled substance (cocaine base), under
21 U.S.C.A. § 844(a) (West Supp. 2011), and was sentenced to 108
months of imprisonment, within his advisory Sentencing
Guidelines range. On appeal, counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting there are
no meritorious grounds for appeal, but raising the following
issues: (1) whether the district court erred when it took
judicial notice of the fact that the City of Richmond is located
in the Eastern District of Virginia, rather than granting
Wilkerson’s motion for acquittal based on a failure of proof of
venue; and (2) whether the trial was rendered fundamentally
unfair when the prosecutor argued facts at closing argument not
entered into evidence. For the reasons that follow, we affirm.
We address counsel’s Anders issues in turn. First,
venue is proper in any district in which the crime was
committed. 18 U.S.C. § 3237(a) (2006). The Government bears
the burden of proving venue by a preponderance of the evidence.
United States v. Ebersole, 411 F.3d 517, 524 (4th Cir. 2005).
The Government can prove this element by direct or
circumstantial evidence, however, and whether an offense
occurred within particular geographical boundaries is an
2
appropriate subject for judicial notice. United States v.
Kelly, 535 F.3d 1229, 1235-36 (10th Cir. 2008).
Next, Wilkerson claims prosecutorial misconduct
because the Government stated at closing argument that he had
previously been convicted of four felonies. The district court
sustained defense counsel’s objection to this statement with
defense counsel noting that Wilkerson testified that he had only
been convicted of two prior felonies. We review this claim to
determine whether the conduct so infected the trial with
unfairness as to make the resulting conviction a denial of due
process. United States v. Morsley, 64 F.3d 907, 913 (4th Cir.
1995). Although we find that the prosecutor’s statement at
closing arguments improper, Wilkerson has failed to show that
the remarks prejudicially affected his substantial rights so as
to deprive him of a fair trial. United States v. Mitchell, 1
F.3d 235, 240 (4th Cir. 1993); see United States v. Wilson, 135
F.3d 291, 299 (4th Cir. 1998) (listing factors used to determine
the question of prejudice).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Wilkerson’s conviction and sentence. This
court requires that counsel inform Wilkerson, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Wilkerson requests that a petition be filed,
3
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Wilkerson. 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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52 F.3d 312
K. Capolino Construction Corp.v.White Plains Housing Authority
NO. 94-9013
United States Court of Appeals,Second Circuit.
Mar 31, 1995
Appeal From: S.D.N.Y. 94-cv-1750
1
AFFIRMED.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-2343
DEBORTH HAZIZ,
Plaintiff – Appellant,
v.
ERIC H. HOLDER, JR., Attorney General, Department of
Justice,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:05-cv-00574-H)
Submitted: June 3, 2011 Decided: June 16, 2011
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Deborth Haziz, Appellant Pro Se. Jennifer P. May-Parker, Sharon
Coull Wilson, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Deborth Haziz brought suit against the Federal Bureau
of Prisons (“BOP”) alleging employment discrimination in
violation of Section 504 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C.A. §§ 701-796l (West 2008 & Supp. 2010), and
retaliation in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C.A. §§ 2000e to 2000e-17 (West 2003
& Supp. 2010). Haziz alleged that she suffered an on-the-job
injury resulting in a disability and that the BOP denied her
reasonable accommodation and terminated her, both in retaliation
for filing an EEO claim and because of her disability. Haziz’s
suit was tried before a jury and the jury returned a verdict for
the BOP. We affirm.
On appeal, Haziz first argues that the district court
erred when it declined her request to be recalled to the stand
after she had twice testified. “A district court has the
discretion to place reasonable limits on the presentation of
evidence.” United States v. Ford, 88 F.3d 1350, 1362
(4th Cir. 1996). Here, in denying Haziz’s request to take the
stand for a third time, the district court acted well within the
bounds of its discretion.
Haziz next alleges that the district court committed
several errors in instructing the jury and argues that she
should be granted a new trial. “District courts are necessarily
2
vested with a great deal of discretion in constructing the
specific form and content of jury instructions.” Hardin v. Ski
Venture, Inc., 50 F.3d 1291, 1293 (4th Cir. 1995). In
determining whether the district court erred in instructing the
jury, we review the district court’s jury instructions as a
whole and in the context of the entire charge. Rowland v. Am.
Gen. Fin., Inc., 340 F.3d 187, 191 (4th Cir. 2003).
“Instructions will be considered adequate if construed as a
whole, and in light of the whole record, they adequately inform
the jury of the controlling legal principles without misleading
or confusing the jury to the prejudice of the objecting party.”
Id. (internal quotation marks omitted) (alterations omitted).
Because Haziz did not preserve these claims in the district
court, we review them for plain error. Fed. R. Civ. P. 51(d).
We find none. The district court’s instructions adequately set
forth the relevant law.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
3
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413 So.2d 737 (1982)
Roy Lee RIDDLE
v.
STATE of Mississippi.
No. 53166.
Supreme Court of Mississippi.
May 5, 1982.
Louis Fondren, Pascagoula, Darnell L. Nicovich, Biloxi, for appellant.
Bill Allain, Atty. Gen. by Amy D. Whitten, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before SMITH, WALKER and DAN M. LEE, JJ.
WALKER, Justice, for the Court:
Roy Lee Riddle was indicted for the kidnap and rape of an eight year old female child, and for the burglary at night of the dwelling within which the child was sleeping. The defendant was tried in the Circuit Court of Jackson County before a jury which found Riddle guilty of all three charges. The cases were consolidated and tried together by agreement. The trial court found that the defendant was an habitual offender under Mississippi Code Annotated section 99-19-81 (Supp. 1981), and sentenced the defendant to life imprisonment and held that he was ineligible for parole. From this conviction, Riddle assigns, inter alia, the following:
1. The habitual offender statute was inappropriately applied.
2. The verdict of the jury is against the overwhelming weight of the evidence, and that the identification of Riddle by the prosecutrix was highly suspect.
3. The court erred in failing to permit newly obtained evidence to be presented to the jury.
I
The state has acknowledged that the habitual offender statute, Mississippi Code Annotated section 99-19-81 (Supp. 1981), was inappropriately applied in the present case since there was insufficient proof that the defendant had been "convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times." In the present case, the only previous crimes shown to have been committed by Riddle were crimes which arose out of a single incident. Therefore, this Court must remand the present case for resentencing since the habitual offender statute was inappropriately applied.
II
The fact that the prosecutrix was abducted and raped is not seriously questioned. The testimony established that the prosecutrix was asleep in her family's trailer on the evening of September 11, 1980. She awoke to find a white male in bed with her who then put his hands over her mouth and took her from the trailer. The prosecutrix was driven in her assailant's car to an unknown location, where the assailant raped her.[1] Thereafter, the child was dropped off by the assailant, and she went to a nearby home and found someone to return her to her mother. She was then taken to the hospital where an examination showed that she had been sexually assaulted. The main contention by the defendant on this appeal is that the evidence does not establish that he perpetrated the crime against the prosecutrix.
The prosecutrix gave a description of her assailant and identified the defendant as the assailant on four occasions: from a photographic lineup immediately after the rape occurred, upon confrontation at two preliminary hearings, and in court during the trial of the defendant. Although the *739 prosecutrix was able to identify Riddle on all these occasions, the prosecutrix did so in an equivocal manner. However, even if this Court were to discount these identifications, other evidence was sufficient to establish that the defendant was the perpetrator of the crime.
The defendant was seen by police officers in the area in which the prosecutrix lived during the evening on which the crime was committed. The defendant approached the officers at a convenience store, identified himself as Riddle, and inquired about trailer parks in the area, stating that he was trying to locate his sister. The store was immediately adjacent to the park within which the prosecutrix and her family lived, and also, the defendant had no sister living in the immediate area. Riddle was, according to officers, wearing blue gym shorts and a light blue T-shirt, which were later found in the defendant's apartment and entered into evidence. Also, officers noticed a black and white puppy in Riddle's car.
Friends of Riddle testified that Riddle was in fact wearing a light colored T-shirt and blue gym shorts on the evening in question and positively identified the gym shorts in evidence. Furthermore, Riddle and his friends had been drinking that day and had gone to a local bar. These friends stated that they were unable to account for Riddle for the entire evening and they specifically noted his absence from the barroom during the latter part of the evening.
The prosecutrix described her assailant as a large person with blonde hair and a mustache, who was wearing blue gym shorts and a T-shirt. He took off these clothes just prior to his sexual assault of her. The prosecutrix identified the gym shorts which had been placed in evidence as the shorts her assailant had worn when he abducted her and just prior to his sexual assault of her.
The prosecutrix further testified that she defecated while her assailant was attempting to sexually assault her. Fecal material was discovered on panties of the prosecutrix, and also on the gym shorts identified by all witnesses as the shorts that were worn by Riddle on the evening in question.
Furthermore, friends of the defendant, as well as police officers, saw Riddle with a small black and white puppy, which he had borrowed from a friend during the afternoon of September 11. The prosecutrix testified that a small black and white puppy was in the car of her assailant, and Riddle's landlady testified that a small black and white puppy was in Riddle's apartment the day of his arrest, September 12.
Lastly, upon arrest, Riddle stated that he was with his wife during the evening in question. In fact, it was discovered by police officers, that Riddle was divorced from his wife and that she had been living in California for some period of time. Riddle, after he was confronted with this information, stated that he had not been truthful and that in actuality he was on drugs and alcohol and passed out at a local bar. Riddle told officers that when he awoke his car was missing and had been taken by friends. The friends of the defendant, who were with him that evening, denied that Riddle passed out and denied that they had taken his car. The defendant also told officers that afterwards he walked home and found a black and white puppy tied to his door knob, which was contradicted by the testimony of others.
The identification of Riddle as the assailant by the prosecutrix is consistent with other circumstances and conditions shown by the evidence pointing to Riddle's guilt. The jury is the sole judge of the credibility of witnesses and the weight and worth of their testimony. Where, as here, the jury convicts a defendant upon the testimony of a prosecutrix which is supported by other evidence, we have held that such conviction is not against the overwhelming weight of the evidence. Boyd v. State, 189 Miss. 609, 198 So. 561 (1940).
III
After both the state and the defense announced that they would rest, and after the jury was duly instructed by the trial *740 judge, and still in deliberation, defense counsel announced that they had become aware of what is termed "newly discovered" evidence. This "evidence" was obtained from the nine year old victim by Mary Ann Epps, one of appellant's witnesses, when this witness encountered the child alone outside a rest room. Epps obtained from her at that time an alleged description of the car of her assailant, which differed from the description which she and the police officers had earlier given into evidence. Epps had the victim write on a piece of paper that her assailant had a four-door dark blue car. Riddle's car was a two-door lime-green Nova. The court, after reviewing Epps' testimony and the testimony of others as to the circumstances under which it had been procured and relating thereto, stated that he felt that this evidence was not sufficient to require that a mistrial be entered or a new trial granted. The trial judge stated that he felt that this note was the result of suggestions to the prosecutrix that she write down the different description, and that, in fact, a close question was presented as to whether there had been an improper tampering with the witness. Therefore, the trial judge did not abuse his judicial discretion in overruling the defendant's motion for a new trial which was based on the newly discovered evidence.
This Court in Peeples v. State, 218 So.2d 436 (Miss. 1969), stated the following:
[T]he fact that a witness changes his testimony after the trial is not alone an adequate ground for granting a new trial or a writ of error coram nobis. Dolan v. State, 195 Miss. 154, 13 So.2d 925 (1943) [The witnesses subsequently retracted their statements]; Powers v. State, 168 Miss. 541, 151 So. 730 (1933); Carraway v. State, 167 Miss. 390, 148 So. 340 (1933). A writ of error coram nobis will only issue in cases such as the one at bar when the prosecuting officials knowingly use perjured testimony to obtain a conviction. Dolan v. State, supra. A trial court has wide discretion in granting new trials and may consider all the relevant facts in reaching its decision. King v. State, 254 Miss. 917, 183 So.2d 494 (1966) and Blade v. State, 240 Miss. 183, 126 So.2d 278 (1961). A court will usually deny a new trial based on recanting testimony where it is not fully satisfied regarding the truthfulness of the testimony. The determination should be left to the sound discretion of the trial court and should not be set aside unless clearly erroneous. Recanting testimony has been shown to be extremely unreliable and should be approached with suspicion. A meticulous study of the record and briefs convinces us that the trial judge was amply justified in refusing to accept the veracity of the altered testimony. (218 So.2d at 438-439).
We are unable to say that the trial court erred in overruling appellant's motion for a new trial under the circumstances presented by this record.
There being no other assignments of error which are meritorious, we affirm the conviction of Riddle as to rape, kidnapping and burglary. However, we remand the case for resentencing since the habitual offender's statute was inappropriately applied.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
PATTERSON, C.J., SMITH and SUGG, P. JJ., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.
NOTES
[1] Mississippi Code Annotated section 97-3-65 (Supp. 1981) provides: "... In all cases where the female child is under the age of twelve (12) years it shall not be necessary to prove penetration of the female's private parts where it is shown the private parts of the female have been lacerated or torn in the attempt to have carnal knowledge of her." See Horton v. State, 374 So.2d 764 (Miss. 1979).
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USCA1 Opinion
October 12, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1448
UNITED STATES,
Appellee,
v.
REX FORBES OICKLE,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
___________
Stahl and Lynch, Circuit Judges.
______________
_____________________
Julio V. DeSanctis, with whom Downeast Law Associates, P.A.
__________________ _____________________________
was on brief for appellant.
F. Mark Terison, Assistant United States Attorney, with whom
_______________
Jay P. McCloskey, United States Attorney, and Elizabeth C.
__________________ _____________
Woodcock, Assistant United States Attorney, were on brief for
________
appellee.
____________________
____________________
Per Curiam. Upon full review of the record in this
Per Curiam.
__________
case, and after hearing argument from counsel, we affirm the
decision of the district court.
Affirmed.
Affirmed.
________
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888 So.2d 629 (2004)
STATE v. WHITE
No. 1D03-4018
District Court of Appeal of Florida, First District
November 30, 2004.
Decision without published opinion. Cert. denied.
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Kapoor v Interzan LLC (2019 NY Slip Op 03745)
Kapoor v Interzan LLC
2019 NY Slip Op 03745
Decided on May 14, 2019
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 May 14, 2019
Richter, J.P., Manzanet-Daniels, Webber, Kern, JJ.
158313/18 -1773
[*1] Aman Kapoor doing business as Sewlutions, Plaintiff-Appellant,
vInterzan LLC, Defendant-Respondent.
Law Office of Amos Weinberg, Great Neck (Harriette N. Boxer of counsel), for appellant.
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, Brooklyn (Maya K. Petrocelli of counsel), for respondent.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered November 30, 2018, which granted defendant's motion to vacate the default judgment entered against it, unanimously affirmed, with costs.
A defendant seeking to vacate a judgment entered upon its default must demonstrate a reasonable excuse for the delay and a meritorious defense to the action (see generally Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; CPLR 5015[a][1]). Here, the record shows that defendant proffered a reasonable excuse of law office failure by submitting documentary evidence showing that, upon receipt of the draft summons and complaint, it promptly forwarded the filings to its
legal counsel on retainer. Defendant also submitted an affidavit from its CEO who averred that he spoke with counsel and requested that counsel monitor the case filings and respond accordingly. It was reasonable for defendant to believe that its counsel would take the appropriate actions to defend the matter (see e.g. Rodgers v 66 E. Tremont Hgts. Hous. Dev. Fund Corp., 69 AD3d 510, 511 [1st Dept 2010]; Heskel's W. 38th St. Corp. v Gotham Constr. Co. LLC, 14 AD3d 306, 307 [1st Dept 2005]). Moreover, upon learning of the default judgment entered against it when its bank froze its account, defendant immediately retained new counsel, who moved within four days to vacate the default.
There is no dispute that defendant also demonstrated a meritorious defense to plaintiff's claims.
M-1773 Kapoor d/b/a Sewlutions v Interzan LLCMotion to enlarge record denied.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 14, 2019
CLERK
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[Cite as Coshocton Cty. Dept. of Job & Family Servs., Child Support Enforcement Agency v. Miller, 2011-Ohio-
6356.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CCDJFS, CHILD SUPPORT JUDGES:
ENFORCEMENT AGENCY, ET AL. Hon. William B. Hoffman, P.J.
Hon. Sheila G. Farmer, J.
Plaintiffs- Appellees Hon. Julie A. Edwards, J.
-vs-
Case No. 11-CA-8
JAMES MILLER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Juvenile Division, Case No.
21020099
JUDGMENT: Affirmed
DATE OF JUDGMENT: December 8, 2011
APPEARANCES:
For Plaintiffs-Appellees For Defendant-Appellant
JOHN HATALLA ROBERT E. WEIR
725 Pine Street 305 Main Street
P.O. Box 68 Coshocton, OH 43812
Coshocton, OH 43812
Coshocton County, Case No. 11-CA-8 2
Farmer, J.
{¶ 1} On August 23, 2010, appellees, the CCDJF, Child Support Enforcement
Agency and Children Services, filed a complaint against appellant, James Miller, for
child support for his minor child. A hearing before a magistrate was held on March 31,
2011. By decision filed April 15, 2011, the magistrate recommended a child support
obligation of $680.49 per month when private health insurance is provided and $764.27
per month if private health insurance is not provided. Appellant filed objections. By
judgment entry filed May 10, 2011, the trial court overruled the objections. By judgment
entry filed May 31, 2011, the trial court approved and adopted the magistrate's decision.
{¶ 2} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 3} "THE TRIAL COURT ERRED IN ITS CHILD SUPPORT ORDER BY
FAILING TO DEVIATE FROM THE CHILD SUPPORT COMPUTATION
WORKSHEET."
I
{¶ 4} Appellant claims the trial court erred in its child support order for failing to
deviate from the child support computation worksheet and take into consideration the
fact that the child was receiving adoption assistance under Ohio Adm.Code 5101:2-44-
03. We disagree.
{¶ 5} Pursuant to R.C. 3119.01(C)(7)(f), adoption assistance is not to be
included as "gross income" in determining child support. Appellant argues adoption
assistance should cause a deviation in a child support obligation. In support, appellant
Coshocton County, Case No. 11-CA-8 3
cites this court's decision in Young v. Young (1995), 105 Ohio App.3d 701, wherein this
court stated social security benefits received by the minor child as a result of the
obligor's disability may be credited toward the obligor's support obligation. However,
the trial court found the Supreme Court of Ohio's decision in Paton v. Paton, 91 Ohio St.
3d 94, 2001-Ohio-291, to be controlling. For the following reasons, we agree.
{¶ 6} Pursuant to Ohio Adm.Code 5101:2-44-03, the state adoption subsidy
program applies when there is a special needs adoptive child. The amount is based
upon the needs of the adoptive child and the circumstances of the adoptive family:
{¶ 7} "(A) A public children services agency (PCSA) is responsible for the
administration and determination of eligibility for the state adoption subsidy. The PCSA
shall:
{¶ 8} "***
{¶ 9} "(2) Consult with the adoptive parent prior to the approval or denial of a
JFS 01613 regarding:
{¶ 10} "(a) Special needs of the adoptive child, identified or anticipated.
{¶ 11} "(b) Amount of the state adoption maintenance payments based upon the
needs of the adoptive child, the circumstances of the adoptive family, and in accordance
with the PCSA's adoption policy.
{¶ 12} "(c) Beginning and ending dates of the state adoption maintenance
payments.
{¶ 13} "(3) Determine if the adoptive parent meets the income eligibility criteria
for the state adoption maintenance subsidy in accordance with rule 5101:2-44-06 of the
Administrative Code."
Coshocton County, Case No. 11-CA-8 4
{¶ 14} The adoption subsidy is for the benefit of the child, not the parent, as the
subsidy is based upon the child's special needs. In Young, the social security benefit
was derived from the obligor's disability, not the child's. In Paton, the social security
benefits were based upon the child's disability:
{¶ 15} "Supplemental security income benefits received by a disabled child do
not constitute a financial resource of the child pursuant to R.C. 3113.215(B)(3)(f) for
purposes of justifying a trial court's deviation from the basic child support schedule."
Paton, at syllabus.
{¶ 16} The reasoning behind this holding is illustrated by Justice Resnick's
conclusion:
{¶ 17} "***SSI benefits received by a disabled child 'are intended to supplement
other income, not substitute for it.' Oatley v. Oatley, 57 Ohio App.2d at 228, 11 O.O.3d
at 262, 387 N.E.2d at 246.***
{¶ 18} "The court of appeals correctly observed that reducing a parent's child
support obligation by an amount representing the child's SSI benefits 'would frustrate
the purpose of the federal law by pushing the child's standard of living back below the
federal minimum.' Such an approach would result in a 'stair-step' effect that would
increase the child's reliance on federal assistance while decreasing the parents'
financial responsibility, because as the child's SSI benefits increase, the parents'
support obligation simultaneously decreases. In order to avoid this unintended and
absurd result, '[t]he amount of supplemental security income received is modified as the
amount of the recipient's other income changes, not vice versa.' Oatley, 57 Ohio
App.2d at 228, 11 O.O.3d at 262, 387 N.E.2d at 246.
Coshocton County, Case No. 11-CA-8 5
{¶ 19} "Parents, to the extent that they are able, have an obligation to support
their minor children. In situations where a child is eligible to receive SSI, these benefits
are intended to supplement the parents' support obligation, not to reduce it.
Consequently, we find that supplemental security income benefits received by a
disabled child do not constitute a financial resource of the child pursuant to R.C.
3113.215(B)(3)(f) for purposes of justifying a trial court's deviation from the basic child
support schedule." Paton, at 97-98. (Footnote omitted.)
{¶ 20} Upon review, we find the trial court did not err in not deviating from the
child support computation worksheet.
{¶ 21} The sole assignment of error is denied.
{¶ 22} The judgment of the Court of Common Pleas of Coshocton County, Ohio
is hereby affirmed.
By Farmer, J.
Hoffman, P.J. and
Edwards, J. concur.
_s/ Sheila G. Farmer_______________
_s/ William B. Hoffman_____________
_s/ Julie A. Edwards______________
JUDGES
SGF/sg 1117
IN THE COURT OF APPEALS FOR COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CCDJFS, CHILD SUPPORT :
ENFORCEMENT AGENCY, ET AL. :
:
Plaintiffs-Appellees :
:
-vs- : JUDGMENT ENTRY
:
JAMES MILLER :
:
Defendant-Appellant : CASE NO. 11-CA-8
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Coshocton County, Ohio is affirmed. Costs
to appellant.
_s/ Sheila G. Farmer_______________
_s/ William B. Hoffman_____________
_s/ Julie A. Edwards______________
JUDGES
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779 F.2d 37
U.S.v.Walker
85-1124, 85-1125
United States Court of Appeals,Second Circuit.
9/20/85
1
E.D.N.Y.
AFFIRMED
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NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BILLIE D. MCDONALD,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Defendant-Appellee.
______________________
2013-7068
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-1697, Judge William A. Moor-
man.
______________________
JUDGMENT
______________________
KENNETH M. CARPENTER, Carpenter, Chartered, of
Topeka, Kansas, argued for claimant-appellant.
JAMES SWEET, Trial Attorney, Civil Division, United
States Department of Justice, of Washington, DC, argued
for defendant-appellee. With him on the brief were
STUART F. DELERY, Assistant Attorney General, JEANNE
E. DAVIDSON, Director, and MARTIN F. HOCKEY, JR., Assis-
tant Director. Of counsel on the brief were MICHAEL J.
TIMINSKI, Deputy Assistant General Counsel, and
AMANDA BLACKMON, Staff Attorney, United States De-
partment of Veterans Affairs, of Washington, DC. Of
counsel was SAVANNAH HUGHES CONNALLY, Attorney,
United States Department of Veterans Affairs, of Wash-
ington, DC.
______________________
THIS CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
PER CURIAM (RADER, Chief Judge, PROST, and CHEN,
Circuit Judges).
AFFIRMED. See Fed. Cir. R. 36.
ENTERED BY ORDER OF THE COURT
January 9, 2014 /s/ Daniel E. O’Toole
Date Daniel E. O’Toole
Clerk of Court
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390 So.2d 527 (1980)
J. WEINGARTEN, INC., Plaintiff-Appellant,
v.
NORTHGATE MALL, INC., and Pickens Bond Construction Company, Defendants-Appellees.
No. 7803.
Court of Appeal of Louisiana, Third Circuit.
October 8, 1980.
Rehearing Denied December 1, 1980.
*528 Davidson, Meaux, Sonnier & Roy, Candice Hattan, Lafayette, for plaintiff-appellant.
Onebane, Donahoe, Bernard, Tarien, Diaz, McNamara & Abell, Randall C. Songy, Lafayette, for defendants-appellees.
Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
DOMENGEAUX, Judge.
This is a suit for permanent injunction brought against the developer of Northgate Mall in Lafayette, Louisiana, by J. Weingarten, Inc., one of the mall's tenants, in an effort to halt construction of a then proposed (but now completed) addition to the mall. Plaintiff claimed this proposed addition violated the lease agreement between plaintiff and Northgate Mall, Inc., defendant, causing irreparable harm to plaintiff's business, and entitling plaintiff to injunctive relief.
FACTS
On February 9, 1967, Northgate Shopping Center, Inc. leased to Northgate Mall, Inc. (one of the defendants herein[1]), approximately 35 acres of land in Lafayette, Louisiana, for the purpose of constructing a completely covered shopping center called, appropriately, the Northgate Mall. Shortly thereafter, defendant constructed the mall and paved the parking area partially surrounding the mall.
On June 27, 1968, defendant leased part of the building and the entire parking lot to J. Weingarten, Inc., the plaintiff.[2]
Approximately 10 years later, in early 1978, Northgate Mall, Inc. began planning to expand the mall. To this end, several plats were prepared incorporating the proposed *529 addition onto the then existing building. The proposed expansion increased by more than 100,000 square feet the leasable floor area of the building.
Plaintiff was generally aware of defendant's proposed expansion project. However, plaintiff felt that defendant's project exceeded the area allowed for future expansion by the contract. Coincidentally, plaintiff had considered remodeling and/or expanding its own store within the mall. Knowing, however, that it (plaintiff) had no contractual right to expand,[3] plaintiff attempted to negotiate its approval of defendant's unauthorized expansion in return for an agreement by defendant that it (defendant) would expand Weingarten's at the same time that it expanded the mall. Prior to the erecting of a construction fence (in February of 1979) around the entire expansion area, which was adjacent to that part of the mall occupied by Weingarten's grocery store, no agreement of any sort was ever reduced to writing, as was expressly required by Article 31 of the lease:
"ARTICLE XXXI
This instrument constitutes the entire agreement between Landlord and Tenant; no prior written or prior or contemporaneous oral promises or representations shall be binding. This lease shall not be amended or changed except by written instrument signed by both parties."
Weingarten filed this injunction suit on March 1, 1979, only days after it became aware that actual construction had begun, and on that date a temporary restraining order was issued by the trial judge halting construction. A hearing was held on March 19, 1979, after which the district judge dismissed the temporary restraining order and denied the request for preliminary injunction. The court found that Weingarten's had not shown that it would suffer irreparable harm if the preliminary injunction was not granted. The hearing was specifically limited to a consideration of whether the temporary restraining order had been wrongfully obtained, and whether or not a preliminary injunction should be granted or denied. All other issues were to be decided after a complete hearing on the merits of the permanent injunction could be held. No appeal was taken from this interlocutory judgment.[4]
After the temporary restraining order was dismissed, construction was resumed and the addition was substantially completed by the time the hearing on the merits of the permanent injunction was conducted. After this second hearing, held October 25th and 26th, 1979, the trial court ruled:
(1) Defendants were not entitled to damages and attorney's fees (which Northgate Mall had claimed on the grounds that the temporary restraining order was wrongfully obtained);
(2) Plaintiff had again failed to prove that irreparable harm would result if the injunction was not granted;
(3) Public policy prohibited parties from contractually establishing a right to injunctive relief;
(4) Plaintiff was not estopped from trying to enforce the lease agreement existing between plaintiff and defendant; and
(5) Plaintiff did not have a servitude because it acquired its rights from one who was merely a lessee (Northgate Mall, Inc.) and who had no right to grant a servitude to plaintiff.[5]
*530 J. Weingarten, Inc. has appealed that judgment and argues that it is entitled to injunctive relief for any one of three reasons:
(1) Plaintiff acquired a bargained for right to enjoin violations of its parking rights without the necessity of proving inadequacy of legal remedies or irreparable harm;
(2) Plaintiff will suffer irreparable harm if the construction of the now completed addition is not removed;
(3) Plaintiff is entitled to injunctive relief as a matter of law under La.C.C.P. Article 3663(2) without the need to prove irreparable harm.
We hold that plaintiff is entitled to a permanent injunction ordering the removal of that portion of the expansion which is in violation of the lease agreement. Before elaborating on our decision to reverse the District Court's judgment, we will briefly dispose of defendant's argument that the doctrine of equitable estoppel applies.
EQUITABLE ESTOPPEL
Defendant argues at length that plaintiff should be barred from asserting its contractual rights against defendant because defendant justifiably relied, to its detriment, upon plaintiff's apparent acquiescence to defendant's proposed 100,000 square foot expansion of the mall. We have reviewed the evidence defendant cites in support of its argument. We do not agree with defendant that the defense of equitable estoppel applies. The trial court wrote:
"The Court further feels that with regard to the defense, the affirmative defense, of equitable estoppel urged by the defendants, defendants say that although they recognize that they were bound by certain provisions of the lease, they contend to this Court that because they [sic] were ongoing negotiations between the parties, that they were reasonably led to believe that it was okay, that Weingarten had no objection to the new expanded facilities. The Court takes recognition of the fact that Weingarten was interested in expanding its facility, and that, of course, there were negotiations that transpired between the two. I think this is customary and ordinary, particularly where Weingarten had reason to believe that there would be expansion. Now, the lease is very clear, as I read it. And, apparently, from the testimony, that there is no way that Weingarten would have bound itself to an expansion, unless reducing that agreement to writing. You know, when you're dealing with millions of dollars, I think it's extremely bad business to make any sort of commitment that is not reduced to writing, and certainly, with the battery of attorneys that both of these corporations have on each side, I think it would be an absurd conclusion for this Court to make that the defendants were reasonable in their reliance upon preliminary negotiations between the parties, and therefore, I find that that defense is not a good one." (Emphasis added).
We completely agree with the trial court that defendant's reliance upon preliminary negotiations did not constitute such reliance as would make the defense of equitable estoppel available.
PERMANENT INJUNCTION
Plaintiff has charged defendant with violating the following provisions of the lease agreement:
"ARTICLE II
* * * * * *
C. .... No building shall be erected or permitted in the Shopping Center other than in the locations shown as buildings on Exhibit `A' and all remaining areas shall be improved as parking area, except that Landlord shall have the right to erect a department store in the area outlined on Exhibit `A' by a dotted line designated `future dept. store' and shall *531 also have the right to erect a theatre in the location shown on Exhibit `A' outlined by a dotted line and designated `prop. theatre'. Except for such department store area and theatre area, all space shown on Exhibit `A' as `parking' shall be used exclusively as a parking area .....
* * * * * *
ARTICLE X
A. It is a condition of Tenant's liability hereunder that at the commencement of the lease and at all times during the term of the lease, there will be paved parking in the Shopping Center of sufficient size such that there will be 6 car parking spaces for each 1,000 square feet of floor area (counting all floors within all buildings) within the shopping center; each such car parking space to be not less than 9 ft. in width by 18 ft. in length (the layout of such spaces to be as shown on Exhibit A). Landlord will maintain the surface of the parking area and driveways shown on Exhibit `A' in a smooth and readily traversible condition at all times during the term of this lease and any extension thereof, and Landlord will promptly clean and remove ice, snow, debris and trash from such parking area and other common areas in the Shopping Center.
Landlord will not change the parking area or stores in the Shopping Center as shown on Exhibit `A' during the term of this lease or any extension thereof by reduction in size of said parking area or by construction of new stores or by expansion of or addition to stores shown on Exhibit `A', (except in the area, if any, specifically designated as `future building area' on Exhibit A) .....
* * * * * *
D. Tenant is hereby granted an irrevocable non-exclusive easement during the term of this lease and any extension thereof over and across all parking areas in the Shopping Center as shown on Exhibit `A' and the driveways, walks, roadways, and streets within the Shopping Center leading to such parking areas for pedestrian and vehicular access to the leased premises so that Tenant, its agents, servants, customers, invitees and licensees shall have rights of ingress to the leased premises and egress from the leased premises over and across all parking area to the Shopping Center as shown on Exhibit `A' to and from the dedicated streets bordering the said Shopping Center, and rights to park upon all such parking area. Landlord covenants that Tenant at all times will have adequate and unobstructed rights of ingress and egress between the building constituting the leased premises and all loading platforms thereon and the streets, driveways, walks and alleys within the Shopping Center. The benefits of the aforesaid easement shall run with and bind the land affected thereby, and Tenant shall have the right to obtain an injunction specifically enforcing such rights and interests without the necessity of proving inadequacy of legal remedies or irreparable harm." (Emphasis added).
The Exhibit "A" referred to in the lease is a plat of the mall drafted in 1967 which was attached to and formed part of the agreement. A facsimile of the important portion of that plat has been reproduced as part of this opinion (see Figure 1) to facilitate the reader's understanding of the facts. Note particularly the two areas outlined by dotted lines and designated "FUTURE DEPT. STORE" and "FUTURE THEATRE". Contrast Figure 1 with Figure 2, a facsimile of the plat showing the relevant portion of the mall after completion of the addition. (Neither figure is drawn to scale but the distances and areas represented thereon are accurate).
*532
After reading the contract, especially the above quoted portions, and studying the plats, we find that defendant has breached the contract. The facts permit no other conclusion, and defendant acknowledged its breach during oral arguments.
*533 Particularly, the defendant breached its contract in the following respects:
Whereas the original lease allowed defendant to construct an additional 39,375 square feet of building area,[6] defendant added over 100,000 square feet-more than twice the area allowed for future expansion-without ever securing plaintiff's written permission to derogate from the terms of the Weingarten lease. By so expanding, defendant destroyed or displaced a considerable number of parking spaces over which plaintiff held non-exclusive rights and which defendant specifically agreed would be used only as a parking area (see Article II of the lease agreement). Defendant's encroachment further violated the lease by reducing the parking ratio from 5.7 parking spaces per 1,000 square feet of leasable floor area to roughly 5.0 spaces per 1,000 square feet.[7]
While the trial judge recognized that the contract had been breached, she did not grant the permanent injunction principally because she held that it was against public policy to permit parties to contract for injunctive relief. The trial court said:
"The plaintiff likewise argues to the Court that there was a contract provision which gave the plaintiff the right under contract to injunctive relief. The Court has relied in its ruling on that on the case of Termplan Arabi, Inc. v. Frank Carollo, cited at 299 So.2d 831. That issue was presented before the Court in that case, and there was a contract whereby the parties in that case either had an option of injunctive relief, or liquidated damages in the amount of two thousand ($2,000.00) dollars. The Court in the Termplan case held that, apparently, by fixing the liquidated damages, that it was some sort of confession, so to speak, that any breach of contract could be compensated by money, and therefore, no irreparable injury could result. The plaintiff contends to this Court that in this instance there was no liquidated damages provided for in their lease, and that therefore, this Court should grant injunctive relief. I think that the Termplan Court, which was the 4th Circuit-citing Article 3601, Louisiana Code of Civil Procedure: `An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in any other cases specifically provided by law. Clearly, irreparable injury is the sine qua non for an applicant to obtain injunctive relief, absent some specific statute. Parties cannot, by a contract, bestow upon each other the right to injunctive relief where the essential conditions established by law do not exist.' Of course, the plaintiff argues that the law of the parties is the contract. This Court's feeling is quite otherwise. This is a harsh remedy, and probably the harshest remedy in our law books, and the Courts are held to very close scrutiny of injunctive relief. And I think it's contrary to public policy to permit parties to contract for injunctive relief, because in their business dealings, obviously, there is a leverage in negotiation, and because ultimately commerce and the rights of other people may be affected in the world of industry, commerce and economics. I think that the 4th Circuit is correct, and therefore, I will follow that decision, and will not give effect, lawful effect, to the provision of injunction cited in the lease." (Emphasis added).
We think the trial court erred in finding that it is contrary to public policy to *534 permit parties to contract for injunctive relief. The case relied upon by the trial court does not support the trial court's ruling. In that case, Termplan Arabi, Inc. v. Carollo, 299 So.2d 831 (La.App. 4th Cir. 1974), the parties entered into a non-competition agreement which was part of an employment contract between the two. In the event the employee breached his promise after his employment was terminated, the employer was entitled to $2,000.00 as liquidated damages and injunctive relief or other relief available to the employer enjoining the former employee from continuing to engage in activities prohibited by the contract.[8] When the employee breached this contract provision, the employer sued for the $2,000.00 liquidated damages and sought injunctive relief at the same time. Although the employer later dropped his demand for $2,000.00 in liquidated damages and sought thereafter only injunctive relief, the Court held injunctive relief to be unavailable since the parties had agreed to a specified amount of money as liquidated damages.
While the Fourth Circuit did comment that "[p]arties cannot, by a contract, bestow upon each other the right to injunctive relief where the essential conditions established by law do not exist", the facts of that case did not require such a determination. All the court really held was that when a contract provides for injunctive relief and a sum certain in liquidated damages, the injunction is unavailable because the parties have agreed that the damage can be rectified by the payment of the liquidated damages.[9] The instant case may be easily distinguished because the contract did not provide for liquidated damages nor is plaintiff seeking damages. The sole remedy granted by the lease (and the only relief requested) is that of injunctive relief.
Neither the trial court nor Termplan offer compelling reasons to demonstrate how any public policy is served by denying parties the right to contract for injunctive relief. The trial court noted, without further discussion, that the rights of other people may be affected if such contractual provisions were upheld. Obviously, La.C.C. Article 11 is the source of this reasoning. Article 11 provides:
"Individuals can not by their conventions derogate from the force of laws made for the preservation of public order or good morals.
But in all cases in which it is not expressly or impliedly prohibited, they can renounce what the law has established in their favor, when the renunciation does not affect the rights of others, and is not contrary to the public good." (Emphasis added).
Yet the court failed to explain how the rights of other people may be affected by recognizing the clear intent of the parties. In the instant case, the defendant renounced what the law established in his favor: the requirement that he who seeks injunctive relief must first show that he will suffer irreparable harm or that he has no other adequate remedy at law. This renunciation in and of itself does not affect the rights of others. If the rights of others (namely, the new tenants) are affected, it is because defendant blatantly disregarded the terms of its own lease agreement with Weingarten when it executed lease agreements with the new tenants, and not because defendant agreed that plaintiff would be entitled to injunctive relief in the event that plaintiff's rights over the parking lot were infringed by defendant.
Both the trial court and the Court in Termplan believed one must prove irreparable injury before being granted a permanent injunction. With this conclusion we cannot concur. While proof of irreparable harm may be the sine qua non for injunctive relief in cases where a contract does *535 not dispense with such proof, the standard of irreparable harm should not be used if the parties explicitly agreed that injunctive relief is available without that proof.
Our holding does not bind a judge to grant the remedy of injunctive relief simply because the parties so contract; the party asking for the injunction must still prove his entitlement to that relief. A decision to deny injunctive relief, though, should be well supported in reason; it should not result if the parties knowingly and intelligently agreed to waive the requirement that irreparable harm or inadequacy of other legal remedies be proved and if the remedy of injunctive relief adequately safeguards or restores rights enjoyed by the party seeking relief.
After hearing the arguments and reading the excellent briefs prepared by the parties to this dispute, we find that Northgate Mall, Inc. affirmatively agreed to this provision and must have been aware of its potential ramifications. Moreover, we find that obtaining the right to injunctive relief was a very important objective of J. Weingarten, Inc. and is one of the few ways-indeed, perhaps the only way-that Weingarten was able to insure that its rights over the parking area would be protected.
While we recognize that the only loss likely to be felt by Weingarten is an economic one, we will not deprive it of injunctive relief for that reason. We feel the parties took cognizance of the problems encountered by mall tenants and landlords when confecting their contract. (Those problems are discussed below). Northgate Mall, Inc.'s bold and brazen breach of its contract with Weingarten is one the injunction clause was designed to prevent. Such a clear intent will not be circumvented by this Court merely because the breaching party-Northgate Mall, Inc.-may encounter economic hardship caused by the injunction.
Tenants like Weingarten in shopping malls encounter unique problems because of the shared parking arrangements inherent to most malls. None of the tenants acquire exclusive rights over any area of the parking lot; thus the tenants endeavor to insure that the entire shopping mall has a sufficient enough parking area to accommodate the needs of all the tenants. In part, the tenants' concern for adequate parking is lessened by inclusion of parking ratios in the leases. (As for instance, the requirement of six parking spaces per 1,000 square feet of leasable floor area found in Weingarten's lease). However, the tenants must have a meaningful way to protect their parking rights and ratios, if and when the landlord violates these rights by extra-contractual expansion of the leasable floor area of the mall.
The existence of a meaningful remedy is especially important if the damage done by reducing the parking area is incalculable or cannot be determined with any accuracy until several years have elapsed, in which case the mall developers (i.e. Northgate Mall, Inc.) can then argue that the tenant's (Weingarten's) declining sales figures are due to some cause other than the diminution in parking occasioned by the landlord's violation of the tenant's rights.[10] In such a case-and we find this to be one such case-a court should not substitute a remedy which may or may not negate the effects of the breach for a remedy specifically chosen by the parties.
The Courts of this state have not had the opportunity to deal extensively with this problem. However, one case with circumstances substantially similar to the one at bar is Barker's # 413 Corporation v. Meltzer, 346 So.2d 293 (La.App. 4th Cir. 1977). In that case, Meltzer, the lessor or landlord, constructed a 66,200 square foot building along Veterans Highway in New Orleans for occupancy by Barker's Department Store, the tenant. Meltzer also surfaced the area in front of the building to be used as a parking lot for Barker's. In Article I *536 of their lease, the parties agreed that "Lessor shall have the right to build additional rental space ....." During the term of the lease, Meltzer notified Barker's of his intention to construct a 9,000 square foot building in the parking lot area utilized by Barker's. After fruitless discussions between the parties, Barker's filed suit for injunction. The trial court ruled in Barker's favor and issued the injunction. The Fourth Circuit affirmed, holding that the lease provisions did not permit the lessor to construct additional rental space on the existing parking lot area. The Court conceded that the parties contemplated the building of additional rental space, but noted that lessor did not specifically reserve the right to build in the existing parking area. Instead, the Court felt the parties contemplated that the lessor reserved the right to build additional rental space on the vacant land next to Barker's, which vacant land was also owned by Meltzer and had not been leased to Barker's. The Court further decided that the parties intended for the parking area in front of Barker's to be utilized by the tenants and the customers of the buildings which were to be constructed on the vacant lot.
In Barker's # 413 Corporation v. Meltzer there was no contract provision granting Barker's the right to obtain injunctive relief. However, the Court granted injunctive relief without discussing whether Barker's would be irreparably harmed by the new construction or whether Barker's had no adequate remedy at law. The injunction was granted simply because the landlord's construction project constituted a breach of the lease.
A recent case out of the Second Circuit, Bossier Center, Inc. v. B & B Systems, Inc., 388 So.2d 826, No. 14,234 (La.App.1980), is also analogous to the instant case. There, plaintiff sold to a Mr. Patten a strip of land 20 feet wide by 176.7 feet long. The deed contained the following provision:
"Vendee agrees not to erect any structures without the written consent of the vendor."
Patten leased a sign location on his strip of land to B & B. B & B commenced construction of the sign without first having obtained approval of plaintiff, the vendor. Plaintiff then sued to enjoin construction of the sign. After trial, the judge granted the permanent injunction on the basis that prior approval of vendor was required by the deed before any structure could be erected. The Second Circuit affirmed but amended the judgment to order that the use limitation did not constitute a predial servitude nor any other form of covenant running with the land. The Court of Appeal said:
"The intervenor [Patten] personally obligated himself to erect no structures upon the premises without the consent of his vendor and he must comply with this use restriction."
The Court rejected the argument that the use restriction violated public policy and noted that our jurisprudence contains many decisions where restrictions upon use of property have been found valid and enforceable. Furthermore our brothers of the Second Circuit quoted, with apparent approval, a passage from Queensborough Land Company v. Cazeaux, 136 La. 724, 67 So. 641 (1915) stressing that the public policy of this state favors the fullest liberty of contract and the widest latitude possible in the right to dispose of one's property as one chooses "so long as no disposition is sought to be made contrary to good morals, public order or express law."
The Court also inquired whether plaintiff had unreasonably refused to consent to the sign and decided plaintiff's refusal to consent had not been unreasonable because the sign would "necessarily" create some view obstruction to plaintiff's property and "may well otherwise detract" from a small contemplated commercial complex. The Court granted the injunction without considering whether plaintiff would suffer irreparable injury and whether plaintiff had an adequate remedy at law. Nor did the Court consider whether the injunction was specifically authorized by law. Since the decision denied that the use restriction was either a building restriction or a predial servitude, the injunction must have been granted simply *537 because Patten and his lessee B & B (whose rights could be no greater than those of its lessor) breached their personal obligation not to erect any structure without the consent of the vendor.
Other jurisdictions have issued injunctions prohibiting shopping center landlords from encroaching upon parking rights granted to their tenants.
In Food Fair Stores, Inc. v. Jackson Heights Shopping Center, Inc., 55 Misc.2d 205, 284 N.Y.S.2d 814 (1967); aff'd 28 App. Div.2d 1207, 285 N.Y.S.2d 1009 (1967), a lease gave tenant a non-exclusive, non-revocable right to use of the parking space outlined on an attached plat. The lease also granted the tenant quiet possession and enjoyment of the parking area. The Court held that the owner of the shopping center did not have the right to build an additional building in the parking area and thereby reduce the capacity from 400 to 350 automobiles. Thus, the tenant was entitled to a permanent injunction prohibiting the construction of the building.
In Walgreen Co. v. American National Bank & Trust Company of Chicago, 4 Ill. App.3d 549, 281 N.E.2d 462 (1972), a lease gave the tenant Walgreen non-exclusive rights over a parking area which was to contain at least 150,000 square feet and was to provide parking for at least 400 automobiles. Village Green, the lessor, leased to Fotomat an area of the parking lot measuring 40 square feet which would displace three parking spaces. After construction of the small Fotomat building had begun, Walgreen sued to enjoin construction. The Court found the lease to Fotomat violated the Walgreen lease even though the parking lot still would exceed 150,000 square feet and would provide parking for over 400 cars despite the presence of the Fotomat building. The Court found that the parties intended to confine the sales facilities of the shopping center to those areas specifically set out or reserved in the plot plan. The area leased to Fotomat had not been so reserved. Thus, Walgreen was entitled to injunctive relief. The Illinois Court concluded that the deprivation of a property right, the elimination of parking spaces, and the potential disruption of travel (all of which occur on a grander scale in the instant case) constituted irreparable injury.
In Gray Drug Stores, Inc. v. Foto Fair International, Inc., 288 N.E.2d 341, 32 Ohio App.2d 71 (1971), the plaintiff and defendant entered into a lease agreement in 1961. Defendant was the developer of the Findlay Shopping Center. Plaintiff was one of the tenants. In 1969 defendant entered into a lease agreement with Foto Fair for the construction of a "kiosk" to sell, and receive for development, photographic film. The kiosk, a prefabricated carousel-style drive-in structure, was placed in the shopping center on an area designated, striped, and used for parking. Plaintiff asserted that defendant violated its rights to the parking area. Based on contract provisions very similar to the ones in the instant case wherein the parking area could not be reduced in size "except for such future additions to buildings and the `Future Building' as shown on Exhibit A", the Ohio Court of Appeal granted the permanent injunction.
The Kentucky Court of Appeal faced a situation similar to ours in W. T. Grant Company v. Indian Trail Trading Post, Inc., 423 S.W.2d 251 (Ky.1967). There, the lease contract provided that future buildings in the shopping center shall be "on no other portion of the area" than those marked as future building sites unless the tenant's written consent was obtained. The largest future building site contained slightly over 61,000 square feet in area. Indian Trail, the developer, had contracted with the Woolworth Company, without the written consent of W. T. Grant, to construct on this site a building containing 109,000 square feet. Construction continued during the course of litigation and the new building was completed by the time the Kentucky Court of Appeal rendered judgment. The Court said:
"Under this state of facts, the court properly could and would require so much of the building as lies outside the platted site to be removed." *538 However, W. T. Grant did not insist upon removal; it asked only that Indian Trail and Woolworth be enjoined from using that portion of the building which lay outside the boundary lines of the site, as shown on the plat.[11] The Court granted this limited injunction but felt this would not adequately cover the damage suffered by W. T. Grant. Thus, the Court held W. T. Grant should be allowed a trial upon its claim for damages.
Although a contractual right of injunction was not involved in any of the above cases, those cases support our decision to grant an injunction, because, under sets of circumstances virtually identical with the facts herein, injunctive relief was granted almost routinely; proof of irreparable harm or lack of other adequate remedy was not required. Injunctions, not damages, were requested and the various courts-including one in Louisiana-granted injunctive relief simply upon the showing that a landlord was infringing upon the tenant's parking rights by converting contractually protected parking space into leasable floor area.
Additionally, we believe the facts show that Weingarten did not have an adequate remedy at law once the contract was breached. We intimated such a conclusion in footnote 10. Indeed, the lack of an adequate remedy may well be the underlying reason that injunctions were granted in the cases discussed. With calculation of pecuniary damages virtually impossible, issuance of an injunction to compel errant parties to comply with their contractual obligations is a practical and viable form of relief.
The Courts of this state have recognized that the lack of an adequate remedy at law is synonymous with irreparable harm and entitles one to injunctive relief. Greenberg v. DeSalvo, 254 La. 1019, 229 So.2d 83 (1969); Caffery v. Powell, 320 So.2d 223 (La.App. 3rd Cir. 1975). Thus, Weingarten would, for that reason also, be entitled to injunctive relief.[12]
Our decision may seem harsh because the mall addition is complete and must now be partially removed. The decision to grant an injunction would be much more palatable to this Court if the addition was still in the early stages of construction. However, we note that Northgate Mall, Inc. knowingly placed itself in the precarious predicament it is now in by proceeding with its construction project after court proceedings to halt and prohibit the construction had been initiated by Weingarten. This Court will not now implicitly condone such a flagrant and calculated disregard for contract by rescuing Northgate Mall, Inc. at the expense of its innocent victim, J. Weingarten, Inc.[13]
For the above and foregoing reasons, the judgment of the district court dismissing plaintiff's request for a permanent injunction is reversed. It is Ordered that there be judgment herein in favor of plaintiff, J. Weingarten, Inc., and against defendant, Northgate Mall, Inc., ordering removal, within six months of the date this judgment becomes final, of that portion of the new addition to Northgate Mall adjacent to Weingarten's Supermarket which exceeds 39,375 square feet of building area.[14]
All costs are assessed against defendant, Northgate Mall, Inc.
REVERSED.
NOTES
[1] The other defendant, Pickens Bond Construction Company, is apparently no longer involved in these proceedings.
[2] Although plaintiff's lease granted it rights over the entire parking area, these rights were non-exclusive since other tenants of the mall enjoyed the same rights.
[3] While other tenants, J. C. Penney and Montgomery Ward, did have future expansion rights, Weingarten did not.
[4] Although La.C.C.P. Art. 3612 permits an appeal from a judgment relating to a preliminary injunction, the fact that Weingarten did not appeal is of no consequence since the parties contemplated a later, more complete hearing on the merits of the permanent injunction after which the aggrieved party could then perfect an appeal. Breland v. Edwards, 360 So.2d 250 (La.App. 1st Cir. 1978).
[5] This last ruling was made several months after the trial of the matter and was signed on January 11, 1980. The judgment was signed on January 16, 1980.
[6] This includes the 30,000 square foot area designated as "Future Dept. Store" and 9,375 square feet designated as "Future Theatre". The theatre was eventually built across Castille Street from the main shopping mall, and the area designated as "FUTURE THEATRE" was converted into parking. Therefore, we will allow Northgate Mall, Inc. to use that area as part of the allowable expansion area. Not included is 40,000 square feet of future building area earmarked as an expansion for Montgomery Ward, and 1,692 square feet dedicated as a future expansion project for J. C. Penney.
[7] Although the lease called for 6.0 spaces per 1,000 square feet, that ratio had never been met. Weingarten had apparently acquiesced to the ratio of about 5.7 spaces per 1,000 square feet which existed before the expansion reduced the ratio even further.
[8] The trial court incorrectly stated that the Termplan contract provided optional remedies of liquidated damages or injunctive relief. The plain language of that contract contemplated a cumulation of remedies of injunctive relief and liquidated damages.
[9] We note that none of the cases relied upon by Termplan held it to be against public policy for parties to contract for injunctive relief.
[10] We are not suggesting that Weingarten need show that its sales figures declined after the breach. Even if those figures had increased after the breach, it would be virtually impossible to prove that its sales would not have been even greater had the landlord expanded only to the extent permitted by its contract.
[11] In our case, defendant has argued in brief that the only relief sought by plaintiff "is an injunction ordering removal of the construction fence and preventing further construction activities." The evidence establishes that the trial on the merits of the permanent injunction contemplated removal of that part of the new edifice which offended the lease.
[12] In light of our decision, we pretermit a determination of whether the lease created a predial servitude or whether La.C.C.P. Art. 3663(2) is applicable to these facts.
[13] We remain hopeful that the parties can agree to some other solution which would render compliance with this injunction unnecessary.
[14] "Building area" includes both leasable floor area and mall area.
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914 F.2d 267
Naylorv.Dugger*
NO. 89-5347-1
United States Court of Appeals,Eleventh Circuit.
AUG 23, 1990
1
Appeal From: S.D.Fla.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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161 Mich. App. 285 (1987)
409 N.W.2d 808
JOINER
v.
MICHIGAN MUTUAL INSURANCE COMPANY
Docket No. 88357.
Michigan Court of Appeals.
Decided July 7, 1987.
Quinn, Borella & Stockton, P.C. (by Richard M. Amsbaugh), for plaintiff.
Joselyn, Rowe, Grinnan, Hayes & Feldman, P.C. (by Joseph E. Grinnan), for defendant.
Before: SHEPHERD, P.J., and WAHLS and SULLIVAN, JJ.
*287 SHEPHERD, P.J.
Defendant appeals the October 7, 1985, judgment awarding plaintiff $182,083.19 in no-fault benefits and interest and providing that defendant was entitled to a setoff of workers' compensation benefits against that amount. Plaintiff cross-appeals, presenting an alternative argument. We affirm, but remand for modification of the judgment.
This is the second time this case has been before this Court. The history of this case up to September 17, 1984, may be found in Joiner v Michigan Mutual Ins Co, 137 Mich App 464; 357 NW2d 875 (1984). Briefly, plaintiff was employed by United Trucking Service, Inc. Defendant insured plaintiff's employer for both no-fault and workers' compensation liability. Plaintiff suffered three successive injuries during the course of his employment: (1) an injury to his right arm sustained when he fell from a truck, (2) a head injury sustained in a truck accident which occurred because of drowsiness attributable to pain medication taken for the earlier injury, and (3) a second head injury sustained when plaintiff blacked out while driving a yard switcher shortly after his release from the hospital following the earlier head injury. As a result, plaintiff suffers from disabling traumatic epilepsy. Although defendant paid initial medical expenses and workers' compensation benefits, it terminated those after deciding that plaintiff's disability was not employment related.
Plaintiff began two parallel courses of litigation. On April 25, 1977, he petitioned for workers' compensation benefits. The hearing referee awarded plaintiff medical expenses and entered a closed award of compensation benefits. In a second decision in September, 1980, the hearing referee determined that plaintiff's health problems as of that date were not employment related. Both *288 plaintiff and defendant appealed to the Workers' Compensation Appeal Board. The WCAB found in favor of plaintiff. This Court denied defendant leave to appeal that decision. The Supreme Court denied defendant leave to appeal on September 28, 1984. Joiner v United Trucking Service, Inc, 419 Mich 938 (1984). It appears that defendant paid workers' compensation benefits shortly thereafter.
In the meantime, plaintiff filed the present action in circuit court on November 9, 1978, seeking no-fault benefits. Following a trial in October, 1982, at which the primary issue was medical causation, the jury returned a special verdict in the amount of $118,040, "which included proven allowable expenses, work-loss benefits for three years and 12% no-fault statutory interest calculated on the allowable expenses and work loss." 137 Mich App at 469. Defendant was given credit for certain workers' compensation benefits paid and for some wages plaintiff earned during his disability. The total judgment entered on November 5, 1982, including interest and costs, was $158,940.
Defendant appealed, challenging various pretrial orders. This Court held that, since sufficient notice of injury was given pursuant to MCL 500.3145(1); MSA 24.13145(1) and defendant had not formally denied plaintiff's no-fault claim, plaintiff's claim was not limited by the period of limitation and the one-year-back provision of the statute. This Court also held that the trial court did not err in denying defendant's motion for summary judgment alleging an entitlement to a setoff for workers' compensation benefits. This Court found that plaintiff had made every reasonable effort to obtain workers' compensation benefits, but his claim was pending before the WCAB at the time of trial. Therefore, no benefits were provided or required to *289 be provided to him at the time of trial within the meaning of MCL 500.3109(1); MSA 24.13109(1), which provides for the setoff. The Court added:
We note, however, that there is nothing to prohibit the trial court from entering a judgment preventing duplicative recovery by requiring plaintiff to reimburse defendant in the event workers' compensation benefits are ultimately provided or required to be provided to plaintiff. [137 Mich App 475.]
This Court also found several issues concerning procedural and evidentiary matters to be without merit. It also affirmed the trial court's denial of attorney fees to plaintiff.
Defendant applied for leave to appeal this Court's decision and plaintiff sought leave to cross-appeal the denial of attorney fees. On December 14, 1984, the Supreme Court held the application in abeyance pending the decision in Welton v Carriers Ins Co, 421 Mich 571; 365 NW2d 170 (1984). After release of Welton, the Supreme Court denied leave to appeal and cross-appeal on June 10, 1985. 422 Mich 920 (1985).
Both parties then moved in the trial court for entry of judgment consistent with this Court's decision. Plaintiff argued that no setoff or reimbursement for workers' compensation benefits was required by § 3109(1). Defendant argued that its no-fault obligation was to be set off pursuant to § 3109(1). Defendant also argued that it was entitled to have the one-year-back provision of § 3145(1) applied. The trial court issued an opinion and order on August 18, 1985, concluding that it was precluded from considering the application of § 3145(1) by the law of the case doctrine. The trial court also concluded that a setoff was required, based on this Court's comments in the first opinion *290 and other case law intended to prevent a double recovery of benefits. The trial court concluded that the workers' compensation benefits should be subtracted from the jury award of no-fault benefits and that the no-fault statutory interest on no-fault benefits allowed by MCL 500.3142; MSA 24.13142 should then be imposed only on the "net award." As both parties had used incorrect calculation methods, the trial court denied both motions.
The trial court entered another order on October 7, 1985, reaffirming its position as to the nonapplication of the one-year-back rule. As to the setoff question, however, the court reversed itself and held that defendant was entitled to a setoff of workers' compensation benefits paid "but only against the `gross,' amount of the Judgment and not the `net' amounts awarded by the jury for allowable expenses and work loss for calculation of No-Fault statutory interest and Judgment interest." The court adopted plaintiff's calculation and entered a judgment in favor of plaintiff totaling $182,083.19, "which figure is inclusive of all costs and all interest and all subtractions and setoffs through October 7, 1985."
We initially address defendant's issue concerning the application of § 3145(1), which denies recovery of no-fault benefits for loss incurred more than one year before the action was filed. That issue was fully addressed in the prior appeal, wherein we held that this one-year back provision was tolled by defendant's failure to deny plaintiff's claim, and the law of the case doctrine precludes us from considering it again. See CAF Investment Co v Saginaw Twp, 410 Mich 428, 454; 302 NW2d 164 (1981). Defendant argues that the case is now controlled by the Supreme Court's decision in Welton, supra at 578-579, which held that tolling the one-year-back rule of § 3145(1) requires a specific *291 claim for no-fault benefits. We find Welton distinguishable from this case, as plaintiff did in fact make a specific claim for no-fault benefits.
We next address the setoff issue, which appears to be one of first impression. Section 3109(1) of the no-fault act provides:
Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury.
In a situation where a worker is injured in a motor vehicle accident in the course of his employment, workers' compensation benefits must be subtracted from the no-fault recovery. The purpose of § 3109(1) is to make the no-fault insurer only secondarily liable because no-fault insurance is compulsory. It is thus important that no-fault premiums be maintained as low as possible. This purpose is accomplished through the "elimination of duplicative benefits recovery." Gregory v Transamerica Ins Co, 425 Mich 625, 631-632; 391 NW2d 312 (1986).
It is thus clear that defendant is entitled to a setoff in this case. A reading of the dicta in Joiner to conclude otherwise is incorrect. Section 3109(1) provides no guidance, however, as to whether workers' compensation benefits are to be set off prior to the calculation of no-fault penalty interest.
Section 3142 provides:
(1) Personal protection insurance benefits are payable as loss accrues.
(2) Personal protection insurance benefits are overdue if not paid within 30 days after an insurer receives reasonable proof of the fact and of the *292 amount of loss sustained. If reasonable proof is not supplied as to the entire claim, the amount supported by reasonable proof is overdue if not paid within 30 days after the proof is received by the insurer. Any part of the remainder of the claim that is later supported by reasonable proof is overdue if not paid within 30 days after the proof is received by the insurer. For the purpose of calculating the extent to which benefits are overdue, payment shall be treated as made on the date a draft or other valid instrument was placed in the United States mail in a properly addressed, postpaid envelope, or, if not so posted, on the date of delivery.
(3) An overdue payment bears simple interest at the rate of 12% per annum.
The general rule for application of § 3142 holds that the interest provision is triggered when personal protection benefits become overdue, thirty days after the insurer receives reasonable proof of the claim. There is no qualification for the good faith with which the insurer denies liability. See Johnston v Detroit Automobile Inter-Ins Exchange, 124 Mich App 212, 216; 333 NW2d 517, lv den 417 Mich 1100.26 (1983).
In Cannell v Riverside Ins Co, 147 Mich App 699; 383 NW2d 89 (1985), the plaintiff was injured while driving her car home from a meeting. She settled her workers' compensation claim for $22,500, apparently before any hearing. Thereafter, the defendant refused to disburse further no-fault payments, asserting that the injuries were covered by workers' compensation and seeking setoff and reimbursement of her settlement. The plaintiff claimed that she was not entitled to workers' compensation and that the lump sum she received was thus a bonus. This Court found that a remand was necessary to determine whether the plaintiff was entitled to workers' compensation *293 benefits. If so, then this Court ordered the circuit court to grant the defendant a setoff for the entire amount the plaintiff would have received from workers' compensation. If the plaintiff's injury was not compensable, then the defendant could only set off the amount received for the same injury. 147 Mich App 704.
The Cannell Court apparently also determined that no-fault benefits were due the plaintiff. With regard to penalty interest, the Court held:
In the instant case plaintiff clearly would have been entitled to no-fault benefits as a result of her car accident. However, an issue had arisen regarding whether workers' compensation was liable for her injuries. Just because defendant may be entitled to reimbursement under MCL 500.3109; MSA 24.13109 is not a sufficient reason to withhold benefits. As the purpose of no-fault insurance is to pay insureds promptly for economic losses, Shavers v Attorney General, 65 Mich App 355; 237 NW2d 325 (1975), aff'd in part 402 Mich 554; 267 NW2d 72 (1978), it would defeat the purpose of no-fault insurance if we were to allow an insurance company to delay payments in its hope that it was entitled to reimbursement. Accordingly, we find defendant liable for penalty interest under MCL 500.3142; MSA 24.13142 and remand for a determination of the date when plaintiff was unreasonably denied benefits and the amount of the benefits. Interest should then run from 30 days after that date. [147 Mich App 706.]
Cannell does not expressly answer the question of when the setoff should be made and how long the no-fault penalty interest should continue to accrue. It is clear from Cannell, however, that no setoff could be made until it was finally determined to what amount of workers' compensation and no-fault benefits the plaintiff was entitled.
*294 Defendant's position in the workers' compensation case was apparently that plaintiff was not entitled to workers' compensation benefits. Joiner, supra at 468. That question was finally resolved on September 28, 1984, when the Supreme Court denied leave to appeal. Defendant's position with regard to no-fault benefits sought to avoid or limit any recovery by claiming untimely notice of the claim and application of the one-year-back rule. Those questions were resolved on June 10, 1985, when the Supreme Court denied leave to appeal in Joiner.[1]
Until these parallel litigation tracks were resolved, neither party knew what amount of workers' compensation or no-fault benefits defendant would be obligated to pay, or whether any setoff of no-fault benefits would be required or possible. Defendant presumably sought to avoid paying benefits for good faith reasons. Such was its right. We believe, however, that in doing so defendant took the risk that it would be ultimately liable for no-fault benefits plus interest. In Nash v Detroit Automobile Inter-Ins Exchange, 120 Mich App 568, 572; 327 NW2d 521 (1982), the insurer asserted that it was legally entitled to subtract Medicare benefits from its no-fault coverage, a position which proved to be unjustified, and the payments became overdue. In concluding that defendant owed plaintiff § 3142 interest, the Court held:
Interest is owing because the defendant's defense is not recognized by § 3142(2). The plaintiff's right to interest is not dependent upon the presence *295 or absence of the insurer's good faith in rejecting a claim. A carrier rejects a claim at its own risk. It will owe interest if its interpretation of the statute proves to be erroneous.
See also Manley v Detroit Automobile Inter-Ins Exchange, 127 Mich App 444, 460; 339 NW2d 205 (1983), rev'd on other grounds 425 Mich 140, 148 n 4; 388 NW2d 216 (1986).
Having lost its gamble, we believe defendant must now pay § 3142 interest up to the time plaintiff's entitlement to both workers' compensation and no-fault benefits became final. The § 3109 offset for workers' compensation benefits is to be applied to the amount of no-fault benefits, penalty interest, and judgment interest owing at that time, which under the facts of this case was June 10, 1985.
Our disposition of this issue renders moot plaintiff's cross-appeal issue asserting no right to setoff of the workers' compensation benefits. Plaintiff also seeks several corrections of the October 7, 1985, judgment for typographical and mathematical errors. As our holding will necessitate a modification and recalculation of the judgment, necessary corrections can be made at that time. If necessary, the parties should also address at that time the application of the holding in Gage v Ford Motor Co, 423 Mich 250; 377 NW2d 709 (1985), concerning calculation of judgment interest. Gage was decided on November 13, 1985, after entry of the judgment in this case.
Affirmed and remanded for modification of the judgment and further proceedings consistent with this opinion.
NOTES
[1] Defendant, however, has revived the one-year-back limitation issue in this appeal. Thus, it appears that plaintiff's entitlement to at least some of his no-fault benefits has only now been finally resolved, assuming the appellate process does not continue.
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Error: Couldn't open file '/var/www/court-listener/alert/assets/media/pdf/2009/08/05/Goodloe_v._USPS.pdf': No such file or directory.
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12 N.Y.3d 910 (2009)
In the Matter of ABDULLAH Y. SALAHUDDIN, Appellant,
v.
DONALD SELSKY, as Director of Special Housing/Inmate Disciplinary Programs, Respondent.
Court of Appeals of New York.
Submitted June 8, 2009.
Decided June 30, 2009.
Motion for reargument of motion for leave to appeal denied [see 12 NY3d 812 (2009)].
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Opinion issued July 17, 2003
In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-03-00695-CV
____________
IN RE LARRY LERMA, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator, Larry Lerma, filed a pro se petition for writ of mandamus,
requesting that this Court compel respondent, Honorable Thomas R. Culver, III, (1) to
rule on relator's motion for new trial filed in cause number 29,693A.
We deny the petition.
The issue is moot. According to relator's petition, the motion for new trial
was filed on December 16, 2002. It was therefore overruled by operation of law on
Monday, March 3, 2003, because the seventh-fifth day after sentencing was Saturday,
March 1, 2003. See Tex. R. App. P. 4.1(a), 21.8.
The petition for writ of mandamus is therefore denied as moot.
It is so ORDERED.
PER CURIAM
Panel consists of Justices Hedges, Nuchia, and Keyes.
1. Judge Culver is the presiding judge of the 240th District Court in Fort Bend
County.
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83 N.Y.2d 771 (1994)
632 N.E.2d 1270
610 N.Y.S.2d 947
The People of the State of New York, Respondent,
v.
Anthony Fratta, Appellant.
Court of Appeals of the State of New York.
Argued January 11, 1994.
Decided February 10, 1994.
Edward J. Nowak, Public Defender of Monroe County, Rochester (Janet C. Somes of counsel), for appellant.
Howard R. Relin, District Attorney of Monroe County, Rochester (Mark W. Pedersen of counsel), for respondent.
Chief Judge KAYE and Judges SIMONS, BELLACOSA, SMITH, LEVINE and CIPARICK concur; Judge TITONE taking no part.
*772MEMORANDUM.
The order of the Appellate Division should be affirmed.
Defendant alleges that, relying on the court reporter's certification that the transcript of each day's proceedings was a complete record of the machine shorthand notes, appellate counsel neglected to include in the filed brief a Batson issue that had been preserved in the voir dire minutes (see, Batson v Kentucky, 476 US 79). Apparently, as a matter of practice, voir dire minutes were not included as part of trial transcripts. Just after this Court's decision in People v Antommarchi (80 N.Y.2d 247), appellate counsel obtained permission to file supplemental briefs in this case and several other appeals pending in the Fourth Department in order to raise possible Antommarchi issues. After People v Mitchell (80 N.Y.2d 519), however, the Appellate Division denied defendant leave to file a supplemental brief, and reviewed and affirmed his conviction on the previously filed brief.
While defendant suggests a deprivation of due process and denial of equal protection, we conclude there was no error here, and that the Appellate Division acted within the proper exercise of its discretion to control its own calendar. The Batson issue could have been discovered and included in defendant's original brief. Nor did defendant's indigence affect his access to a complete transcript, as the minutes were transcribed upon his request.
Defendant's remaining contentions are similarly without merit. Even if ethnic groups are cognizable under Batson, an issue we need not reach, defendant failed to establish a prima facie case. Moreover, we cannot agree that defendant was deprived of his constitutional right to testify on his own behalf because he personally did not waive that right on the record.
Order affirmed in a memorandum.
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787 F.2d 439
40 Fair Empl.Prac.Cas. 726,39 Empl. Prac. Dec. P 36,075, 54 USLW 2510,31 Ed. Law Rep. 416
Charlotte THOMPKINS, Ida Walker, Appellant,v.STUTTGART SCHOOL DISTRICT # 22; Ken Alderson, Supt. of theStuttgart School District; Mary Stone; Thomas Hill; JamesMason; Charles E. Smith; Garland Hayes; Norris Ragan;Charles Day, in their official capacities as members of theBoard of Education in the Stuttgart School District, Appellees.
No. 85-1023.
United States Court of Appeals,Eighth Circuit.
Submitted Oct. 31, 1985.Decided March 31, 1986.
John Walker, Little Rock, Ark., for appellant.
Christopher Heller, Little Rock, Ark., for appellee.
Before ARNOLD, Circuit Judge, BRIGHT and HENLEY, Senior Circuit Judges.
HENLEY, Senior Circuit Judge.
1
Ida Walker appeals from the district court's dismissal of her pendent state claim. The Stuttgart School District School Board dismissed Walker, a nonprobationary teacher who had taught in the district for a long time. Walker filed suit in the district court raising a federal claim, that her dismissal was based on discriminatory reasons, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq. and 42 U.S.C. Sec. 1981 and Sec. 1983, and a pendent state claim, that her dismissal was not in compliance with the Teacher Fair Dismissal Act of 1979, Ark.Stat.Ann. Secs. 80-1264--1264.10 (Repl.1980) (repealed 1983).1
2
The district court found that her dismissal was based on legitimate, nondiscriminatory reasons. This finding has not been appealed. The district court then held that it had no jurisdiction to decide the pendent state law claim because the Teacher Fair Dismissal Act vested exclusive jurisdiction of an appeal from the decision of a school board in the state court. Walker appeals. She argues that the district court erred in dismissing the pendent claim because the state legislature cannot limit the pendent jurisdiction of the federal courts. We reverse and remand.
3
I. PENDENT JURISDICTION.
4
A. Judicial Power. The district court held that it had no jurisdiction to decide the pendent state law claim because the Teacher Fair Dismissal Act provides that "[t]he exclusive remedy for any person aggrieved by the decision of the school board shall be appealed [an appeal] therefrom to the circuit court of the county in which the school district is located...." Ark.Stat.Ann. Sec. 80-1264.9(b). The district court's decision appears to be based on the argument that if the state created a right, which would not otherwise exist, it could also limit the remedies. It held that the proposition that the laws of a state cannot enlarge or restrict the jurisdiction of the federal courts, see Markham v. City of Newport News, 292 F.2d 711, 716 (4th Cir.1961) (diversity case), did not control in this pendent jurisdiction dispute.
5
"[P]endent jurisdiction is a judge-made doctrine of expediency and efficiency derived from the general Art. III language conferring power to hear all 'cases' arising under federal law or between diverse parties." Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 919, 79 L.Ed.2d 67 (1984); see also United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). The right to assert jurisdiction over state claims through the doctrine of pendent jurisdiction is a law of the United States, and, as such, under the supremacy clause of the Constitution, Article VI, this law has precedence over any contrary state law.2 Once a district court has determined that under the laws of the United States it may assert pendent jurisdiction, any contrary state law which would deny that jurisdiction is ineffective. Wojciechowski v. Harriman, 607 F.Supp. 631, 634-35 (D.N.M.1985) (pendent jurisdiction is derived from the Constitution; therefore the supremacy clause prohibits a state from restricting a federal court's pendent jurisdiction); Gruss v. Curtis Publishing Co., 361 F.Supp. 58, 59 (S.D.N.Y.1973) (district court denied motion to dismiss pendent claim which argued that the federal court had no jurisdiction over the claim because state statute which created the right designated that exclusive jurisdiction was in the state court), later judgment on the merits was reversed in 534 F.2d 1396 (2d Cir.), cert. denied, 429 U.S. 887, 97 S.Ct. 240, 50 L.Ed.2d 168 (1976).
6
In determining its jurisdiction a federal court "must look to the sources of its power and not to acts of states which have no power to enlarge or to contract the federal jurisdiction." Markham, 292 F.2d at 713. The jurisdiction of the federal courts is limited by the provisions of Article III and by acts of Congress. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 372, 98 S.Ct. 2396, 2401-02, 57 L.Ed.2d 274 (1978); see also Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138 (guidelines for the exercise of pendent jurisdiction).
7
To allow a state legislature to limit the pendent jurisdiction of the federal courts would in many cases defeat the purpose of pendent jurisdiction; expediency, efficiency, and fairness to the parties, Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139. If a claimant cannot raise his pendent state issue in federal court he has a choice of either going through the expense and ordeal of two separate, but related, trials, or of bringing all of his claims in the state court. One choice denies efficiency and expediency, and the other is unfair because it discourages him from presenting his federal claims in federal court. If the federal claim must be brought in federal court, then the claimant would have no choice but to bring two separate suits to resolve his related claims.
8
B. Judicial Discretion Defendants, alternatively, urge us to affirm the district court on the basis that it would have been an abuse of discretion for the district court to hear the pendent claim. Defendants assert several arguments to support this theory.
9
Defendants argue that a district court should not entertain jurisdiction of a pendent state claim when the plaintiff files a Title VII claim and a Sec. 1981 claim. They argue that we should follow the decisions of various district courts which have held that pendent state claims can never attach to Title VII claims because the availability of only equitable relief,3 the requirement that the Title VII case be tried to the court, and the fact that the case is to be resolved as expeditiously as possible, indicate a congressional intent to preclude the attachment of pendent state claims. See, e.g., Frye v. Pioneer Logging Machinery, Inc., 555 F.Supp. 730, 733-34 (D.S.C.1983). Or, defendants argue, we should follow those district courts which have held that a court in its discretion should not hear the claims because there is a likelihood of jury confusion and that the state issue will predominate. See, e.g., Lazic v. University of Pennsylvania, 513 F.Supp. 761, 769-70 (E.D.Pa.1981).
10
If Walker had filed only a Title VII claim and a pendent state claim, the cases cited by defendants might be more persuasive. Her case, however, is distinguishable because she has also made a claim under Sec. 1981, and therefore she was entitled to a jury and arguably could have won compensatory and punitive damages as well as equitable relief. See Johnson v. Railway Express Agency, 421 U.S. 454, 460, 95 S.Ct. 1716, 1720, 44 L.Ed.2d 295 (1975). Most of the reasons mentioned in Frye and Lazic for dismissing the pendent claim are not applicable here. We hold that the district court properly could have exercised jurisdiction over a state claim pendent to the Sec. 1981 and Title VII claim.
11
We reject defendants' argument that it would have been an abuse of discretion for the district court to have heard the pendent state claim because the claim was separate and distinct from the federal claim. An integral part of Walker's discrimination claim was that she was not accorded the proper procedures for dismissal as outlined in the Teacher Fair Dismissal Act. Whether the school district failed to follow proper procedures and whether this failure was a result of discrimination are two related issues. It appears to us that on both issues many of the same witnesses would be testifying to the same facts. The state and federal claims derived from a common nucleus of operative fact, and the claims were such that they would ordinarily be tried in one judicial proceeding. See Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138.
12
Defendants also argue that the district court should not be permitted to hear pendent state claims regarding teacher dismissals because these claims are more appropriately left to the state courts. See Frison v. Franklin County Board of Education, 596 F.2d 1192, 1194 (4th Cir.1979) (district court should have declined pendent jurisdiction because it was essentially a petition for judicial review of a state administrative action rather than a distinct claim for relief); Coe v. Bogart, 519 F.2d 10, 13 (6th Cir.1975) (pendent claim under Tennessee Teacher Tenure Act is more appropriately decided by the state court); see also Burford v. Sun Oil Co., 319 U.S. 315, 317-18, 63 S.Ct. 1098, 1099, 87 L.Ed. 1424 (1943) (a federal court should decline to assert jurisdiction when it would be in the public's interest). We believe, however, that discretion to hear these types of pendent claims should be decided on a case-by-case basis. If the claims are sufficiently interrelated, as required by Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138, then the plaintiff should not be forced to sue in two different courts. See Birdwell v. Hazelwood School District, 491 F.2d 490, 495 (8th Cir.1974) (we held that district court properly concluded it had pendent jurisdiction over the teacher's state contract claim that his discharge was in violation of the Missouri teacher termination statute).
13
II. MERITS OF THE PENDENT CLAIM.
14
Walker was a nonprobationary teacher in the Stuttgart School District. For the 1980-81 school year she was placed on probation and was notified that she had to improve in certain areas in order to be rehired for the following year. In March, 1981, after parents had expressed concern that Walker was not an effective teacher, she was reassigned to another school.
15
The Stuttgart School Board decided on April 14, 1981 that it would not renew Walker's contract and notified Walker of its decision by a letter which was dated April 15, 1981. At the time this decision was made Walker had not received any written notice from the superintendent that he was going to recommend that her contract not be renewed, nor had any hearing been held. On May 22, 1981 Walker received a statement of the grounds for the superintendent's recommendation of non-renewal, and on July 7, 1981 a hearing was held. The Board notified Walker by letter dated July 15, 1981 that it had voted unanimously "to not renew your contract for the 1981/82 school year in accordance with the recommendation made by Mr. Ned Moseley, who was Superintendent of Schools during the 1980/81 contract year." Walker challenges the validity of the July decision.4
16
Walker argues that the School District did not substantially comply with the Teacher Fair Dismissal Act because the School Board made a decision before she was given proper notice and a hearing. Section 80-1264.3 provides that every teacher's contract will be renewed unless "the teacher is notified by the school superintendent that the superintendent is recommending that the teacher's contract not be renewed," and the notice of recommended nonrenewal is to include a statement of the reasons for nonrenewal. Under Sec. 80-1264.8 a teacher who has received this notice can request a hearing before the school board, and under Sec. 80-1264.9(a) at the conclusion of the hearing the school board is to take action on the superintendent's recommendation.
17
Defendants argue that the decision by the School Board on April 14 was only a tentative decision. They admit the statute was not technically complied with, but argue that the School Board was in substantial compliance with the statute because Walker was later given the required notice and a hearing, after which it reaffirmed its earlier decision.
18
Since the district court did not reach the merits of the pendent claim, we decline to decide it on the merits, but we make some observations. After the district court's decision, and after briefs were filed in this court, the Arkansas Supreme Court decided the case of Green Forest Public Schools v. Herrington, 287 Ark. 43, 696 S.W.2d 714 (1985). The district court will undoubtedly find Herrington helpful in resolving some of the pendent claims. Interestingly, Herrington did not overrule Lee v. Big Flat Public Schools, 280 Ark. 377, 658 S.W.2d 389 (1983), and other earlier school cases.
19
If the district court should find a violation occurred, it should then determine the appropriate relief. It was suggested by Walker's attorney during the oral argument that if the court finds that the statute was violated, then Walker should be entitled to reinstatement. Although we do not now decide this issue, we are inclined to believe Walker's argument is not free from doubt. The Arkansas courts have looked beyond the procedural violations to determine whether a teacher should be reinstated. If the dismissal was based on legitimate grounds, then reinstatement may not necessarily be ordered. Compare Herrington, 287 Ark. at 48, 696 S.W.2d at 717 (dismissal was arbitrary; reinstatement was ordered), with Maxwell v. Southside School District, 273 Ark. 89, 93, 618 S.W.2d 148, 150 (1981) (backpay was granted since hearing was not fair, but issue of reinstatement was remanded).
20
The district court has already found, and it cannot be disputed, that the Stuttgart School Board had a legitimate reason for not renewing Walker's contract; her ability and effectiveness as a teacher had deteriorated. Walker may be entitled to other relief, but the School Board may not necessarily be required to reinstate a teacher whom it has legitimately found was not competent for the job. Furthermore, the School Board appears to have done its best to rectify its mistake. We believe that if the district court finds that the second decision, made in July, was made de novo and in good faith, and was not merely a pro forma reaffirmance of the earlier decision, and that the hearing was fair, then it is possible that under state law the non-renewal can be upheld and Walker would not be entitled to backpay beyond the July decision.
21
Again, these remarks are only suggestions concerning some of the possible remedies available to Walker if the district court should find that proper notice was not given.
22
As indicated, the judgment is reversed and the case is remanded to the district court for further proceedings consistent with this opinion.
1
In the reply brief on appeal Walker asserts that she was denied procedural due process. This claim was not raised in the trial court, nor was it asserted in her opening brief. The two recent cases cited by Walker, Cleveland Board of Education v. Loudermill, --- U.S. ----, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), and Rogers v. Masem, 774 F.2d 328, 334 (8th Cir.1985), do not present justifiable reasons why we should consider a due process claim raised this late in the proceedings. Loudermill does not represent any significant change in the law regarding the establishment of a property interest in employment, and the argument raised in the Rogers case was not unique. By failing to timely assert the due process claim, Walker has waived it. Cato v. Collins, 539 F.2d 656, 662 (8th Cir.1976)
2
A state which creates a substantive right may require that certain administrative conditions be met before the right is enforced in court. In Hamilton v. Roth, 624 F.2d 1204, 1208-12 (3d Cir.1980), the court held that submission of a medical malpractice claim to an arbitration panel was a statutory prerequisite to bringing suit in either state or federal court, and thus the federal court had no subject matter jurisdiction of the claim until this prerequisite had been met. Id. at 1212. The dissent, however, argued that the arbitration panel was in essence a judicial entity and not an administrative agency, and therefore the federal court had jurisdiction over the pendent state law claim. Id. at 1213
3
Compensatory damages are not available under Title VII. Muldrew v. Anheuser-Busch, Inc., 728 F.2d 989, 992 n. 2 (8th Cir.1984)
4
Defendants argue that any claim attacking actions taken before July 15 (i.e., the April 14 meeting) is time barred because Ark.Stat.Ann. Sec. 80-1264.9 (Repl.1980) provides that an appeal from the decision of the school board must be made within thirty days. We do not believe attack on the April 14 decision is time barred. Within thirty days of that decision Walker requested a hearing regarding the non-renewal of her contract, and the School Board agreed to hold the hearing and reconsider its decision. This action effectively tolled the statute of limitations because the administrative process was not yet complete. If Walker had filed suit earlier, the court probably would have dismissed or abstained pending the final decision of the School Board
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452 F.2d 683
72-1 USTC P 12,818
Mrs. Daisy Miller Boyd BEL and Richard E. Gerard,Co-executors under the Last Will and Testament ofJohn Albert Bel, Deceased, et al.,Plaintiffs-Appellants-Cross-Appellees,v.The UNITED STATES of America, Defendants-Appellees-Cross-Appellants.
No. 71-1232.
United States Court of Appeals,Fifth Circuit.
Dec. 9, 1971.
Richard E. Gerard, Lake Charles, La., Leon J. Reymond, Jr., New Orleans, La., for appellants.
Charles G. Barnett, Tax Division, Dept. of Justice, Fort Worth, Tex., Fred B. Ugast, Asst. Atty. Gen., Meyer Rothwacks, Atty., Tax Division, Dept. of Justice, Washington, D. C., Donald L. Walter, U. S. Atty., Shreveport, La., Michael L. Paup, Atty., Dept. of Justice, Tax Division, Washington, D. C., for appellees.
Before GEWIN, GOLDBERG, and DYER, Circuit Judges.
GOLDBERG, Circuit Judge:
1
In this estate tax case we are confronted with three issues, one of which concerns the quantum of inclusion in the decedent's taxable estate of an accidental death policy inceptively procured within three years of the decedent's death. We deem this issue to be of transcendent importance. While the other two problems, which involve the interrelationship of the estate tax marital deduction with Louisiana's forced heirship laws and estate tax apportionment statute, do have substantial impact upon the taxpayers, they are of lesser jurisprudential significance. We first turn to the Goliath of the triad.
I. Accidental Death Policy
2
Commencing in October of 1957, the decedent, John Albert Bel, purchased annually an accidental death policy on his own life in the principal amount of $250,000. Each policy covered a term of one year, and the last such policy was acquired in October of 1960, less than one year prior to the decedent's death. While the decedent himself executed the original insurance application and paid, with community funds, all of the premiums, the policies from their inception were owned solely by the decedent's three children. The October 1960 policy matured as a result of the decedent's accidental death, and his three children, as beneficiaries under the policy, received the $250,000 proceeds. Plaintiffs Mrs. Daisy Miller Boyd Bel and Richard E. Gerard, as executors of the decedent's estate, duly filed an estate tax return, in which they omitted from the decedent's gross estate an amount equal to John Bel's community share of the policy proceeds. The Commissioner of Internal Revenue thereafter assessed a deficiency, which resulted in part from a determination that the accidental death policy had been transferred by the decedent to his children in contemplation of death. The plaintiffs paid the deficiency, filed a claim for refund, and then instituted this suit.
3
With respect to the accidental death policy, the district court held (1) that the taxpayers failed to discharge their statutory burden of proving that the decedent's purchase of the policy was not a transfer in contemplation of death within the meaning of 26 U.S.C.A. Sec. 2035, and (2) that the amount includable in the decedent's gross estate as a result of this transfer in contemplation of death was the purchase price of the policy (premiums paid), rather than its matured value at the time of decedent's death (insurance proceeds). 310 F.Supp. 1189. On appeal, the taxpayers assert that the former holding of the district court is erroneous, while the government contends that it is the latter ruling that is incorrect as a matter of law. We affirm the district court's conclusion that the decedent's purchase of the accidental death policy was a transfer in contemplation of death, but we reverse its holding that only the policy premiums are includable in the decedent's gross estate.
4
Section 2035(a) of the Internal Revenue Code of 1954 requires that a decedent's gross estate shall include the value of any property which the decedent at any time transferred in contemplation of death. 26 U.S.C.A. Sec. 2035(a). Appendant to this general principle is the statutory presumption of Section 2035(b), which provides that "[i]f the decedent within a period of 3 years ending with the date of his death . . . transferred an interest in property, . . . such transfer, . . . shall, unless shown to the contrary, be deemed to have been made in contemplation of death within the meaning of this section . . ." 26 U.S.C.A. Sec. 2035(b). The underlying purpose of section 2035 is to prevent evasion of the federal estate tax by excising those transfers of a decedent which are essentially substitutes for testamentary dispositions. United States v. Wells, 1931, 283 U.S. 102, 116-117, 51 S.Ct. 446, 75 L.Ed. 867. Accordingly, the presumption embodied in section 2035(b) is rebuttable, for if a taxpayer can demonstrate that a donation made within the three-year period was not a substitute for a testamentary disposition, then the dominant purpose of section 2035 is not served by taxing such a transfer. Therefore, in every instance in which a transfer is effectuated within the statutory period, the crucial inquiry is whether or not the donation represents a testamentary substitute, or in statutory terminology, whether or not the transfer was made "in contemplation of death."
5
The phrase "in contemplation of death" does not encompass the general expectation of death which all mortals entertain. Rather, the Supreme Court has held that a transfer is made in contemplation of death only if the thought of death is the impelling cause of the transfer. Allen v. Trust Co. of Georgia, 1946, 326 U.S. 630, 635, 66 S.Ct. 389, 90 L.Ed. 367. Of course, the statutory presumption casts upon the taxpayer the burden of proof as to the dominant, controlling, and impelling motive of the decedent in making a transfer. This means that the taxpayer has the task of persuading a court that in transferring property the decedent was not motivated by purposes associated with the distribution of property in anticipation of death. Fatter v. Usry, E.D.La.1967, 269 F.Supp. 582. And, of course, whether or not any particular purpose was "the dominant, controlling or impelling motive is a question of fact in each case." Allen v. Trust Co. of Georgia, supra, 326 U.S. at 636, 66 S.Ct. at 392.
6
In assessing the determination of the court below, we first note that our scope of review is circumscribed by the "clearly erroneous" standard of Rule 52(a). The district court found that the taxpayers herein failed to show by a preponderance of the evidence that the decedent's dominant motive in transferring the accidental death policy was not the thought of death. The record reveals that the plaintiffs introduced evidence tending to show that the decedent had established a policy of making gifts to his children during his lifetime, and that the purchase of the accidental death policy merely represented a continuation of this appanage. It is true that a transfer will not be considered in contemplation of death if a decedent's motive for the transfer was to fulfill a plan to distribute his property during his lifetime. United States v. Wells, supra; Landorf v. United States, 187 Ct.Cl. 99, 408 F.2d 461, 1969. Plaintiffs contend that they have shown the decedent's long-established policy of providing for his progeny and that the challenged transfer was merely a continuation of that policy. Therefore, they assert that the district judge's factual determination is clearly erroneous. But in addition to showing the decedent's history of generosity, the taxpayers introduced a considerable amount of evidence tending to show that the decedent's purpose in effectuating the challenged transfer was to avoid estate taxes. Indeed, the decedent's wife, his bookkeeper, and his secretary all testified that the decedent's reason for placing title to the accidental death policy in his children was to "get the proceeds out of his estate."
7
A transfer is in contemplation of death when made with the dominant purpose of avoiding death taxes. Allen v. Trust Co. of Georgia, supra, 26 C.F.R. Sec. 20.2035-1(c). As noted above, the district court found, in effect, that the decedent's purchase of the accidental death policy was death-motivated. When confronted with the record testimony concerning the decedent's desire to avoid estate taxes, we can only conclude that the trial judge was not clearly erroneous in his assessment of the decedent's dominant motive. While the only certainties in life might be death and taxes, the tax reaper cuts his swath within section 2035 when the conjunction of these certitudes has a contrived rather than an aleatory positivism. The trial court found such predesigned positivity, and we have no warrant either in fact or in law to veto this finding. The trial judge had before him the entire panoply of a life, complete with its familial ties and relationships. We agree with the taxpayers' assertion that a decedent's kindness, love, thoughtfulness, and planning are all matters to be considered in determining whether or not a gift was made in contemplation of death. But, absent an evidential vacuum or clear error, the final judgment as to motivation must come from the judicial gridiron, and not from armchair quarterbacks' reading of the game in Sunday's paper. Therefore, we affirm district court's holding that the decedent's purchase of the accidental death policy was a transfer made in contemplation of death.
8
In determining what the decedent had transferred to his children as a result of his purchase of the accidental death policy, the district court concluded that only the dollar amount of the policy premiums was includable in the decedent's gross estate. In disposing of this issue the district court relied entirely upon the Tax Court case of Estate of Coleman v. Commissioner, 1969, 52 T.C. 921. In Coleman the decedent's children purchased, more than four years prior to the decedent's death, a life insurance policy on her life. The children were the record owners and beneficiaries of the policy, but the decedent paid all of the premiums. While the taxpayers and the Commissioner agreed that approximately one-third of the policy premiums had been paid in contemplation of death, the government, on the basis of Revenue Ruling 67-463, 1967, 2 Cum.Bull. 327, contended that the amount to be included in the decedent's gross estate was a pro rata portion of the policy proceeds based on the amount of premiums that the decedent had transferred in contemplation of death.1 The Tax Court rejected this argument. The Court noted that prior to a 1954 amendment, the Internal Revenue Code provided that proceeds of an insurance policy on the life of a decedent which were receivable by beneficiaries other than the decedent's executor were includable in the decedent's gross estate in the proportion that the amount of premiums or other consideration paid directly or indirectly by the decedent bore to the total amount of the premiums paid for the insurance. In 1954 Congress altered the taxability of life insurance by providing in 26 U.S.C.A. Sec. 2042 that includability of the proceeds of life insurance in a decedent's gross estate depends solely upon the decedent's retention of incidents of ownership in the policy. The congressional rejection of the premium-payment test persuaded a majority of the Tax Court in Estate of Coleman to conclude that a mere payment of premiums by a decedent could not operate as a transfer of an interest in the proceeds of insurance. In addition, the Tax Court stated:
9
"The purpose of section 2035 is to prevent the avoidance of estate tax through the use of gifts as a substitute for testamentary disposition of what would otherwise be included in the gross estate. Milliken v. United States, 283 U.S. 15, 51 S.Ct. 324, 75 L.Ed. 809 (1931); see Liebman v. Hassett, 148 F.2d at 251. The focus, therefore, must be on what the decedent parted with as a result of her payment of the premiums in contemplation of death. Decedent held no interest whatsoever in the policy or its proceeds. Her children were the sole owners of the policy and only they could deal with rights and benefits flowing therefrom. To be sure, these payments kept the economic substance of that ownership alive. But the decisive point is that what these payments created or maintained was theirs and not hers. In these circumstances, we can see no basis for concluding that there was a constructive transfer of an interest in the policy. The only thing diverted from her estate was the actual money paid."
10
52 T.C. at 923.
11
In the instant case the district court concluded that the Tax Court's rejection of Revenue Ruling 67-463 in Estate of Coleman was controlling on the issue of whether or not any of the proceeds of the accidental death policy should be included in the decedent's gross estate. Furthermore, as an independent basis for its decision the court below quoted the above language from the Coleman case. On appeal the government asserts that the facts in Coleman are clearly distinguishable from those in the present case and that the Tax Court decision should not be considered controlling. The taxpayers, however contend that the uniform rejection of Revenue Ruling 67-463 by the judiciary dictates affirmance of the district court's holding on this matter.2 For a variety of reasons we are unable to agree with taxpayers' position.
12
In arguing that this court should affirm the lower court's ruling that no part of the insurance proceeds is includable in decedent's gross estate, the taxpayers would have us apply a section of the Code dealing with lemons (section 2042), to one pertaining to oranges (section 2035). Section 2042, which deals strictly with life insurance, provides, inter alia, that a decedent's gross estate shall include the value of the proceeds of life insurance policies on which the decedent possessed at his death any of the incidents of ownership. However, section 2035 provides that all property which is transferred in contemplation of death is includable in a decedent's gross estate. We do not think that these two code provisions were designed or conceived to be read in pari materia. They came into being at different times, their respective targets were diverse, and we perceive no philosophic confluence to twin them. Therefore, we conclude that congressional rejection of the premium-payment test for purposes of section 2042 is foreign to the proper application of section 2035 to the instant case.
13
More importantly, however, we think that the district court erred in failing to recognize the fundamental factual differences between the case sub judice and Estate of Coleman v. Commissioner, supra. In Coleman the premium payments were made on a policy that was brought into existence more than three years prior to the decedent's death. Thus, the original contractual rights and ownership of the policy in Coleman were created outside the presumptive period, and, as the Tax Court noted, those premiums paid in contemplation of death served only to keep "the economic substance of that ownership alive." In the instant case, however, the premium paid by the decedent less than one year prior to his death engendered the entire right, title, and interest which the decedent's children had in the accidental death policy. Essentially, every stick in the bundle of rights constituting the policy and its proceeds had its genesis within three years of the decedent's death. Therefore, we conclude that the Tax Court's rejection of the premiumpayment test as the measurement of what the decedent transferred in contemplation of death is inapplicable to the factual situation in the instant case.3
14
Finally, we, unlike the district court, are not convinced that judicial inquiry should focus on what the decedent "parted with" as a result of his purchase of the accidental death policy in contemplation of death. As noted above, the Tax Court in Coleman reasoned that only the value of the premiums should be included in the donor's estate because "[t]he only thing diverted from [the] estate was the actual money paid." The district court adopted this "diversion" principle, since it concluded that the decedent's estate was reduced only by the dollar amount of the policy premiums. However, we decline to follow the Coleman standard in this case.
15
In Chase National Bank v. United States, 1929, 278 U.S. 327, 49 S.Ct. 126, 73 L.Ed. 405, the Supreme Court upheld the constitutionality of the estate tax imposed by Secs. 401 and 402(f) of the Revenue Act of 1921, ch. 136, Secs. 401, 402(f), 42 Stat. 277, 278. The Court concluded that the Act imposed a tax on a decedent's privilege of transferring property at his death and thus was not invalid because not apportioned as required by art. 1, Secs. 2, 9, of the United States Constitution. The plaintiffs in Chase, however, asserted that the tax imposed on life insurance proceeds must be deemed to be a direct tax on property because there was nothing to which a transfer or privilege tax could apply, since the beneficiaries' interests in the policies were not transferred to them from the decedent, but rather from the insurer. In answering this contention, the Supreme Court stated:
16
"Obviously, the word 'transfer' in the statute, or the privilege which may constitutionally be taxed, cannot be taken in such a restricted sense as to refer only to the passing of particular items of property directly from the decedent to the transferee. It must, we think, at least include the transfer of property procured through expenditures by the decedent with the purpose, effected at his death, of having it pass to another. Sec. 402(c) taxes transfers made in contemplation of death. It would not, we assume, be seriously argued that its provisions could be evaded by the purchase by a decedent from a third person of property, a savings bank book for example, and its delivery by the seller directly to the intended beneficiary on the purchaser's death, or that the measure of the tax would be the cost and not the value or proceeds at the time of death."
17
278 U.S. at 337, 49 S.Ct. at 128.
18
We are cognizant of the decision in Gorman v. United States, E.D. Mich.1968, 288 F.Supp. 225, wherein a federal district court, in a factual setting indistinguishable from the case before this court, gave the Supreme Court's dictum short shrift in concluding that only the value of the premiums paid by the decedent are includable in his gross estate. The court in Gorman viewed the problem primarily as one of applicability of the premium-payment test in valuating the property transferred. Within this limited context the Gorman court concluded that the Supreme Court in Chase had never considered the relationship between premiums and proceeds, and therefore held the Chase language inapposite. Accordingly, the district court in Gorman held that, for purposes of section 2035, the only asset transferred by the decedent in contemplation of death was the policy premium. We think that this result is an impermissibly restrictive interpretation of the term "transfer," for it essentially subverts the underlying purpose of section 2035.
19
In our opinion the broad legal principle enunciated by the Supreme Court in Chase is that the word "transfer" is not limited to the passing of property directly from the donor to the transferee, but encompasses a donation "procured through expenditures by the decedent with the purpose, effected at his death, of having it pass to another." Like the Supreme Court, we perceive little seriousness in the argument that a decedent should be permitted to evade the provisions of section 2035 by funneling property to various beneficiaries through a third-party conduit. Judicial sanctioning of such evasion, we think, would so frustrate the attempted taxation of testamentary substitutes that section 2035 would stand emaciated and skeletonized beyond congressional recognition. We recognize, of course, that John Bel never formally possessed any of the incidents of ownership in the accidental death policy. As noted above, however, we conclude that section 2042 and the incidents-of-ownership test are totally irrelevant to a proper application of section 2035. We think our focus should be on the control beam of the word "transfer." The decedent, and the decedent alone, beamed the accidental death policy at his children, for by paying the premium he designated ownership of the policy and created in his children all of the contractual rights to the insurance benefits. These were acts of transfer. The policy was not procured and ownership designated and designed by some goblin or hovering spirit. Without John Bel's conception, guidance, and payment, the proceeds of the policy in the context of this case would not have been the children's. His actions were not ethereally, spiritually, or occultly actuated. Rather, they constituted worldly acts which by any other name come out as a "transfer." Had the decedent, within three years of his death, procured the policy in his own name and immediately thereafter assigned all ownership rights to his children, there is no question but that the policy proceeds would have been included in his estate. In our opinion the decedent's mode of execution is functionally indistinguishable. Therefore, we hold that the action of the decedent constituted a "transfer" of the accidental death policy within the meaning of section 2035, and that the district court erred in failing to include John Bel's community share of the proceed value of the policy in his gross estate.
II. The Compromise Agreement
20
Having disposed of the controversy concerning the decedent's non-testamentary donation, we now direct our attention to one of the parties' disputes involving his testamenary dispositions. In his last will and testament the decedent bequeathed to his widow one-half of his separate property and the usufruct of his share of the community property. The remainder of his estate was left in trust for the benefit of his three children. Under Louisiana's forced heirship laws the decedent's disposable estate was limited to one-third of his property.4 Since the decedent attempted to dispose of more than onethird of his total estate, his three children, with forced heirship rights to twothirds of his estate, possessed the indefeasible right to reduce the decedent's bequest to his widow. In lieu of exercising their legitime, however, the children entered into a Notarial Act of Compromise, in which they agreed to "waive and renounce any right which they have or may appear to have to contest or oppose the bequest made by John Albert Bel to Daisy B. Bel. . . ." In the estate tax return the plaintiffs claimed a marital deduction equal to one-half the value of decedent's adjusted gross estate. In his deficiency notice the Commissioner reduced the marital deduction to the net disposable portion of the estate available to the decedent under the laws of Louisiana. The district court agreed with the government and held that only the value of the property which the decedent was permitted by Louisiana law to leave to his widow qualified for the marital deduction under section 2056. The district court noted that the taxpayers were entitled to a marital deduction in an amount equal to the value of property "which passes or has passed from the decedent to his surviving spouse." 26 U.S.C.A. Sec. 2056(a). In determining that only one-third of the decedent's estate had "passed" to the surviving spouse, the district court relied upon the disclaimer provision in effect at the time of the decedent's death. That provision provided:
21
"If under this subsection an interest would, in the absence of a disclaimer by any person other than the surviving spouse, be considered as passing from the decedent to such person, and if a disclaimer of such interest is made by such person and as a result of such disclaimer the surviving spouse is entitled to receive such interest, then such interest shall, for the purposes of this subsection, be considered as passing, not to the surviving spouse, but to the person who made the disclaimer, in the same manner as if the disclaimer had not been made."
22
Revenue Act of 1948, c. 168, Title III, Sec. 361(a), 62 Stat. 117.5 Essentially, the district court reasoned that the decedent's three children, as forced heirs, were vested at the instant of the decedent's death with the right to receive their legitime, and that this legitime was inherited from the decedent within the meaning of section 2056(e) (2). Furthermore, the district court concluded that since the children, by means of the Notarial Act of Compromise, disclaimed their legitime in favor of their mother, the above disclaimer provision limited the estate to a marital deduction in an amount equal to that portion of the decedent's property which was immune from the children's claim as forced heirs. While we are in complete agreement with the district court's holding that the forced heirs' legitime was an interest inherited by the children from the decedent within the purview of section 2056(e) (2), we cannot accede to the application of the disclaimer provision in this case.
23
In our opinion the decedent's children did not "disclaim" any interest in their father's estate by virtue of the Notarial Act of Compromise. Given its ordinary and commonly understood meaning, the word "disclaimer" has been defined as:
24
"* * * the repudiation or renunciation of a claim or power invested in a person for which he formally alleged to be his. The refusal, or rejection of an estate or right offered to a person. The disavowal, denial, or renunciation of an interest, right, or property imputed to a person or alleged to be his."
25
City Nat'l Bank & Trust Co. v. United States, S.D. Ohio 1962, 203 F.Supp. 398, 402 aff'd, 6 Cir., 312 F.2d 118, cert. denied, 1963, 373 U.S. 949, 83 S.Ct. 1679, 10 L.Ed.2d 705. In our opinion a disclaimer, which contemplates a unilateral act, is the antonym of a quid pro quo. In a supplementary Senate Report on the Revenue Act of 1948 the Senate Committee on Finance defined disclaimer as an unqualified refusal to accept the rights to which one is entitled and noted that "[i]f a person uses these rights for his own purposes as by receiving a consideration for his formal disclaimer he has not refused the right to which he was entitled." 2 U.S.Code Cong. Service, p. 1226 (1948). Accordingly, a person does not disclaim his rights when he refuses to exercise them for the purpose of serving his own interests.
26
In the instant case the decedent's children in the Notarial Act of Compromise were not engaged in the solo performance characteristic of a disclaimer, but rather in a play in which their mother was assigned a leading role. By the express terms of the agreement, the children agreed to renounce their forced heirship rights in exchange for the widow's surrendering her cash usufruct and the proceeds on production accruing to the decedent's one-half community share of mineral royalty interests. We believe that this bilateralism between the widow and her children negates the existence of a disclaimer of the children's forced heirship rights. Since the decedent's children received a consideration for their refusal to exercise their rights, we conclude that the disclaimer provision applied by the court below is inapplicable to the Notarial Act of Compromise.
27
Our conclusion that the disclaimer provision is irrelevant does not necessarily mean that the taxpayers merit a marital deduction in the claimed amount. In fact, on the basis of the record before us we are unable to determine the precise amount to which the plaintiffs are entitled. Our inability stems not from any uncertainty as to the legal principles that should be applied, but rather from an absence of relevant factual determinations by the district court.
28
As previously noted, we agree with the district court's holding that the children's forced heirship rights constituted an interest inherited by them from the decedent under the provisions of section 2056(e) (2) of the Code. Without more the very existence of the children's forced heirship rights would prohibit the taxpayers from claiming a marital deduction in an amount greater than the value of the decedent's net disposable estate. See 26 U.S.C.A. Sec. 2056(b) (1) (A). However, under section 2056(e) property interests can be considered as passing or having passed to a decedent's surviving spouse, under the terms of the following regulation:
29
"If as a result of the controversy involving the decedent's will, or involving any bequest or devise thereunder, a property interest is assigned or surrendered to the surviving spouse, the interest so acquired will be regarded as having "passed from the decedent to his surviving spouse" only if the assignment or surrender was a bona fide recognition of enforceable rights of the surviving spouse in the decedent's estate. Such a bona fide recognition will be presumed where the assignment or surrender was pursuant to a decision of a local court upon the merits in an adversary proceeding following a genuine and active contest. However, such a decree will be accepted only to the extent that the court passed upon the facts upon which deductibility of the property interests depends. If the assignment or surrender was pursuant to a decree rendered by consent, or pursuant to an agreement not to contest the will or not to probate the will, it will not necessarily be accepted as a bona fide evaluation of the rights of the spouse."
30
26 C.F.R. Sec. 2056(e)-2(d) (2). In this case we are unable to conclude as a matter of law that the Notarial Act of Compromise, which is essentially a settlement agreement, was consummated as a result of a "controversy" between the widow and her children. We have held that parties' adverse interests in a decedent's estate and a resulting settlement achieved at the conclusion of arm's length negotiations are sufficient to evidence the existence of a "controversy" within the meaning of the above regulation. Citizens & Southern National Bank v. United States, 5 Cir. [451 F.2d 221, 1971]. In Citizens & Southern we stated that the "will controversy" regulation does not "encompass[es] only those settlements achieved at the end of an armageddon." Id. at 226. But by the same token we think that, for purposes of the regulation, there must be at least a skirmish between the settling parties. The record in this case contains some evidence tending to show that the respective parties to the settlement agreement were not playing adversary roles and that the compromise was not achieved as a result of arm's length negotiations. Since we cannot determine whether true adversary positions were taken by the parties or whether the settlement was nothing more than a "sweetheart" contract, we must remand this issue to the district court for a finding on whether or not a genuine "controversy" existed between the parties. If, upon remand, the district judge finds that the settlement agreement was generated by a bona fide controversy, then he must also determine as a factual matter whether or not the children's surrender of their forced heirship rights "was a bona fide recognition of enforceable rights of the surviving spouse in the decedent's estate" in terms of the regulation. See Estate of Barrett v. Commissioner, 1954, 22 T.Ct. 606. Of course, we leave to the sole discretion of the district judge whether or not to confine his inquiry to the existing record.
31
III. The Louisiana Estate Tax Apportionment Statute
32
The third and final issue in this tax appeal involves the interrelationship among the estate tax marital deduction, the Louisiana Estate Tax Apportionment statute, 3A La.Rev.Stat.Ann. Sec. 9:2432, subd. B (1965), and Louisiana's forced heirship laws. The decedent provided in his will that the residue of his estate, which was left in trust to his three children, should bear the total federal estate tax due on his estate. In his deficiency notice to the taxpayers, the Commissioner allocated a portion of the estate tax against both the children's inheritance and the amount which the Commissioner determined qualified for a marital deduction. The taxpayers raised the issue concerning the application of the estate tax apportionment statute for the first time in their motion for entry of judgment filed subsequent to the district court's rendering a decision on the other issues and after the taxpayers and the government were unable to agree upon a computation for judgment. Essentially, the taxpayers argued that the Commissioner's allocation of the federal estate tax was in violation of the Louisiana Estate Tax Apportionment statute, which states in part that if a deceased provides in his will "for the apportionment of the tax among all the persons interested in the estate, the court shall apportion the tax as directed by the deceased." 3A La.Rev.Stat.Ann. Sec. 9:2432, subd. B (1965). After the taxpayers' motion for judgment was filed the government objected to the trial court's consideration of the Commissioner's allocation of the federal estate tax, asserting that the taxpayers' failure to raise that issue in their original claim for refund foreclosed judicial determination of the matter in a later refund suit. In the alternative, the government argued that application of the estate tax apportionment statute in the instant case would operate to defeat the legitime rights of the decedent's children in violation of Louisana's forced heirship laws. The district court held that the plaintiffs were precluded from raising the issue concerning the Commissioner's allocation of the federal estate tax, and that even if they were not so precluded, the estate tax apportionment statute could not be applied in the instant case in violation of Louisiana's forced heirship provisions. We agree with the court below that plaintiffs are precluded by statute from raising this issue in their suit for refund without first presenting it to the Commissioner in their claim for refund. Accordingly, we express no opinion on the merits of taxpayers' claim.
33
Section 7422(a) of the Internal Revenue Code of 1954 provides:
34
"No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary or his delegate, according to the provisions of law in that regard, and the regulations of the Secretary or his delegate established in pursuance thereof."
35
26 U.S.C.A. Sec. 7422(a). The regulations enacted pursuant to this statutory provision state that no refund will be allowed except upon one or more of the grounds set forth in a timely filed claim, and that any such claim "must set forth in detail each ground upon which a credit or refund is claimed and facts sufficient to apprise the Commissioner of the exact basis thereof." 26 C.F.R. Sec. 301.6402-2(b) (1). In Tucker v. Alexander, 1927, 275 U.S. 228, 48 S.Ct. 45, 72 L.Ed. 253, the Supreme Court stated that the government may insist upon literal compliance with the statute and the regulations. In this case we do not think that the taxpayers in their claim for refund properly raised the issue concerning the Commissioner's apportionment of the federal estate tax.
36
With respect to the Commissioner's computation of the marital deduction, the taxpayers in their claim for refund stated:
37
"Claimants contend that the adjustment made by the examiner is erroneous in that the full marital deduction of $1,088,990.32 (being one-half of the decedent's adjusted gross estate) should be allowed under the last will and testament of the decedent, which bequeathed to his surviving spouse 1/2 of decedent's separate property, instead of $917,639.38 (being the net disposable portion as calculated by the examiner plus insurance of $284,636.16 to surviving wife). The fact that decedent's children had the right to reduce this bequest to the net disposable portion is of no consequence because the children did not in fact assert their legitime. A bequest in excess of the legitime is not null, but only reducible by the forced heirs of their option (Louisiana Civil Code Articles 1502 et seq.), and the right to assert the legitime is personal to the forced heir. Alternatively, claimants contend that the interest received by the surviving spouse should be reduced only by ($8,510.43) the value of the property interest surrendered by her in settlement of the respective rights of the legatee and the forced heirs. Regulation Section 20.2056(e)-2(d) (1)."
38
In our opinion this portion of the claim, fairly read, does not raise the issue concerning apportionment of the federal estate tax. Essentially, the Commissioner's apportionment of the estate tax operated to reduce the decedent's net disposable estate. In their claim for refund we do not understand the taxpayers to be contending that the Commissioner incorrectly determined the decedent's net disposable estate, but only that the marital deduction should not be limited to the decedent's disposable portion. We think that raising the issue as to whether or not the marital deduction should be limited to the decedent's disposable estate does not constitute a challenge to the correctness of the Commissioner's computation of the amount of that estate. Cf. Alabama By-Products Corp. v. Patterson, 5 Cir. 1958, 258 F.2d 892, cert. denied, 1959, 358 U.S. 930, 79 S.Ct. 318, 3 L.Ed.2d 303. Moreover, if plaintiffs, by virtue of the above claim, intended to challenge the Commissioner's allocation of the estate tax, then we think that they failed to state facts sufficient to apprise the Commissioner of the exact basis of this claim, since the quoted portion contains no mention whatsoever as to apportionment of the estate tax in general or the application of the Louisiana Estate Tax Apportionment statute in particular. Finally, we do not think that the taxpayers ever intended to raise the estate tax apportionment issue in their claim for refund, for not only did the plaintiffs fail to include such issue in their complaint, but they did not raise the issue until subsequent to the district court's determination of all other issues and only after the taxpayers and government had reached an impasse in the computation of the judgment. Under these circumstances we conclude that the district court was correct in dismissing the taxpayers' claim concerning the Commissioner's apportionment of the federal estate tax, and that that portion of its judgment is accordingly affirmed.
39
For the foregoing reasons, the case is remanded to the district court for further proceedings not inconsistent with this opinion.
40
Affirmed in part and remanded in part.
1
Revenue Ruling 67-463, 1967, 2 Cum. Bull. 327, provides in part:
"In view of the foregoing, it is concluded that where a decedent, within three years of the date of death and in contemplation of death, made premium payments on a policy of insurance on his life, the incidents of ownership in which were transferred more than three years prior to his death, such payment was a transfer of an interest in the policy measured by the proportion the amount of premiums so paid bears to the total amount of premiums paid. Accordingly, the value of that proportion of the amount receivable as insurance that the premiums paid within three years of death bear to the total premiums paid is includible in the decedent-insured's gross estate under the provisions of section 2035 of the Code."
2
Revenue Ruling 67-463 has also been rejected in First National Bank of Midland v. United States, 5 Cir. 1970, 423 F.2d 1286, and in Gorman v. United States, E.D.Mich.1968, 288 F.Supp. 225. The Fifth Circuit case is distinguishable on its facts from the case under consideration. See note 3 infra
3
Similarly, we conclude that First National Bank of Midland v. United States, 5 Cir. 1970, 423 F.2d 1286, wherein this court rejected Revenue Ruling 67-423 in a factual context essentially identical to the situation in Coleman, is inapposite because of factual differences with our case. There, as in the Coleman case, the insurance policy had been procured more than three years prior to the decedent's death
4
La.Civ.Code Ann. art. 1493 (1952) provides in part:
"Donations inter vivos or mortis causa can not exceed two-thirds of the property of the disposer, if he leaves, at his decease, a legitimate child; one-half, if he leaves two children; and one-third, if he leaves three or a greater number."
5
In 1966 the provisions of section 2056(d) (2) of the Internal Revenue Code of 1954 were amended to provide that if an interest passes to a surviving spouse as a result of a disclaimer, then, for purposes of the marital deduction, the interest shall be considered as passing from the decedent to the surviving spouse if the disclaimer is made before the date prescribed for filing the estate tax return and if the person making the disclaimer does not accept any interest in the property before disclaiming. Act of October 4, 1966, Pub.L. No. 89-621, Sec. 1 (a), 80 Stat. 872
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513 F.2d 635
U. S.v.Shumar
73-1577
UNITED STATES COURT OF APPEALS Seventh Circuit
4/11/75
1
S.D.Ind.
AFFIRMED
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598 S.E.2d 672 (2004)
STATE of North Carolina
v.
David Michael McQUEEN.
No. COA03-1251.
Court of Appeals of North Carolina.
July 20, 2004.
*674 Attorney General Roy Cooper, by Assistant Attorney General J. Douglas Hill, for the State.
William D. Spence Kinston, for defendant appellant.
WYNN, Judge.
Defendant David Michael McQueen appeals from judgment of the trial court entered upon a jury verdict finding him guilty of felonious possession of stolen goods, and upon his plea of no contest to habitual felon status. Defendant argues the trial court erred in denying his motions for a mistrial and to dismiss the charges against him. Defendant further contends the trial court improperly sentenced him for felonious possession of stolen goods and habitual felon status. For the reasons hereafter stated, we find no error by the trial court.
The State presented evidence at trial tending to show the following: Alfred Mott testified he owned a storage shed located on Mott Town Road in Atkinson, North Carolina, in which he stored an electric generator. Mott described his machine as a 5200-watt "blue generator" with a distinguishing scratch under the carburetor. Mott stated he had paid $900.00 for the generator, and that it was two years old. In the late afternoon of 29 September 2001, Mott observed Defendant walking by as he worked with the generator. At approximately 6:00 p.m., Mott finished his work, placed the machine inside his storage shed, and locked the front door. The storage shed, however, also contained double doors which did not lock, but were secured only by a board. Mott testified that "anybody [who] went in my shed ... would [have known] that's the way I lock [ ] it."
When Mott returned to his storage shed the following morning, the electric generator was gone. The front door to the storage shed remained locked, but the double doors were not fully closed. He noticed automobile tracks approximately 120 feet away from the storage shed, but observed no markings on the ground to indicate the generator had been dragged. Mott testified that "it seemed like to me that [whoever broke into the storage shed] had to know what they [were] doing, because they didn't tear my door down." Mott further explained he was "puzzled in my mind how in the world one man can pick that big generator up and tote it that far, and all I could do was to move it."
Defense counsel cross-examined Mott extensively regarding his cousin, Jerome Mott, who lived approximately two miles away from where the storage shed was located. Mott confirmed that Jerome was familiar with his storage shed and the method by which Mott secured the double doors. Mott denied having suspected Jerome of being involved in the disappearance of the generator, *675 but testified that Jerome was acquainted with "people who receive stolen goods."
After he discovered the generator missing, Mott summoned the sheriff's department, which located the generator several days later with the assistance of Noel Brooks. Brooks testified that Defendant came to his residence in the early morning hours of 30 September 2001 with an electric generator. Defendant asked Brooks to loan him one hundred dollars for one week and offered the generator as collateral for the loan. Defendant told Brooks the generator belonged to him, and that he needed the money in order to have his automobile repaired. Brooks loaned Defendant the money and took the generator in exchange. Brooks suspected, however, that the generator was possibly stolen and contacted a friend at the sheriff's department a few days later. Mott identified the generator given to Brooks by Defendant as the same generator taken from his storage shed.
Doris Jacobs Herring testified on behalf of Defendant. Herring stated she and Defendant were installing carpet at their residence the evening of 29 September 2001, and that Defendant did not leave the house during that time. At 8:00 a.m. the following morning, Herring observed Jerome Mott approach Defendant while he was standing outside the residence and state, "I want to see you." Herring agreed that it was "unusual for [Jerome] to be there that early in the morning." Herring shut the door of the residence and did not observe any further interaction between Defendant and Jerome. Defendant told Herring he was going to work and left the residence soon afterwards. Herring never saw Defendant with a generator.
Defendant was indicted on charges of felonious breaking or entering, felonious larceny, felonious possession of stolen property, and habitual felon status. Upon conclusion of the evidence, the jury found Defendant not guilty of felonious breaking or entering, but guilty of felonious larceny and felonious possession of stolen goods. Defendant then entered a plea of no contest to habitual felon status. The trial court arrested judgment on the felonious larceny conviction and sentenced Defendant to an active minimum term of imprisonment of eighty months, with a maximum term of 105 months. Defendant appealed.
Defendant presents four assignments of error on appeal, arguing the trial court erred by (1) denying Defendant's motion for a mistrial; (2) denying Defendant's motion to dismiss the charges against him; (3) sentencing Defendant for felonious possession of stolen goods; and (4) sentencing Defendant for habitual felon status. We find no error by the trial court.
By his first assignment of error, Defendant argues the trial court erred in denying his motion for a mistrial after Mott testified that he "learned that [Defendant] was in prison." Defendant correctly notes that such evidence was inadmissible, and he contends Mott's statement substantially and irreparably prejudiced his case in the minds of the jurors. In light of such prejudice, Defendant argues the trial court erred in failing to declare a mistrial, thereby entitling him to a new trial. We do not agree.
The trial court must declare a mistrial upon the defendant's motion "if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case." N.C. Gen.Stat. § 15A-1061 (2003). The decision to grant or deny the defendant's motion for a mistrial is discretionary, and such a decision "is to be given great deference because the trial court is in the best position to determine whether the degree of influence on the jury was irreparable." State v. Hill, 347 N.C. 275, 297, 493 S.E.2d 264, 276 (1997), cert. denied, 523 U.S. 1142, 118 S.Ct. 1850, 140 L.Ed.2d 1099 (1998). A mistrial should be declared only if there are serious improprieties making it impossible to reach a fair and impartial verdict. State v. McCarver, 341 N.C. 364, 383, 462 S.E.2d 25, 35-36 (1995), cert. denied, 517 U.S. 1110, 116 S.Ct. 1332, 134 L.Ed.2d 482 (1996). "When a court withdraws incompetent evidence and instructs the jury not to consider it, any prejudice is ordinarily cured." *676 State v. Walker, 319 N.C. 651, 655, 356 S.E.2d 344, 346 (1987). Absent circumstances indicating otherwise, jurors are presumed to follow a trial court's instructions. McCarver, 341 N.C. at 384, 462 S.E.2d at 36.
In the instant case, the trial court immediately sustained Defendant's objection to the inadmissible evidence and granted his motion to strike. The trial court then instructed the jury that Mott's statement was "inappropriate [and] inadmissible," and stated that "you are not to consider in any way his statement when you adjudicate the facts in the case." In light of the trial court's curative instruction, we conclude the trial court did not abuse its discretion in denying Defendant's motion for a mistrial. State v. Morgan, ___ N.C.App. ___, 595 S.E.2d 804, 808 (2004).
Defendant next argues the trial court erred in denying his motion to dismiss the charge of felonious possession of stolen goods at the close of the State's evidence and again at the close of all the evidence. Defendant contends the State presented insufficient evidence that he knew or had reasonable grounds to believe that the generator he possessed had been stolen pursuant to a breaking and entering.
The standard for ruling on a motion to dismiss is "whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense." State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). The trial court must consider the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference that might be drawn therefrom. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). The test for sufficiency of the evidence is the same regardless of whether the evidence is circumstantial or direct. State v. Earnhardt, 307 N.C. 62, 68, 296 S.E.2d 649, 653 (1982). We must therefore determine whether there was substantial evidence to support the essential elements of felonious possession of stolen property.
The essential elements of felonious possession of stolen property are: (1) possession of personal property, (2) which was stolen pursuant to a breaking or entering, (3) the possessor knowing or having reasonable grounds to believe the property to have been stolen pursuant to a breaking or entering, and (4) the possessor acting with a dishonest purpose. See N.C. Gen.Stat. §§ 14-71.1, 14-72(c) (2003); State v. Hargett, 148 N.C.App. 688, 691, 559 S.E.2d 282, 285 (2002). Defendant takes issue with the third element, contending there was insufficient evidence to demonstrate that he knew or should have known the property had been stolen pursuant to a breaking or entering.
In order to show that Defendant knew or had reasonable grounds to believe the generator was stolen pursuant to a breaking or entering, the State relied on the doctrine of recent possession. The doctrine of recent possession is a rule of law creating the presumption that a person in possession of recently stolen property is guilty of its wrongful taking and of the unlawful entry associated with that taking. State v. Hamlet, 316 N.C. 41, 44-45, 340 S.E.2d 418, 420 (1986); State v. Walker, 86 N.C.App. 336, 338, 357 S.E.2d 384, 386 (1987), affirmed per curiam, 321 N.C. 593, 364 S.E.2d 141 (1988). "`The presumption is strong or weak depending upon the circumstances of the case and the length of time intervening between the larceny of the goods and the discovery of them in the defendant's possession.'" Hamlet, 316 N.C. at 44, 340 S.E.2d at 420 (quoting State v. Maines, 301 N.C. 669, 673-74, 273 S.E.2d 289, 293 (1981)). "The presumption or inference arising from recent possession of stolen property `is to be considered by the jury merely as an evidential fact, along with the other evidence in the case, in determining whether the State has carried the burden of satisfying the jury beyond a reasonable doubt of the defendant's guilt.'" Maines, 301 N.C. at 674, 273 S.E.2d at 293 (quoting State v. Baker, 213 N.C. 524, 526, 196 S.E. 829, 830 (1938)).
For the doctrine of recent possession to apply, the State must show: (1) the *677 property was stolen, (2) defendant had possession of the property, subject to his control and disposition to the exclusion of others, and (3) the possession was sufficiently recent after the property was stolen, as mere possession of stolen property is insufficient to raise a presumption of guilt. State v. Barnes, 345 N.C. 184, 240, 481 S.E.2d 44, 75 (1997), cert. denied, 523 U.S. 1024, 118 S.Ct. 1309, 140 L.Ed.2d 473 (1998); Hargett, 148 N.C.App. at 692, 559 S.E.2d at 285. As to recency, our Supreme Court has stated that
[a]lthough the passage of time between the theft and the discovery of the property in a person's possession is a prime consideration in establishing whether property has recently been stolen, our North Carolina Courts have also recognized that the nature of the property is a factor in determining whether the recency is sufficient to raise a presumption of guilt. Thus, if the stolen property is of a type normally and frequently traded in lawful channels, a relatively brief time interval between the theft and the finding of an accused in possession is sufficient to preclude an inference of guilt from arising. Conversely, when the article is of a type not normally or frequently traded in lawful channels, then the inference of guilt may arise after the passage of a longer period of time between the larceny of the goods and the finding of the goods in the accused's possession.
Hamlet, 316 N.C. at 43-44, 340 S.E.2d at 420.
Here, the State presented substantial evidence from which the jury could find that (1) the generator belonging to Mott was stolen from his storage shed pursuant to a breaking or entering; (2) Defendant offered and Brooks accepted the stolen generator as collateral for a $100.00 loan; and (3) Defendant was in exclusive possession of the stolen generator the morning following its theft. We conclude that Defendant's possession of the generator shortly after its theft supported the instruction of the doctrine of recent possession and the denial of Defendant's motion to dismiss. See Hargett, 148 N.C.App. at 691-92, 559 S.E.2d at 285 (upholding the use of the doctrine of recent possession to show there was sufficient evidence that the defendant knew or should have known the property was stolen pursuant to a breaking or entering in support of charge of felonious possession of stolen property).
Defendant argues the doctrine of recent possession is inapplicable to the crime of felonious possession of stolen property and cannot support his conviction. In a related argument, Defendant contends that, as the jury found him not guilty of breaking or entering, he could not be convicted of felonious possession of stolen property, because there was no evidence that he knew the property had been taken pursuant to a breaking or entering. We do not agree.
Although the jury found Defendant not guilty of breaking or entering, it found him guilty of felonious larceny, a conviction later arrested by the trial court. Mott testified he believed only a person familiar with the storage shed would have known his method of securing the double doors, and he doubted a single man could have transported the generator without assistance. Defendant was in possession of the generator the morning following its theft, and he represented to Brooks that the generator belonged to him. Herring testified that Jerome Mott, a person familiar with Mott's storage shed, appeared at Defendant's residence earlier that same morning in order to talk to him, a circumstance Herring confirmed as unusual. Defendant offered no explanation at trial for his possession of the stolen generator or his representation to Brooks that the generator belonged to him.
From the evidence presented, the jury could have believed that Defendant did not actually break into or enter Mott's storage shed, but was present and assisted in transporting the generator away from Mott's property, or otherwise aided and abetted in the taking of the property. See State v. Curry, 288 N.C. 312, 319, 218 S.E.2d 374, 378 (1975) (upholding the defendant's conviction of felonious larceny where the jury acquitted the defendant of breaking or entering and holding that the jury's not guilty verdict on the breaking or entering count was not necessarily a finding by the jury that the larceny was not committed by the defendant pursuant *678 to a breaking or entering, where there was evidence that the defendant aided and abetted two other men in a larceny they committed pursuant to a breaking or entering by them, but did not aid or abet them in the breaking or entering). Notably, the jury sent an inquiry to the trial court during deliberations requesting further instruction on whether the "defendant [had] to perpetrate the [breaking or entering] or just know the property was obtained through a [breaking or entering] ... to be found guilty of felonious larceny[?]" From this inquiry and the ultimate verdict, it is clear the jury believed Defendant did not perpetrate the breaking or entering, but that he nevertheless knew the generator had been stolen by means of a breaking or entering, and had participated in its larceny. We conclude there was substantial evidence to support the jury's finding that Defendant was guilty of felonious possession of stolen property.
By his final assignment of error, Defendant contends the trial court erred in accepting a plea of no contest to the habitual felon charges. As Defendant's argument is based entirely upon his earlier contention that the trial court erred in sentencing him for felonious possession of stolen goods, we necessarily reject this assignment of error.
In the judgment of the trial court we find,
No error.
Judges CALABRIA and LEVINSON concur.
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255 F.3d 1196 (9th Cir. 2001)
NATHAN KIMMEL, INC.; NATHAN KIMMEL, LLC; KNF CORP., FORMERLY KNOWN AS KENNEDY NYLON FILM CORP., PLAINTIFFS-APPELLANTS,v.DOWELANCO, DEFENDANT-APPELLEE.
No. 99-56746
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Submitted June 6, 2001 Pasadena, CaliforniaFiled July 10, 2001
1
NOTE: OPINION HAS BEEN WITHDRAWN. SEE NEW OPINION DATED FOR JANUARY 7, 2002.
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2016-CA-01255-SCT
JOHN RENNER
v.
RETZER RESOURCES, INC. AND VELENCIA
HUBBARD, INDIVIDUALLY AND IN HER
CAPACITY AS MANAGER OF MCDONALD’S
DATE OF JUDGMENT: 08/02/2016
TRIAL JUDGE: HON. W. ASHLEY HINES
TRIAL COURT ATTORNEYS: ROBERT F. STACY, JR.
ROBERT ALLEN SMITH, JR.
COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: DAVID NEIL McCARTY
ROBERT ALLEN SMITH, JR.
ATTORNEY FOR APPELLEE: ROBERT F. STACY, JR.
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: REVERSED AND REMANDED - 12/07/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.
RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:
¶1. The instant case arises from a trip-and-fall at a McDonald’s restaurant in Winona,
Mississippi. The circuit court granted summary judgment in favor of defendants. The
plaintiff appeals, arguing that summary judgment was not proper because (1) he established
each element of a premises-liability claim, and (2) the defendants lost or destroyed key video
evidence, which he argues forecloses the grant of summary judgment. The plaintiff has
established several triable issues of fact. Accordingly, summary judgment was inappropriate,
and the Court reverses and remands.
FACTS AND PROCEDURAL HISTORY
¶2. According to the plaintiff, on August 13, 2012, seventy-six-year-old John Renner
(“Renner”) was traveling from Jackson, Mississippi, to his home in St. Louis, Missouri. He,
his wife, and two other family members stopped at a McDonald’s in Winona around 9:30
a.m. After he received his order, Renner set his food down at a table and walked to the
condiment station. Renner picked up some condiments. Before returning to his table, he
thought one of the McDonald’s employees spoke to him. Renner turned and faced the
counter before realizing the employee was speaking to another customer. As Renner turned
back around to return to his table, his left foot struck a protruding leg of a highchair, causing
him to fall and suffer injury to his face and left shoulder. After the fall, Renner heard one
of the McDonald’s employees ask another what the highchair was doing there, and to move
it.
¶3. Two and a half years later, Renner filed suit against McDonald’s; Retzer Resources,
Inc., the owner and operator of the Winona McDonald’s; and Velencia Hubbard, the manager
of the Winona McDonald’s. During discovery, the defendants claimed that video footage
of the fall no longer existed.
¶4. The defendants, Hubbard and Retzer, moved for summary judgment, arguing that
Renner could not demonstrate the existence of any genuine issue of material fact that: (1) the
highchair was a dangerous condition; (2) any alleged danger was hidden; or (3) defendants
2
had actual or constructive knowledge of the alleged dangerous condition. Attached to the
defendants’ motion and the plaintiff’s response were the depositions of Greta Siegel, John
Renner, Renner’s wife Sherlyn, Velencia Hubbard, and Hugh Ballard, an Information
Technology (IT) employee of Retzer Resources.
¶5. Greta Siegel was an eyewitness to the fall. Siegel, originally from Winona and a
former Dean of Students at a college in California, was a frequent patron of the Winona
McDonald’s. Siegel visited McDonald’s often in order to use its Wi-Fi connection. On the
morning of the fall, Siegel was seated in a booth catty-corner to the location of the accident.
Siegel’s attention was directed that way when she heard a loud noise. She saw Renner fall
and land on the floor. She also saw Renner’s left foot tangled in the leg of a highchair.
Siegel then heard a McDonald’s employee immediately instruct other McDonald’s employees
to move the highchairs away from that area.
¶6. Siegel testified that she was not surprised that Renner had tripped at the condiment
station, because the highchairs are obscured from view behind a “half wall,” and because the
legs of the highchairs protrude out farther than the tops of the highchairs. When questioned
about the visibility of the highchairs, Siegel testified that, “[w]hat is hidden is the way that
bottom juts out, because as you walk up to the chairs, obviously, they are there, but what you
wouldn’t expect is for a . . . piece of it to be sticking out.” When asked about the particular
morning of Renner’s fall and whether the highchairs were sticking out into the aisle, Siegel
confirmed that they were and described the placement of the chairs as a “big hazard.”
3
¶7. Siegel previously had seen other McDonald’s customers bump into the highchairs at
the same location where Renner fell. Siegel testified that she had seen approximately three
customers stumble against the chairs and had seen other customers accidently kick the chairs.
She described the customers’ reactions to the chairs as being confused about what they had
kicked, “because the top seems to be what you would hit first . . . [b]ut with that bottom
sticking out, it is something that people hit and they don’t realize what they are kicking.”
¶8. Siegel had complained several times about the location of the highchairs to a manager
and to other McDonald’s employees prior to this accident. Siegel testified that after
complaining about the chairs, the employees would move them away from the corner, but
still leave them on the same wall. However, Siegel also testified that, since the accident, the
chairs remain in the same location.
¶9. Velencia Hubbard, the shift manager of McDonald’s at the time of the accident, did
not dispute any of Siegel’s testimony. She opined that she thought the chairs were properly
stored and did not believe they were out of place. Throughout her deposition testimony,
Hubbard testified the she did not know or did not remember key facts. For example,
Hubbard testified that she was not sure whether the legs of the highchairs protruded into the
aisle at the time of the accident. Hubbard testified that she saw Renner fall and saw that his
feet were caught in the highchair. She remembered speaking with the Renners, completing
an incident report, and calling the insurance company, which was standard procedure after
a slip and fall. Valencia testified that the placement of the chairs did not change after
Renner’s fall, and that they always remained in the same location. Valencia also testified that
4
there was a video recording of Renner’s fall, though she could not remember if she had ever
seen it.
¶10. Sherlyn and Renner both provided affidavits relating events after the accident.
Sherlyn and Renner testified that, two days after the fall, a risk management company for
McDonald’s called to check on Renner’s condition. Sherlyn spoke with a woman from the
company, who told Sherlyn that McDonald’s had provided them with videotapes of the
incident and that they would review the tapes to see what happened. Renner testified that
about four to five weeks later, he called an “800 number” on a McDonald’s incident form
that he was provided. Renner spoke with a representative who told him that security tapes
would have to be reviewed before they could speak about the accident with Renner. Another
four to five weeks later, Renner called again. He was told the tapes had still not been
reviewed. No video footage was produced per requests in discovery.
¶11. Hugh Ballard, the IT employee in charge of video surveillance at the Winona
McDonald’s, testified that a video camera faces the location where Renner fell. The video
camera is motion-activated and does not record constantly. Ballard testified that the
recordings are kept temporarily on a computer hard drive for approximately sixty-three to
sixty-four days, depending on how quickly the hard drive fills up. The recordings are then
recorded over. Ballard testified that he received a request from another Retzer Resources
employee on October 17, 2013—sixty-five days after the accident—to preserve the video
footage of Renner’s fall. Ballard testified that he “imagined” that he tried to retrieve the
footage, though he could not remember. Ballard testified that the video was gone. He had no
5
way of knowing whether the footage was recorded over or whether it ever existed, although
there was no indication that the camera was not operational on the day of Renner’s fall.
¶12. Renner responded to the defendant’s motion for summary judgment, arguing that the
testimony of each of the five witnesses established that McDonald’s was either directly
negligent in causing his fall, or McDonald’s had actual or constructive knowledge of the
alleged dangerous condition. Further, Renner argued that, because of the unfavorable
presumption that attaches to evidence spoliation, summary judgment would be inappropriate.
¶13. On August 2, 2016, the trial court issued its opinion and final judgment granting
summary judgment in favor of the defendants, Hubbard and Retzer. The trial court found
that Renner was an invitee of McDonald’s, and therefore, McDonald’s owed a duty to keep
the premises reasonably safe and to warn only when there was hidden danger, not in plain
and open view. The trial court found that “[t]he presence of a high chair in a restaurant like
McDonald’s is clearly a ‘normal’ and ‘usual’ condition that an invitee could ‘expect to
encounter.’ Therefore, McDonald’s cannot be held liable for Mr. Renner’s injuries in this
case.” The trial court found that Renner had failed to produce any evidence that any
McDonald’s employee had placed the high chair in Renner’s path or had any actual or
constructive knowledge that the highchair posed a danger to Renner. The trial court’s
opinion made no reference to the missing video evidence. Renner timely appealed and raises
two issues: (1) whether summary judgment was granted erroneously because Renner had
proved each element of his premises-liability claim, and (2) whether the defendants’ loss or
destruction of key video evidence prohibited the grant of summary judgment.
6
DISCUSSION
¶14. “Summary judgment shall be rendered if the ‘pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law.’” Miss. R. Civ. P. 56(c). “Summary judgment ‘is appropriate when the non-
moving party has failed to “make a showing sufficient to establish the existence of an
element essential to the party’s case, and on which that party will bear the burden of proof
at trial.”’” Karpinsky v. American Nat’l Ins. Co., 109 So. 3d 84, 88 (Miss. 2013) (citing
Buckel v. Chaney, 47 So. 3d 148, 153 (Miss. 2010). We review the grant of summary
judgment de novo and will view evidence “in the light most favorable to the party against
whom the motion has been made.” Id. (citing Pratt v. Gulfport-Biloxi Reg’l Airport Auth.,
97 So. 3d 68, 71 (Miss. 2012)).
I. Premises-Liability Claim
¶15. Renner argues that the trial court erred in granting summary judgment because he
proved each element of his premises-liability claim. The parties do not dispute that Renner
was an invitee of McDonald’s. “A landowner owes an invitee the duty ‘to keep the premises
reasonably safe and when not reasonably safe to warn only where there is hidden danger or
peril that is not in plain and open view.” Mayfield v. The Hairbender, 903 So. 2d 733, 737
(Miss. 2005) (citations omitted). To recover in a trip-and-fall case, a plaintiff must “(1) show
that some negligent act of the defendant caused his injury; or (2) show that the defendant had
actual knowledge of a dangerous condition and failed to warn the plaintiff; or (3) show that
7
the dangerous condition existed for a sufficient amount of time to impute constructive
knowledge to the defendant, in that the defendant should have known of the dangerous
condition.” Anderson v. B.H. Acquisition, Inc., 771 So. 2d 914, 918 (Miss. 2000) (citing
Downs v. Choo, 656 So. 2d 84, 86 (Miss. 1995)).
¶16. Renner established sufficient facts, which, if believed, would defeat a motion for
summary judgment. It would be a question for the finder of fact whether the defendants had
actual knowledge of the alleged dangerous condition and failed to warn Renner, or whether
the defendants had constructive knowledge of the alleged dangerous condition (another issue
for a jury). Renner offered the deposition testimony of Siegel, who testified that the legs of
the highchairs protrude into the aisle and are obscured from view behind a “half wall.”
Siegel claimed personally to have witnessed at least three customers bump into or kick the
highchairs. Siegel testified that she repeatedly had alerted several McDonald’s employees
about her concerns regarding the alleged hidden nature and dangerous condition of the
highchairs. This testimony regarding McDonald’s knowledge was undisputed by Valencia
Hubbard or any other witness.
¶17. The defendants take issue with Siegel’s testimony and affidavit, arguing that she
offered inadmissible opinions. Mississippi Rule of Evidence 701 sets forth the rules
regarding lay witness opinion: “If a witness is not testifying as an expert, testimony in the
form of an opinion is limited to one that is: (a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue;
and (c) not based on scientific, technical, or other specialized knowledge within the scope
8
of Rule 702,” which sets forth the rules for expert testimony. The Advisory Committee Note
to the rule states that Rule 701 favors the admission of lay opinion when the opinion is based
on first-hand knowledge or observation, and when the opinion is helpful in resolving the
issues. The defendants’ argument is without merit. Siegel’s testimony and affidavit are based
wholly on her own observations, and they certainly are helpful in deciding the issues of
Renner’s premises-liability claim.
¶18. The defendants also argue that Siegel offered inadmissable expert testimony because
she opined that the highchair’s design constituted a hazard. This argument is without merit.
Siegel simply testified that the she physically saw that the legs of the highchairs protruded
into the aisle and that several customers had bumped into or kicked the highchairs. She
stated that, in her opinion, the highchairs were a “big hazard” because they were obscured
behind a “half wall,” and the legs jutted out farther than the tops of the highchairs. Siegel did
not offer a scientific or technical opinion as to the highchair’s design, but rather testified
about her observations of the highchairs based on the many hours she has spent patronizing
the Winona McDonald’s.
¶19. The trial court’s opinion fails to account for the testimony of Siegel and concluded
that, because highchairs normally are present in restaurants, an invitee could expect to
encounter them. The trial judge’s opinion erroneously supplanted the facts in the record with
his own opinion regarding the location of the highchairs. This is a role for jurors. See
Prescott v. Leaf River Forest Prods., Inc., 740 So. 2d 301, 309 (Miss. 1999) (“The trial
9
court’s function on a Rule 56 motion for summary judgment is not to resolve disputed factual
issues, but rather to determine whether issues of fact exist to be tried.”)
¶20. At the very least, genuine issues of material fact remain for trial. Siegel testified that
she did not know of any person moving the highchairs at any time before the fall. Hubbard
testified that she could not remember whether the highchairs had been moved. Further,
Hubbard testified that Renner was walking from the counter with a tray in his hands, while
the Renners and Siegel all testified that Renner did not have a tray, and that he was walking
from the condiment station to the dining area. The number of highchairs stored behind the
“half wall” also is in dispute, as Hubbard testified that there were only two, while Siegel
testified that there were five or six.
¶21. “The moving party has the burden of demonstrating that [no] genuine issue of material
fact[s] exists, and the non-moving party must be given the benefit of the doubt concerning
the existence of a material fact.” Duckworth v. Warren, 10 So. 3d 433, 437 (Miss. 2009)
(quoting One South, Inc. v. Hollowell, 963 So. 2d 1156, 1160 (Miss. 2007)) (citation
omitted). Renner produced sufficient testimonial evidence establishing that genuine issues
of material fact exist, and Renner should be given the benefit of every reasonable doubt.
Ladnier v. Hester, 98 So. 3d 1025, 1028 (Miss. 2012) (citation omitted) (emphasis added).
In any case “[w]here doubt exists as to whether there is a genuine issue of material fact, the
trial judge should err on the side of denying the motion and permitting a full trial on the
merits.” Prescott, 740 So. 2d at 309. It was error for the trial court to grant summary
judgment in favor of the defendants because triable issues of fact remain.
10
II. Spoliation of Video Evidence
¶22. Renner argues that the defendants’ loss or destruction of video evidence forbids
summary judgment. An examination of the record reveals that this issue has not been fully
developed in discovery. The facts, as they are available now, indicate only that the IT
employee claims no video of the fall exists. Whether the risk management company has or
had the video is in dispute. If further discovery indicates that spoliation occurred, the trial
court should approve a spoliation jury instruction, if appropriate. See Copeland v. City of
Jackson, 548 So. 2d 970, 973 (Miss. 1989) (“[J]ury instructions should only be granted
where there is evidence presented to support the giving of those instructions.”)
¶23. This Court has held that where there is proof of spoliation, the nonoffending party is
entitled to a “spoliation inference.” Dowdle Butane Gas Co., Inc. v. Moore, 831 So. 2d
1124, 1127 (Miss. 2002) (citing Bott v. Wood, 56 Miss. 136 (1878)). “The inference entitles
the non-offending party to an instruction that the jury may infer that spoliated evidence is
unfavorable to the offending party.” Id. (citing DeLaughter v. Lawrence County Hosp., 601
So. 2d 818, 822 (Miss. 1992)). In other words, the jury is not required to draw an adverse
inference that the evidence would have been unfavorable, but the innocent party is entitled
to an instruction permitting the jury to draw a negative inference from spoliated evidence.
See Krosnich v. U.S., 150 F.3d 112, 126 (2d Cir. 1998). To prove that spoliation occurred,
the innocent litigant is not required to show fraudulent intent on the part of the spoliator.
Thomas v. Isle of Capri Casino, 781 So. 2d 125, 133 (Miss. 2001). Even where evidence
is unavailable due to negligence, an inference arises that the evidence would have been
11
unfavorable, and the jury should be so instructed. Id. (citation omitted). Accordingly, if the
evidence reveals that the video was lost intentionally or negligently, Renner is entitled to a
spoliation jury instruction.
CONCLUSION
¶24. The trial court erroneously granted summary judgment because triable issues of fact
remain. The Court reverses the judgment of the Washington County Circuit Court and
remands for proceedings consistent with this opinion.
¶25. REVERSED AND REMANDED.
WALLER, C.J., KITCHENS, P.J., KING, COLEMAN, MAXWELL, BEAM,
CHAMBERLIN AND ISHEE, JJ., CONCUR.
12
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FILED
United States Court of Appeals
Tenth Circuit
July 25, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
TONY ALLEN CASTRO,
Petitioner-Appellant,
v. No. 08-6226
(D.C. No. 5:07-CV-00315-HE)
STATE OF OKLAHOMA; (W.D. Okla.)
ERIC FRANKLIN, Warden,
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before HOLMES and ANDERSON, Circuit Judges, BRORBY, Senior Circuit
Judge.
Tony Allen Castro, an Oklahoma state prisoner proceeding pro se, requests
a certificate of appealability (COA) to appeal the district court’s order denying
his habeas petition filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C.
§ 2253(c)(1)(A) (requiring COA to appeal order denying habeas petition). The
district court did not issue a COA. Mr. Castro’s notice of appeal is construed as a
request for a COA from this court. See Fed. R. App. P. 22(b)(2). We deny
issuance of a COA and dismiss the appeal.
Background
Mr. Castro entered guilty pleas to the charges of second degree burglary of
an automobile and escape from arrest or detention. Pursuant to the plea
agreement, he was sentenced to two concurrent 20-year sentences. He did not
seek to withdraw his guilty pleas. He filed two applications for post-conviction
relief with the state district court, which were denied. The Oklahoma Court of
Criminal Appeals (OCCA) also denied relief on the basis of waiver, holding that
claims that could have and should have been brought in a direct criminal appeal
would not be considered in post-conviction proceedings. R. at 19, 40.
Mr. Castro then filed the underlying habeas petition, which was referred to
a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B). In a thorough and
comprehensive report and recommendation, the magistrate judge recommended
that the habeas petition be denied without an evidentiary hearing. The district
court considered Mr. Castro’s objections, adopted the magistrate judge’s
recommendation, and denied the petition.
Mr. Castro argues that his guilty pleas were involuntary because his
attorney coerced him to plead guilty and the trial court failed to develop a factual
basis for his pleas. He further asserts that he was denied the effective assistance
of counsel when entering his guilty pleas. He also claims that the evidence was
insufficient to support his guilt on either felony charge and therefore he should
have been charged with misdemeanors instead of felonies. In addition, he
-2-
complains that he was denied the effective assistance of counsel in this appeal.
He has waived on appeal the remaining arguments he made in the district court,
including his request for an evidentiary hearing in federal court, his claims of
sentencing errors, and his challenges to the state post-conviction proceedings,
because he did not present them in his appellate brief. See Ward v. Williams,
240 F.3d 1238, 1241 n.6 (10th Cir. 2001) (issue not presented in habeas
appellant’s opening brief deemed waived).
Analysis
Pursuant to 28 U.S.C. § 2253(c)(2), a prisoner seeking a COA must make
“a substantial showing of the denial of a constitutional right.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks omitted).
Where a district court has rejected the constitutional claims on
the merits, . . . [t]he petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional
claims debatable or wrong. . . . When the district court denies a
habeas petition on procedural grounds without reaching the
prisoner’s underlying constitutional claim, a COA should issue when
the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The magistrate judge carefully addressed and analyzed each of Mr. Castro’s
claims in a 23-page report and recommendation, which the district court adopted
in its entirety. We find nothing debatable or questionable in the magistrate
-3-
judge’s determinations. No jurist of reason would question the correctness of the
district court’s ruling adopting the magistrate judge’s recommendation.
Accordingly, we deny a COA.
Mr. Castro also claims that he was denied the effective assistance of
counsel in this appeal. Although his attorney filed the notice of appeal and
preliminary documents, the appeal was dismissed on March 31, 2009, based on
the attorney’s failure to prosecute. In November 2010, the appeal was reinstated
on Mr. Castro’s request and he filed a pro se brief, which this court has
considered. He contends that he has been prejudiced by his attorney’s
nonfeasance. To the extent he argues that his attorney’s withdrawal from the
appeal denied him a constitutional right, “[t]here is no constitutional right to
counsel beyond the direct appeal of a criminal conviction.” Coronado v. Ward,
517 F.3d 1212, 1218 (10th Cir. 2008). Accordingly, Mr. Castro has not stated a
claim for denial of the effective assistance of counsel in this appeal.
Conclusion
We DENY the application for a certificate of appealability and DISMISS
the appeal.
Entered for the Court
Stephen H. Anderson
Circuit Judge
-4-
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Filed 7/31/14 San Bernardino Cty. Dept. Child Support v. Pascual 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
SAN BERNARDINO COUNTY
DEPARTMENT OF CHILD SUPPORT
SERVICES, E057498
Plaintiff and Respondent, (Super.Ct.No. CSKS1103685)
v. OPINION
RICHARD PASCUAL,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John A. Crawley,
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed with directions.
Law Offices of F. Adrian Muñoz and Richard S. Singer for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Assistant Attorney
General, Linda M. Gonzalez, and Ricardo Enriquez, Deputy Attorneys General, for
Plaintiff and Respondent.
1
I
INTRODUCTION
Defendant Richard O. Pascual appeals from a judgment ordering payment of child
support, which was entered on August 13, 2012. On appeal, Pascual argues the trial court
abused its discretion when it did not join Monica Silvestre, the mother, to the action; it
included basic allowances for housing and subsistence in calculating Pascual’s income; it
denied Pascual’s motion to set aside his voluntary declaration of paternity; and it did not
make necessary findings.
Plaintiff County—the County of San Bernardino, Department of Child Support—
generally disputes these contentions but agrees that the case may be remanded to
determine whether Pascual is entitled to a hearing on his motion to set aside the paternity
declaration. We agree the trial court did not abuse its discretion but the judgment is
reversed and the case remanded to address Pascual’s challenge to his voluntary
declaration of paternity and any related issues.
II
FACTUAL AND PROCEDURAL BACKGROUND
In April 2011, County filed a complaint against Pascual seeking child support for
Joseph, who was born in April 2002. The complaint alleged that the parents were
Pascual and Silvestre, who had both signed a Voluntary Declaration of Paternity. The
complaint sought monthly support of $808, beginning May 1, 2011, and the payment of
health insurance and requested that Silverstre be added as a party. Pascual’s gross
monthly income was $4,426.
2
Pascual filed an answer in August 2011, responding that his actual income was
less than stated in the complaint and he was entitled to credit for past child support.
In October 2011, County filed a notice of motion for judgment asking Silvestre not
be added as a party because she was incarcerated. The motion also sought child support
to be paid to Suzanne Wise, a cash-aided “non-needy caretaker,” beginning May 1, 2011.
(Welf. & Inst. Code, § 11477, subd. (a)(1)(ii).) Wise was Joseph’s maternal
grandmother, who had custody of him while Silvestre was incarcerated.
Pascual filed a response asking that the order not be retroactive and that the other
parent share support although Pascual acknowledged that Silvestre was serving a two-
year prison sentence.
In his supporting declaration, Pascual stated he is Joseph’s father; he was present
at the hospital when the child was born in April 2002; and he signed the birth certificate,
although he and Silvestre were separated at that time. In August 2003, Pascual enlisted
in the Army and listed Joseph as his dependent for health and dental insurance although
Silvestre refused to receive the insurance cards.
Pascual was deployed to Germany and Iraq in 2003 and 2004. In December 2004,
he arranged for money to be paid to Silvestre’s brother for Joseph’s support. Later he
gave money to Silvestre when he could locate her. In March 2005, Pascual got married
while on leave and had Joseph for a one-week visit. In June 2005, Silvestre demanded
more money and refused to let Pascual see Joseph.
In October 2006, Pascual was stationed in Barstow and hired a lawyer to assist
him with visitation. Silvestre’s father allowed Pascual to have contact with Joseph while
3
Silvestre was in jail in December 2006. After she was released, Pascual could not locate
her. From October 2009 until December 2011, Pascual was in Georgia or Iraq. In March
and June 2011, he tried unsuccessfully to find Joseph.
As part of his response, Pascual argued that the monthly amounts of $1,128 and
$325.04—which he received for BAH (Basic Allowance for Housing) and BAS (Basic
Allowance for Subsistence)1—should be excluded from child support calculations.
Pascaul’s lawyer also stated that he was filing a custody action on behalf of Pascual.
The hearing on December 16, 2011, was continued because Pascual raised an issue
about paternity. Pascual then filed an application to set aside his voluntary declaration of
paternity. He submitted another declaration, stating that he had doubted his paternity but
his own father had forced him to sign the declaration. Nevertheless, Silvestre had
thwarted his efforts to have contact with Joseph although he gave her money and enrolled
Joseph in his health insurance. At that time, Silvestre was incarcerated and Joseph was
living with his maternal grandmother.
At the hearing on March 12, 2012, the court denied as untimely Pascual’s
paternity challenge and granted judgment for a support order of $805 monthly, including
the basic allowances. The court also did not add Silvestre as a party and found that “this
is a non-needy caretaker case and the support obligation shall end when aid ends.”
1 “The BHA is a monthly payment for active military members that is intended to
defray the cost of civilian housing. (37 U.S.C. § 403(a)(1).) The BSA is an additional
monthly sum to subsidize the cost of meals purchased on or off base. (37 U.S.C.
§ 402(a)(1).)” (In re Marriage of Stanton (2010) 190 Cal.App.4th 547, 552, fn. 4.)
4
III
ADDING SILVESTRE AS THE OTHER PARTY
The trial court’s determinations regarding an award of child support and joinder
are reviewed for an abuse of discretion. (In re Marriage of Leonard (2004) 119
Cal.App.4th 546, 555, citing In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282-
283; County of Imperial v. Superior Court (2007) 152 Cal.App.4th 13, 25.) Pascual
claims the trial court abused its discretion by not joining Silverstre as the other party.
Pascual’s argument fails to consider that the support order imposed by the court
was only in effect from May 1, 2011 until “aid ends”—presumably when Silvestre was
released from incarceration—which apparently occurred before March 2013—and she
regained custody of Joseph from his grandmother. It was certainly not an abuse of
discretion for the court to decide that Silvestre should not be joined as a party when she
was in prison and had no income. After she was released from prison, the support
obligation Pascual was paying to Wise would end. Therefore, Pascual’s request that this
action be dismissed may be moot if the support order has now ended.
Notwithstanding the foregoing, we also agree with the County’s argument that
Silvestre is not a necessary party under Welfare and Institutions Code section 17404
because she was not requesting or receiving support enforcement services. Instead, the
support enforcement was for the benefit of Joseph’s grandmother, his caretaker.
Furthermore, Pascual’s support obligation was calculated independently of Silvestre’s
obligation. (Welf. & Inst. Code, § 17402.) Therefore, adding her as the other party
would not have reduced the amount of Pascual’s support order. Under these
5
circumstances, it was not an abuse of discretion to deny Pascual’s request to join
Silvestre as the other party.
IV
BAH AND BAS
The trial court based its monthly support order of $805 partly on the BAH and
BAS payments of $1,128 and $325.04, which were made to Pascual as an active Army
member. (In re Marriage of Stanton, supra, 190 Cal.App.4th at p. 253.) In nonmilitary
cases, the courts have held that ordinary housing and meal reimbursements are not job-
related and are not excludable from income. (Stewart v. Gomez (1996) 47 Cal.App.4th
1748, 1755.)
Pascual’s arguments that BAH and BAS payments should be excluded from child
support calculations, which are based on federal law, were comprehensively rejected in
Stanton: “We join other courts in holding federal preemption is inapplicable to military
allowances such as BAH and BAS. The inclusion of such allowances does not do major
damage to a clear and substantial federal interest. [Citation.] ‘To the contrary, the
Department of Defense by regulation and otherwise encourages members of the armed
forces to fulfil [sic] their family commitments.’ [Citations.]” (In re Marriage of Stanton,
supra, 190 Cal.App.4th at pp. 560-561.)
Stanton also expressly rejected reliance on 42 United States Code section 659, “a
federal statute that excludes military allowances ‘payable pursuant to chapter 7 of title 37,
United States Code [(37 U.S.C.S. § 401 et seq.)], as prescribed by the Secretaries
concerned . . . as necessary for the efficient performance of duty,’ from income subject to
6
withholding in a garnishment proceeding against the United States government to satisfy
support obligations. (42 U.S.C. § 659(h)(1)(B)(ii); 5 C.F.R. 581.104(h)(2)(ii), (iii)
(2010).)” (In re Marriage of Stanton, supra, 190 Cal.App.4th at p. 556.) Stanton
concluded that federal statutes—making military allowances for housing and food
nontaxable and exempting them from garnishment—do not preempt the inclusion of such
allowances in a party’s gross income for purposes of calculating child and spousal
support. (In re Marriage of Stanton, at pp. 556-560, citing 10 U.S.C. § 101(a)(15); 26
U.S.C. §§ 134(a), 134(b)(1)(A); Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, § 362(a), 42 U.S.C.A. § 659(h)(1)(B)(ii); 5 C.F.R.
581.104(h)(2)(ii), (iii) (2010); Fam. Code § 4058, subd. (a).) The trial court followed
established law and did not abuse its discretion by including BAH and BAS in its child
support calculations.
V
DECLARATION OF PATERNITY
The County agrees that, under the Servicemembers Civil Relief Act (SCRA), 50
United States Code section 501 et seq., Pascual may be able to challenge the voluntary
declaration of paternity because the limitations period for an action was tolled during the
period of his active duty military service. (50 U.S.C. § 526(a); Conroy v. Aniskoff (1993)
507 U.S. 511, 512-516.) However, the County contends Pascual’s request to set aside the
declaration under Family Code section 7575, subdivision (c), will fail on the merits. This
argument—and other arguments made by the County about what should happen on
7
remand to the trial court—are not at issue in this appeal. We do not predict what should
or will happen after remand.
We conclude that remand to the trial court is appropriate for further proceedings
regarding Pascual’s efforts to set aside the paternity declaration. Upon remand, the trial
court will also be able to address Pascual’s related contention about whether he may
claim custody based on whether his paternity is established. However, Pascual waived
his additional claims regarding the stay of the support order and any error made in
calculating the support order based on Pascual filing his taxes in California, not Georgia.
(In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)
VI
DISPOSITION
The trial court’s orders are affirmed with the exception of the order denying
Pascual’s request to set aside the declaration of paternity as untimely. We remand for the
sole purpose of addressing Pascual’s challenge to his voluntary declaration of paternity.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RICHLI
Acting P. J.
MILLER
J.
8
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170 Wis.2d 656 (1992)
489 N.W.2d 713
Leon IRBY, Petitioner-Appellant,
v.
Stephen BABLITCH, Respondent-Respondent.
No. 91-2791.
Court of Appeals of Wisconsin.
Submitted on briefs May 8, 1992.
Decided August 20, 1992.
For the petitioner-appellant the cause was submitted on the briefs of Leon Irby, pro se, of Waupun.
For the respondent-respondent the cause was submitted on the brief of James E. Doyle, attorney general, and E. Gordon Young, assistant attorney general.
*657 Before Gartzke, P.J., Dykman and Sundby, JJ.
SUNDBY, J.
Leon Irby is an inmate at Waupun Correctional Institution (WCI). He appeals from an order dismissing his writ of certiorari in part and remanding the decision of the secretary of the Department of Corrections for further proceedings. Irby was subject to several conduct reports which were either dismissed or the decision of the disciplinary committee was reversed. WCI expunged the conduct reports from Irby's case records. However, WCI retained in Irby's case records the incident reports from which the conduct reports were written.
Irby sought by complaint under the Inmate Complaint Review System to have the incident reports removed from his institution files. He also claimed that photocopies of expunged conduct reports were attached to the incident reports and were improperly retained in his records.
The circuit court affirmed the secretary's decision to dismiss Irby's complaint to the extent Irby claims that Wis. Adm. Code sec. DOC 303.85(2) requires that incident reports associated with expunged conduct reports also be expunged from his case records. However, the circuit court remanded the decision to the secretary to consider whether Irby is entitled to have copies of expunged conduct reports removed from the incident reports and to have references to the expunged conduct reports removed from all documents in the institution.
We conclude that Wis. Adm. Code sec. DOC 303.85(2) applies to incident reports as well as conduct reports. We therefore reverse the circuit court's order and direct that the court remand the cause to the secretary of the department with directions to apply sec. DOC *658 303.85(2) to incident reports as well as conduct reports. Our decision moots that part of the circuit court's order which remanded the matter to the secretary.
Wisconsin Adm. Code sec. DOC 303.85(2) provides:
Records of alleged disciplinary infractions which have been dismissed or in which the inmate was found not guilty may be kept for statistical purposes, but they may not be considered in making program assignment, transfer, or parole release decisions, nor may they be included in any inmate's case record. [Emphasis added.]
"`Case record' means any file folder or other method of storing information which is accessible by the use of an individual inmate's name or other identifying symbol." Wisconsin Adm. Code sec. DOC 303.02(4).
The secretary interpreted sec. DOC 303.85(2) as follows:
The Department interprets "records of alleged disciplinary infractions" to mean actual references to conduct reports and disciplinary dispositions. It does not include references to the behavior that underlies the conduct report. I have requested the records custodian to delete any actual references to the conduct report that was dismissed which appear in the referenced reports in your case records. Copies of the original records will be kept for statistical purposes. Your dismissed conduct report will be used in making program assignments, transfer or parole decisions.
Letter from Patricia A. Goodrich, Secretary of the Department of Corrections, to Leon Irby (January 23, 1989).
*659 [1]
An administrative agency's interpretation of its own rules is entitled to controlling weight unless inconsistent with the language of the regulation or clearly erroneous. Plumbers Local No. 75 v. Coughlin, 166 Wis. 2d 971, 978, 481 N.W.2d 297, 300 (Ct. App. 1992). We conclude that the secretary's interpretation of Wis. Adm. Code sec. DOC 303.85(2) is clearly erroneous.[1]
The secretary's interpretation excludes incident reports as "records of alleged disciplinary infractions." The record contains several incident reports of incidents involving Irby. Each report is on a standard form. Each includes the following information: "Type of Incident," "Incident Description," "Action Taken by Line Supervisor-Reason(s) for Action," and "Further Action Taken-Reason(s)." The incident reports contain much of the information contained in the conduct reports, including the disposition of the conduct report by the disciplinary committee. The "Type of Incident" is generally expressed in terms of the disciplinary rule allegedly violated. We conclude that the incident report constitutes a "record of alleged disciplinary infraction" which must be expunged under Wis. Adm. Code sec. DOC 303.85(2).
We therefore reverse the circuit court's order and remand the cause to the court with directions to remand the matter to the secretary of the department to expunge from Irby's case records all incident reports which relate *660 to an incident for which an expunged conduct report was written.
By the Court.Order reversed and cause remanded with directions.
NOTES
[1] Because the secretary's interpretation of Wis. Adm. Code sec. DOC 303.85(2) is clearly erroneous, she did not act "according to law" when she denied Irby's appeal. Our standard of review of the secretary's decision is therefore satisfied. See State ex rel. Irby v. Israel, 95 Wis. 2d 697, 703, 291 N.W.2d 643, 646 (Ct. App. 1980).
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0709n.06
Case No. 13-2522 FILED
Sep 09, 2014
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LYNN MARIE CONNOLLY, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
DEUTSCHE BANK NATIONAL TRUST ) DISTRICT OF MICHIGAN
COMPANY, as Trustee for Certificate Holders )
for Quest Trust 2006-X2, Asset Backed )
Certificates, Series – X2, )
) OPINION
Defendant-Appellee. )
BEFORE: GIBBONS and McKEAGUE, Circuit Judges; STAFFORD, District Judge.*
McKEAGUE, Circuit Judge. Lynn Connolly (“Connolly”) appeals the district court’s
denial of a variety of claims arising from statutory foreclosure-by-advertisement proceedings
conducted by the Defendant, Deutsche Bank National Trust Company (Deutsche). For the
reasons set forth below, we AFFIRM.
I
This foreclosure concerns Connolly’s ten acre parcel of property. (R. 1, Complaint at 9,
PageID # 9.) On October 24, 2002, Connolly signed a promissory note and obtained a loan for
$333,000.00 from Ameriquest Mortgage Company to re-finance the property. (Id. at 10, PageID
*
The Honorable William H. Stafford, Jr., Senior United States District Judge for the Northern
District of Florida, sitting by designation.
Case No. 13-2522, Connolly v. Deutsche Bank
# 10.) As security for the loan, Connolly granted Ameriquest a mortgage on the property. The
Mortgage was recorded with the Livingston County Register of Deeds. (R. 20, Exhibit H
Mortgage at 2, PageID # 325.) Connolly has not made a payment on the loan since December
2008. (R. 30, Ex. C Pl’s Deposition at 10, PageID # 294).
Citi Residential Lending Inc., as Attorney-in-Fact for Ameriquest Mortgage Company,
assigned the mortgage to Deutsche Bank National Trust Company, as trustee for Ameriquest
Mortgage Securities Inc.1 This would constitute the first assignment of the mortgage. A few
years later on April 28, 2009, Connolly filed for Chapter 7 Bankruptcy. (R. 20, Exhibit C Pl’s
Deposition at 5, PageID # 289.)
On May 8, 2009, the mortgage was then assigned a second time,2 to a different trust for
which Deutsche was a trustee. The second assignment was recorded May 13, 2009. (R. 20,
Exhibit J Assignment of Mortgage at 1–4, PageID # 346–349.)
Subsequently, Deutsche foreclosed on Connolly’s property, and a sheriff’s sale was held
on May 5, 2010. Deutsche was the highest bidder with a bid of $108,750. (R. 20, Exhibit A
Sheriff’s Deed at 2, PageID # 271.) Connolly was then allowed a statutory twelve-month
redemption period to purchase the property for the auctioned price. However, seven months into
the redemption period on December 1, 2010, Deutsche, through its attorney, executed an
1
Specifically, the assignment was from Citi Residential Lending Inc., as Attorney-in-Fact for
Ameriquest Mortgage Company, to Deutsche Bank National Trust Company, as trustee for
Ameriquest Mortgage Securities Inc., Quest Trust 2005-X2 Asset Backed Certificates, Series
2006-X2, Under the Pooling and Servicing Agreement Dated August 1, 2006. (R. 20, Ex. I.
Assignment of Mortgage.)
2
Specifically, the assignment of mortgage was from Deutsche Bank National Trust Company, as
Trustee for Ameriquest Mortgage Securities, In., Quest Trust 2005-X2 Asset Backed
Certificates, Series 2006-X2, Under the Pooling and Servicing Agreement Dated August 1, 2006
to Deutsche Bank National Trust Company, as Trustee in trust for the benefit of the
Certificateholders for Quest Trust 2006-X2, Asset Backed Certificates, Series X-2. (R. 20,
Exhibit J Assignment of Mortgage at 1–4, PageID # 346–349.)
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Case No. 13-2522, Connolly v. Deutsche Bank
Affidavit Expunging the Sherriff’s Deed pursuant to M.C.L.A. 565.451a. (R. 20, Exhibit D
Affidavit Expunging Sherriff’s Deed at 1–4, PageID # 310–13.) The affidavit states that the
sheriff’s deed must be expunged because the sheriff’s sale was “inadvertently held.” (Id. at 3,
PageID # 312.) The affidavit was recorded on December 8, 2010 with the Livingston County
Register of Deeds. (Id.)
On January 12, 2011, a third assignment3 was recorded, to another trust for which
Deutsche was trustee. (R. 20, Exhibit L Third Assignment at 3, PageID # 356.) After the third
assignment, Deutsche foreclosed the mortgage by advertisement. A sheriff’s sale occurred on
May 18, 2011, and Deutsche had the highest bid with $172,000. (R. 20, Exhibit B 2011 Sheriff’s
Deed at 2, PageID # 279.) A Sheriff’s Deed to Deutsche was recorded on May 26, 2011. Id.
Connolly then had one year to redeem the property for the new price. Before the year expired,
Connolly filed her complaint on April 24, 2012. She, however, never attempted to redeem her
property by May 18, 2012. Upon the filing of her complaint in state court, Deutsche removed to
the United States District Court for the Eastern District of Michigan on the basis of diversity of
citizenship. (R. 1, Notice of Removal at 2–4, PageID # 2–4.)
Connolly asserted seven claims arising from statutory foreclosure-by-advertisement
proceedings conducted by Deutsche as trustee.4 The district court granted Deutsche’s motion for
3
Specifically, the Mortgage was assigned from Deutsche Bank National Trust Company, as
Trustee for Ameriquest Mortgage Securities, Inc., Quest Trust 2005-X2 asset backed Certificates
Series 2006-X2, Under the Pooling and Servicing Agreement dated August 1, 2006 to Defendant
Deutsche Bank National Trust Company, as Trustee in trust for the benefit of the Certificate
holders for Quest Trust 2006-X2, Asset Backed Certificates, Series 2006-X2.
4
In the complaint, Connolly alleges the following claims: Jurisdictional Allegations (Count I),
Declaratory Judgment/Wrongful Foreclosure (Count II), Complaint to Quiet Title (Count III),
Complaint for Money Damages for the Tort of Slander of Title by Document Recordings (Count
IV), Slander to Plaintiff Individually by False Publications (Count V), Specific Count as to
M.C.L. 600.3205(a) Violation (Count VI), and Defendant’s Violation of M.C.L. 440.9109(1)(c)
Failure to Cancel and Deliver the Original Promissory Note (Count VII). (R. 1, Complaint at 9–
-3-
Case No. 13-2522, Connolly v. Deutsche Bank
summary judgment5 on all claims. (R. 31, Memorandum and Order at 1, 20, Page ID # 470, 489.)
The district court, in turn, denied Connolly’s motion for partial summary judgment. Id. Connolly
subsequently filed a motion for reconsideration, which the district court denied. 6
II
Summary judgment may be warranted “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 meet such a burden on a motion for summary judgment, the moving party may
“point[] out to the district court that there is an absence of evidence to support the nonmoving
party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “All justifiable inferences
[must be drawn] in the light most favorable to the non-moving party.” Hager v. Pike Cnty. Bd. of
Ed., 286 F.3d 366, 370 (6th Cir. 2002) (Jones, Moore, Haynes). In a case based on diversity of
citizenship, such as this, we apply the substantive law of the state of Michigan and “follow the
decisions of the state’s highest court when that court has addressed the relevant issue.” Savedoff
v. Access Group, Inc., 524 F.3d 754, 762 (6th Cir. 2008) (Keith, Clay, Gilman (concurring)). If a
state’s highest court has not addressed the issue, then “[i]ntermediate state appellate courts’
decisions are also viewed as persuasive unless it is shown that the state’s highest court would
30, PageID # 9–30.) Of these complaints, the Plaintiff only raises Count II and Count IV on
appeal, and accordingly, we only address those claims.
5
In the district court’s Memorandum and Order, the court noted that the Deutsche titled its
motion as a motion for summary judgment, yet the motion cited and argued that the complaint
was subject to dismissal under Fed. R. Civ. P. 12(b)(6) and Fed. R. Civ. P. 56. (R. 31
Memorandum and Order at 1, PageID # 470 n.3.) However, because the district court considered
evidence outside the four-corners of the complaint in ruling on the motion, we will treat the
district court’s ruling as a ruling granting summary judgment.
6
The standard of review on motions for reconsideration requires the finding of an abuse of
discretion. Charbeneau v. Wayne Cnty. General Hosp., 158 Mich. App. 730, 733 (Mich. Ct.
App. 1987). As we determine that the redemption period was 12-months and has expired,
Connolly has not proven that the lower court’s use of a six-month redemption period was an
abuse of discretion. Therefore, we do not address the substance of Connolly’s motion for
reconsideration and affirm the district court’s denial.
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Case No. 13-2522, Connolly v. Deutsche Bank
decide the issue differently. Conlin v. Mortg. Elec. Registration Sys., 714 F.3d 355, 358 (6th Cir.
2013) (citing Savedoff, 524 F.3d at 762).
On appeal, Connolly argues that the dismissal of her claims constitutes reversible error.
(Pl’s Brief at 5.) First, she claims that her mandatory redemption period has not expired. Id. at 3–
4. On that premise, she argues wrongful foreclosure on three grounds: 1) Deutsche interfered
with her statutory vested redemption rights by the use of a unilateral recording of a false
Affidavit Expunging Sheriff’s Deed; 2) Deutsche did not have standing to foreclose on her
home, namely because it did not carry its burden of proof that it is the true party entitled to
enforce the debt; and 3) Deutsche obtained the power to foreclose through an incomplete and
fraudulent recorded chain of mortgage assignments. Id. Next, Connolly claims the expungement
affidavit constitutes a compensable slander of title. Id. at 3, 7.
A preliminary question is whether Connolly’s redemption period has expired. It is not
disputed that Connolly failed to redeem within the twelve-month redemption period. However,
Connolly argues that her complaint was filed timely, nearly a month before the expiration of her
redemption period from the second sheriff’s auction, which she claims tolled the redemption
period. However, “the filling of a lawsuit is insufficient to toll the redemption period.” Conlin,
714 F.3d at 360 (citing Overton v. Mortg. Elec. Registration Sys., No. 284950, 2009 WL
1507342, at *1 (Mich. Ct. App. May 28, 2009)). As such, “once the redemption period expires,
the homeowner has no legal interest in the property that litigation might vindicate.” El-Sablani v.
IndyMac Mortg. Servs., 510 Fed. App’x 425, 428 (6th Cir. 2013) (Daughtrey, Cole, Gibbons).
Accordingly, Connolly’s redemption period has expired.
Courts have the ability to “allow an equitable extension of the period to redeem from a
statutory foreclosure sale . . . in order to keep a plaintiff’s suit viable, provided [s]he makes a
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Case No. 13-2522, Connolly v. Deutsche Bank
clear showing of fraud, or irregularity by the defendant.” Id. (citing Schulthies v. Barron, 167
N.W.2d 784, 785 (Mich. Ct. App. 1969)). Such fraud or mistake “must relate to the foreclosure
procedure itself.” Id. at 429. The first issue, then, is whether the redemption period should be
extended because of fraud or irregularity by the defendant. Even if the plaintiff can prove fraud
or irregularity in connection to her claims, she will also have to surpass a more difficult hurdle of
showing actual prejudice. See Conlin, 714 F.3d at 359–62; see also Kim v. JPMorgan Chase
Bank, N.A., 493 Mich. 98, 115–16 (Mich. 2012). Prejudice is proven if the defendant “would
have been in a better position to preserve [her] interest in the property absent defendant’s non-
compliance with the statute.” Kim, 493 Mich. at 116. The concurring opinion in Kim provides
factors to be considered when determining prejudice:
[W]hether plaintiffs were misled into believing that no sale had
been had; whether plaintiffs act[ed] promptly after [they became]
aware of the facts on which they based their complaint; whether
plaintiffs made an effort to redeem the property during the
redemption period; whether plaintiffs were represented by counsel
throughout the foreclosure process; and whether defendant relied
on the apparent validity of the sale by taking steps to protect its
interest in the subject property.”
Id. at 120–21(Markman, J. concurring) (citations omitted). We hold that Connolly cannot
establish the fraud and prejudice required to extend the redemption period, as none of her claims
are viable, as discussed below.
A. Wrongful Foreclosure
1. The Validity of an Affidavit Expunging a Sheriff’s Sale
Connolly’s principal argument on appeal is that the foreclosure was defective due to the
filing of the expungement affidavit. Her contention lacks merit.
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Case No. 13-2522, Connolly v. Deutsche Bank
Numerous foreclosure cases in Michigan have accepted the use of an affidavit expunging
a sheriff’s sale, yet very few have actually considered the validity of such a practice under the
authority of M.C.L. § 565.451a.7
In many of the cases concerning expungement affidavits, the courts accepted the practice
because the affidavit was not challenged.8 In others, the affidavit’s execution had the exact effect
the plaintiff had sought as relief.9 One Michigan case, which is most factually on point, does not
address the validity of the expungement affidavit even though it severed the prior redemption
period.10 The only relevant case that addresses the validity of an expungement affidavit is Cordes
v. Great Lakes Excavating & Equipment Rental, Inc., No. 304003, 2012 WL 2052789 (Mich.
7
M.C.L. § 565.451a provides in part as follows:
Sec. 1a. An affidavit stating facts relating to any of the following matters which
may affect the title to real property in this state made by any person having
knowledge of the facts or by any person competent to testify concerning such
facts in open court, may be recorded in the office of the register of deeds of the
county where the real property is situated:
(a) Birth, age, sex, marital status, death, name, residence, identity, capacity,
relationship, family history, heirship, homestead status and service in the armed
forces of parties named in deeds, wills, mortgages and other instruments affecting
real property;
(b) Knowledge of the happening of any condition or event which may terminate
an estate or interest in real property.
Mich. Comp. Laws Ann. § 565.451a(a)–(b) (West).
8
See Buttazzoni v. Nationstar, No. 13-CV-14901, 2014 WL 1031278, at *3 (E.D. Mich. March
14, 2014) (“Plaintiff has not included even one allegation concerning how the expungement
affected the second foreclosure process.”); see also Maltbie v. Bank of Am., 1:12-CV-1002,
2013 WL 6078945 (W.D. Mich. Nov. 19, 2013); Roche v. CitiMortgage, Inc., 12-CV-10266,
2012 WL 4498520 (E.D. Mich. Sept. 28, 2012); PNC Mortg. v. Lambert, 302178, 2012 WL
1367575 (Mich. Ct. App. Apr. 19, 2012).
9
See Freund v. Trott & Trott, P.C., No. 299011, 2011 WL 5064248 (Mich. App. Oct. 25, 2011).
10
See Colbert v. Fed. Nat. Mortgage Ass’n, 12-13844, 2013 WL 1629305 WL 1629305, at *2
(E.D. Mich. Apr. 16, 2013) (validity of the expungement affidavit was not challenged, and the
case was dismissed based on a lack of jurisdiction).
-7-
Case No. 13-2522, Connolly v. Deutsche Bank
App., June 7, 2012). In Cordes, the court of appeals addressed competing interests in real
property, where one party recorded an affidavit stating that the plaintiff’s mortgage should not
have been discharged and that the mortgage remained in effect. The court ruled that “the
[owner’s] affidavit rehabilitated the constructive notice of that mortgage in the land record title
system.” Id. The Michigan Court of Appeals held that the expungement affidavit, pursuant to
M.C.L. 565.451a(b), can have effect because such an affidavit is based on “[k]knowledge of the
happening of any condition or event which may terminate an estate or interest in real property.”
Id. at *2 (citing M.C.L. 565.451a(b)). The court further held that the affidavit was “sufficient to
put interested persons on notice that the parcel was encumbered by a mortgage and that [the]
discharge of the mortgage was erroneous.” Id. at *2.
The Michigan Supreme Court has yet to address the validity of an expungement affidavit.
Therefore, we may look to the decisions of the appellate court. As the Michigan Court of
Appeals has decided the validity of an expungement affidavit in the case of a mortgage
discharge, we similarly hold that such an affidavit can effectively void a sheriff’s sale. See
Cordes, 2012 WL 2052789, at *2. The expungement affidavit used in the instant case was
sufficient to put interested persons on notice that the parcel was encumbered by a mortgage and
that the sheriff’s sale was inadvertently held.
Connolly relies heavily on PHH Mortg. Corp. v. O’Neal, No. 311233, 2013 WL 3025566
(Mich. Ct. App. June 18, 2013), where she claims the court ruled that a homeowner’s statutory
redemption rights cannot be unilaterally cut off by an expungement affidavit. (Def’s Brief at 28–
29). Connolly’s interpretation of O’Neal is erroneous. In O’Neal, the property in dispute, worth
approximately $80,000, was sold to the plaintiff at auction for $1000. Id. at *1. The defendant
obtained a quit claim deed from the original mortgagor and attempted to redeem the property
-8-
Case No. 13-2522, Connolly v. Deutsche Bank
within the statutory period. Id. However, the plaintiff filed an expungement affidavit the same
day as the conveyance of the deed and refused to accept the $1000 redemption amount. Id. In a
two-count complaint, the plaintiff sought to quiet title to the property and to set aside the
sheriff’s deed on the mortgage foreclosure. The Michigan Court of Appeals affirmed the trial
court’s award of summary judgment for the defendant. While this case is revealing, the court in
O’Neal did not rule on the validity of the expungement affidavit. The court never discussed
M.C.L. § 565.451a, or the effect of a rescission of a foreclosure sale by affidavit. In fact, the
court simply ruled that the defendant had a right to redeem the property because the plaintiff’s
claims of clerical and scrivener’s error were not persuasive. Id. at *6. In this case, Connolly did
not try to redeem the property at the same time the expungement affidavit was executed. Instead,
she filed the instant complaint without making a single attempt at redeeming the property before
its expiration. Therefore, O’Neal is inapposite as to the validity of the expungement affidavit.
Because prior Michigan law has consistently accepted an affidavit expunging a sheriff’s
sale, as well as in other contexts such as mortgage discharges, this Court will similarly uphold
the affidavit’s validity. The affidavit, therefore, does not prove fraud or irregularity in the
foreclosure process and the redemption period cannot be extended. Connolly cannot prove
prejudice from such an affidavit, as none of her claims are viable.
2. Deutsche’s Standing to Collect on the Mortgage
Connolly also claims that Deutsche has not presented any evidence that it has standing to
collect on or enforce the Ameriquest Note. Connolly asserts that the subsequent assignments
were conducted through forged robo-signing,11 which makes the foreclosure voidable.
11
We have addressed the issue of robo-signatures recently and have not found that such practices
have prejudiced mortgagors. See Conlin, 714 F.3d at 362 (“[I]t is apparent that neither of
-9-
Case No. 13-2522, Connolly v. Deutsche Bank
Connolly does not present any viable case law to support her position that Deutsche lacks
standing to foreclose. According to M.C.L. § 600.3204(d), a “party may foreclose a mortgage by
advertisement if . . . [t]he party foreclosing the mortgage is either the owner of the indebtedness
or of an interest in the indebtedness secured by the mortgage or the servicing agent of the
mortgage.” The district court properly determined that the third recorded assignment and
sheriff’s deed demonstrate that defendant is the mortgagee of record. According to Residential
Funding Co., LLC v. Saurman, 490 Mich. 909, 910 (Mich. 2011), “interest in the indebtedness”
includes “mortgagees of record among the parties entitled to foreclose by advertisement.”
Deutsche Bank is a mortgagee of record and has the power to foreclose the mortgage.
3. Standing to Challenge the Mortgage Assignments
Deutsche Bank argues that Connolly does not have standing to challenge the validity of
the mortgage assignments. It is well established that “a litigant who is not a party to an
assignment lacks standing to challenge that assignment.” Livonia Properties Holdings, LLC v.
12840-12976 Farmington Road Holdings, LLC, 399 F. App’x 98, 102 (6th Cir. 2010) (Merritt,
Rogers, Sutton). The court in Livonia established an exception to this rule, stating “[a]n obligor
may assert as a defense any matter which renders the assignment absolutely invalid or
ineffective, or void.” Id. (internal quotation marks omitted). Such defenses included
“nonassignability of the instrument, assignee’s lack of title, and a prior revocation of the
assignment,” all of which give the obligor standing because there was a possibility of “having to
pay the same debt twice.” Id.
Connolly alleges that the robo-signatures are forged and should not be given effect
because such fraud will render the chain of title voidable. The Court in Conlin ruled on this exact
Plaintiff’s theories—the ‘robo-signed’ assignment or MERS’s incapacity to assign—can support
this action.”).
- 10 -
Case No. 13-2522, Connolly v. Deutsche Bank
question, following the framework from Livonia. The plaintiff in Conlin claimed the chain of
title of the defendant’s assigned mortgages was conducted through fraud or irregularity because
the assignments were “forged or ‘robo-signed.’ ” Conlin, 714 F.3d at 360. This Court held that
the plaintiff had no standing to challenge the assignments. Id. at 362. According to the Court, the
plaintiff was a third party to the assignments and could only prove that any defect was merely
voidable. Id. at 361–61. Connolly has not asserted any of the defenses from Livonia, nor is it
clear that any of the defenses apply. Therefore, Connolly does not have standing to challenge the
mortgage assignments.
Even if Connolly could prove an irregularity in the assignments, the court in Conlin
further explained that defects from a voidable foreclosure require the showing of prejudice.12 Id.
at 361. Such a showing of prejudice cannot be made. There is no evidence that Connolly was
misled into believing there was no sale. Rather, Connolly waited eleven months into the second
redemption period to file this suit, Connolly did not attempt to redeem the property within the
redemption period, and Connolly has been represented by counsel throughout the foreclosure
process. Furthermore, there is no showing that Connolly would have been liable to anyone but
12
As stated above, prejudice is proven if the defendant “would have been in a better position to
preserve [her] interest in the property absent defendant’s non-compliance with the statute.” Kim,
493 Mich. at 116. The concurring opinion in Kim provides factors to be considered when
determining prejudice:
[W]hether plaintiffs were misled into believing that no sale had
been had; whether plaintiffs act[ed] promptly after [they became]
aware of the facts on which they based their complaint; whether
plaintiffs made an effort to redeem the property during the
redemption period; whether plaintiffs were represented by counsel
throughout the foreclosure process; and whether defendant relied
on the apparent validity of the sale by taking steps to protect its
interest in the subject property.”
Id. at 120–21(Markman, J. concurring) (citations omitted).
- 11 -
Case No. 13-2522, Connolly v. Deutsche Bank
Deutsche or would be in a better position to keep the property absent the defect. For these
reasons, Connolly cannot prove that she has standing to challenge the assignments or that she
was prejudiced by Deutsche’s assignments or foreclosure.13 In sum, the record does not contain
any evidence supporting Connolly’s challenges to the foreclosure and the district court’s ruling is
affirmed.
B. Slander of Title
On appeal, Connolly’s only slander of title argument is based on the unilateral
interference of her redemption rights through the filing of the expungement affidavit. To prove
slander of title, the plaintiff must make a showing that “the defendant maliciously published false
statements that disparaged a plaintiff’s right in property, causing special damages.” B & B Inv.
Group v. Gitler, 229 Mich. App. 1, 8 (Mich. Ct. App. 1998). To prove malice, “the plaintiff must
show that the defendant knowingly filed an invalid lien with the intent to cause the plaintiff
injury.” Stanton v. Dachille, 186 Mich. App. 247, 262 (Mich. Ct. App. 1990). Most importantly,
the statute of limitations on a slander of title claim is one year. Bonner v. Chicago Title Ins. Co.,
194 Mich. App. 462, 469 (Mich. Ct. App. 1992).
In this case, the affidavit of expungement was executed on December 8, 2010. The
complaint was filed on April 24, 2012; therefore, any invalid lien filed prior to April 24, 2011
would be time-barred. Since Connolly only raises the slander of title issue based on the
expungement affidavit, the statute of limitations prevents her claim because the affidavit was
executed before April 24, 2011. Even if it were within the applicable time frame, the
13
Connolly stated tangentially that all false assignments were a slander of her property,
therefore, giving her standing to question the mortgage assignments. Connolly failed to give
support for this allegation; therefore, in accordance with Rule 28 of the Rules of Appellate
Procedure, we treat this claim as waived on appeal. Fed. R. App. P. 28. See Langley v.
DaimlerChrysler Corp., 502 F.3d 475, 483 (6th Cir. 2007) (Daughtrey, McKeague, Reeves).
- 12 -
Case No. 13-2522, Connolly v. Deutsche Bank
expungement affidavit was valid and there is no evidence that it was filed with the intent to cause
Connolly injury. Accordingly, we affirm the district court’s denial of Connolly’s slander of title
claim.
III
For the reasons stated above, the district court’s grant of Deutsche’s motion for summary
judgment is AFFIRMED. The district court’s denial of Connolly’s motion for partial summary
judgment is AFFIRMED. The district court’s denial of Connolly’s motion for reconsideration is
AFFIRMED.
- 13 -
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196 S.E.2d 760 (1973)
283 N.C. 479
James PORTER
v.
SUBURBAN SANITATION SERVICE, INCORPORATED, and J. B. McBryde.
SANITATION SERVICE, INC.
v.
SUBURBAN SANITATION SERVICE, INC., et al.
No. 49.
Supreme Court of North Carolina.
June 1, 1973.
*766 Boyce, Mitchell, Burns & Smith by Eugene G. Boyce, Raleigh, for Sanitation Service, Inc.
Ellis E. Page, Lumberton, for Robeson County.
W. Earl Britt, Lumberton, for James Porter.
Nye & Mitchell by Charles B. Nye, and John E. Bugg, Durham, and L. J. Britt & Son by Luther J. Britt, Jr., Lumberton, for defendants.
LAKE, Justice.
THE PLAINTIFFS' APPEALS
The plaintiffs content that authority to issue exclusive franchises to pick up, collect, transport and dispose of trash and other refuse, as well as garbage, was conferred upon the Board by G.S. § 153-272. The Superior Court concluded: (a) This statute authorizes the Board to grant an exclusive franchise for the collection and disposal of "garbage"; (b) this statute does not authorize the Board to grant an exclusive franchise for the collection and disposal of "trash"; (c) solid waste material in which "garbage" is inseparably commingled is "garbage"; and (d) this statute does not authorize the Board to grant an exclusive franchise to maintain a landfill. The appeal of the plaintiffs relates to (b) and (d) of these conclusions.
For the reasons set forth in our opinion in Transportation Service v. Robeson, N.C., 196 S.E.2d 770, we find no error in the adoption by the Superior Court, for the purposes of these cases, of the definitions of "garbage," "refuse" and "solid waste" contained in G.S. § 130-166.16, or in its conclusion that G.S. § 153-272 does not authorize the Board of County Commissioners to grant an exclusive franchise for the collection and disposal of "trash," so defined and not substantially and inseparably commingled with "garbage," so defined.
The authority conferred by G.S. § 153-272 upon the Board of County Commissioners to regulate the "disposal of garbage" would, of necessity, extend to the disposal of garbage by the operation of a landfill. However, since a landfill is also a method for disposal of wastes which are not "garbage," within the above definition and so within the meaning of G.S. § 153-272, there was no error in the conclusion of the Superior Court that this statute does not authorize the Board of County Commissioners to grant an exclusive franchise for the operation of a landfill.
We find, therefore, no merit in the plaintiffs' assignments of error and, with reference to the plaintiffs' appeals, the judgment of the Superior Court is affirmed.
THE DEFENDANTS' APPEALS
The Superior Court found as a fact that the waste picked up by each defendant, pursuant to its regular schedule of service to its customers, includes "paper, bottles, cans, tree limbs, food scraps, rotten fruit, and food wrappers," that each defendant estimates that the vegetable and animal food scraps and matter approximates 10% or less of the material collected and "such putrescible material is inseparable from the other solid waste" collected and disposed of by these defendants. To this finding there was no exception. It is followed in the judgment of the court by a paragraph designated "Finding of Fact No. 11," to which the defendants did except. In it the court "found" that because of the inseparability of the entire mass of waste collected by each defendant into its putrescible and nonputrescible components, the entire collection constitutes "garbage," within the meaning of G.S. § 153-272. This paragraph is, in reality, a conclusion of law. It is supported by the above mentioned finding of fact to which no exception was taken.
*767 Obviously, a scrap of bread, a chicken bone, a watermelon rind or a half-filled carton of soured milk thrown into a truckload of yard trash and discarded newspapers would not convert the entire mass into "garbage." Where, however, there is a substantial commingling of "garbage" and "trash" into an inseparable mass, the whole becomes "garbage," attractive to rats and dangerous to the public health. The drawing of the line between trivial and substantial commingling of the two types of material is a question for the exercise of sound judgment in each case, but we are not prepared to say that a "garbage" component amounting to 10% of the total mass is not sufficient to warrant the conclusion that the entire mixture is "garbage," within the meaning of the statute. Thus, we find no error in the conclusion of the Superior Court that each defendant is presently engaged in the collection and disposal of "garbage," and the defendants' Assignment of Error No. 1 is overruled.
We also find no merit in the defendants' Assignments of Error 2 and 3 relating to the conclusion of the Superior Court that the franchises granted by the county to the plaintiffs are severable, so that the invalidity of those portions of each purporting to grant an exclusive franchise for the collection and disposal of "trash" and for the operation of landfills does not, per se, compel the conclusion that the grant of the exclusive right to collect and dispose of "garbage" is also invalid.
We are thus brought to the defendants' fourth assignment of error. This is directed to the Superior Court's conclusion that G.S. § 153-272 is a valid enactment of authority to county commissioners to regulate the collection and disposal of garbage and is not unconstitutional "on any ground alleged by the defendants." The defendants' assignment of error asserts that this conclusion is erroneous "because General Statute 153-272 is an illegal and unconstitutional delegation of power to the county commissioners by our legislators * * *." The only argument made in support of this assignment of error in the brief of the defendants is that G.S. § 153-272 "does not lay down or point to any standards for the guidance of counties in the exercise of their discretion in granting exclusive franchises for the removal and disposal of garbage within said county," and for that reason is a violation of Article II, § 1, of the Constitution of North Carolina.
The general rule that legislative power, vested in the General Assembly by Article II, § 1, of the Constitution of North Carolina, may not be delegated is subject to an exception permitting the delegation to municipal corporations and to counties of power to legislate concerning local problems. Jackson v. Board of Adjustment, 275 N.C. 155, 162, 166 S.E.2d 78; Efird v. Com'rs of Forsyth, 219 N.C. 96, 12 S.E.2d 889; Tyrrell County v. Holloway, 182 N.C. 64, 108 S.E. 337. There is no merit in this assignment of error.
One who seeks a judicial determination that a statute, or governmental action pursuant thereto, is unconstitutional must raise the question at the earliest possible stage of the proceeding, usually in his pleadings in the trial court, must point out the specific constitutional provision upon which he relies and must preserve the question for consideration by the appellate court through an assignment of error specifically directing attention to such constitutional provision and by argument in his brief directed thereto. Martin v. Housing Corporation, 277 N.C. 29, 41, 175 S.E.2d 665; Rice v. Rigsby and Davis v. Rigsby, 259 N.C. 506, 131 S.E.2d 469. As Justice Parker, later Chief Justice, said in the case last cited, "Constitutional questions are of great importance and should not be presented in uncertain form." In United States v. Spector, 343 U.S. 169, 72 S.Ct. 591, 96 L.Ed. 863, the Supreme Court of the United States said, "But when a single, naked question of constitutionality is presented, we do not search for new and different constitutional questions."
*768 The franchise granted to each plaintiff provides: (1) The grantee will obtain and maintain its equipment and other facilities in conformity to the requirements of the State Board of Health and to applicable laws of the State; (2) it will render "reasonably acceptable service" to persons, firms and corporations in its area, the County Board of Commissioners reserving the right to determine any controversy arising as to "reasonable acceptable service"; (3) the grantee will furnish such service at a "reasonable price," the County Commissioners reserving the right to determine any controversy which may arise as to such price, but in no event shall the price be less than the prevailing price for like services rendered in adjoining counties of this State; (4) the grantee will furnish its own landfill; and (5) such landfill may be used by "the general public" upon payment of a "reasonable fee" for such use.
Each franchise provides that nothing therein shall be construed to prevent any person, firm or corporation from "personally disposing of its own * * * garbage * * * in a legal and lawful manner and in compliance with the laws, rules and regulations of the North Carolina Health Department." The provision as to the use of the grantee's landfill by the general public would seem to mean that the above mentioned right of any person, firm or corporation "personally" to dispose of his or its own garbage would include transporting it to such landfill.
It will be observed the franchise agreement: (1) Does not expressly forbid discrimination either in service or in price; (2) provides no minimum frequency of pick up of garbage; (3) provides no maximum price or standard for determining a "reasonable price"; (4) apparently leaves both service and price to individual negotiation, subject to complaint to the Board of Commissioners; (5) does not require the grantee to remove garbage from the premises of any person, firm or corporation with whom it has no contract or with whom any controversy arises pending the determination of such controversy by the Board of Commissioners; and (6) does not require the grantee to pick up garbage heretofore or hereafter thrown or deposited on or near the roadside or any other public place.
These and other circumstances appearing in the record seem to distinguish the present case from many of the decisions of other courts cited by text writers in support of general statements that the grant by a city of an exclusive contract for the removal of garbage constitutes a proper exercise of the police power. See McQuillin, The Law of Municipal Corporations, 3rd Ed, § 24.251; 56 Am.Jur.2d, Municipal Corporations, § 462; Annot., 83 A.L.R.2d 799. Numerous cases from other jurisdictions, cited by these writers, support the proposition that a city, in the exercise of the police power delegated to it by the State, may prohibit anyone other than the city itself, or an independent contractor with whom it contracts for the removal of garbage, to transport garbage over its streets. This is deemed a reasonable exercise of the police power for the protection of the public health. Many decisions cited by these writers hold, and we think it cannot be doubted, that the police power extends to reasonable regulations of the equipment used, the manner of collecting and transporting, the method and place of disposition of garbage by a scavenger and the requirement that he obtain a license. This, obviously, is a different question from that presented by the grant of an exclusive franchise.
The most widely accepted, and we think the most plausible, basis for the decisions sustaining the validity of ordinances prohibiting anyone other than the city itself, or its independent contractor, from transporting garbage is that the public health can best be protected if the city authorities have put one scavanger to supervise. See: City of Indianapolis v. Ryan, 212 Ind. 447, 7 N.E.2d 974; O'Neal v. Harrison, 96 Kan. 339, 150 P. 551; *769 Wheeler v. Boston, 233 Mass. 275, 123 N. E. 684; Board of Health of Grand Rapids v. Vink, 184 Mich. 688, 151 N.W. 672; Valley Spring Hog Ranch Co. v. Plagmann, 282 Mo. 1, 220 S.W. 1; Smiley v. MacDonald, 42 Neb. 5, 60 N.W. 355; Atlantic City v. Abbott, 73 N.J.L. 281, 62 A. 999; Spencer v. Medford, 129 Or. 333, 276 P. 1114; Smith v. City of Spokane, 55 Wash. 219, 104 P. 249. It may be seriously questioned whether this reason applies to the grant of an exclusive franchise to collect and dispose of garbage for compensation, leaving, as does the franchise in the present case, every person, firm or corporation free "personally" to transport and dispose of his or its own garbage. G.S. § 153-272 expressly authorizes the issuance of such a franchise.
The myriad cases cited by the above mentioned text writers disclose that in many areas, especially large cities, the right to collect garbage for use as hog feed or other commercial purposes is much sought after and not without substantial value. See: Jansen Farms v. City of Indianapolis, 202 Ind. 138, 171 N.E. 199; Wheeler v. Boston, supra; People v. Gardner, 136 Mich. 693, 100 N.W. 126, aff'd, 199 U.S. 325, 26 S.Ct. 106, 50 L.Ed. 212; Atlantic City v. Abbott, supra; State ex rel. Moock v. City of Cincinnati, 120 Ohio St. 500, 166 N.E. 583; Cornelius v. Seattle, 123 Wash. 550, 213 P. 17. We are not concerned here with a business of minimal importance, either in value or in relation to the public health. Whether a person who contracts with a restaurant operator, householder, or industrial plant to purchase garbage produced on the premises of such vendor is to be deemed a person transporting and disposing of his or its "own" garbage, within the meaning of the franchise in the record before us, presents another interesting question, not now before us for decision.
The police power is not unlimited. To survive a well aimed constitutional attack, the governmental activity must have not only a good purpose but also a reasonable relation to the promotion of the public health, safety, morals or welfare. See, in relation to the regulation of garbage collection and disposal: Wheeler v. Boston, supra; Valley Spring Hog Ranch Co. v. Plagmann, supra; In re VanDine, 23 Mass. 187; State v. Fisher, 52 Mo. 174; Coombs v. MacDonald, 43 Neb. 632, 62 N. W. 41; Atlantic City v. Abbott, supra. As we have noted, the franchises before us permit any corporation "personally" to transport and dispose of its own garbage. The only way that a corporation can "personally" do so is through its own employees. The relation to the promotion or preservation of the public health of a distinction between transporting and disposing of corporate garbage by employees and by an independent contractor is not too clear for question.
On 6 December 1971, each of the defendants, pursuant to contracts with his or its customers, was engaged in a lawful business, which business was conducive to the maintenance of the public health, sanitation and welfare. Nothing in the record suggests that either of the defendants did not have the proper equipment or was not qualified to operate such business in a safe and lawful manner, that any customer was dissatisfied with his or its services or that the manner in which the business was operated endangered the public health, safety or welfare. On that date the Board of County Commissioners by official action, procedurally correct, undertook to deprive each of these defendants of his or its right to continue so to serve his or its customers and to confer that right upon another by granting to such favored person an exclusive franchise to carry on such business. This is a drastic governmental action which can be supported only by reasonable basis for the belief that there is a substantial public need therefor.
Counsel have not cited and our research has not disclosed any decision of this Court determining the validity of such governmental action. The nearest approach thereto in our reports appears to be *770 State v. Hill, 126 N.C. 1139, 36 S.E. 326. That case, however, is not squarely in point. G.S. § 153-272 purports to confer upon the Board of County Commissioners authority to grant to licensed persons the exclusive right to collect and dispose of garbage for compensation. The reasonableness of the distinction made in these franchises between transportation and disposition of garbage by the producer thereof "personally" and the transportation and disposition of identical garbage under identical circumstances by an independent contractor other than the grantee of the franchise is not before us in this appeal. It is not shown by this record to have been before the Superior Court. In affirming the judgment of the Superior Court, we do not determine this question. It may or may not be presented to the Superior Court in the further hearings provided for in its judgment on the question of the recovery of damages by the plaintiffs from these defendants.
Affirmed.
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294 S.W.3d 414 (2009)
Charles ARCHER and Linda Archer, Husband and Wife, Individually and as Parents and Next Friends of Mason Archer, Appellants,
v.
SISTERS OF MERCY HEALTH SYSTEM, ST. LOUIS, INC. d/b/a Sisters of Mercy Health System d/b/a St. Joseph's Mercy Health Center; Bethany A. McGraham, M.D.; James E. Tutton, M.D.; Hot Springs Radiology Services, Ltd.; Mark S. Russell, M.D.; Mark B. Robbins, M.D.; Deanna L. Shatwell, R.N. a/k/a Deanna L. Dial, R.N.; and Paula Scheck, R.N., Appellees.
No. 08-784.
Supreme Court of Arkansas.
February 12, 2009.
Arnold, Batson, Turner & Turner, P.A., by: Todd Turner and Dan Turner, Arkadelphia, *415 and Wigington Rumley, LLP, by: Joe Dunn, for appellants.
Wright, Lindsey & Jennings LLP, by: Edwin L. Lowther, Jr., David P. Glover, Little Rock, and Gary D. Marts, Jr., Little Rock, for appellee Sisters of Mercy Health System, St. Louis Pooled Comprehensive Liability Program, et al.
Brian Brooks, Greenbrier, for amicus curiae Arkansas Trial Lawyers Association.
ROBERT L. BROWN, Justice.
This appeal involves a medical malpractice action brought by appellants Charles and Linda Archer ("the Archers") on behalf of their son, Mason Archer, against multiple parties, including appellee, Sisters of Mercy Health System, St. Louis Pooled Comprehensive Liability Program ("the Liability Pool").[1] The circuit judge entered an order dismissing the Liability Pool. We reverse and remand.
The following facts are gleaned from the Archers' pleadings and pretrial motions. On March 12, 2005, the Archer family was in an automobile accident while returning to their home in Arkadelphia, after a trip to Hot Springs. The driver of the other vehicle involved in the accident, who was intoxicated at the time, died in the accident. The Archers sustained serious injuries. The injuries suffered by Mason Archer ("Mason"), who was six years old at the time of the accident, are the subject of the instant lawsuit.
When emergency personnel arrived at the crash scene, they discovered that Mason had suffered a fractured wrist. He also had visible facial injuries. Mason was moving all four extremities at the scene, but the ambulance crew placed him on a spinal board and in a cervical collar until doctors could determine whether he had suffered any spinal cord injuries. The ambulance took Mason to the emergency room at St. Joseph's Mercy Health Center ("St. Joseph's").
The Archers allege that St. Joseph's and the doctors who treated Mason acted negligently in providing medical care, with the result that Mason is permanently paralyzed from the chest down. Their complaint asserts that when Mason arrived at the emergency room, he complained to a nurse of abdominal pain and pain in his arms and legs, that he was then examined by Dr. Bethany McGraham and subsequently by Dr. James Tutton, and that Mason was eventually transferred to Arkansas Children's Hospital where it was determined that he had serious spinal-cord injuries.
The essence of the Archers' negligence claim is as follows: Dr. Tutton ordered a CT scan of Mason's head, neck, abdomen, and pelvis at St. Joseph's, which was not read by a doctor for almost four hours. When the results were eventually interpreted, they were incorrectly determined to be negative. After the test results came back, a nurse removed the cervical collar from Mason and allowed him to move around.[2] The collar was removed before Mason was examined by a physician, and a nurse "pulled on Mason's arm" in an attempt to help him stand up, resulting in permanent paralysis.
On March 9, 2007, the Archers filed suit against various parties.[3] They did not *416 name the Liability Pool[4] then because two months before the Archers filed their original complaint, this court handed down a decision specifically holding that the Liability Pool was not an insurer for purposes of the direct-action statute, codified at Arkansas Code Annotated section 23-79-210. See Sowders v. St. Joseph's Mercy Health Ctr., 368 Ark. 466, 475, 247 S.W.3d 514, 521 (2007). Later, in response to the decision in Sowders, the Arkansas General Assembly amended the direct-action statute to expressly state that "[a]ny self-insurance fund, pooled liability fund, or similar fund maintained by a medical care provider for the payment or indemnification of the medical care provider's liability for medical injuries under § 16-114-201 et seq. shall be deemed to be liability insurance susceptible to direct action under this section." Act of Mar. 30, 2007, No. 750, 2007 Ark. Acts 3963 (hereinafter "Act 750").
On August 27, 2007, after the enactment of Act 750, the Archers amended their original complaint to name the Liability Pool as a defendant to the instant action. On November 9, 2007, the Liability Pool moved to dismiss the amended complaint on the basis that Act 750 could not be applied retroactively because it had created a new cause of action against the Liability Pool. On March 11, 2008, the circuit judge held a hearing on the motion, and on April 25, 2008, she handed down a letter ruling in which she explained her decision to grant the Liability Pool's motion. The judge specifically found that:
[T]he amendment to the direct-action statute changed a fund which was previously not insurance to insurance. This is a substantive change for the Program [Liability Pool] to be prepared to pay potential claims it had not previously been required to pay. It created a new right to sue which tort victims did not have prior to the law. It enlarged the responsibility of the Program [Liability Pool] to include the accumulation of funds adequate to pay potential new claims. All of the Arkansas cases on this subject indicate prospective application only for such substantive changes.
On May 8, 2008, the circuit judge entered an order dismissing the Liability Pool and a certificate of final judgment, pursuant to Arkansas Rule of Civil Procedure 54(b).
The Archers contend on appeal that Act 750, which permits direct-action lawsuits against pooled-liability funds and deems such funds to be liability insurance for such lawsuits, is remedial in nature and, as such, should be applied retroactively so as to effectuate the intent of the legislation.[5]
We first consider the Liability Pool's claim that this court should not consider the Archers' arguments that the direct-action statute should be construed liberally, that retroactive application is necessary to effectuate its intended purpose, and that rules of statutory construction require that Act 750 be retroactively applied. The Liability Pool initially asserts that the Archers did not raise these issues before the circuit judge. It, however, is wrong on this point. The record clearly indicates *417 that the Archers raised these issues during the March 11, 2008 hearing. Further, these points are not separate issues on appeal. Rather, if the court determines that Act 750 is remedial, they necessarily become part of the court's analysis in determining whether to apply the act retroactively.
This court has consistently set forth the law regarding retroactive application of statutes. See, e.g., McMickle v. Griffin, 369 Ark. 318, 254 S.W.3d 729 (2007). We have said:
Retroactivity is a matter of legislative intent. Unless it expressly states otherwise, we presume the legislature intends for its laws to apply only prospectively. However, this rule does not ordinarily apply to procedural or remedial legislation. The strict rule of construction does not apply to remedial statutes which do not disturb vested rights, or create new obligations, but only support a new or more appropriate remedy to enforce an existing right or obligation. Procedural legislation is more often given retroactive application. The cardinal principle for construing remedial legislation is for the courts to give appropriate regard to the spirit which promoted its enactment, the mischief sought to be abolished, and the remedy proposed.
McMickle, 369 Ark. at 338-39, 254 S.W.3d at 746 (citing Bean v. Office of Child Support Enforcement, 340 Ark. 286, 296-97, 9 S.W.3d 520, 526 (2000)). The general rules also apply to amendatory acts. See Gannett River States Publ'g Co. v. Ark. Ind. Dev. Comm'n, 303 Ark. 684, 799 S.W.2d 543 (1990).
This court has also observed that:
Although the distinction between remedial procedures and impairment of vested rights is often difficult to draw, it has become firmly established that there is no vested right in any particular mode of procedure or remedy. Statutes which do not create, enlarge, diminish, or destroy contractual or vested rights, but relate only to remedies or modes of procedures, are not within the general rule against retroactive operation. In other words, statutes effecting changes in civil procedure or remedy may have valid retroactive application, and remedial legislation may, without violating constitutional guarantees, be construed ... to apply to suits on causes of action which arose prior to the effective date of the statute.... A statute which merely provides a new remedy, enlarges an existing remedy, or substitutes a remedy is not unconstitutionally retrospective....
JurisDictionUSA, Inc. v. Loislaw.com, Inc., 357 Ark. 403, 412, 183 S.W.3d 560, 565-66 (2004) (citing Padgett v. Bank of Eureka Springs, 279 Ark. 367, 651 S.W.2d 460 (1983)).
We turn then to the central question of whether Act 750, amending Arkansas Code Annotated section 23-79-210, is remedial in nature. In Rogers v. Tudor Insurance Co., we said, "[d]irect action statutes are remedial in nature and are liberally construed for the benefit of injured parties and to effectuate the intended purposes." 325 Ark. 226, 234, 925 S.W.2d 395, 399 (1996) (citing 12A Couch on Insurance 2d §§ 45:798, 45:800, at 455, 458 (1981)). Despite this statement of the law, the Liability Pool maintains that the Rogers language is dicta and that this court should decline to hold that Arkansas's direct-action statute is remedial. In support of its position, the Liability Pool directs this court to additional language from Couch on Insurance, which indicates that some jurisdictions treat direct-action statutes as creating a substantive right in the claimant to sue the insurance company. See 7A Lee R. Russ & Thomas Segalla, Couch on *418 Insurance 3d § 104:54, at 104-82 (1999).[6] According to the Liability Pool, this court should "consider the text [Couch] in its entirety" because "the view of direct action statutes being procedural in nature is not universally applied."
We disagree with the Liability Pool's analysis. This court should rely on the quoted language from Rogers that direct-action statutes are remedial in nature as precedent. The Rogers court studied Couch on Insurance and cited as authority language from Couch that direct-action statutes are remedial in nature, even though the treatise also included the reasoning that some jurisdictions use to hold that direct-action statutes create substantive rights. The clear message from Rogers is that this court was persuaded by the view that the statute is remedial in nature.
The Liability Pool goes on and claims that Act 750 cannot be remedial because it affords the Archers a new legal right and imposes a new obligation on it. In essence, it argues that when the negligence cause of action arose, the Archers did not have a right to sue the Liability Pool, and it was not obligated to pay damages on the claim. Accordingly, it asserts that Act 750 operates to give plaintiffs a new cause of action against pooled-liability funds and, therefore, cannot be remedial in nature. We disagree.
Act 750 did not create a new cause of action. The negligence cause of action that is the heart of the Archers' claim is grounded in this state's common law and is regulated by statute. See Ark.Code Ann. §§ 16-114-201 to -212 (Repl.2006 & Supp. 2007) (Actions for Medical Injury). The statutes govern "any action against a medical care provider, whether based in tort, contract, or otherwise, to recover damages on account of medical injury." Id. § 16-114-201 (Repl.2006). The application of the charitable immunity doctrine, however, operates to prevent some injured parties from recovering damages for negligence against charitable hospitals directly. See Low v. Ins. Co. of N. Am., 364 Ark. 427, 440, 220 S.W.3d 670, 680 (2005) (certain charitable entities are immune from tort liability).
The direct-action statute, codified at section 23-79-210, is a statutory remedy because it provides a new or substitute remedy for the underlying claim of negligence in cases where the plaintiff cannot recover directly from a negligent charitable hospital. See JurisDictionUSA, Inc., 357 Ark. at 412, 183 S.W.3d at 566 (a statute providing a new or substitute remedy can be applied retroactively). After this court's decision in Sowders, parties injured as the result of negligence on the part of charitable hospitals, who did not carry traditional liability insurance but did contribute to a pooled-liability fund, were left without a remedy for the hospital's negligence. 368 Ark. 466, 247 S.W.3d 514. As already noted, the General Assembly responded with Act 750 by amending the direct-action statute so that it now expressly states that pooled-liability funds are liability insurers under the statute. Contrary to the Liability Pool's contention, this amendment did not create a new legal right for injured parties. Instead, it clarified that those injured parties have a remedy against a liability pool for the underlying claim of negligence when charitable immunity of a hospital is involved.
Despite this, the Liability Pool relies heavily on this court's often-cited language that a remedial statute cannot "impose a new obligation." See McMickle, 369 Ark. at 339, 254 S.W.3d at 746. Its position is *419 that Act 750 imposed a new obligation by requiring it to pay damages to the Archers in the event a jury finds that St. Joseph's was negligent in providing medical care to Mason. The Liability Pool relies on this court's decision in Estate of Wood v. Arkansas Department of Human Services to support its argument. 319 Ark. 697, 894 S.W.2d 573 (1995). We do not agree that the Estate of Wood case militates in favor of the Liability Pool's position.
At issue in Estate of Wood was an act that permitted the Arkansas Department of Human Services (DHS) to make a claim against a decedent's estate for medicaid payments made to the decedent prior to death. Id. at 698, 894 S.W.2d at 574. This court refused to apply that act retroactively because it "appear[ed] to create a new legal right which allow[ed] DHS to file a claim against the estate of the deceased." Id. at 701, 894 S.W.2d at 575. The court went on to note that "[p]rior to the enactment [of the act, the decedent] had no reason to consider the medicaid payments as anything other than an outright entitlement. After the enactment it was as if she had a loan from DHS to be repaid from the assets of her estate." Id. at 701, 894 S.W.2d at 576.
The Liability Pool contends that, like in Estate of Wood, "the remedy that Appellants assert is a new legal right" and it "is now burdened with the new obligation to plaintiffs bringing such suits." The Liability Pool, though, misapplies the Estate of Wood decision to the instant matter. In that case, DHS had no right to recover medicaid payments from a decedent's estate prior to the enactment of the act. In this case, the Archers already had the right to sue in negligence and recover from a liability insurer, under the direct-action statute, prior to the enactment of Act 750. Act 750 merely clarified an avenue of relief for the Archers to pursue under that statute. The Liability Pool also advocates that the "obligation" imposed on the decedent in Estate of Wood, to repay DHS the money she received in benefits during her life, is analogous to its "new obligation" to pay damages to the plaintiffs under the direct-action statute. However, the proper interpretation of Estate of Wood is that the legislative act in that case interfered with the decedent's vested right to receive benefits as an "outright entitlement." Id. at 701, 894 S.W.2d at 576. In the instant case, Act 750 does not disturb any of the Liability Pool's vested rights.
Furthermore, the Liability Pool's argument that Act 750 cannot be remedial because it imposes an obligation on it to pay damages is unpersuasive because this court has held that statutes and court rules are remedial in certain cases and can be applied retroactively even if the result is that a party may have to pay damages it otherwise would not have previously had to pay. See, e.g., Steward v. Statler, 371 Ark. 351, 266 S.W.3d 710 (2007) (estate permitted to proceed with a wrongful death claim even though it failed to comply with the procedural requirements of the statute at the time the suit was filed; court applied an amendment retroactively); McMickle, 369 Ark. 318, 254 S.W.3d 729 (plaintiff permitted to seek loss-of-life damages against a defendant even though the statute was amended to allow for such damages after the suit was filed; court applied the changes to the statute retroactively); JurisDictionUSA, Inc., 357 Ark. 403, 183 S.W.3d 560 (applied an amendment to Ark. R. Civ. P. 55(f) retroactively and reversed a default judgment under the previous version of the rule; allowed the plaintiff to proceed with the claim).
We are further influenced in our decision by the fact that the Liability Pool is a self-insurance program administered and maintained by the Sisters of Mercy Health *420 System, which does business in many states, but in Hot Springs as St. Joseph's. Hence, the Liability Pool is not a separate, unrelated, and distinguishable third party. It is a fund that clearly is under the umbrella of the same non-profit corporation that runs St. Joseph's. It also receives contributions from Sisters of Mercy hospitals throughout a multi-state region, including St. Joseph's, to cover medical malpractice claims. In some of those states, Sisters of Mercy hospitals are not protected by charitable immunity, as St. Joseph's is in Arkansas, which means the Liability Pool pays malpractice claims against those hospitals. It is difficult under these facts to accept the proposition that the Liability Pool qualifies as a new party, brought into this matter and burdened with a new obligation imposed by virtue of Act 750.
Because we hold that Act 750 is remedial in nature, this court must then apply the cardinal principle for construing remedial legislation and examine what is "the spirit which promoted its enactment, the mischief sought to be abolished, and the remedy proposed." McMickle, 369 Ark. at 339, 254 S.W.3d at 746. Act 750 was clearly enacted to reverse this court's decision in Sowders and to permit parties to recover directly from pooled-liability funds like the Liability Pool. Act 750 operates to provide injured parties with a remedy when there otherwise would have been none. Again, this court has said that "direct-action statutes are remedial in nature and are liberally construed for the benefit of injured parties." Rogers, 325 Ark. at 234, 925 S.W.2d at 399 (emphasis added). Using these principles of the law, we apply Act 750 retroactively, and we reverse the circuit judge's order, which dismissed the Liability Pool as a defendant in the instant action.
Reversed and remanded.
NOTES
[1] The Archers added the Liability Pool as a named defendant in their First Amended Complaint.
[2] St. Joseph's has denied that the cervical collar was removed.
[3] The Archers initially named Sisters of Mercy Health System, St. Joseph's Mercy Health Center, Bethany A. McGraham, M.D., James E. Tutton, M.D., Hot Springs Radiology Services, Ltd., Mark S. Russell, M.D., Mark B. Robbins, M.D., Deanna L. Shatwell, R.N., and Paula Scheck, R.N.
[4] St. Joseph's is a member of the Liability Pool, which is a pooled-liability fund administered and maintained by Sisters of Mercy Health System.
[5] The direct-action statute, Arkansas Code Annotated section 23-79-210, which Act 750 amended, reads that "[w]hen liability insurance is carried by any cooperative non-profit corporation, association, or organization ... not subject to suit in tort ... the person so injured or damaged shall have a direct cause of action against the insurer." Ark.Code Ann. § 23-79-201 (Supp.2007).
[6] The section cited by the Liability Pool primarily addresses choice of law issues pertaining to direct-action statutes, which are not relevant to the current analysis.
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0479n.06
No. 08-6172
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Jul 10, 2009
LEONARD GREEN, Clerk
EXCEL ENERGY, INC., )
) ON APPEAL FROM THE
Plaintiff-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
v. ) DISTRICT OF KENTUCKY
)
CANNELTON SALES CO., ) OPINION
)
Defendant, )
)
and )
)
CYPRUS AMAX COAL SALES CORP. and )
CYPRUS AMAX COAL CO., )
)
Defendants-Appellees. )
BEFORE: GILMAN and McKEAGUE, Circuit Judges; and BARRETT, District Judge.*
McKEAGUE, Circuit Judge. Excel Energy had an exclusive contract with Cannelton Sales
to sell coal to a particular industrial plant. After the ultimate parent of Cannelton Sales was merged
with another mineral-based company, one of Cannelton Sales’ new sister companies sold coal to that
same industrial plant. Excel Energy sued Cannelton Sales, the sister company, and one of the parent
companies for breach of contract and several other claims. The district court concluded that the
*
The Honorable Michael R. Barrett, United States District Judge for the Southern District of Ohio,
sitting by designation.
No. 08-6172
Excel Energy, Inc. v. Cannelton Sales Co.
sister company and parent company were not successors in interest to Cannelton Sales and dismissed
the claims against those companies. For the reasons set forth below, we affirm.
I
A detailed history of this lawsuit can be found in this court’s decision remanding an earlier
appeal for further proceedings. Excel Energy, Inc. v. Cannelton Sales Co., 246 F. App’x 953, 955-58
(6th Cir. 2007). Following is a brief summary.
A. Merger of Amax and Cyprus Minerals
Prior to November 1993, Amax1 was the parent company of Amax Coal Industries, which
was the parent company of Cannelton Industries. Cannelton Industries owned a number of
subsidiary corporations, including various coal-mining companies and Cannelton Sales, a
corporation set up to sell the coal of Cannelton Industries.
Also prior to November 1993, Cyprus Minerals was the parent company of Cyprus Coal.
Cyprus Coal owned a number of subsidiary corporations, including various coal-mining companies
and Cyprus Coal Sales, a corporation set up to sell the coal of Cyprus Coal.
In March 1993, Amax and Cyprus Minerals entered into a merger agreement. As to the
resulting corporation, the agreement provided, “[T]he parties intend to effect a merger of Amax with
and into Cyprus (the ‘Merger’), with Cyprus being the corporation surviving such Merger.” Record
1
All of the business entities are corporations. “Co.” and “Inc.” have been omitted for ease of
reference.
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Excel Energy, Inc. v. Cannelton Sales Co.
on Appeal (“ROA”) 1341. “Cyprus” was identified earlier in the agreement as Cyprus Minerals.
Amax and Cyprus Minerals consummated the stock merger in November 1993. Amax was merged
into Cyprus Minerals, and the resulting entity was named Cyprus Amax Minerals.
The merger created Cyprus Amax Coal, a combination of Amax Coal Industries and Cyprus
Coal. Cyprus Amax Coal became the parent company of Cannelton, the parent company of
Cannelton Industries. Cannelton Industries remained the parent company of Cannelton Sales.
Cyprus Amax Coal also became the parent company of Cyprus Coal Sales, renamed Cyprus
Amax Coal Sales. At the end of 1993, one employee of Cannelton Sales, the director of contract
administration, became employed in a similar capacity with Cyprus Amax Coal Sales. There is no
other evidence of migration of employees from Cannelton Sales to Cyprus Amax Coal Sales.
The merger agreement was silent as to whether Cyprus Minerals would assume the general
debts and liabilities of Amax subsidiaries. The agreement provided, rather, that Cyprus Minerals
would assume specific liabilities, including liabilities involving employee-benefit plans and
indemnifications of directors and officers.
B. Excel Energy/Cannelton Sales Contract
Excel Energy entered into a contract with Cannelton Sales in March 1993. The contract is
referred to herein as the “Excel Energy/Cannelton Sales Contract.” The contract gave Excel Energy
exclusive rights to present “Cannelton’s Kanawha Division coal” to the Missouri Portland Cement
Plant in Joppa, Illinois (“LaFarge Plant”) from March 24, 1993, through December 31, 1994.
During negotiations, the companies exchanged drafts of the contract. As evidenced by their
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Excel Energy, Inc. v. Cannelton Sales Co.
final agreement, the parties chose to make the obligations of the contract the responsibility of
Cannelton Sales alone, not of Cannelton and its affiliates or subsidiaries, as proposed in some of the
working drafts of the agreement.
C. Cyprus Amax Coal Sales Took Over LaFarge Plant Business
LaFarge Plant requested bids for coal for the first quarter of 1994. The request went to
several sellers, including Excel Energy and Cyprus Amax Coal Sales, both of which submitted bids.
In its bid to LaFarge Plant, Cyprus Amax Coal Sales stated that its bid was “on behalf of its affiliate
Cyprus Kanawha Corporation” and that the coal could be supplied “from any of its affiliates
controlled by Cyprus Amax Coal Company.” ROA 319. During this same time, Cyprus Amax Coal
Sales submitted a bid “on behalf of its affiliate, Cannelton Sales Company . . . to supply coal from
its Kanawha Division to Excel Energy, Inc. for resale” to LaFarge Plant. ROA 1323. In short,
Cyprus Amax Coal Sales offered to supply coal to LaFarge Plant directly and also offered to supply
coal on behalf of Cannelton Sales to Excel Energy for resale to LaFarge Plant.
LaFarge Plant accepted the bid of Cyprus Amax Coal Sales on behalf of Cyprus Kanawha,
but also continued to solicit bids for coal through 1994. Cyprus Amax Coal Sales submitted a bid
in March 1994 on “behalf of its coal producing affiliates.” ROA 322. Excel Energy did not submit
a bid this time. LaFarge Plant accepted the bid of Cyprus Amax Coal Sales.
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Excel Energy, Inc. v. Cannelton Sales Co.
D. Responsibility for Selling Cyprus Amax Coal
Cyprus Amax Coal Sales eventually took over responsibility for selling coal from all Cyprus
Amax Coal mines, including Cannelton Industries mines. Greg A. Walker, an attorney who worked
for the Cyprus parent company prior to and after the merger, testified that Cyprus Amax Coal Sales
“would have assumed the responsibilities for the sales and marketing for all of the operations of the
newly-merged entities.” ROA 841. Harry Thomas, a salesman for Cyprus Amax Coal Sales, testified
that he became responsible for sales in territories previously handled by Cannelton Sales. According
to Walker, Cannelton Sales still had business to conduct after the merger, namely managing and
administering its sales agreements entered prior to the merger, while Cyprus Amax Coal Sales would
take responsibility for coal sales on a going-forward basis.
In January 1994, Cyprus Amax Coal Sales and Cannelton Industries entered into a sales
representation agreement. The agreement provided in part:
Producer [Cannelton Industries] appoints Representative [Cyprus Amax Coal Sales]
to act as its agent to represent Producer in the sale and transportation of coal
produced from the Coal Properties to domestic and export coal markets for power
generating stations, cogeneration facilities, or steel making facilities. Representative
shall also act as Producer’s agent to handle the administration of all coal sales
agreements for coal produced from the Coal Properties in effect during the term of
this Agreement. Representative accepts the foregoing appointments as Producer’s
agent. Representative’s agency appointment as provided herein shall be an exclusive
representation of coal produced from the Coal Properties, unless Producer shall first
provide Representative with a copy of any agreement it may have with a third party
to provide some or all of the Services.
ROA 1326 (emphasis added).
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Excel Energy, Inc. v. Cannelton Sales Co.
E. Lawsuit
At some point in 1994, Cyprus Amax Coal Sales used coal from one of the Cannelton
Industries’ mines to fulfill its contract with LaFarge Plant. Excel Energy contended that this
breached the Excel Energy/Cannelton Sales Contract because Excel Energy had the exclusive right
to present that coal to LaFarge Plant. Excel Energy sued Cannelton Sales, Cyprus Amax Coal Sales,
and Cyprus Amax Coal in Kentucky state court in 1998. The case was later removed to the federal
District Court of Western Kentucky based on diversity jurisdiction. Excel Energy asserted claims
of breach of contract, breach of good faith and fair dealing, and intentional interference with contract
under Kentucky state law.
The district court dismissed the claims against Cannelton Sales with prejudice as a result of
the company’s bankruptcy filing in 2002. Excel Energy did not appeal the dismissal.
Cyprus Amax Coal Sales and Cyprus Amax Coal moved for summary judgment. They
maintained that the breach-of-contract claim failed as a matter of law because the contract was
between Excel Energy and Cannelton Sales, not the Cyprus defendants. They further contended that
the intentional-interference claim failed because they had the right to compete with Excel Energy
for sale of coal to LaFarge Plant. Excel Energy filed a cross-motion for summary judgment. The
district court granted summary judgment to the Cyprus defendants on both claims; it did not
specifically address Excel Energy’s claim for breach of good faith and fair dealing.
This court affirmed in part and reversed in part. It agreed that summary judgment for the
Cyprus defendants was proper as to the intentional-interference claim. Excel Energy, 246 F. App’x
at 967-68. The court concluded, however, that there was a genuine issue of material fact on whether
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Excel Energy, Inc. v. Cannelton Sales Co.
the Cyprus defendants violated the Excel Energy/Cannelton Sales Contract. Id. at 963-66. The court
remanded the breach-of-contract claim as well as the breach-of-good-faith-and-fair-dealing claim
for further proceedings. The court noted, however, that the district court had not addressed an issue
raised in the initial summary-judgment briefs; namely, whether the Cyprus defendants were liable
on the Excel Energy/Cannelton Sales Contract as successors in interest. Id. at 959 n.5.
On remand, the district court considered the successor-in-interest issue. The district court
noted that, under Kentucky law, separate corporate interests like subsidiaries and affiliates are treated
as distinct legal entities. Moreover, a corporation that purchases another corporation normally does
not assume the liabilities of that corporation. The district court recognized that there are exceptions
to this general rule, including (1) when the purchaser and seller merge, or (2) when the purchasing
corporation is a mere continuation of the selling corporation. The district court determined,
however, that there was no record evidence showing that Cannelton Sales itself had merged with any
company or that Cyprus Amax Coal Sales was a mere continuation of Cannelton Sales. Accordingly,
the district court found that the Cyprus defendants were not successors in interest to Cannelton Sales
and, therefore, could not be held liable for any breach of contract or breach of good faith and fair
dealing by Cannelton Sales.
Excel Energy appealed.
II
A. Summary Judgment
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Excel Energy, Inc. v. Cannelton Sales Co.
We review de novo the district court’s grant of summary judgment. Bender v. Hecht’s Dep’t
Stores, 455 F.3d 612, 619 (6th Cir. 2006). Summary judgment is appropriate when “the pleadings,
the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(c). To survive summary judgment, the non-movant must provide evidence beyond the
pleadings “set[ting] out specific facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2).
B. Kentucky Law on Successor In Interest
Cyprus Amax Coal Sales did not expressly assume the duties and liabilities of Cannelton
Sales arising under the Excel Energy/Cannelton Sales Contract. Although Cyprus Amax Coal Sales
became the exclusive agent for Cannelton Industries, that agency relationship was subject to any
prior agreement that Cannelton Industries had with a third party. Moreover, Cyprus Amax Coal
Sales entered into that agency agreement with Cannelton Industries, not Cannelton Sales. Thus, the
question on appeal is whether Cyprus Amax Coal Sales is the successor in interest to Cannelton
Sales and thereby can be deemed to have assumed those duties and liabilities.
Under Kentucky law, “a corporation which purchases another corporation does not assume
the payment of any debts or liabilities of the corporation which it has purchased.” Pearson ex rel.
Trent v. Nat’l Feeding Sys., 90 S.W.3d 46, 49 (Ky. 2002) (citations omitted). Moreover, liability
will not be imposed on a parent corporation merely because of its ownership of the subsidiary. 15
Fletcher Cyclopedia, Corporations § 7131 (2008) (“A holding company is ordinarily not liable for
the debts of the corporation whose stock it holds.”).
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Excel Energy, Inc. v. Cannelton Sales Co.
Kentucky recognizes four exceptions to the general rule that a purchasing corporation does
not assume the debts or liabilities of a selling corporation. These are:
(1) where the purchaser expressly or impliedly agrees to assume such debts or other
liabilities;
(2) where the transaction amounts to a consolidation or merger of the seller and
purchaser;
(3) where the purchasing corporation is merely a continuation of the selling
corporation; or
(4) where the transaction is entered into fraudulently in order to escape liability for
such debts.
Pearson, 90 S.W.3d at 49 (citations omitted).
On appeal, Excel Energy relies upon three of the four exceptions to establish successor-in-
interest liability on behalf of the Cyprus defendants: agreement to assume debts and liabilities;
merger; and mere continuation. We consider each in turn.
C. Express or Implied Assumption Exception
As noted above, when the purchasing corporation agrees to take on the debts and liabilities
of the selling corporation, courts will give effect to that agreement, whether express or implied. This
exception, however, provides little support for Excel Energy’s successor-in-interest theory. As an
initial matter, Cannelton Sales was not purchased—there was no stock or asset transaction involving
Cannelton Sales itself. Rather, its ultimate parent, Amax, merged with another corporation.
Although the identity of the ultimate owner of a subsidiary changes, the merger of a parent does not
result in or otherwise legally equate to the purchase of the subsidiary. Cf. Hazard Coal Corp. v. Ky.
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No. 08-6172
Excel Energy, Inc. v. Cannelton Sales Co.
W. Va. Gas Co., 311 F.3d 733, 739 (6th Cir. 2002) (“Under Kentucky law, separate corporate
interests, including subsidiaries and affiliates . . . , are separate legal entities and must be recognized
and treated as such . . . .”).
A review of the merger agreement between Amax and Cyprus Minerals confirms that Cyprus
Minerals did not agree to assume the debts and liabilities of Cannelton Sales, except with respect to
some employee benefits and indemnifications of directors and officers. Nor has Excel Energy
directed us to anything in the record to suggest that Cyprus Minerals implicitly agreed to take on the
debts and liabilities of any of the Amax subsidiaries. The assumption by the purchasing corporation
of a limited set of the seller’s debts and liabilities does not imply the assumption of all of the seller’s
debts and liabilities. Pearson, 90 S.W.3d at 50.
D. Merger Exception
Excel Energy also relies upon the merger of Amax and Cyprus Minerals to show that Cyprus
Amax Coal Sales was the successor in interest to Cannelton Sales. Again, though, subsidiaries are
separate and distinct legal entities from their parents and only if there is reason to pierce the
corporate veil will a court treat a parent and a subsidiary as a single entity. Hazard Coal, 311 F.3d
at 739. Excel Energy has not advanced any veil-piercing arguments; instead, it relies upon the
merger of the ultimate parents to support its successor-in-interest theory.
Excel Energy has not pointed to anything in the record to show that Cannelton Sales itself
actually merged into one of the Cyprus Minerals companies. As support for its theory, Excel Energy
asserts in its brief, “[T]he [Merger] Agreement provides that the Cyprus entities would be the
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No. 08-6172
Excel Energy, Inc. v. Cannelton Sales Co.
‘surviving corporation.’” Appellant’s Br. at 15 (emphasis added). That is not what the agreement
says. Rather, as previously noted, the merger agreement provides, “[T]he parties intend to effect a
merger of Amax with and into Cyprus (the ‘Merger’), with Cyprus being the corporation surviving
such Merger.” ROA 1341. “Cyprus” refers to the parent company, Cyprus Minerals. The record
clearly shows that this was a merger of parents, not of subsidiaries.
Prior to the merger of parents, Cannelton Sales was a separate corporate interest to that of
its ultimate parent, Amax. After the merger, Cannelton Sales remained a separate corporate interest
to that of its newly merged ultimate parent, Cyprus Amax Minerals. While the ultimate parents of
Cannelton Sales and Cyprus Amax Coal Sales merged, that merger did not result in the merger of
the subsidiaries’ corporate interests into one single corporate entity.
E. Mere-Continuation Exception
Finally, Excel Energy argues that Cyprus Amax Coal Sales is a mere continuation of
Cannelton Sales. Excel Energy runs into an obstacle at the very outset of this exception: there is no
purchaser-seller relationship between Cyprus Amax Coal Sales and Cannelton Sales, a circumstance
plainly required under Pearson, 90 S.W.3d at 49. Notwithstanding this obstacle, Excel Energy’s
reliance on the mere-continuation exception still fails.
The factors to consider under this exception are varied. Chief Judge Heyburn of the Western
District of Kentucky has provided a helpful list of factors culled from federal and state cases. Dixstar
v. Gentec Equip., No. 3:02-CV-45-H, 2004 WL 3362501, at * 4 (W.D. Ky. Feb. 11, 2004). These
are:
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No. 08-6172
Excel Energy, Inc. v. Cannelton Sales Co.
(1) continuity of shareholders and ownership, management, personnel, physical
location, and business operations, (2) whether sufficient consideration was given,
particularly whether stock was given in exchange, (3) whether the predecessor ceased
business operations and was dissolved shortly after the new company was formed,
(4) whether the successor company paid any outstanding debts on behalf of the
previous company in order to continue business without interruption, (5) the buyer’s
intent or purpose when the new company was formed, and (6) whether the successor
held itself out to the public as a continuation of the previous company.
Id. (collecting cases; footnotes and citations omitted). Excel Energy wants to add to this list what
it calls the “determinative factor”: “whether the predecessor corporation [Cannelton Sales] remains
as a viable source for recovery.” Appellant’s Br. at 18. This is not, however, a factor that Kentucky
courts have endorsed. Cf. Pearson, 90 S.W.3d at 51-52 (rejecting a strict-liability-based rationale
for extending the mere-continuation exception).
Directly after the merger, Cannelton Sales and Cyprus Amax Coal Sales did not share the
same shareholders—Cannelton Sales was owned by Cannelton Industries and Cyprus Amax Coal
Sales was owned by Cyprus Amax Coal. There is no evidence of common directors or officers. This
lack of commonality of shareholders, directors and officers weighs heavily against Excel Energy. In
re: Wright Enters., 77 F. App’x 356, 369 (6th Cir. 2003); Parker v. Henry A. Petter Supply Co., 165
S.W.3d 474, 479 (Ky. Ct. App. 2005) (“In Kentucky, a determination of the continuity of a
corporation after a sale depends on examining the sale agreement to determine continuity of
shareholders or management.”). The companies did share a common ultimate parent, but that cannot
be controlling, as the exception would otherwise swallow the rule. Excel Energy does not suggest
that there was insufficient consideration given to Amax stockholders as part of the merger. There
is no question that Cannelton Sales continued in its corporate form for years after the merger. Nor
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No. 08-6172
Excel Energy, Inc. v. Cannelton Sales Co.
is there any indication that Cyprus Amax Coal Sales paid any outstanding debts of Cannelton Sales
or held itself out to the public as a continuation of Cannelton Sales.
Excel Energy argues that Cannelton Sales “employees” continued to perform the identical
job duties for Cyprus Amax Coal Sales after the merger. This assertion is broader than the record
evidence relied upon. There is evidence that a single Cannelton Sales employee became employed
at Cyprus Amax Coal Sales shortly after the merger. This court rejected a similar argument that a
company was the successor of another as evidenced by the transfer of one employee. Conn v. Fales
Div. of Mathewson Corp., 835 F.2d 145, 147 (6th Cir. 1987).
Excel Energy places considerable emphasis on the December 1993 offer to Excel Energy by
Cyprus Amax Coal Sales “on behalf of its affiliate” Cannelton Sales. Yet, had there been
continuation, Cyprus Amax Coal Sales would not have offered Excel Energy coal “on behalf of its
affiliate,” but rather would have done so directly on behalf of itself as a successor to Cannelton
Sales.
Finally, there is evidence that Cyprus Amax Coal Sales began to sell coal on behalf of all
Cyprus Amax Coal properties, including Cannelton Industries properties. Yet, viewed in the light
most favorable to Excel Energy, the evidence shows that Cyprus Amax Coal Sales assumed
responsibility for all future coal sales for the Cyprus Amax Coal constellation of companies. While
the agency agreement between Cyprus Amax Coal Sales and Cannelton Industries put the former
company in charge of the administration of all coal sales agreements for coal produced during the
term of the agency agreement, this was expressly subject to any prior service agreements Cannelton
Industries might have had, including with Cannelton Sales.
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No. 08-6172
Excel Energy, Inc. v. Cannelton Sales Co.
Excel Energy has failed to show that there is any genuine issue of material fact regarding
whether the Cyprus defendants are successors in interest to Cannelton Sales. Because Kentucky law
shields a purchaser from the debts and liabilities of a seller corporation absent some showing of
successor-in-interest liability, the Cyprus defendants cannot be held liable on Excel Energy’s breach-
of-contract claim against Cannelton Sales. Likewise, Excel Energy’s claim of breach of good faith
and fair dealing requires a showing of a contractual relationship and, accordingly, Excel Energy’s
failure to show that the Cyprus defendants are successors in interest to Cannelton Sales likewise
forecloses liability against these defendants.
III
For the reasons set forth above, we AFFIRM summary judgment in favor of the Cyprus
defendants.
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538 F.2d 858
UNITED STATES of America, Plaintiff-Appellee,v.Amado MARTINEZ-FUERTE, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellant,v.Jose JIMINEZ-GARCIA, Defendant-Appellee.UNITED STATES of America, Plaintiff-Appellant,v.Raymond RANGEL GUILLEN and Fernando Medrano-Barragan,Defendants-Appellees.
Nos. 74-2462, 74-2680, 74-2714.
United States Court of Appeals,Ninth Circuit.
July 20, 1976.
1
Jack Robinson, Asst. U. S. Atty. (argued), San Diego, Cal., for the U. S.
2
Charles M. Sevilla (argued), of Federal Defenders of San Diego, Inc., San Diego, Cal., for appellant Martinez-Fuerte.
3
Frank M. Mangan (argued), of Federal Defenders of San Diego, Inc., San Diego, Cal., for appellee Jiminez-Garcia.
4
Michael J. McCabe of Federal Defenders of San Diego, Inc., and E. J. Boone, San Diego, Cal., for appellees Rangel Guillen and Medrano-Barragan.
ORDER
5
Before DUNIWAY and CARTER, Circuit Judges, and WEIGEL, District Judge.
6
Pursuant to the judgment of the Supreme Court of the United States in United States v. Martinez-Fuerte et al., 1976, --- U.S. ----, 96 S.Ct. 3074, 48 L.Ed.2d ---, it is ordered:
7
1. In No. 74-2462, the conviction of the appellant Martinez-Fuerte is affirmed.
8
2. In No. 74-2680, the case is remanded to the district court for further proceedings consistent with the opinion of the Supreme Court.
9
3. In No. 74-2714, the case is remanded to the district court for further proceedings consistent with the opinion of the Supreme Court.
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547 Pa. 600 (1997)
692 A.2d 1042
Albert CUKER and Sabina Cuker, and Stanley Katzman and Sidney J. Silver, Trustees for the Irrevocable Trust for the Descendants of Howard and Pearl Katzman, derivatively, on behalf of PECO Energy Company, Respondents,
v.
Albert G. MIKALAUSKAS, Joseph F. Paquette, Jr., Corbin A. McNeill, Jr., John H. Austin, Jr., James L. Everett, Richard G. Gilmore, Kenneth G. Lawrence, Morton W. Rimmerman, Thomas P. Hill, Jr., Raymond F. Holman and PECO Energy Company, Petitioners.
Supreme Court of Pennsylvania.
Argued January 27, 1997.
Decided April 21, 1997.
Reargument Denied June 18, 1997.
*602 Alan J. Davis, Carl G. Roberts, Martin C. Bryre, Jr., for Petitioners.
Brady L. Green, Amicus for Pa. Chamber of Bus.
David Berger, Donald B. Lewis, Jay S. Cohen, Stanley R. Wolfe, for Albert & Sabina Cuker.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.
OPINION OF THE COURT
FLAHERTY, Chief Justice.
PECO Energy Company filed a motion for summary judgment seeking termination of minority shareholder derivative actions. When the motion was denied by the court of common pleas, PECO sought extraordinary relief in this court pursuant to Pa.R.A.P. 3309. We granted the petition, limited to the issue of "whether the `business judgment rule' permits the board of directors of a Pennsylvania corporation to terminate derivative lawsuits brought by minority shareholders."
PECO is a publicly regulated utility incorporated in Pennsylvania which sells electricity and gas to residential, commercial, and industrial customers in Philadelphia and four surrounding counties. PECO is required to conform to PUC regulations which govern the provision of service to residential customers, including opening, billing, and terminating accounts. *603 PECO is required to report regularly to the PUC on a wide variety of statistical and performance information regarding its compliance with the regulations as interpreted by the PUC. Like other utilities, PECO is required to undergo a comprehensive management audit at the direction of the PUC approximately every ten years. The most recent audit was conducted by Ernst & Young. The report issued in 1991 recommended changes in twenty-two areas, including criticisms and recommendations regarding PECO's credit and collection function.
Two trustees, on behalf of a group of minority shareholders, made a demand on PECO, alleging wrongdoing by some PECO directors and officers. This Katzman demand, made in May, 1993, asserted that the delinquent officers had damaged PECO by mismanaging the credit and collection function, particularly as to the collection of overdue accounts. The shareholders demanded that PECO authorize litigation against the wrongdoers to recover monetary damages sustained by PECO. At its meeting of June 28, 1993, PECO's board responded by creating a special litigation committee to investigate the Katzman allegations.
Less than a month later, a second group of minority shareholders filed a complaint against PECO officers and directors. Cuker v. Mikalauskas, July Term, 1993, No. 3470 (C.P.Phila.). The Cuker complaint, filed in July, 1993, made the same allegations as those in the Katzman demand, with extensive references to the Ernst & Young audit report. The Cuker complaint was filed before the special litigation committee had begun its substantive work of investigating and evaluating the Katzman demand, so the committee's work encompassed both the Katzman and Cuker matters. Only the twelve nondefendant members of the PECO board acted to create the special committee, which consisted of three outside directors who had never been employed by PECO and who were not named in the Katzman demand or the Cuker complaint.
The work of the special committee was aided by the law firm of Dilworth, Paxson, Kalish & Kauffman, as well as PECO's regular outside auditor, Coopers & Lybrand, selected *604 to assist in accounting matters because Coopers was knowledgeable about the utility industry and was familiar with PECO's accounting practices. The special committee conducted an extensive investigation over many months while maintaining a separate existence from PECO and its board of directors and keeping its deliberations confidential. The special committee held its final meeting on January 26, 1994, whereupon it reached its conclusions and prepared its report.
The report of the special committee concluded that there was no evidence of bad faith, self-dealing, concealment, or other breaches of the duty of loyalty by any of the defendant officers. It also concluded that the defendant officers "exercised sound business judgment in managing the affairs of the company" and that their actions "were reasonably calculated to further the best interests of the company." The three-hundred-page report identified numerous factors underlying the conclusions of the special committee. Significant considerations included the utility's efforts before the PUC to raise electricity rates in consequence of the expense of new nuclear generating plants. Other factors were the impact of PUC regulations limiting wintertime termination of residential service and other limitations on the use of collection techniques such as terminations of overdue customers, particularly with a large population of poverty level users among PECO's customer base. These considerations were supported by PUC documents which criticized PECO for aggressive and excessive terminations in recent years. The report of the special litigation committee also described how PECO's management had been attentive to the credit and collection function, with constant efforts to improve performance in that area. According to the report, limiting the use of terminations as a collection technique was a sound business judgment, reducing antagonism between the PUC and PECO and resulting in rate increases which produced revenue far in excess of the losses attributed to nonaggressive collection tactics. The report concluded that proceeding with a derivative suit based largely on findings of the Ernst & Young audit would not be in the best interests of PECO.
*605 When it received the report of the special litigation committee with appendices containing the documents and interviews underlying the report, the board debated the recommendations at two meetings early in 1994. The twelve nondefendant members of the PECO board voted unanimously on March 14, 1994 to reject the Katzman demand and to terminate the Cuker action.
In the Cuker action, the court of common pleas rejected PECO's motion for summary judgment. The court stated that "the `business judgment rule' [has been] adopted in some states but never previously employed in Pennsylvania." The court held that as a matter of Pennsylvania public policy, a corporation lacks power to terminate pending derivative litigation. On PECO's motion, the court certified four controlling questions of law to the Superior Court, pursuant to 42 Pa.C.S. § 702(b), including the question presented in this appeal.[1] The Superior Court denied interlocutory review, on January 31, 1996, after the Cuker plaintiffs argued that unresolved factual issues precluded review.
When the PECO board, following the recommendation of the special litigation committee, rejected the Katzman demand, the Katzman claimants filed a shareholder derivative action. Katzman v. Mikalauskas, August Term 1995, No. 1278 (C.P.Phila.). After the Superior Court denied interlocutory *606 review of Cuker, the two cases were consolidated by the court of common pleas on February 20, 1996.
PECO then filed a petition to terminate the consolidated actions which raised issues of fact regarding the independence of the special committee and the adequacy of its investigation. The plaintiffs responded that the court of common pleas could not resolve the factual issues because of the earlier decision in the same court that a Pennsylvania corporation lacks the power to terminate pending derivative litigation. This decision presumably precluded another judge of the same court from hearing the factual disputes. The court denied PECO's petition to terminate on May 21, 1996.
The decisions of the Superior Court on January 31, 1996 and the court of common pleas on May 21, 1996 were irreconcilably inconsistent. The Superior Court refused to consider the legal questions regarding the business judgment rule because there were unresolved factual questions pertaining to the independence of the board and the adequacy of its investigation. The court of common pleas then refused to consider the same factual disputes due to its prior holding that the business judgment rule is not the law of Pennsylvania. Because of this inconsistency, PECO sought extraordinary relief in this court under our King's Bench powers, which we granted.
The issue is whether the business judgment rule permits the board of directors of a Pennsylvania corporation to terminate derivative lawsuits brought by minority shareholders. The business judgment rule insulates an officer or director of a corporation from liability for a business decision made in good faith if he is not interested in the subject of the business judgment, is informed with respect to the subject of the business judgment to the extent he reasonably believes to be appropriate under the circumstances, and rationally believes that the business judgment is in the best interests of the corporation. 1 ALI, Principles of Corporate Governance: Analysis and Recommendations, (1994) ("ALI Principles") *607 § 4.01(c). The Delaware Supreme Court has written a widely quoted formulation of the rule:
It is a presumption that in making a business decision the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company. Absent an abuse of discretion, that judgment will be respected by the courts. The burden is on the party challenging the decision to establish facts rebutting the presumption.
Aronson v. Lewis, 473 A.2d 805, 812 (Del.1984) (citations omitted). The Ohio Supreme Court expressed the rule as follows: "The rule is a rebuttable presumption that directors are better equipped than the courts to make business judgments and that the directors acted without self-dealing or personal interest and exercised reasonable diligence and acted with good faith." Gries Sports Enterprises, Inc. v. Cleveland Browns Football Co., 26 Ohio St.3d 15, 20, 496 N.E.2d 959, 963-64 (1986).
Most American jurisdictions employ the business judgment rule, but there is no uniform expression of the rule. It is sometimes referred to as a doctrine. Regardless of the precise terminology, the doctrine serves several significant public policies. It encourages competent individuals to become directors by insulating them from liability for errors in judgment. See, e.g., Briggs v. Spaulding, 141 U.S. 132, 149, 11 S.Ct. 924, 929-30, 35 L.Ed. 662 (1891); Weiss v. Temporary Investment Fund, Inc., 692 F.2d 928 (3d Cir.1982), vacated on other grounds, 465 U.S. 1001, 104 S.Ct. 989, 79 L.Ed.2d 224 (1984). The doctrine also recognizes that business decisions frequently entail some degree of risk and consequently provides directors broad discretion in setting policies without judicial or shareholder second-guessing. See e.g., Cramer v. General Telephone & Electronics Corp., 582 F.2d 259, 274 (3d Cir.1978), cert. denied, 439 U.S. 1129, 99 S.Ct. 1048, 59 L.Ed.2d 90 (1979). Finally, the doctrine prevents courts from becoming enmeshed in complex corporate decision-making, a task they are ill-equipped to perform. Weiss, 692 F.2d at 941; International Insurance Co. v. Johns, 874 F.2d 1447, 1458 n. *608 20 (11th Cir.1989). These policies are reflected in the conclusions of the Connecticut Supreme Court in a decision formally adopting the business judgment rule:
"The business judgment doctrine [is] a rule of law that insulates business decisions from most forms of review. Courts recognize that managers have both better information and better incentives than they. The press of market forces . . . will more effectively serve the interests of all participants than will an error-prone judicial process." The business judgment rule "expresses a sensible policy of judicial noninterference with business decisions made in circumstances free from serious conflicts of interest between management, which makes the decisions, and the corporation's shareholders. Not only do businessmen know more about business than judges do, but competition in the product and labor markets and in the market for corporate control provides sufficient punishment for businessmen who commit more than their share of business mistakes." "The fact is that liability is rarely imposed upon corporate directors or officers simply for bad judgment and this reluctance to impose liability for unsuccessful business decisions has been doctrinally labeled the business judgment rule." Shareholders challenging the wisdom of a business decision taken by management must overcome the business judgment rule. "For efficiency reasons, corporate decisionmakers should be permitted to act decisively and with relative freedom from a judge's or jury's subsequent second-guessing. It is desirable to encourage directors and officers to enter new markets, develop new products, innovate, and take other business risks." 1 A.L.I., Principles of Corporate Governance (1994) § 4.01(c) comment, p. 174.
Rosenfield v. Metals Selling Corp., 229 Conn. 771, 786-88, 643 A.2d 1253, 1262 (1994) (citations and footnotes omitted). In summary, the business judgment rule reflects a policy of judicial noninterference with business decisions of corporate managers, presuming that they pursue the best interests of their corporations, insulating such managers from second-guessing *609 or liability for their business decisions in the absence of fraud or self-dealing or other misconduct or malfeasance.
This has been the policy of Pennsylvania for over a century, as reflected in the decisions of this court as early as 1872. Ironically, this court has never used the term "business judgment rule" in a corporate context nor has it explicitly adopted the business judgment rule. Nevertheless, a review of Pennsylvania decisions establishes that the business judgment doctrine or rule is the law of Pennsylvania.
Spering's Appeal, 71 Pa. 11 (1872), involved a shareholder's suit against an insolvent corporation's directors for mismanagement. With no evidence of fraud or self-dealing, the court posed the issue as whether the directors of a corporation may be liable for mere mismanagement. Relying on cases as early as 1742, this court adopted the business judgment rule:
. . . [W]hile directors are personally responsible to the stockholders for any losses resulting from fraud, embezzlement or wilful misconduct or breach of trust for their own benefit and not for the benefit of the stockholders . . ., yet they are not liable for mistakes of judgment, even though they may be so gross as to appear to us absurd and ridiculous, provided they are honest and provided they are fairly within the scope of the powers and discretion confided to the managing body.
71 Pa. at 24. In 1875, this court reaffirmed the rule:
From [Spering's Appeal, supra,] we learn that directors are mandatories only, and as such, held to but ordinary skill and diligence, and are not responsible to their fellow corporators for the want of judgment and knowledge. They are personally liable only where they are guilty of fraudulent conduct or of acts clearly ultra vires.
Watts's Appeal, 78 Pa. 370, 392 (1875). In Swentzel v. Penn Bank, 147 Pa. 140, 152, 23 A. 405, 415 (1892), this court stated that "directors, who are gratuitous mandatories, are only liable for fraud, or for such gross negligence as amounts to fraud. . . ." In Stone v. Schiller Building & Loan Ass'n, 302 Pa. 544, 555, 153 A. 758, 761 (1931), we stated: "Officers or *610 directors of a corporation are not personally liable for honest mistakes in judgment when doing acts within their discretion, even though such mistakes show absence of reasonable care; they are liable only when they are grossly negligent or fraudulent." In a more recent case involving a derivative lawsuit, we stated:
From an early date this Court has consistently and realistically recognized the danger of subjecting corporate directors to liability whenever any of the transactions of the company did not meet with success.
". . . [T]he assets of a business corporation are held in lighter grasp [than those of a trust]; shares of stock are taken with notice that the assets shall be employed in making a profit, and that it is customary to take business risks."
Smith v. Brown-Borhek Co., 414 Pa. 325, 333, 200 A.2d 398, 401 (1964) (emphasis in original), quoting Hunt v. Aufderheide, 330 Pa. 362, 376-77, 199 A. 345 (1938). In another case we stated:
[T]he directors of a business corporation are not insurers that their actions will result in pecuniary profit and they are, in the course of their duties, called upon to undertake certain calculated "business risks"; . . . for errors in judgment, exercised in good faith, the directors of a corporation should not be penalized. . . .
Selheimer v. Manganese Corp., 423 Pa. 563, 581, 224 A.2d 634, 644 (1966). These cases, cumulatively, are both application and explanation of the business judgment rule.
Respondents argue correctly that passage of the Business Corporation Law in 1933 affected caselaw espousing business judgment principles prior to 1933. Passage of the Business Corporation Law of 1933, however, merely modified the circumstances in which directors might be held liable; it did not vitiate the principles behind the business judgment rule. In other words, although a statute may alter the threshold circumstances which preclude application of the business judgment rule, a court must apply the business judgment rule if *611 shareholders fail to prove those threshold circumstances. Stated differently, if a court makes a preliminary determination that a business decision was made under proper circumstances, however that concept is currently defined, then the business judgment rule prohibits the court from going further and examining the merits of the underlying business decision. Whatever the effect of the Business Corporation Law of 1933, as amended, 15 P.S. § 1001 et seq. (repealed), the Business Corporation Law of 1988, 15 Pa.C.S. § 1101 et seq., the Directors' Liability Act, 42 Pa.C.S. § 8361 et seq. (repealed), or the General Association Act Amendments Act, 15 Pa.C.S. § 511 et seq., application of the appropriate statutory standard is a preliminary question which must be decided before the merits of the underlying decision may be litigated. In this case, therefore, unless respondents can establish improper conduct by PECO's board of directors (fraud, self-dealing, violation of statutory duties, etc.), the board's decisions regarding PECO's credit and collection function are beyond the scope of review of any court.
Decisions regarding litigation by or on behalf of a corporation, including shareholder derivative actions, are business decisions as much as any other financial decisions. As such, they are within the province of the board of directors. 15 Pa.C.S. § 1721. Such business decisions of a board of directors are, unless taken in violation of a common law or statutory duty, within the scope of the business judgment rule. It follows that the court of common pleas erred when it held that the business judgment rule is not the law of Pennsylvania, and the Superior Court erred when it denied review rather than correcting the trial court by ruling on the first question certified under 42 Pa.C.S. § 702(b), set forth in footnote one, supra.
The errors committed in both of the lower courts demonstrate that the practical effect of this holding needs elaboration. Assuming that an independent board of directors may terminate shareholder derivative actions, what is needed is a procedural mechanism for implementation and judicial review of the board's decision. Without considering the merits of the *612 action, a court should determine the validity of the board's decision to terminate the litigation; if that decision was made in accordance with the appropriate standards, then the court should dismiss the derivative action prior to litigation on the merits.
The business judgment rule should insulate officers and directors from judicial intervention in the absence of fraud or self-dealing, if challenged decisions were within the scope of the directors' authority, if they exercised reasonable diligence, and if they honestly and rationally believed their decisions were in the best interests of the company. It is obvious that a court must examine the circumstances surrounding the decisions in order to determine if the conditions warrant application of the business judgment rule. If they do, the court will never proceed to an examination of the merits of the challenged decisions, for that is precisely what the business judgment rule prohibits. In order to make the business judgment rule meaningful, the preliminary examination should be limited and precise so as to minimize judicial involvement when application of the business judgment rule is warranted.
To achieve these goals, a court might stay the derivative action while it determines the propriety of the board's decision. The court might order limited discovery or an evidentiary hearing to resolve issues respecting the board's decision. Factors bearing on the board's decision will include whether the board or its special litigation committee was disinterested, whether it was assisted by counsel, whether it prepared a written report, whether it was independent, whether it conducted an adequate investigation, and whether it rationally believed its decision was in the best interests of the corporation (i.e., acted in good faith). If all of these criteria are satisfied,[2] the business judgment rule applies and the court should dismiss the action.
*613 These considerations and procedures are all encompassed in Part VII, chapter 1 of the ALI Principles (relating to the derivative action), which provides a comprehensive mechanism to address shareholder derivative actions. A number of its provisions are implicated in the action at bar. Sections 7.02 (standing), 7.03 (the demand rule), 7.04 (procedure in derivative action), 7.05 (board authority in derivative action), 7.06 (judicial stay of derivative action), 7.07, 7.08, and 7.09 (dismissal of derivative action), 7.10 (standard of judicial review), and 7.13 (judicial procedures) are specifically applicable to this case.[3] These sections set forth guidance which is consistent with Pennsylvania law and precedent, which furthers the policies inherent in the business judgment rule, and which provides an appropriate degree of specificity to guide the trial court in controlling the proceedings in this litigation.
We specifically adopt §§ 7.02-7.10, and § 7.13 of the ALI Principles.[4],[5] In doing so we have weighed many considerations. First, the opinion of the trial court, the questions certified to the Superior Court, and the inability of PECO to obtain a definitive ruling from the lower courts all demonstrate the need for specific guidance from this court on how *614 such litigation should be managed; the ALI principles provide such guidance in specific terms which will simplify this litigation. Second, we have often found ALI guidance helpful in the past, most frequently in adopting or citing sections of various Restatements; the scholarship reflected in work of the American Law Institute has been consistently reliable and useful. Third, the principles set forth by the ALI are generally consistent with Pennsylvania precedent. Fourth, although the ALI Principles incorporate much of the law of New York and Delaware, other states with extensive corporate jurisprudence, the ALI Principles better serve the needs of Pennsylvania. Although New York law parallels Pennsylvania law in many respects, it does not set forth any procedures to govern the review of corporate decisions relating to derivative litigation, and this omission would fail to satisfy the needs evident in this case. Delaware law permits a court in some cases ("demand excused" cases) to apply its own business judgment in the review process when deciding to honor the directors' decision to terminate derivative litigation. In our view, this is a defect which could eviscerate the business judgment rule and contradict a long line of Pennsylvania precedents. Delaware law also fails to provide a procedural framework for judicial review of corporate decisions under the business judgment rule.
Accordingly, we adopt the specified sections of the ALI Principles, reverse the orders of the court of common pleas, and remand the matter for further proceedings consistent with this opinion.
Orders reversed and case remanded.
APPENDIX
2 ALI, Principles of Corporate Governance: Analysis and Recommendations (1994):
§ 7.02 Standing to Commence and Maintain a Derivative Action
(a) A holder of an equity security has standing to commence and maintain a derivative action if the holder:
*615 (1) Acquired the equity security either (A) before the material facts relating to the alleged wrong were publicly disclosed or were known by, or specifically communicated to, the holder, or (B) by devolution of law, directly or indirectly, from a prior holder who acquired the security as described in the preceding clause (A);
(2) Continues to hold the equity security until the time of judgment, unless the failure to do so is the result of corporate action in which the holder did not acquiesce, and either (A) the derivative action was commenced prior to the corporate action terminating the holder's status, or (B) the court finds that the holder is better able to represent the interests of the shareholders than any other holder who has brought suit;
(3) Has complied with the demand requirement of § 7.03 (Exhaustion of Intracorporate Remedies; The Demand Rule) or was excused by its terms; and
(4) Is able to represent fairly and adequately the interests of the shareholders.
(b) On a timely motion, a holder of an equity security should be permitted to intervene in a derivative action, unless the court finds that the interests to be represented by the intervenor are already fairly and adequately represented or that the intervenor is unable to represent fairly and adequately the interests of the shareholders.
(c) A director of a corporation has standing to commence and maintain a derivative action unless the court finds that the director is unable to represent fairly and adequately the interest of the shareholders.
§ 7.03 Exhaustion of Intracorporate Remedies: The Demand Rule
(a) Before commencing a derivative action, a holder or a director should be required to make a written demand upon the board of directors of the corporation, requesting it to prosecute the action or take suitable corrective measures, unless demand is excused under § 7.03(b). The demand should give notice to the board, with reasonable specificity, *616 of the essential facts relied upon to support each of the claims made therein.
(b) Demand on the board should be excused only if the plaintiff makes a specific showing that irreparable injury to the corporation would otherwise result, and in such instances demand should be made promptly after commencement of the action.
(c) Demand on shareholders should not be required.
(d) Except as provided in § 7.03(b), the court should dismiss a derivative action that is commenced prior to the response of the board or a committee thereof to the demand required by § 7.03(a), unless the board or committee fails to respond within a reasonable time.
§ 7.04 Pleading, Demand Rejection, Procedure, and Costs in a Derivative Action
The legal standards applicable to a derivative action should provide that:
(a) Particularity; Demand Rejection.
(1) In General. The complaint shall plead with particularity facts that, if true, raise a significant prospect that the transaction or conduct complained of did not meet the applicable requirements of Parts IV (Duty of Care and the Business Judgment Rule), V (Duty of Fair Dealing), or VI (Role of Directors and Shareholders in Transactions in Control and Tender Offers), in light of any approvals of the transaction or conduct communicated to the plaintiff by the corporation.
(2) Demand Rejection. If the corporation rejects the demand made on the board pursuant to § 7.03, and if, at or following the rejection, the corporation delivers to the plaintiff a written reply to the demand which states that the demand was rejected by directors who were not interested in the transaction or conduct described in and forming the basis for the demand and that those directors constituted a majority of the entire board and were capable as a group of objective judgment in the circumstances, and which provides specific reasons for those *617 statements, then the complaint shall also plead with particularity facts that, if true, raise a significant prospect that either:
(A) The statements in the reply are not correct;
(B) If Part IV, V, or VI provides that the underlying transaction or conduct would be reviewed under a standard other than the business judgment rule, either (i) that the disinterested directors who rejected the demand did not satisfy the good faith and informational requirements (§ 4.01(c)(2)) of the business judgment rule or (ii) that disinterested directors could not reasonably have determined that rejection of the demand was in the best interests of the corporation.
If the complaint fails to set forth sufficiently such particularized facts, defendants shall be entitled to dismissal of the complaint prior to discovery.
(b) Attorney's Certification. Each party's attorney of record shall sign every pleading, motion, and other paper filed on behalf of the party, and such signature shall constitute the attorney's certification that (i) to the best of the attorney's knowledge, information, and belief, formed after reasonable inquiry, the pleading, motion, or other paper is well grounded in fact and is warranted by existing law or by a good faith argument for the extension, modification, or reversal of existing law, and (ii) the pleading, motion, or other paper is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
(c) Security for Expenses. Except as authorized by statute or judicial rule applicable to civil actions generally, no bond, undertaking, or other security for expenses shall be required.
(d) Award of Costs. The court may award applicable costs, including reasonable attorney's fees and expenses, against a party, or a party's counsel:
(1) At any time, if the court finds that any specific claim for relief or defense was asserted or any pleading, *618 motion, request for discovery, or other action was made or taken in bad faith or without reasonable cause; or
(2) Upon final judgment, if the court finds, in light of all the evidence, and considering both the state and trend of the substantive law, that the action taken as a whole was brought, prosecuted, or defended in bad faith or in an unreasonable manner.
§ 7.05 Board of Committee Authority in Regard to a Derivative Action
(a) The board of a corporation in whose name or right a derivative action is brought has standing on behalf of the corporation to:
(1) Move to dismiss the action on account of the plaintiff's lack of standing under § 7.02 (Standing to Commence and Maintain a Derivative Action) or the plaintiff's failure to comply with § 7.03 (Exhaustion of Intracorporate Remedies: The Demand Rule) or § 7.04(a) or (b) (Pleading, Demand Rejection, Procedure, and Costs in a Derivative Action) or move for dismissal of the complaint or for summary judgment;
(2) Move for a stay of the action, including discovery, as provided by § 7.06 (Authority of Court to Stay a Derivative Action);
(3) Move to dismiss the action as contrary to the best interests of the corporation, as provided in §§ 7.07-7.12 (dismissal of a derivative action based on a motion requesting dismissal by the board, a board committee, the shareholders, or a special panel);
(4) Oppose injunctive or other relief materially affecting the corporation's interests;
(5) Adopt or pursue the action in the corporation's right;
(6) Comment on, object to, or recommend any proposed settlement, discontinuance, compromise, or voluntary dismissal by agreement between the plaintiff and any defendant under § 7.14 (Settlement of a Derivative Action by Agreement Between the Plaintiff and a Defendant), or *619 any award of attorney's fees and other expenses under § 7.17 (Plaintiff's attorney's Fees and Expenses); and
(7) Seek to settle the action without agreement of the plaintiff under § 7.15 (Settlement of a Derivative Action Without the Agreement of the Plaintiff).
Except as provided above, the corporation may not otherwise defend the action in the place of, or raise defenses on behalf of, other defendants.
(b) The board of a corporation in whose name or right a derivative action is brought may:
(1) Delegate its authority to take any action specified in § 7.05(a) to a committee of directors; or
(2) Request the court to appoint a special panel in lieu of a committee of directors, or a special member of a committee, under § 7.12 (Special Panel or Special Committee Members).
§ 7.06 Authority of Court to Stay a Derivative Action
In the absence of special circumstances, the court should stay discovery and all further proceedings by the plaintiff in a derivative action on the motion of the corporation and upon such conditions as the court deems appropriate pending the court's determination of any motion made by the corporation under § 7.04(a)(2) and the completion within a reasonable period of any review and evaluation undertaken and diligently pursued pursuant to § 7.09 (Procedures for Requesting Dismissal of a Derivative Action). On the same basis the court may stay discovery and further proceedings pending (a) the resolution of a related action or (b) such other event or development as the interests of justice may require.
§ 7.07 Dismissal of a Derivative Action Based on a Motion Requesting Dismissal by the Board or a Committee: General Statement
(a) The court having jurisdiction over a derivative action should dismiss the action as against one or more of the defendants based on a motion by the board or a properly *620 delegated committee requesting dismissal of the action as in the best interests of the corporation, if:
(1) In the case of an action against a person other than a director, senior executive, or person in control of the corporation, or an associate of any such person, the determinations of the board or committee underlying the motion satisfy the requirements of the business judgment rule as specified in § 4.01;
(2) In the case of an action against a director, senior executive, or person in control of the corporation, or an associate of any such person, the conditions specified in § 7.08 (Dismissal of a Derivative Action Against Directors, Senior Executives, Controlling Persons, or Associates Based on a Motion Requesting Dismissal by the Board or a Committee) are satisfied; or
(3) In any case, the shareholders approve a resolution requesting dismissal of the action in the manner provided in § 7.11 (Dismissal of a Derivative Action Based Upon Action by the Shareholders).
(b) Regardless of whether a corporation chooses to proceed under § 7.08 or § 7.11, it is free to make any other motion available to it under the law, including a motion to dismiss the complaint or for summary judgment.
§ 7.08 Dismissal of a Derivative Action Against Directors, Senior Executives, Controlling Persons, or Associates Based on a Motion Requesting Dismissal by the Board or a Committee
The court should, subject to the provisions of § 7.10(b) (retention of significant improper benefit), dismiss a derivative action against a defendant who is a director, a senior executive, or a person in control of the corporation, or an associate of any such person, if:
(a) The board of directors or a properly delegated committee thereof (either in response to a demand or following commencement of the action) has determined that the action is contrary to the best interests of the corporation and has requested dismissal of the action;
*621 (b) The procedures specified in § 7.09 (Procedures for Requesting Dismissal of a Derivative Action) for the conduct of a review and evaluation of the action were substantially complied with (either in response to a demand or following commencement of the action), or any material departures therefrom were justified under the circumstances; and
(c) The determinations of the board or committee satisfy the applicable standard of review set forth in § 7.10(a) (Standard of Judicial Review with Regard to a Board of Committee Motion Requesting Dismissal of a Derivative Action Under § 7.08).
§ 7.09 Procedures for Requesting Dismissal of a Derivative Action
(a) The following procedural standards should apply to the review and evaluation of a derivative action by the board or committee under § 7.08 (Dismissal of a Derivative Action Against Directors, Senior Executives, Controlling Persons, or Associates Based on a Motion Requesting Dismissal by the Board or a Committee) or § 7.11 (Dismissal of a Derivative Action Based Upon Action by the Shareholders):
(1) The board or a committee should be composed of two or more persons, no participating member of which was interested in the action, and should as a group be capable of objective judgment in the circumstances;
(2) The board or committee should be assisted by counsel of its choice and such other agents as it reasonably considers necessary;
(3) The determinations of the board or committee should be based upon a review and evaluation that was sufficiently informed to satisfy the standards applicable under § 7.10(a); and
(4) If the board or committee determines to request dismissal of the derivative action, it shall prepare and file with the court a report or other written submission setting forth its determinations in a manner sufficient to enable the court to conduct the review required under *622 § 7.10 (Standard of Judicial Review with Regard to a Board or Committee Motion Requesting Dismissal of a Derivative Action Under § 7.08).
(b) If the court is unwilling to grant a motion to dismiss under § 7.08 or § 7.11 because the procedures followed by the board or committee departed materially from the standards specified in § 7.09(a), the court should permit the board or committee to supplement its procedures, and make such further reports or other written submissions, as will satisfy the standards specified in § 7.09(a), unless the court decides that (i) the board or committee did not act on the basis of a good faith belief that its procedures and report were justified in the circumstances; (ii) unreasonable delay or prejudice would result; or (iii) there is no reasonable prospect that such further steps would support dismissal of the action.
§ 7.10 Standard of Judicial Review with Regard to a Board or Committee Motion Requesting Dismissal of a Derivative Action Under § 7.08
(a) Standard of Review. In deciding whether an action should be dismissed under § 7.08 (Dismissal of a Derivative Action Against Directors, Senior Executives, Controlling Persons, or Associates Based on a Motion Requesting Dismissal by the Board or a Committee), the court should apply the following standards of review:
(1) If the gravamen of the claim is that the defendant violated a duty set forth in Part IV (Duty of Care and the Business Judgment Rule), other than by committing a knowing and culpable violation of law that is alleged with particularity, or if the underlying transaction or conduct would be reviewed under the business judgment rule under § 5.03, § 5.04, § 5.05, § 5.06, § 5.08, or § 6.02, the court should dismiss the claim unless it finds that the board's or committee's determinations fail to satisfy the requirements of the business judgment rule as specified in § 4.01(c).
*623 (2) In other cases governed by Part V (Duty of Fair Dealing) or Part VI (Role of Directors and Shareholders in Transactions in Control and Tender Offers), or to which the business judgment rule is not applicable, including cases in which the gravamen of the claim is that defendant committed a knowing and culpable violation of law in breach of Part IV, the court should dismiss the action if the court finds, in light of the applicable standards under Part IV, V, or VI that the board or committee was adequately informed under the circumstances and reasonably determined that dismissal was in the best interests of the corporation, based on grounds that the court deems to warrant reliance.
(3) In cases arising under either Subsection (a)(1) or (a)(2), the court may substantively review and determine any issue of law.
(b) Retention of Significant Improper Benefit. The court shall not dismiss an action if the plaintiff establishes that dismissal would permit a defendant, or an associate, to retain a significant improper benefit where:
(1) The defendant, either alone or collectively with others who are also found to have received a significant improper benefit arising out of the same transaction, possesses control of the corporation; or
(2) Such benefit was obtained:
(A) As the result of a knowing and material misrepresentation or omission or other fraudulent act; or
(B) Without advance authorization or the requisite ratification of such benefit by disinterested directors (or, in the case of a nondirector senior executive, advance authorization by a disinterested superior), or authorization or ratification by disinterested shareholders, and in breach of § 5.02 (Transactions with the Corporation) or § 5.04 (Use by a Director or Senior Executive of Corporate Property, Material Non-Public Corporate Information, or Corporate Position);
*624 unless the court determines, in light of specific reasons advanced by the board or committee, that the likely injury to the corporation from continuation of the action convincingly outweighs any adverse impact on the public interest from dismissal of the action.
(c) Subsequent Developments. In determining whether the standards of § 7.10(a) are satisfied or whether § 7.10(b) or any of the exceptions set forth therein are applicable, the court may take into account considerations set forth by the board or committee (or otherwise brought to the court's attention) that reflect material developments subsequent to the time of the underlying transaction or conduct or to the time of the motion by the board or committee requesting dismissal.
§ 7.13 Judicial Procedures on Motions to Dismiss a Derivative Action Under § 7.08 or § 7.11
(a) Filing of Report or Other Written Submission. Upon a motion to dismiss an action under § 7.08 (Dismissal of a Derivative Action Against Directors, Senior Executives, Controlling Persons, or Associates Based on a Motion Requesting Dismissal by the Board or a Committee) or § 7.11 (Dismissal of a Derivative Action Based Upon Action by the Shareholders), the corporation shall file with the court a report or other written submission setting forth the procedures and determinations of the board or committee, or the resolution of the shareholders. A copy of the report or other written submission, including any supporting documentation filed by the corporation, shall be given to the plaintiff's counsel.
(b) Protective Order. The court may issue a protective order concerning such materials, where appropriate.
(c) Discovery. Subject to § 7.06 (Authority of Court to Stay a Derivative Action), if the plaintiff has demonstrated that a substantial issue exists whether the applicable standards of § 7.08, § 7.09, § 7.10, § 7.11, or § 7.12 have been satisfied and if the plaintiff is unable without undue hardship to obtain the information by other means, the court *625 may order such limited discovery or limited evidentiary hearing, as to issues specified by the court, as the court finds to be (i) necessary to enable it to render a decision on the motion under the applicable standards of § 7.08, § 7.09, § 7.10, § 7.11, or § 7.12, and (ii) consistent with an expedited resolution of the motion. In the absence of special circumstances, the court should limit on a similar basis any discovery that is sought by the plaintiff in response to a motion for summary judgment by the corporation or any defendant to those facts likely to be in dispute. The results of any such discovery may be made subject to a protective order on the same basis as under § 7.13(b).
(d) Burdens of Proof. The plaintiff has the burden of proof in the case of a motion (1) under § 7.08 where the standard of judicial review is determined under § 7.10(a)(1) because the basis of the claim involves a breach of a duty set forth in Part IV (Duty of Care and the Business Judgment Rule) or because the underlying transaction would be reviewed under the business judgment rule, or (2) under § 7.07(a)(1) (suits against third parties and lesser corporate officials). The corporation has the burden of proof in the case of a motion under § 7.08 where the standard of judicial review is determined under § 7.10(a)(2) because the underlying transaction would be reviewed under a standard other than the business judgment rule, except that the plaintiff retains the burden of proof in all cases to show (i) that a defendant's conduct involved a knowing and culpable violation of law, (ii) that the board or committee as a group was not capable of objective judgment in the circumstances as required by § 7.09(a)(a), and (iii) that dismissal of the action would permit a defendant or an associate thereof to retain a significant improper benefit under § 7.10(b). The corporation shall also have the burden of proving under § 7.10(b) that the likely injury to the corporation from continuation of the action convincingly outweighs any adverse impact on the public interest from dismissal of the action. In the case of a motion under § 7.11 (Dismissal of a Derivative Action Based Upon Action *626 by the Shareholders), the plaintiff has the burden of proof with respect to § 7.11(b), (c), and (d), and the corporation has the burden of proof with respect to § 7.11(a).
(e) Privilege. The plaintiff's counsel should be furnished a copy of related legal opinions received by the board or committee if any opinion is tendered to the court under § 7.13(a). Subject to that requirement, communications, both oral and written, between the board or committee and its counsel with respect to the subject matter of the action do not forfeit their privileged character, and documents, memoranda, or other material qualifying as attorney's work product do not become subject to discovery, on the grounds that the action is derivative or that the privilege was waived by the production to the plaintiff or the filing with the court of a report, other written submission, or supporting documents pursuant to § 7.13.
NOTES
[1] The questions certified by the court were:
(1) whether a court should terminate a derivative action brought by minority shareholders purportedly on behalf of a corporation where the non-defendant members of its board of directors have determined, after an adequate and independent investigation and in the exercise of sound business judgment, that the action is not in the best interests of the corporation;
(2) whether the decision of the Board in this case was protected by the business judgment rule the Board was independent and had conducted an adequate investigation in good faith through a qualified and unbiased Special Committee;
(3) whether the Nanty-Glo rule relating to motions for summary judgment should have been applied to defendants' motion seeking the termination of the derivative action; and
(4) whether the defendants are entitled to a pretrial evidentiary hearing in the event the Court finds there are factual questions surrounding the Board's decision to terminate the derivative action.
[2] It should be noted that respondents contest all of these criteria, representing that the special litigation committee was not disinterested or independent, counsel was not disinterested or independent, the investigation was inadequate, and that directors breached their fiduciary duties. Until factual determinations are made in regard to these disputed issues, a trial court cannot conclude whether or not the business judgment rule requires dismissal of the action.
[3] ALI Principles §§ 4.01, 4.02, and 4.03 (duties of directors and officers; the business judgment rule; reliance on committees and other persons) are similar but not identical to the statutory standards found in 15 Pa.C.S. §§ 512, 513, 515, 1712, 1713, and 1715. The statutory standards, of course, control the duties of directors and the application of the business judgment rule in Pennsylvania.
[4] The full text of these sections is set forth in the appendix to this opinion.
[5] Our adoption of these sections is not a rejection of other sections not cited. We have identified and studied the sections which apply to this case and have adopted those which appear most relevant.
The entire publication, all seven parts, is a comprehensive, cohesive work more than a decade in preparation. Additional sections of the publication, particularly procedural ones due to their interlocking character, may be adopted in the future. Issues in future cases or, perhaps, further proceedings in this case might implicate additional sections of the ALI Principles. Courts of the Commonwealth are free to consider other parts of the work and utilize them if they are helpful and appear to be consistent with Pennsylvania law.
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184 F.Supp.2d 1273 (2001)
Patricia ROGERS-LIBERT, Plaintiff,
v.
MIAMI-DADE COUNTY, Defendant.
No. 99-2886-CIV.
United States District Court, S.D. Florida, Miami Division.
December 18, 2001.
*1274 *1275 Roberta Fulton Fox, Miami, FL, for plaintiff.
William X. Candela, Dade County Attorney's Office, Miami, FL, for defendant.
SUMMARY JUDGMENT ORDER
JORDAN, District Judge.
Patricia Rogers-Libert sues her former employer, Metropolitan Miami Dade County ("Miami-Dade"), for alleged gender and national origin discrimination (Counts I and II) in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and alleged age discrimination (Count III) under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. Federal jurisdiction exists pursuant to 28 U.S.C. § 1331.
Ms. Rogers-Libert, a white female over the age of 40, alleges that she was discriminated against in connection with her nonpromotion to the position of Manager of Management Services at the Miami-Dade Transit Agency. Ms. Rogers-Libert also *1276 alleges that her supervisors at the Transit Agency retaliated against her after she complained about the discriminatory treatment, thereby creating a hostile work environment and ultimately resulting in her constructive discharge (Count IV). Miami-Dade moved for summary judgment on all of Ms. Rogers-Libert's claims, and on October 5, 2001, I granted that motion [D.E. 85]. The basis for that decision is set forth below.
I. SUMMARY JUDGMENT STANDARD
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A material fact is one that might affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where the non-moving party fails to prove an essential element of its case for which it has the burden of proof at trial, summary judgment is warranted. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hilburn v. Murata Elecs. North Am., Inc., 181 F.3d 1220, 1225 (11th Cir.1999). Thus, the task is to determine whether, considering the evidence in the light most favorable to Ms. Rogers-Libert, the non-moving party, there is evidence on which the trier of fact could reasonably find a verdict in her favor. See Liberty Lobby, 477 U.S. at 251, 106 S.Ct. 2505; Hilburn, 181 F.3d at 1225; Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997).
II. UNDISPUTED RELEVANT FACTS[1]
Miami-Dade County is a political subdivision of the State of Florida. The Miami-Dade Transit Agency (MDTA) is a department of Miami-Dade County responsible for providing mass transit throughout Miami-Dade County.
Recruitment for vacant exempt positions is generally referred to as resume recruitment. In a resume recruitment, candidates submit resumes to the Miami-Dade County Employee Relations Department ("ERD"). The ERD then delivers the resumes of qualified candidates to the hiring department to ensure that they meet the minimum requirements for the position sought. The person designated as the department's hiring manager selects the type of selection method.
A hiring manager can select either the ranking or banding methods, or a combination of both methods. A strict ranking method requires the hiring manager to award the position to the highest scoring candidate. The banding method, on the other hand, allows the hiring manager to select an applicant from a predetermined band of candidates.
In 1989, Ms. Rogers-Libert's position at the Dade County Housing and Urban Development was eliminated and she was "bumped" to an AO3 position at MDTA. Her immediate supervisor at MDTA was Alex Rey Panama. Ms. Rogers-Libert served in this position until December of 1990. During this time, she never filed a complaint concerning Mr. Panama's conduct with MDTA's Fair Employment Practices division (FEP) or the County's Office of Fair Employment Practices (OFEP).
*1277 Ms. Rogers-Libert applied for a promotion to Manager of Budget and Grants in 1990. Mr. Panama was the hiring manager and selected Ms. Rogers-Libert for the position. She served in this position until her resignation in 1996.
In May of 1993, MDTA conducted a resume recruitment for Manager of Management Services. This position became vacant when Pam Levin was promoted to Chief of Management Services, replacing Mr. Panama, who was promoted to Assistant Director of Administration.
The interviews were originally scheduled to be held during the week of May 31, 1994, but on Tuesday, May 24, 1994, applicants were contacted and informed that the interviews had been rescheduled for the following afternoon, May 25, 1994.
Only two candidates, Ms. Rogers-Libert and Alberto Parjus (a Hispanic male under the age of 40), were interviewed by a four-member panel. Both applicants met the minimum qualifications for the position. The panel consisted of Ms. Levin (a white female), Mr. Panama (a Hispanic male), Terence McKinley (the Special Assistant in Policy and Development Strategic Management and a white male), and Ruby Hemingway (Chief of Public Services and a black female). Initially, the interview panel did not include Ms. Hemingway, but after submitting her first panel selection, Ms. Levin was notified by the FEP that she would need to select an additional panel member in order to create racial balance. See Pamela Levin Deposition at 91 [D.E. 63]. Ms. Levin was also informed that there was currently an underutilization of white females, black females, and Hispanic females within the officials/administrators job category. See Eneldo Hernandez-Vidaillet Memorandum [D.E. 50, Exh. 4]. Ms. Levin was notified that "if an individual in one of the above underutilized groups is deemed qualified this may be one factor in hiring." See id. This reconstituted panel was approved by the FEP. As the hiring manager, Ms. Levin was the panel chairperson. During the structured interview, panel members asked Ms. Rogers-Libert a total of 10 questions and scored her responses. Mr. Parjus was asked the same questions, in the same order, and scored on his answers. The scores were as follows:
Mr. Parjus Ms. Rogers-Libert
Mr. McKinley 85 85
Ms. Hemingway 74 86
Mr. Panama 92 84
Ms. Levin 83 77
___ ___
334 332
The panel members sat at a table two to three feet away from the candidates during the interviews. Ms. Rogers-Libert testified that during her interview Mr. McKinley was "doodling ... Pam was writing things and Ruby was. I don't recall if Alex was writing anything." See Deposition of Patricia Rogers-Libert at 20 [D.E. 50, Exh. 1]. Ms. Rogers-Libert could not see what the panel members were writing.
According to the panel members, Ms. Rogers-Libert and Mr. Parjus were ranked solely on their answers to the interview questions, because they had already been approved by the ERD as minimally qualified for the promotion. The applicants' work history and their educational background did not factor into their interview scores. The panel members agree that nothing derogatory was said by a panel member about either of the applicants and agree that nothing unusual occurred that affected their impression of the candidates. The panel members also agree that nothing occurred to suggest that a candidate was "pre-selected," or favored by a panel member.
The panel members did not discuss their scoring of each candidate during the interviews or before the score sheets were tabulated. Additionally, the panel members *1278 did not know the scores given to the candidates by the other members of the panel.
The score sheets were collected by Ms. Levin and taken to an adjoining conference room, where Ms. Levin and Mr. Panama tabulated the scores. Ms. Rogers-Libert did not witness the actual tabulation, and did not speak with any of the panel members except for Ms. Hemingway. A handwriting analysis conducted by Anthony McAloney on behalf of Ms. Rogers-Libert found that the score sheets of Ms. Levin and one other panelist had been manually erased and altered. See Report of Anthony R. McAloney at 2 [D.E. 50, Exh. 14]. Mr. MacAloney's report identified two score sheets that had erasures or had been altered Ms. Levin's and panelist D's. See id. Panelist D's scores were written in pen. See id. Ms. Rogers-Libert does not know when any of the changes in Ms. Levin's or Mr. Panama's score sheets occurred.
On May 31, 1994, Ms. Rogers-Libert filed a verbal complaint with the FEP's administrator, Jomoya Mobotu, claiming that the recruitment process for the position of Manager of Management Services was not fair. She specifically alleged that there was insufficient notice given for the interview, that improper comments were made by Ms. Levin in front of the panel, and that certain employment criteria which were untrue and prejudicial to Ms. Rogers-Libert were improperly included in the selection process. See Rogers-Libert Deposition at 32. Mr. Mobotu's inquiry led him to express some concern that the interview was held with only 24 hours notice. See FEP Memorandum at 5 [D.E.50, Exh. 2]. He noted that the position had been vacant since February of that year, and while he acknowledged that his office could not, as a matter of policy, instruct hiring managers on how to proceed and set up interviews for prospective applicants, he found that such short notice could have appeared unreasonable. See id. Mr. Mobutu also found it disturbing that Ms. Levin included an explanation, in an initial selection memorandum she wrote after the interviews were concluded, which suggested that factors other than interview responses had been considered. See id. at 5, 6. His report noted that Ms. Levin indicated such language was included in error, and his office concurred with this, given that no other contradictory statements were available to challenge Ms. Levin's explanation. See id. Mr. Mobutu then recommended that the selection memorandum be rewritten so as to eliminate all erroneous references to employment criteria as a basis of the selection process. See id. at 8. Mr. Mobutu's report concluded that despite the concerns he raised about the interview process, it "was not inherently unfair to Ms. Rogers-Libert or to any other applicant."[2]
Beginning in June of 1994, Ms. Rogers-Libert reported to Mr. Parjus. Ms. Levin, who reported to Mr. Panama, was Mr. Parjus' supervisor. In March of 1995, Mr. Parjus issued Ms. Rogers-Libert a performance evaluation with an overall rating of "above satisfactory" for the period covering December of 1993 to December of 1994, and she was granted a merit increase of 4%.
On April 26, 1994, Ms. Rogers-Libert filed a charge of sex, age, and national origin discrimination with the Equal Employment Opportunity Commission (EEOC). On June 26, 1995, Ms. Rogers-Libert filed a retaliation complaint with the EEOC. On May 27, 1998, the EEOC issued a letter of determination as to both charges. The EEOC's investigation determined that the Transit Agency appeared to have tampered with the scoring process. See EEOC Letter of Determination at 1 *1279 [D.E. 50, Exh. 13]. The representatives of the EEOC conducted an on-site visit to review original documents but Miami-Dade did not produce the documents at the time. See id. Miami-Dade did not respond to a pre-subpoena letter requesting the production of those documents. See id.
In April of 1995, Ms. Rogers-Libert filed a retaliation claim with the EEOC charging that retaliatory acts had taken place at work since the time of her EEOC complaint. See Rogers-Libert Deposition at 64. These retaliatory acts allegedly included the withholding of important information from Ms. Rogers-Libert, the exclusion from meetings that she was required to attend in order to adequately perform her job, the failure to grant her administrative leave which other employees similarly situated were granted, Ms. Levin threatening to terminate her, telephone calls being made to her home and cellular phone when she was not at work, Ms. Levin and Mr. Panama disrupting the orderly work flow of projects that Ms. Rogers-Libert was responsible for and their taking other actions that interfered with her ability to perform her duties, not receiving a merit increase in December of 1995, and not receiving her evaluation because her supervisor, Mr. Parjus, did not want to have to ask for Ms. Levin's approval on a positive evaluation of Ms. Rogers-Libert. See Patricia Rogers-Libert Affidavit at 2 [D.E. 50, Exh. 12].
Ms. Rogers-Libert tendered her resignation in December of 1995. See Patricia Rogers-Libert Addendum to Plaintiff's Statement of Material Facts [D.E.50, Exh. 6]. In 1996, Ms. Rogers-Libert was elected to the City of Aventura Board of County Commissioners, and continues to serve in that capacity.
III. THE TITLE VII CLAIMS IN COUNTS I AND II
Under Title VII of the Civil Rights Act of 1964 it is an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's ... sex or national origin." 42 U.S.C. § 2000e-2(a)(1). Counts I and II of Ms. Rogers-Libert's complaint seek redress for "sex based discrimination" and for "national origin-based discrimination." Ms. Rogers-Libert alleges that she did not receive the promotion to Manager of Management Services at the Transit Agency because she was the victim of impermissible sex and national origin discrimination. She also contends that her treatment became so intolerable that she was forced to leave her employment at the Transit Agency.
Ms. Rogers-Libert alleges that she was subjected to promotion discrimination in the interviewing process for the position of Manager of Management Services because of her sex and national origin, and that her non-promotion was the specific result of this discrimination. Ms. Rogers-Libert maintains that as part of their scheme to promote a Hispanic male under the age of 40, Mr. Panama and Ms. Levin limited the number of eligible candidates to be interviewed for the position, then tampered with the results of the interview scores so that the successful applicant would be male, Hispanic, and under the age of 40. Specifically, Ms. Rogers-Libert contends that rather than totaling the panelists' scores from the interviews in the panelists' presence, as Transit Agency policy required, the scores were totaled in another area away from the panelists and altered to make Mr. Parjus the successful candidate. See Plaintiffs' Statement of Controverted *1280 Material Facts at 12 [D.E. 56]. To prove her claim of tampering, Ms. Rogers-Libert relies on her handwriting expert's report as evidence that Mr. Panama and Ms. Levin purposely altered the interview results to result in the selection of Mr. Parjus.
"To establish a prima facie case under Title VII for sex or national origin discrimination, a plaintiff must prove (1) that she is a member of a protected class, (2) that she was qualified and applied for the promotion, (3) that she was rejected despite these qualifications, and (4) that other equally or less qualified employees who are not members of the protected class were promoted." Lee v. GTE Florida, Inc., 226 F.3d 1249, 1252 (11th Cir.2000) (citing Taylor v. Runyon, 175 F.3d 861, 866 (11th Cir.1999)). Miami-Dade has properly conceded, for purposes of summary judgment, that Ms. Rogers-Libert has established the first three elements of the prima facie case. See Memorandum of Law in Support of Miami-Dade's Motion for Summary Judgment at 9 [D.E.42]. For purposes of this summary judgment motion, I will also assume that the fourth element of Ms. Rogers-Libert's prima facie case has also been established.
Where an employee relies on circumstantial evidence to show discriminatory intent, courts generally adhere to the McDonnell Douglas-Burdine burden-shifting framework. See Holifield v. Reno, 115 F.3d at 1561-62 (11th Cir.1997). The circumstantial evidence presented must be sufficient to create an inference of discrimination. See id. at 1564. If an inference of discrimination is sufficient to establish a prima facie case, the burden shifts to the employer to rebut the inference by proffering a legitimate, non-discriminatory reason for the employment action. See id. This is an "exceedingly light" burden. See id. (quoting Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1061 (11th Cir.1994)). If the employer proffers some legitimate, non-discriminatory reason for the promotion decision, the plaintiff must then show that this reason is merely pretextual. See Taylor, 175 F.3d at 866.
Miami-Dade has proffered a nondiscriminatory and legitimate reason for Ms. Rogers-Libert's non-promotion that the interview scores resulted in a higher score for Mr. Parjus, and that based on the ranking system, he was the successful candidate. Ms. Rogers-Libert argues that she was far more qualified than Mr. Parjus, and that the reason given for Mr. Parjus' promotion by Miami-Dade is merely pretextual. See Patricia Rogers-Libert's Response to Miami-Dade's Filing of Supplemental Authority at 1 [D.E. 69]. Ms. Rogers-Libert cannot however, show pretext merely by proving that she was better qualified for the position than Mr. Parjus. See Cofield v. Goldkist, Inc., 267 F.3d 1264, 1268 (11th Cir.2001) (holding that disparities in qualifications must be so great that a reasonable fact finder could infer that employer was acting in a discriminatory manner). Disparities in qualifications alone will not, in and of themselves, be enough to demonstrate discriminatory intent unless "those disparities are so apparent as virtually to jump off the page and slap you in the face." See Deines v. Texas Dept. of Protective and Regulatory Servs., 164 F.3d 277, 280 (5th Cir.1999). In Deines, the Fifth Circuit explained that this standard "should be understood to mean that disparities in qualifications must be of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question." See id. at 280-281. In other words, a plaintiff must do more than question the wisdom of the employer's reasons, where those reasons might motivate a reasonable employer. *1281 See Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir.1997). The issue is not which employee was more qualified, but whether there was such a disparity between Ms. Rogers-Libert's and Mr. Parjus' qualifications that no reasonable fact-finder could believe that Mr. Parjus' score would have or could have been higher than that of Ms. Rogers-Libert. See Cofield, 267 F.3d at 1268.
Ms. Rogers-Libert did, in fact, have two more years of experience at the Transit Agency than Mr. Parjus. See Resumes of Patricia Rogers-Libert and Alberto Parjus [D.E. 50, Exh. 14, Exh. 3(c)]. She also had worked for Miami-Dade County longer than Mr. Parjus. See id. As Budget and Grants Manager, her budget responsibility was over a $250,000,000 budget, while Mr. Parjus, as the Special Projects Administrator, was responsible for a $20,000,000 budget. See id. On the other hand, both candidates had bachelor's degrees Mr. Parjus received his degree in business administration and Ms. Rogers-Libert received hers in psychology. See id. Mr. Parjus had attended some Transit Agency training programs and other transportation-related training, while Ms. Rogers-Libert had been associated with several community organizations and served as a board member for some of them. See id. Prior to working for the Transit Agency, Ms. Rogers-Libert had supervisory roles at the Dade County Department of Housing and Urban Development, while Mr. Parjus had been a personnel specialist for the Dade County Corrections and Rehabilitation Department with supervisory responsibility. See id. In light of their backgrounds and employment histories, the disparities between the qualifications of Ms. Rogers-Libert and Mr. Parjus are not, in and of themselves, enough to permit a reasonable trier of fact to find pretext. See Cofield, 267 F.3d at 1268 (finding that any disparity in qualifications between candidate with 15 years of managerial experience and candidate with 8 years of managerial experience so slight as to fail to establish reason for non-promotion was pretextual).
Ms. Rogers-Libert must therefore present sufficient direct or circumstantial evidence of pretext to get to a jury. See Holifield, 115 F.3d at 1561; Carter v. City of Miami, 870 F.2d 578 (11th Cir.1989). "[D]irect evidence is `composed of only the most blatant remarks, where intent could be nothing other than to discriminate' on the basis of some impermissible factor." Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir.1999) (quoting Carter, 870 F.2d at 582). The panel members here have testified that each candidate was ranked solely on the answers to the interview questions and that nothing was said by any panel member regarding the age, sex, or race of either candidate. See Ruby Hemingway Adams Affidavit at 1, 2 [D.E. 50, Exh. 5]; Terence McKinley Affidavit at 2 [D.E. 50, Exh. 5]; Alex Rey Panama affidavit at 2, 3 [D.E. 50, Exh. 11]; Levin Deposition at 161. Ms. Rogers-Libert has offered nothing to show that any comments were ever made regarding sex or national origin. As there is no direct evidence of discrimination, Ms. Rogers-Libert relies on circumstantial evidence to establish pretext and prove her claim of discrimination.
Ms. Rogers-Libert points to testimony from her handwriting expert that two scoring sheets had erasure marks, indicating that scores had been changed or altered. But as Ms. Rogers-Libert's counsel acknowledged at the hearing on the summary judgment motion, the expert did not conclude in his report that anyone in particular altered the scores and did not render any opinion as to when the alterations were made. He only concluded that there were some erasure marks on two of the score sheets and that some of the numbers *1282 had been altered. See McAloney Report at 2. Miami-Dade County has not disputed this fact, but rather offered a non-discriminatory, legitimate explanation for the erasure marks that panel members changed their minds on a particular score for a particular question during the interviews. Although there is nothing in Ms. Hemingway Adams' or Mr. McKinley's affidavits indicating that they changed their scores, there is testimony that they reviewed the score sheets and that they accurately reflect their assessments of the candidates. See Hemingway Adams Affidavit at 2; McKinley Affidavit at 2. Mr. Panama acknowledged that, using a pen, he traced over his scores during the interview process, as was his practice, and declared that he made no changes to his or anyone else's score sheets after the interviews were concluded. See Panama Declaration at 2, 3. He also stated unequivocally that he made no changes to his initial scores on his score sheets. See id. Ms. Levin acknowledged that she might have changed her mind and erased some of her scores during the interview process, but denied that she did so after the interviews were concluded or that she changed anyone else's scores. See Levin deposition at 117, 118.
In sum, though Ms. Rogers-Libert argues that the scores were changed after the interviews were finished, out of view of the panelists, she points to nothing in the record evidence to support this supposition, aside from the fact that she believes she must have scored higher than her competition given her superior experience. The analysis of pretext, however, must be focused on the employer's beliefs, and not the employee's own perceptions of her performance. See Holifield, 115 F.3d at 1565. Thus, where the employer has acted based on a belief that the performance of one candidate was superior to the performance of the other, an employee's assertions of his own superior performance is insufficient to defeat summary judgment in the absence of other evidence. See id. Here, Miami-Dade has produced evidence to rebut any inference of discrimination by submitting the affidavits of the panelists involved in the scoring process, and through the testimony of Ms. Levin. Ms. Rogers-Libert has not presented sufficient evidence that Miami-Dade County's proffered reason either for the promotion of Mr. Parjus or for the changes in the scoring sheets was more likely motivated by discrimination based on her sex or national origin. Her assertions that Ms. Levin changed the scoring sheets after the completion of the interview process are unsubstantiated. Thus, summary judgment on the sex and national origin discrimination claims is appropriate.
IV. THE ADEA CLAIMS IN COUNT III
Ms. Rogers-Libert also contends that the decision to promote Mr. Parjus was based on a discriminatory scheme to promote people under the age of 40, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. She further contends that the decision to use a pure "ranking" system to select the employee to be promoted was, in itself, discriminatory because it eliminated consideration of the candidate's years of experience and thereby skewed the selection away from an older employee, also violating the ADEA.
Under the ADEA, it is "unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). When a plaintiff alleges that an employer discriminated on the basis of age, liability depends on whether the employer's decision was actually motivated by age. See Reeves v. Sanderson, 530 U.S. 133, 141, 120 S.Ct. 2097, 147 L.Ed.2d 105 *1283 (2000). In Sanderson, the Supreme Court determined that the McDonnell Douglas burden-shifting framework could apply to a claim brought under the ADEA. See id. See also Cofield, 267 F.3d at 1267 (using burden shifting analysis of McDonnell Douglas framework for age and sex discrimination claim); Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (applying McDonnell Douglas framework to ADEA claim). Thus, once a plaintiff establishes her prima facie case, the burden of proof shifts to the employer to demonstrate that the plaintiff was rejected for a legitimate, non-discriminatory reason. "This burden is one of production, not persuasion; it `can involve no credibility assessment.'" See Sanderson, 530 U.S. at 142, 120 S.Ct. 2097. Once the employer meets this intermediate burden, the plaintiff has the ultimate burden to show "that the employer's proffered explanation is unworthy of credence." See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
Ms. Rogers-Libert has established her prima facie case by showing that (1) at the time of the application for promotion she was a member of the class protected by the ADEA; (2) she was otherwise qualified for the position; (3) she was not promoted; and (4) the person promoted was in his thirties. See Sanderson, 530 U.S. at 142, 120 S.Ct. 2097. Miami-Dade County has met its intermediate burden of presenting a legitimate, non-discriminatory reason for the decision to promote Mr. Parjus instead of Ms. Rogers-Libert that Mr. Parjus achieved a higher score in the interview process and was selected under a ranking system.
Ms. Rogers-Libert has not offered any evidence to show that this explanation was merely pretext for a decision based on age discrimination. While she suggests that Ms. Levin altered the scores after the completion of interviews, there is nothing in the record to substantiate this claim. Ms. Rogers-Libert's expert report establishes that scores were erased and changed, but not that this was done outside of the room the interviews took place in, and not that this was done by any particular person or for any illegitimate reason. See McAloney Report at 2. The panelists have stated that no one discussed the candidates' age, and that their scores accurately reflected their assessment of the candidates. See Hemingway Adams Affidavit at 1,2; McKinley Affidavit at 2; Panama Affidavit at 2, 3; Levin Deposition at 161.
The only other evidence Ms. Rogers-Libert offers is that Mr. Panama had made comments in the past that "he preferred working with younger people because they had more energy," and that another employee "must be getting senile because he was getting up in years," and that he made remarks about division directors needing to retire because they were not up to the job. See Rogers-Libert deposition at 46, 48, 52. These comments (which Mr. Panama denies ever making) were made sometime after Ms. Rogers-Libert became manager of Budgets and Grants in 1992. See id. at 49. While these comments do not rise to the level of direct evidence because they were not made in relation to the decision-making process, they may constitute circumstantial evidence. See Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1331 (11th Cir.1998) (if decision maker's discriminatory statement is unrelated to employment decision at issue, the statement does not constitute direct evidence of discrimination, but may constitute circumstantial evidence). Ms. Rogers-Libert's testimony, however, is that she never told Mr. Panama her age at the time of her application for promotion to Manager of Management Services, and that Mr. Panama never inquired about her age. Moreover, there was nothing on either *1284 candidate's resume to indicate age, nor anything in the application packet that indicated the candidate's age. While it is possible that some or all of the panelists knew the applicants' ages, because birthdays were celebrated throughout the years Mr. Parjus and Ms. Rogers-Libert were employed at the Transit Agency, there is no evidence to suggest that the panelists considered age in their assessments, or that Mr. Panama's comments were related in any way to the decision to promote Mr. Parjus. Additionally, Mr. Panama's affidavit states that he did not know the age of either Ms. Rogers-Libert or of Mr. Parjus when the interviews were conducted. See Panama Affidavit at 3. The panelists scored the candidates based on answers to questions posed during interviews and each has submitted an affidavit stating that they were not influenced by any comments made by anyone about the candidates, nor did any of them discuss their scores with other panelists. See Hemingway Adams Affidavit at 2; McKinley Affidavit at 2; Panama Affidavit at 3; Levin Deposition at 161. Additionally, none of the panelists commented on either applicant's age, race, or sex, and the panelists reviewed their score sheets and testified that the scores accurately reflected their assessments of the candidates. The panelists also said that no one attempted to influence their assessment of the candidates.
Ms. Rogers-Libert suggests that the ranking system for choosing the successful candidate itself was discriminatory, but she offers nothing to show that this is in fact the case. In fact, Ms. Rogers-Libert herself received an earlier promotion based on the same scoring and ranking system. See Rogers-Libert Deposition at 43. Miami-Dade County personnel training materials, while not recommending a strict interview/ranking system, permitted it to be utilized in choosing candidates for positions. See Plaintiffs' Notice of Filing Structured Interview and Selection Techniques Manual at 54 [D.E. 66]. There is nothing in the ADEA that requires an employer to consider experience in its hiring and promotion decisions, nor is there anything in the record that shows evidence of the ranking system having a discriminatory effect in its application. See Chapman, 229 F.3d at 1030 ("[F]ederal courts `do not sit as a super-personnel department that reexamines an entity's business decisions."') (quoting Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.1991)). There is no inference from the record evidence that Ms. Rogers-Libert was the victim of age discrimination to create a material issue of fact. Therefore, summary judgment for Miami-Dade on the age discrimination claim is appropriate.
V. THE RETALIATION AND CONSTRUCTIVE DISCHARGE CLAIM IN COUNT IV
In Count IV of her complaint, Ms. Rogers-Libert claims that she was retaliated against because she complained about the alleged discrimination in violation of Title VII and the ADEA, which ultimately resulted in her constructive discharge. See Amended Complaint ¶ 39 [D.E. 29]. Under Title VII, an employer may not discriminate against an employee because the employee opposes any practice by the employer made unlawful by Title VII. See 42 U.S.C.A. § 2000e-3(a). The principles of law developed for Title VII cases are applicable to ADEA cases. See Combs v. Plantation Patterns, 106 F.3d 1519, 1530 n. 4 (11th Cir.1997).[3] Thus, to show that *1285 she was retaliated against for her gender, national origin, and age discrimination complaints, Ms. Rogers-Libert must show that (1) she engaged in statutorily protected expression; (2) that she suffered an adverse employment action; and (3) that there is some causal relationship between the two events. See Holifield, 115 F.3d at 1566.
Opposing an unlawful employment practice or participating in any way in an investigation, proceeding or hearing regarding a discrimination claim constitutes engaging in statutorily protected expression. See Clover v. Total System Servs., Inc. 176 F.3d 1346, 1351 (11th Cir.1999). The Eleventh Circuit has held that, "[a]t a minimum, a plaintiff must generally establish that the employer was actually aware of the protected expression at the time it took adverse employment action." See Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir.1993). Although there is no bright-line test for what constitutes an adverse employment action, it is clear that not all conduct by an employer negatively affecting an employee constitutes adverse employment action. See Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1238 (11th Cir.2001). In order for an employee to prove an adverse employment action under Title VII, she must show "a serious and material change in the terms, conditions, or privileges of employment." See id. at 1239. Moreover, "the employee's subjective view of the significance and adversity of the employer's action is not controlling; the employment action must be materially adverse as viewed by a reasonable person in the circumstances." Id. Here, Ms. Rogers-Libert did engage in statutorily protected expression but has not shown that her employers were actually aware of this fact. Even assuming, arguendo, that this awareness existed, Ms. Rogers-Libert has not shown an adverse employment action.
Ms. Rogers-Libert contends that she endured three types of discriminatory retaliation all of which constituted adverse employment action. See Patricia Rogers-Libert Memorandum in Opposition to Summary Judgment Motion at 10 [D.E. 49]. First, information necessary to her ability to do her job was withheld from her by her supervisor, Ms. Levin. See id. Second, she was excluded from meetings she needed to attend in order to do her job, affecting both her job performance and her professional reputation. See id. at 10, 11. Third, she failed to get the last merit raise due to her. See id. at 11.
It is undisputed that Ms. Rogers-Libert did not suffer a loss in salary or benefits, subsequent denial of promotions, workplace reassignment, transfer or change in her permanent job title as a result of her discrimination claims being filed. Furthermore, at the summary judgment hearing, Ms. Rogers-Libert's counsel agreed that the practice and pattern of Miami-Dade County throughout Ms. Rogers-Libert's employment was that merit raises were implemented several months after employees became eligible for them in December. Ms. Rogers-Libert left the Transit Agency in January, so it is highly unlikely that retaliation would be the reason for her not receiving her merit raise, as she did not stay for the usual period in which the merit raise was paid. Ms. Rogers-Libert's *1286 counsel conceded as much at the summary judgment hearing. The fact that Ms. Rogers-Libert did not receive information she felt was necessary to do her job must be considered in light of the fact that she never received a negative performance review at any time during her employment at the Transit Agency. The same is true for the fact that she was excluded from meetings. Ms. Rogers-Libert's allegations, considered in the light most favorable to her, are not sufficient to support her retaliation claim. "[N]ot everything that makes an employee unhappy is an actionable adverse action." Doe v. Dekalb County School Dist., 145 F.3d 1441, 1449 (11th Cir.1998) (quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.1996)).
Because Ms. Rogers-Libert has failed to show the requisite causal connection between her protected activity and the allegedly adverse employment actions complained of, summary judgment is also appropriate on this ground. The evidence is insufficient for any reasonable jury to find that either Ms. Rogers-Libert's employers were aware of her protected activity, or if aware, took any adverse employment actions in retaliation for such protected activity.
Likewise, Ms. Rogers-Libert's constructive discharge claims cannot survive summary judgment. In order to prove a constructive discharge, a plaintiff must show that she "involuntarily resign[ed] in order to escape intolerable and illegal employment requirements to which he or she is subjected because of race, color, religion, sex, or national origin," and that "working conditions were so intolerable that a reasonable person in [his] position would be compelled to resign." Morgan v. Ford, 6 F.3d 750, 755-56 (11th Cir.1993) (internal quotation marks and citations omitted). In a recent ADEA case, the Eleventh Circuit noted that "[t]he standard for proving constructive discharge is higher than the standard for proving a hostile work environment." Hipp v. Liberty National Life Insurance Co., 252 F.3d 1208, 1231 (11th Cir.2001). A plaintiff's objective feelings are irrelevant, and the operative inquiry is framed from an objective viewpoint that of the reasonable person. See id. In order to establish a constructive discharge, therefore, a plaintiff must show that her working conditions were so intolerable that she was forced into an involuntary resignation. See Doe v. Dekalb County School Dist., 145 F.3d 1441, 1450 (11th Cir.1998).
Ms. Rogers-Libert argues that she was constructively discharged because (1) she was not granted all the administrative leave she deserved, (2) she was telephoned repeatedly when away from her office, (3) she was interrupted during working meetings for non-urgent matters and matters that had already been completed, and (4) irrational deadlines were placed upon her causing her stress. See Amended Complaint ¶¶ 11, 12. Ms. Rogers-Libert's claims, considered in the light most favorable to her, are not pervasive or serious enough to support a constructive discharge claim. Ms. Rogers-Libert continued to do the same work at the same location for the same salary, and received annual pay raises and above-satisfactory performance reviews. Ms. Rogers-Libert obviously concluded that the reason she was being treated the way she was must have been based on her discrimination complaints. But Ms. Rogers-Libert's subjective belief however sincere is not sufficient to convert the Transit Agency's actions into a constructive discharge. See Graham v. State Farm Mutual Insurance Co., 193 F.3d 1274, 1284 (11th Cir.1999) ("Plaintiff's subjective feelings about [the defendant's] actions, whatever they may have been, are not determinative."). There is simply no *1287 indication that a reasonable person would have perceived the work environment so intolerable that they would have felt forced to leave. Indeed, in a resignation memo dated December 22, 1995, Ms. Rogers-Libert wrote the following to Danny Alvarez, the Deputy Director of the Transit Agency:
We have briefly discussed my intent to resign from County Service, in order to advance professionally and to pursue other interests. At the request of my supervisor, Alberto Parjus, I agreed to postpone my resignation effective date to accommodate his vacation. This is to advise you that I have now submitted my resignation; my last day will be January 5, 1995.
I would like to meet with you before January 5, to share some of my thoughts upon leaving.
I have enjoyed working with you and appreciate your continuing encouragement and support.
See Plaintiffs' Addendum to Plaintiffs' Statement of Material Facts at Tab 6. This language does not seem "like the language of someone who feels his working conditions are so intolerable that he has no choice but to resign." See Hipp, 252 F.3d at 1241.
Finally, to the extent that Ms. Rogers-Libert has made a claim for a hostile work environment, that claim too must fail. To prevail on a hostile environment claim, a plaintiff must show that her supervisors significantly altered the conditions of her workplace, creating an objectively abusive and hostile atmosphere. See Mendoza v. Borden, 195 F.3d 1238, 1245-47 (11th Cir.1999) (en banc); Edwards v. Wallace Community College, 49 F.3d 1517, 1521 (11th Cir.1995). For the reasons stated above, Ms. Rogers-Libert's conditions of work were not altered in such a way as to meet the standard for a prima facie case of hostile work environment. Thus, summary judgment is appropriate.
VI. CONCLUSION
In sum, Miami-Dade's motion for summary judgment [D.E. 42] with respect to Ms. Rogers-Libert's gender, national origin, and age discrimination claims in Count I, II, and III of the complaint is GRANTED. The motion for summary judgment on Ms. Rogers-Libert's claims for retaliation in Count IV is also GRANTED. A final judgment will issue by separate order.
NOTES
[1] Under Local Rule 7.5, all material facts set forth in the statement served by the moving party will be deemed admitted unless controverted by the opposing party's statement. Unless otherwise noted, these facts include those set forth in Miami-Dade's statement of material facts, which are undisputed for purposes of this summary judgment motion as they have not been controverted by Ms. Rogers-Libert. Some facts not discussed here are analyzed in the discussion of Ms. Rogers-Libert's claims.
[2] The report was sent to MDTA Director Chester Colby.
[3] Although the Eleventh Circuit has not squarely addressed the issue of whether claims for a hostile work environment based on age discrimination under the ADEA are actionable, several other courts have recognized such claims. See Crawford v. Medina General Hosp., 96 F.3d 830, 834 (6th Cir. 1996); Tumolo v. Triangle Pacific Corp., 46 F.Supp.2d 410, 412 (E.D.Pa.1999); Vannoy v. OCSEA Local 11, 36 F.Supp.2d 1018, 1024 (S.D.Ohio 1999); Valdivia v. University of Kansas Med. Center, 24 F.Supp.2d 1177, 1178 (D.Kan.1998). Here, Ms. Rogers-Libert has Title VII claims and ADEA claims, so assuming that her ADEA retaliation claim is also actionable, I apply the standards of Title VII. See Madiedo v. Miami-Dade County, 2000 WL 1763845, *5 (S.D.Fla. June 1, 2000).
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415 F.Supp. 876 (1976)
CARGILL, INC., a Delaware Corporation
v.
AMERICAN PORK PRODUCERS, INC., an Iowa Corporation, et al.
No. CIV 74-5057.
United States District Court, D. South Dakota.
July 7, 1976.
*877 Edward C. Carpenter, Rapid City, S. D., for plaintiff.
Joseph E. McHugh, Chicago, Ill., Ronald W. Banks, Fred Hendrickson, Gene Lebrun, Rapid City, S. D., for defendant.
MEMORANDUM OPINION
BOGUE, District Judge.
INTRODUCTION
In Count II of its Amended Complaint, Plaintiff in substance alleges that American Pork Producers, Inc., at all times relevant for this suit, engaged in the business of raising hogs at Igloo, South Dakota, without a certificate of authority issued by the Secretary of State of the State of South Dakota as required by law. Plaintiff's theory of recovery in Count II rests on S.D. C.L. 47-2-59 which states:
All persons who assume to act as a corporation without authority so to do shall be jointly and severally liable for all debts and liabilities incurred or arising as a result thereof.
Hence, Plaintiff Cargill, Inc., essentially seeks to hold the directors of American Pork Producers, Inc., personally liable for debts incurred while operating as a foreign corporation without a certificate of authority. Defendant Feurhelm through his attorney has moved to strike Count II on the theory that S.D.C.L. 47-2-59 pertains only to persons who purport to do business as a corporation without incorporating and is inapplicable to directors of foreign corporations even if they fail to comply with South Dakota law as to certification.
FACTS
American Pork Producers, Inc. (American Pork), an Iowa corporation, received from the Secretary of State of the State of South Dakota a certificate of authority to do business on May 17, 1972. (Plaintiff's Exhibit 32). This certificate was revoked on September 1, 1973, under the provisions of S.D. C.L. § 47-8-26(1) because American Pork had failed to file an annual report as required by S.D.C.L. § 47-9-1. (Plaintiff's Exhibit 32.) American Pork again qualified to do business on January 17, 1975. (Plaintiff's Exhibit 40.) Consequently, it is not disputed that between the dates of September 1, 1973, and January 17, 1975, American Pork carried on a business at Igloo, South Dakota, without a certificate of authority. (Plaintiff's Exhibit 40.) Moreover, the debt on which Cargill is suing accrued during the time period in which the certificate to do business had been revoked by the South Dakota Secretary of State, and the named *878 individual defendants were directors of American Pork during the time period in which the debt accrued.
QUESTION
Defendant's motion to strike Count II raises a question of law that can only be resolved by an exercise in statutory construction. The legal question presented is: WHETHER DIRECTORS OF A FOREIGN CORPORATION ARE, BY VIRTUE OF S.D.C.L. § 47-2-59, JOINTLY AND SEVERALLY LIABLE FOR DEBTS INCURRED IN THE CORPORATE NAME DURING A TIME PERIOD IN WHICH THE CORPORATION'S CERTIFICATE OF AUTHORITY TO DO BUSINESS WAS REVOKED ACCORDING TO LAW?
CONCLUSION
A careful reading of the South Dakota statutes leads to the conclusion that the directors of a foreign corporation are not strictly liable as a matter of law for debts incurred in the corporate name while the corporation's certificate to do business was revoked.
RATIONALE
The federal court is, of course, bound to apply South Dakota law in this diversity suit. The conclusion that we have reached is an attempt to understand and state South Dakota law. South Dakota has no cases construing S.D.C.L. § 47-2-59; in fact, the advocates in briefing this question found only two cases from other jurisdictions which construe § 146 of the Model Business Corporation Act, the source of S.D.C.L. § 47-2-59. This lack of case law and the theoretical possibility of divergent readings of the law have made it necessary to apply some principles of statutory construction to arrive at a clear understanding of S.D.C.L. 47-2-59.
First, it is a familiar doctrine that terms in a statute should be read in context; terms should not be torn out of context and read in isolation. If it appears that a term has a generally accepted meaning standing alone, but a more particular meaning or a different meaning by use or connection in a statute, then the meaning that attaches from the context should be adopted as controlling. 73 Am.Jur.2d § 213.
Title 47 of S.D.C.L. sets out the South Dakota law on corporations; chapters 47-2 through 47-9 pertain to business corporations. In accord with the principal discussed, supra, these chapters should be read as an integrated body of law not as fragments. Plaintiff attempts to base liability on S.D.C.L. § 47-2-59 which states in relevant part:
All persons who assume to act as a corporation without authority so to do shall be jointly and severally liable for all debts and liabilities . . ..
Plaintiff's argument necessarily assumes that the phrase "to act as a corporation" refers not only to conduct of persons who purport to do business as a corporation without incorporating, but also to conduct of directors of a foreign corporation which has not qualified to do business in South Dakota. Such a construction can only be accepted if the term "corporation" in S.D. C.L. § 47-2-59 refers to foreign corporations as well as domestic "corporate" activity without proper incorporation. Thus the first step in construing the statute is to examine the use of the term "corporation."
Definitions of terms as used in chapters 47-2 through 47-9 inclusive, are found in S.D.C.L. § 47-2-1:
[U]nless the context otherwise requires, the term . . . "corporation" or "domestic corporation" means a corporation for profit subject to the provisions of said chapters, except a foreign corporation. S.D.C.L. § 47-2-1(1) (Emphasis added.)
Immediately after this definition, the term "foreign corporation" is separately defined. S.D.C.L. § 47-2-1(2). Unless the context requires a contrary construction, the term "corporation" in chapters 47-2 through 47-9 will refer only to domestic corporations and not foreign corporations. Therefore, unless the context requires a different conclusion, the phrase "to act as a corporation" *879 in S.D.C.L. 47-2-59 must be construed as having reference to persons who purport to act as a domestic corporation and not to directors of a foreign corporation that fails to comply with South Dakota law.
The context fails to negate the presumption that "corporation" in S.D.C.L. § 47-2-59 refers only to domestic corporations; in reality, the context clearly indicates that foreign corporations are not included. The statute being considered is positioned in chapter 47-2 which is entitled "Business Corporations Formation and General Powers," and deals with domestic as opposed to foreign corporations. Foreign corporations are separately dealt with in chapter 47-8. Thus a reading of the code as an integrated whole yields the conclusion that S.D.C.L. § 47-2-59 does not embody a legislative directive to impose personal liability on directors of foreign corporations that do business on South Dakota without certification; it refers only to persons who purport to act as a corporation without incorporating.
Our reliance on the statutory definitions and our emphasis of the immediate context are generally accepted methods of statutory construction, but are particularly justified in this instance by the directive of S.D.C.L. 2-14-4 which states:
Whenever the meaning of a word or phrase is defined in any statute such definition is applicable to the same word or phrase wherever it occurs except where a contrary intention plainly appears.
A second reason for construing S.D.C.L. § 47-2-59 as we have done derives from the fact that South Dakota corporation law is in substance a uniform law; in substance the state has adopted the Model Business Corporations Act. S.D.C.L. § 2-14-13 states:
Whenever a statute appears in the code of laws enacted by § 2-16-13 which, from its title, text, or source note, appears to be a uniform law, it shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.
Therefore, it is necessary to look to the Model Business Corporations Act § 146 to determine what other jurisdictions have done with the source of S.D.C.L. § 47-2-59.
Plaintiff has cited us to two cases dealing with domestic corporations, or rather, persons who attempt to do business as a corporation without having completed the process required to bring a corporate entity into existence. Neither deals with foreign corporations. We have found no case law wherein § 146 has been used to hold directors of a foreign corporation liable for debts incurred when the corporation was operating without a proper certificate of authority.
This case law or lack of case law harmonizes with the purpose of the § 146 as stated in the comment following that section in the Model Business Corporations Act Annotated. The comment states:
This section is designed to prohibit the application of any theory of de facto incorporation. The only authority to act as a corporation under the Model Act arises from completion of the procedures prescribed in Sections 53 to 55 inclusive . . .. No other means being authorized, the effect of Section 146 is to negate the possibility of a de facto corporation. 2 MBCA Anno., § 146, par. 2, Comments (1971).
We conclude that the draftsmen intended § 146 to have a more narrow application than plaintiff suggests, and there is no reason to think that the South Dakota legislature intended to broaden the meaning of § 146 beyond that which the drafters of the uniform law intended. In fact, as we have noted, courts are told in S.D.C.L. § 2-14-13 to construe the uniform laws "to effectuate its general purpose to make uniform the law of those states which enact it."
States which do impose statutory liability on directors of a foreign corporation that fails to comply with registration requirements or has had its certificate revoked, do so by means of a statute that is specific and leaves no doubt as to what is intended. An example is the Code of Virginia which states:
*880 If a foreign corporation transacts business in this State without a certificate of authority, its directors, officers and agents doing such business shall be jointly and severally liable for any contracts made or to be performed in this State between the time when it began to transact business in this State and the date when it obtains a certificate of authority. Code of Virginia § 13.1-119.
See the Annotated Laws of Massachusetts, C. 181, § 14; and the Idaho code, § 30-508 for examples of similar specificity. In short, § 146 of the Model Business Corporations Act (S.D.C.L. 47-2-59) is used to vitiate the old theory of de facto incorporation; and, liability is imposed upon directors of foreign corporations by statutes of greater specificity than § 146 of the Model Business Corporations Act. This Court cannot conclude that S.D.C.L. § 47-2-59, a verbatim copy of § 146, should have a construction that deviates sharply from the plain meaning of the comments and development of case law in other jurisdictions.
In the absence of a statute specifically directing liability there is a sound reason to conclude that in South Dakota directors should not be held personally liable for debts incurred while the certificate of authority was revoked; namely, that South Dakota under the general rules of comity recognizes the corporate status of a foreign corporation even though the formal requirements for doing business in the state have not been met. This is obvious throughout chapter 47-8. For example, S.D.C.L. 47-8-31 recognizes that the failure of a foreign corporation to obtain a certificate of authority does not prevent "such corporation" from defending any action in the courts of this state. S.D.C.L. 47-8-32 provides for a penalty for corporations which are uncertified. Thus the existence of a corporate entity is not denied because of failure to qualify as a corporation.
Old case law in other jurisdictions that allowed for the imposition of personal liability on directors of foreign corporations in the absence of a specific statute, e. g. Joseph T. Ryerson & Son v. Shaw, 277 Ill. 524, 115 N.E. 650 (1917); 51 A.L.R. 385, was based on the theory that a corporation had no existence in a foreign jurisdiction where it had not qualified to do business; consequently, directors or officers were deemed to be acting for a nonexistent principal and were held liable on contracts as partners. The theory can have no application in a jurisdiction where the existence of noncomplying foreign corporations is statutorily recognized. Hence, in South Dakota, American Pork remained a recognized foreign corporation even though its certificate was revoked. Imposition of liability on the theory that the directors were acting as agents for a nonexistent principal would contravene South Dakota law.
In discussing the rationale for the statutory construction herein recommended, we have discussed the law in reference to "directors." The fact that certain directors were also officers and simultaneously stockholders is noted but makes no difference as to the legal question presented.
In summary, plaintiff is attempting to predicate liability for the directors of American Pork on the language of S.D.C.L. § 47-2-59. The argument does not stand when the South Dakota law on corporations is read as an integrated whole. Without a statute specifically imposing liability, there is no viable theory by which the individual defendants in this case can be held strictly liable for debts incurred while doing business without a certificate of authority.
The foregoing shall constitute this Court's findings of fact and conclusions of law. For the reasons herein stated, this Court ORDERS that the motion to strike Count II of plaintiff's amended complaint be and hereby is granted.
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84 F.Supp.2d 589 (2000)
Jane T. POPKO, Plaintiff,
v.
PENNSYLVANIA STATE UNIVERSITY, The Milton S. Hershey Medical Center, James Adams, Tasna Kitch, and Suzanne Schick, Defendant.
No. Civ.A. 1:CV:97-0065.
United States District Court, M.D. Pennsylvania.
February 22, 2000.
*590 Andrew J. Ostrowski, Serratelli Schiffman Brown & Calhoun, Harrisburg, PA, for Jane T. Popko, plaintiff.
James M. Horne, McQuaide Blasko Schwartz, Fleming & Faulkner, Inc., State College, PA, for Pennsylvania State University Milton S. Hershey Medical Center, defendant.
MEMORANDUM
CAPUTO, District Judge.
I INTRODUCTION
This case is before the Court on remand from the Court of Appeals. In relevant synopsis, the procedural history of the case is as follows. On January 14, 1997, plaintiff, Jane T. Popko, filed a complaint alleging unlawful discrimination and retaliation action under the American with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213 (Law.Co-op.Supp.1997) and the Pennsylvania Human Relations Act (PHRA), 43 Pa.Stat.Ann. §§ 951-963 (1991 & Supp.1997). On November 24, 1997, defendants Pennsylvania State University, the Milton S. Hershey Medical Center, James Adams, Tasna Kitch, and Suzanne Schick moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. On February 27, 1998, this Court granted the defendants' motion for summary judgment. On March 12, 1998, plaintiff filed a motion for reconsideration of the Court's February 27, 1998 Order. The motion alleged that the Court had erred in holding that plaintiff was not disabled and in not reaching the issue of retaliation. In a Memorandum and Order, filed June 16, 1998, the Court reaffirmed its determination that the plaintiff was not disabled and also reversed its prior decision not to reach the retaliation issue. In considering the merits, however, the Court granted defendants summary judgment on the retaliation issue as well. Plaintiff filed a notice of appeal on July 9, 1998. On October 4, 1999 the Court of Appeals issued an Order, remanding the case to this Court "for further consideration of the claim based on epilepsy in light of Sutton v. United Airlines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), Albertsons Inc. v. Kirkingburg, 527 U.S. 555, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999), Murphy v. United Parcel Service, Inc., 527 U.S. 516, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999), and Taylor v. Phoenixville School Dist., 184 F.3d 296 (3d Cir.1999). The court does not express any opinion as to the proper resolution of the issue. The district court may determine what procedures are appropriate for its consideration, and the decision should be returned to this panel for final determination of the appeal." Popko v. Pennsylvania State Univ., No. 98-7403, slip op. at 2 (3d Cir. Oct. 4, 1999).
*591 II BACKGROUND
In February of 1973, plaintiff was hired by the defendant as a Medical Technologist in the Clinical Laboratories, and she has been employed there ever since. Plaintiff has two conditions which she claims are disabilities within the meaning of the Act. In her affidavit submitted in opposition to defendants' summary judgment motion, plaintiff states:
[t]he permanent limitations on my life activities due to my medical conditions/disabilities are:
a) Right brachial plexopathy ...
b) Idiopathic epilepsy (sleep-related seizure disorder) need regular sleep cycle of 7-8 hours that I must compensate for every time if not sufficient; defer driving automobile if I have any symptoms of seizure activity, and have frequently been driven to work by my husband after working evening shifts; I have permanently restricted my evening activities to the extent that I am home and asleep by a regular time in order to meet my requirements; I would not be capable of child rearing responsibilities if I was still scheduled for rotating shifts and late evening events and, my husband currently assumes the exclusive responsibility for those matters involving our children, and any other issues of any nature that may occur during my period of rest.
(Pl.'s Aff., Pl.'s App. in Opp. to Defs' Summ.J.Mot., Ex. 6, ¶ 4.) Although limited, plaintiff can bike, garden, sail, and drive. (Def.'s App., Ex. 32 at 4-19, 42-44). In addition, plaintiff's disorder does not limit her from working a standard day time shift.
III DISCUSSION
A. Brief Review of the Relevant Appellate Decisions
The Court of Appeals has directed the Court to reexamine plaintiff's claim based on epilepsy in light of the recent appellate decisions in Sutton, Albertsons Inc.,Murphy and Taylor. A brief review of these cases is therefore in order.
1. Sutton
The petitioners in this case were severely myopic twin sisters, having visual acuity of 20/200 or worse, but with corrective measures, both women functioned identically to individuals without similar impairments. Sutton v. United Airlines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 2143, 144 L.Ed.2d 450 (1999). The sisters applied to respondent, a major commercial airline carrier, for employment as commercial airline pilots, but were rejected because they failed to meet the airline's minimum requirement of uncorrected visual acuity of 20/100 or better. Id. The women brought suit under the ADA, but their action was dismissed for failure to state a claim upon which relief can be granted. Id. at 2144. The Tenth Circuit affirmed. Id. On appeal, the Supreme Court concluded that the complaint was properly dismissed. Id. at 2143. In reaching this result, the Court held that "the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual's impairment, including, in this instance, eyeglasses and contact lenses." Id. The Court explicitly repudiated the EEOC guidelines' directive that persons be judged in their uncorrected or unmitigated state, calling this approach "directly counter to the individualized inquiry mandated by the ADA." Id. at 2147.
2. Albertsons, Inc.
In this case, respondent, an effectively monocular truckdriver, brought suit under the ADA after he was fired from his job because he could not meet the basic Department of Transportation vision standard for commercial truck drivers. Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, 119 S.Ct. 2162, 2166, 144 L.Ed.2d 518 (1999). The district court granted the employer's *592 motion for summary judgment, but was reversed on appeal by the Ninth Circuit Court of Appeals. Id. The Supreme Court in turn reversed the Ninth Circuit, ruling that it had erred, inter alia, in its interpretation of the disability standards under the ADA. Id. at 2167.
The Supreme Court identified three missteps that the Ninth Circuit made in determining that Kirkingburg's monocularity met the ADA's first definition of disability, i.e., a physical or mental impairment that "substantially limits" a major life activity, 42 U.S.C. § 12101(2)(A). Id. Most pertinent to the issue before this Court, the Supreme Court reaffirmed Sutton's holding that mitigating measures must be considered in determining whether a disability exists. Id. at 2168-69. Moreover, the Supreme Court broadened Sutton, stating: "We see no principled basis for distinguishing between measures undertaken with artificial aids like medications and devices, and measures undertaken, whether consciously or not, with the body's own systems." Id. at 2169. This insight was drawn from evidence in the record that plaintiff's brain was able to compensate for his lack of vision in one eye. Id. at 2168. Second, the Supreme Court disapproved of the circuit court's examination of plaintiffs status by reference to the effects of monocularity in general, rather than by examining the effects of monocularity on Kirkingburg individually. Id. at 2169. Third, the Supreme Court disapproved of the Ninth Circuit's reliance on the bare fact that Kirkingburg saw differently from most people to conclude that he was disabled. Id. at 2168. The Court held that the correct issue is whether a plaintiff is substantially limited by his or her impairment. Id.
3. Murphy
In this case, an employee, whose mechanics position required him to drive commercial vehicles, sued United Parcel Service under Title I of the ADA. 527 U.S. 516, 119 S.Ct. 2133, 2135, 144 L.Ed.2d 484 (1999). The suit resulted from his dismissal when it was discovered that his blood pressure exceeded Department of Transportation health certification requirements for drivers of commercial vehicles. Id. The Supreme Court underscored again that whether an employee's impairment "substantially limits" one or more major life activities must be determined with reference to the mitigating measures he employs. Id. at 2136. The Court extended this method of analysis to the employee's hypertension, holding that since it did not substantially limit his major life activities when he was medicated, he was not disabled under the ADA. Id. at 2135-36.
4. Taylor
In this Third Circuit decision handed down subsequent to the above trilogy of Supreme Court cases, a former secretary suffering from bipolar disorder sued the school district where she had worked, alleging that it had failed to provide her reasonable accommodations for her mental illness. Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 301. The district court entered summary judgment in the school district's favor, finding that bipolar disorder did not constitute a disability under the ADA. Id. at 302. The Third Circuit reversed. Id. Applying the recent Supreme Court precedents, the Court of Appeals evaluated whether Taylor's mental condition, even under medication, substantially limited her in the major life activity of thinking. Id. at 307-09. Viewing the record in the light most favorable to the plaintiff, the Court of Appeals concluded that, even while medicated, Taylor's impairment persisted to some degree, requiring ongoing visits to the psychiatrist. Id. at 309. The Third Circuit also observed that Taylor's medicine (therapeutic levels of lithium) itself caused numerous side effects, and noted that drug side effects can be important in evaluating whether someone is disabled. Id. at 308-09.
*593 B. Analysis
The essential principle undergirding each of the four precedents above is that disability is to be evaluated in its mitigated, rather than untreated state. When the Court first decided defendants' motion for summary judgment, plaintiff urged the Court to consider plaintiff in her unmitigated state. The Court held then that plaintiff was not disabled, and granted summary judgment in defendants' favor. The Court of Appeals' remand instructions now require the Court to consider whether, in her mitigated state, plaintiff suffers from a disability. I hold once again that she does not.
In an affidavit, plaintiff's treating physician averred that "Ms. Popko's idiopathic epilepsy has been, and will continue to be, successfully controlled and treated through the proscription of activities that disrupt her sleep-wake cycle." (Aff. of Dr. Jeffrey Tolan, Pl.'s App. of Ex's [Vol. 1], Ex. 5, ¶ 7). Likewise, Ms. Popko's own affidavit specifies that she has not had a medically treated grand mal seizure since 1973, and has only had one other grand mal seizure which took place sometime between 1975 and 1980. (Pl.'s Aff., Pl.'s App. in Opp. to Defs' Summ.J.Mot., Ex. 6, ¶ 3). Even when plaintiff does not treat her epilepsy by getting a regular night's sleep, she experiences at most, a generalized shakiness in the morning which resolves itself relatively quickly. (Id.) In view of this evidence, I find that Ms. Popko is like the plaintiffs in the trilogy of Supreme Court cases. Because her epileptic seizure activity does not interfere with major life activities when she treats it by adhering to her therapeutic sleep regimen, she, like the plaintiffs in the Supreme Court trilogy, is not disabled under the ADA.
Plaintiff, in her remand brief, no longer bases her disability claim on her epilepsy seizure activity itself. She now asserts that her epilepsy is a disability under the ADA because the disorder interferes with the major life activity of "sleeping as it relates to plaintiff's epilepsy." (Doc. 57 at 4.) Plaintiff appears to make two separate arguments regarding sleeping.
First, plaintiff contends that sleep is a major life activity and that she is substantially limited in that activity because she must average seven to eight hours of sleep a night in order to prevent seizure activity. Specifically, she contends that she is significantly restricted as to the condition, manner or duration under which she can perform the major life activity of sleeping as compared to the average person in the general population. See 29 C.F.R. § 1630.2(j)(1), (2), infra, at n. 1. Sleep has been recognized as a major life activity. See McAlindin v. County of San Diego, 192 F.3d 1226, 1234 (9th Cir.1999); Pack v. Kmart Corp., 166 F.3d 1300, 1305 (10th Cir.1999); Colwell v. Suffolk County Police Dept., 158 F.3d 635, 643 (2d Cir. 1998). The cases which deal with sleep as a major life activity are focused on insomniac plaintiffs who cannot sleep, not on plaintiffs who cannot stay up as late or as often they might care to. See, e.g., Baulos v. Roadway Exp., Inc., 139 F.3d 1147 (7th Cir.1998), Williams v. City of Charlotte, 899 F.Supp. 1484 (W.D.N.C.1995). Plaintiff does not cite, nor does research disclose a case which supports the plaintiff's contention that a requirement of an average of seven to eight hours of sleep is somehow a substantial limitation of the major life activity of sleeping. While the argument is an interesting one, I find it difficult to conclude that the need for seven to eight hours of sleep, a common enough condition generally, is substantially limiting.[1]
*594 Plaintiff's second argument concerns sleep as the treatment for the epilepsy or epileptic seizure activity. In Sutton, the Supreme Court said that "if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures both positive and negative must be taken into account when judging whether that person is `substantially limited' in a major life activity and thus `disabled' under the Act." Sutton, 527 U.S. 471, 119 S.Ct. 2139 at 2146, 144 L.Ed.2d 450. It is undisputed that if plaintiff averages seven to eight hours of sleep, her epileptic seizure activity is curtailed. Thus, the corrective measures control the epilepsy and, consequently, the impairment of the major life activity of working. See Id. Unlike the plaintiff in Taylor, the treatment, sleep, effectively and completely controls and eliminates Ms. Popko's disabling condition. Taylor, 184 F.3d at 307-09. Moreover, the required seven to eight hours of sleep does not, as in Taylor, produce side effects which are in themselves disabling. Id.
Accordingly, plaintiff's arguments fail to raise a genuine issue of material fact as to either epilepsy or sleep. The latter subject, sleep, was not mandated by the Court of Appeals, but since plaintiff raised it before me, I thought it appropriate to address.
IV CONCLUSION
In conclusion, the Court again finds, as a matter of law, that plaintiff is not, by reason of her idiopathic epilepsy, disabled within the meaning of the ADA. Plaintiff also urges this Court to reconsider its holdings regarding plaintiff's right brachial plexopathy and the issue of retaliation. These issues have been addressed by the Court in previous Memoranda; they and plaintiff's "regarded as having" claim pursuant to 42 U.S.C. § 12102(2)(C) are beyond the scope of this remand.
An appropriate Order will follow.
ORDER
NOW, this __ day of FEBRUARY 2000, upon consideration of additional case law per the Third Circuit panel's Order of October 4, 1999, it is hereby ORDERED that:
1. the Court reaffirms its prior determination that plaintiff is not, by reason of her idiopathic epilepsy, disabled within the meaning of the ADA;
2. this decision shall be returned to the Third Circuit panel for determination of the appeal.
NOTES
[1] The term "substantially limits" means: (i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j)(1).
The following factors should be considered in determining whether an individual is substantially limited in a major life activity: (i) The nature and severity of the impairment; and (ii) The duration or expected duration of the impairment; and (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment. 29 C.F.R. § 1630.2(j)(2).
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177 F.3d 984
J.B. Parkerv.Michael W. Moore, Secretary, Florida Department of Corrections
NO. 90-3901
United States Court of Appeals,Eleventh Circuit.
March 17, 1999
M.D.Fla., 974 F.2d 1562
1
DENIALS OF REHEARING EN BANC.
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238 A.2d 618 (1968)
Vincent A. GAMBA
v.
TESTA'S AUTO BODY WORKS, INC.
No. 174-Appeal.
Supreme Court of Rhode Island.
February 2, 1968.
On Motion for February 20, 1968.
Abedon, Michaelson, Stanzler & Biener, Richard A. Skolnik, Providence, for petitioner.
Francis V. Reynolds, Providence, for respondent; Bernard W. Boyer, Paul V. Reynolds, Providence, of counsel.
On Motion for Counsel Fee February 20, 1968.
OPINION
PAOLINO, Justice.
This appeal raises the question of the correct method of computing under G.L. *619 1956, § 28-33-20, the average weekly wages, earnings or salary of a part-time employee who sustains a compensable injury under the workmen's compensation act in a job requiring less than forty hours of employment a week at a fixed hourly rate[1]
The employee brought this petition to amend a preliminary agreement on the ground that the weekly payments of compensation set forth therein were based on an erroneous average weekly wage. The agreement describes the injury as "Fracture of Right Femur" and employee's occupation as "Janitor-Part Time." It alleges that he was to receive compensation at the rate of $17 per week based on an average weekly wage of $22.50. It is obvious that ,the parties based their computation on the actual wage received by petitioner while working for respondent.
The facts are not in dispute. The petitioner was a part-time employee of respondent. He worked as a janitor, six hours a night, three nights a week, a total of eighteen hours a week. He was paid at the rate of $1.25 an hour giving him a total of $22.50 per week. While working for respondent, employee held a full-time job with another employer, but, at the time he sustained the injury involved in this case, he was not working for the other employer because of an industrial dispute.
The petitioner contends that the computation is erroneous and that under the provisions of § 28-33-20 he should have been paid compensation on the basis of $1.25 per hour multiplied by forty hours; that his correct average weekly wage is $50 instead of $22.50, as alleged in the agreement; and that accordingly he was entitled to compensation payments of $30 weekly instead of the $17 he had been receiving. The trial commissioner agreed with him, but the full commission, in a split decision, reversed the trial commissioner's decree and denied and dismissed the petition.
Section 28-33-20, insofar as pertinent here, reads as follows:
"Computation of earnings.The `average weekly wages, earnings, or salary' of an injured employee shall be ascertained as follows:
(a) `Average weekly wages, earnings or salary,' shall mean the average weekly wage earned by the employee at the time of the injury, reckoning wages as earned while working full time. 'Full time' shall mean not less than forty (40) times the hourly rate of wages or earnings."
The respondent admits in substance that the employee's contention is correct under a purely literal reading of § 28-33-20(a), but it argues that if the statute is applied literally an absurd result will be reached; that on the facts of the case at bar it will result in its employee receiving more compensation benefits per week than he earned as wages ($30 compensation as compared to $22.50 in wages) ; and that if carried to its ultimate conclusion it could result in a Saturday worker, a student or other such part-time worker who worked one hour and who was paid $2.50 per hour being entitled to a compensation rate of $50 per week based on an artificial weekly wage of $100. Reasoning from such examples, respondent concludes that the legislature could not have intended such results.
In our opinion the language of § 28-33-20(a) is clear, plain and unambiguous. "Interpretation of a statute is permissible in case of doubt or ambiguity, but we are without power to change its terms when such terms are clearly stated." Korjian v. Boghigian, 60 R.I. 73, 78, 197 A. 210, 212. It is true that the statute, as written, makes very liberal provision for injured part-time workers, such as petitioner in this case. We cannot, however, say that a literal reading of the statute *620 conveys a nonsensical meaning or that "* * * it contradicts and defeats an evident legislative purpose." Cabral v. Hall, R.I., 230 A.2d 250, 252.
Prior to June 1, 1941, the method prescribed for computing average weekly wages, earnings or salary, differed substantially from that prescribed by the provisions of § 28-33-20(a). See G.L.1938, chap. 300, art. II, § 13. See also Shortall v. Brown & Sharpe Mfg. Co., 74 R.I. 237, 244, 60 A.2d 143, 146. In 1941 the legislature, by enacting P.L.1941, chap. 1057, amended chap. 300, art. II, § 13, subsections A and B. Subsection A is now § 28-33-20(a). It mandates in plain, clear, and unambiguous language that wages shall be reckoned as earned while working full time and it defines full time as meaning not less than forty times the hourly rate of wages or earnings. It is reasonable to assume that the legislature had a reason for changing the statute in question. In the circumstances the statute must be applied as written. If the legislature intended otherwise it could easily have expressed such an intention by the use of appropriate language. See Larochelle v. Hickory House, Inc., 80 R.I. 334, 340, 96 A.2d 830, 833, 834, where the principal issue was whether, in computing the average weekly wages of an employee where tips constitute part of wages, the employee is entitled only to the amount of tips actually received or only to a prorated amount as wages paid directly by the employer. The court, employing language applicable to the case at bar, stated:
"* * * The formula under consideration may be arbitrary and broad, yet it is simple in form, expresses the legislative intent in plain, ordinary language, and makes no exception or qualification as to the wages or earnings that shall constitute the basis for computing the average weekly wages of an employee at the time of injury. It leaves no room for doubt and speculation. If it is admitted or found as a fact from competent evidence that tips are intended by the parties to be treated as wages in addition to the compensation payable directly by the employer, the formula applies in determining the employee's average weekly wages. Since the legislature has expressed its intention in unambiguous language, it is not within our province to inquire concerning the soundness of its policy in the matter. Our duty is to ascertain and give effect to the intention of the legislature, if not " contrary to law, as expressed in the act and not to redraft the statute."
Applying the statute here, the petitioner's average weekly wage at the time of his injury was forty times $1.25, or $50; and he was entitled to weekly compensation payments of $30 during his period of total incapacity. We note, in passing, that unlike McCrudden v. Venditto Bros., Inc., R.I., 235 A.2d 878, in the case at bar there is a set hourly rate. Because the rights of a part-time employee were not involved in Shoren v. United States Rubber Co., 87 R.I. 319, 140 A.2d 768, that case is clearly distinguishable on its facts from the case at bar and therefore requires no further discussion.
The petitioner's appeal is sustained and the decree appealed from is reversed. Upon the filing by the petitioner's counsel of a certificate of compliance with the provisions of § 28-35-32, as amended, and upon their further compliance with our provisional order No. 5, this court will take under consideration the question of their entitlement to fees for services rendered in this proceeding, and the amount thereof, and the cause will then be remanded to the workmen's compensation commission with direction to enter a new decree in accordance with this opinion and for further proceedings.
MOTION FOR COUNSEL FEE ORDER
Petitioner's motion for a counsel fee pursuant to § 28-35-32, G.L. 1956, as *621 amended, is granted, and said petitioner is hereby awarded $500 as a counsel fee, said amount to be inclusive of all compensation for services rendered before the Trial Commissioner and the Full Commission of the Workmen's Compensation Commission and before this Court, and any orders of either the Trial Commissioner or the Full Commission awarding counsel fees to petitioner now outstanding are hereby vacated.
NOTES
[1] This question was not decided in Czyzowski v. Washburn Wire Co., R.I., 229 A. 2d 42, because the amount of compensation benefits would not have been affected and hence no justiciable issue was presented.
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762 So.2d 161 (2000)
Keith POUNDS, Michelle Pounds, Harry Gregg & Mary Ann Gregg
v.
FLORIDA POWER & LIGHT COMPANY, Malette Kraft Pulp & Power, PCA Solutions, Inc., Physicians Corporation of America, Louisiana United Businesses Association, and Louisiana United Businesses Self Insurers Fund.
No. 99 CA 1091.
Court of Appeal of Louisiana, First Circuit.
May 12, 2000.
Writ Denied September 22, 2000.
*162 Richard Ducote, New Orleans, for Appellants/ Plaintiffs Keith Pounds, Michelle Pounds, Harry Gregg and Mary Ann Gregg.
Eugene G. Taggart, New Orleans, for Appellee/Defendant Florida Power & Light Company.
David Bienvenu, New Orleans, for Malette Kraft.
Richard A. Curry, Baton Rouge, for PCA Solutions.
Thomas M. Ruli, Metairie, for LA. United Businesses.
BEFORE: FOIL, WHIPPLE and GUIDRY, JJ.
FOIL, Judge.
This appeal challenges the dismissal of a tort suit filed against two nonresident defendants for lack of personal jurisdiction. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Keith Pounds, Harry Gregg and their spouses, all Louisiana residents, filed this lawsuit in the 22nd Judicial District Court for the Parish of Washington, seeking to recover damages against two nonresident defendants, Florida Power & Light Company (FP & L) and Malette Kraft Pulp & Power, Inc. Keith Pounds and Harry Gregg were employees of Hydrodynamics, a facility located in Bogalusa, Louisiana, which manufactured electromagnetic units designed to remove contaminants from liquids in industrial plants. Plaintiffs alleged that on January 14, 1997, while in the course and scope of their employment with Hydrodynamics, Mr. Pounds and Mr. Gregg suffered severe and permanent brain damage when they were exposed to toxic fumes produced while they were cutting open two magnetohydrodynamic (MHD) units manufactured by Hydrodynamics.
Plaintiffs alleged that FP & L and Malette sent the two MHD units to Hydrodynamics' Bogalusa shop. They averred that the units sent by FP & L and Malette contained toxic substances and chemicals which produced the toxic fumes responsible for their injuries, and alleged that these defendants were negligent for failing to provide any disclosure or warning of the materials contained therein when returning the products to Hydrodynamics. Plaintiffs also sued other defendants on workers' compensation claims, which were settled.
FP & L and Malette filed declinatory exceptions of lack of personal jurisdiction and insufficiency of service of process. In support of its exception, FP & L attached the affidavit of its Director of System Planning, who attested that FP & L is a Florida corporation which is in the business of generating and selling electricity in the State of Florida. FP & L is not licensed to do business in the State of Louisiana; it has no officers, employees or agents in Louisiana. The affidavit also states that FP & L has no purchase orders or contracts with either Malette or Hydrodynamics and it has no MHD units.
In support of its exception, Malette attached the affidavit of one of its vice presidents who attested that Malette is an Ontario corporation whose principal place of business and all of its offices are located in *163 Canada. He averred that Malette does not have any employees, representatives, property, offices, bank accounts, loans or assets of any kind in Louisiana, nor has it ever advertised, manufactured, sold, installed or directly placed any products of any kind into the stream of commerce of the State of Louisiana. He further attested that Malette purchased three MHD devices from Noro Enterprises, a Canadian company. Malette's only communication with the manufacturer of the units was a fax it received from Hydrodynamics regarding the return of one of the MHD units. Malette, through its representative, admitted that it purchased a pulp machine from a Louisiana pulp mill in the late 1980s and that two of its employees attended a conference in Louisiana in April of 1998.
At the hearing on the exceptions of personal jurisdiction, it was revealed that Malette is a division of Malette, Inc., a Canadian corporation. Although she had no records in her possession, a former Hydrodynamics employee, Tammy Robertson, testified she recalled a MHD unit being sent to FP & L by Hydrodynamics, although she could not state whether it was a purchase of a unit or the unit was sent on a trial basis. She attested that the unit was returned to the Hydrodynamics facility by FP & L.
The trial court found that there were insufficient minimum contacts between the foreign companies and the State of Louisiana to support the exercise of personal jurisdiction over those defendants by the court, and sustained the exceptions, thereby dismissing the plaintiffs' lawsuit. This appeal, taken by plaintiffs, followed.
DISCUSSION
In reviewing a ruling on an exception of lack of personal jurisdiction over a nonresident defendant by a Louisiana court, this court conducts a de novo review of the legal issue of personal jurisdiction. Griffith v. French, 97-2635, p. 3 (La.App. 1 Cir. 12/28/98), 723 So.2d 1140, 1142, writ denied, 99-0220 (La.3/19/99), 740 So.2d 116. La. R.S. 13:3201 provides the statutory basis for the assertion of jurisdiction over a nonresident defendant. The basis relied on by plaintiffs provides for the exercise of personal jurisdiction over a defendant "transacting any business in this state." La. R.S. 13:3201 A(1).
The Due Process Clause of the Fourteenth Amendment to the United States Constitution limits the power of a state court to assert in personam jurisdiction over a nonresident defendant. To subject a nonresident defendant to personal jurisdiction, due process requires that the defendant have certain "minimum contacts" with the forum state so that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Griffith v. French, 97-2635 at p. 3, 723 So.2d at 1142-1143. The party claiming jurisdiction is proper bears the burden of showing the existence of minimum contacts with the forum state. deReyes v. Marine Management and Consulting, Ltd., 586 So.2d 103, 107 (La.1991).
Courts have recognized a distinction between two types of jurisdiction, general and specific. A state exercises general jurisdiction when the defendant's contacts are not related to the lawsuit. Specific jurisdiction, on the other hand, is exercised when the suit arises out of or is related to the defendant's contacts in the forum. The two-part "minimum contact"/fairness analysis applies to the assertion of specific as well as general jurisdiction. deReyes v. Marine Management and Consulting, Ltd., 586 So.2d at 109.
The "minimum contacts" test requires that there be "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-1240, 2 L.Ed.2d 1283 (1958). The *164 defendant's conduct and connection with the forum state must be such that he should reasonably anticipate being haled into court there. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2183, 2184, 85 L.Ed.2d 528 (1985). The "purposeful availment" requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of a random, fortituious or attenuated contact, or by the unilateral activity of another party or a third person. deReyes v. Marine Management and Consulting, Ltd., 586 So.2d at 106.
Plaintiffs do not allege general jurisdiction, but instead urge that a Louisiana court has specific jurisdiction over FP & L and Malette. They argue that the single act of shipping the MHD units to Louisiana is a sufficient minimum contact to establish personal jurisdiction over the defendants because the cause of action arises directly out of that shipping activity.
We disagree. Although a single act may serve as the basis for asserting jurisdiction, it must create a substantial connection with the forum. Single or occasional acts, where the quality and circumstances of their commission creates only an attenuated affiliation with the forum, are not sufficient to establish personal jurisdiction. Burger King Corp. v. Rudzewicz, 471 U.S. at 476, 105 S .Ct. at 2184.
Where the nonresident defendant is a purchaser, rather than a seller of products, the purposeful availment requirement is particularly difficult to find. See Bell Paper Box, Inc. v. Trans Western Polymers, Inc., 53 F.3d 920, 922 (8th Cir. 1995). It is undisputed that Malette purchased the product from a Canadian corporation. Plaintiffs do not claim their evidence established that FP & L purchased the product from the Louisiana manufacturer. The only contact urged with Louisiana is the shipping of the products back to the Louisiana manufacturer for repair.[1]
We find the relied upon contact is not a deliberate, substantial connection with this state. The nonresident purchasers were not attempting to solicit or transact business in this state. Rather, their only connection to Louisiana arises from the fact that the manufacturer responsible for repairing the faulty products was located here. We conclude that the shipping of the units to Louisiana for repair by nonresident purchasers under the circumstances of this case is nothing more than a random, fortuitous and attenuated contact with Louisiana. See Breshears v. Florida Power Corporation, 98-0114, 1998 WL 419721 (E.D.La.7/21/98) (wherein a federal district court asked to exercise diversity jurisdiction in a suit brought against FP & L and Malette by different plaintiffs arising out of the accident at the Hydrodynamics facility forming the basis for the instant lawsuit ruled that Louisiana did not have personal jurisdiction over either defendant. With respect to FP & L, the court found that the plaintiffs failed to connect FP & L to the MHD unit that caused the plaintiffs' injury. As to Malette, the court concluded that it was a passive actor whose decision to send the product to Louisiana for repair was dictated by the Louisiana manufacturer, finding that the "purposeful availment" requirement of minimum contacts was not met).
Accordingly, we conclude that plaintiffs failed to prove that FP & L or Malette purposefully availed themselves of the benefits and laws of Louisiana so as to establish minimum contacts necessary to satisfy due process. Therefore, a Louisiana court may not constitutionally assert personal jurisdiction over these defendants.
CONCLUSION
Based on the foregoing, we find that the trial court correctly granted defendants' exceptions raising the objection of lack of *165 personal jurisdiction. All costs of this appeal are assessed to plaintiffs.
AFFIRMED.
NOTES
[1] We assume solely for the purpose of the exception, but do not decide, that FP & L did send a MHD unit to the Bogalusa plant for repair.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1596
LASKER M. AHMED,
Debtor - Appellant,
v.
THE BANK OF NEW YORK MELLON,
Creditor - Appellee.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Theodore D. Chuang, District Judge. (8:18-cv-02689-TDC)
Submitted: October 17, 2019 Decided: October 21, 2019
Before MOTZ and QUATTLEBAUM, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Lasker M. Ahmed, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lasker M. Ahmed appeals from the district court’s order affirming the bankruptcy
court’s order denying his motion for reconsideration of the order annulling the automatic
stay as to claims regarding his real property, which was sold in a foreclosure proceeding.
We have reviewed the record and find no reversible error. Accordingly, we grant leave to
proceed in forma pauperis and affirm for the reasons stated by the district court. See Ahmed
v. The Bank of New York Mellon, No. 8:18-cv-02689-TDC (D. Md. May 31, 2019). We
dispense with oral argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would not aid the decisional
process.
AFFIRMED
2
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426 P.2d 545 (1967)
Fred E. STEWART and Lorin J. Ponton, Plaintiffs in Error,
v.
The PEOPLE of the State of Colorado, Defendant in Error.
No. 21295.
Supreme Court of Colorado, En Banc.
March 13, 1967.
*546 Samuel J. Merlo, Cortez, for plaintiffs in error.
Al Haas, Dist. Atty., Sixth Judicial Dist., Durango, Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., George E. DeRoos, John P. Moore, Asst. Attys. Gen., Denver, for defendant in error.
PRINGLE, Justice.
Plaintiffs in error, Fred E. Stewart and Lorin J. Ponton, were convicted of burglary, and conspiracy to commit burglary of a building in Durango, Colorado. Stewart was sentenced to concurrent terms of from eight to ten years in the state penitentiary on each of the two counts. Ponton received concurrent terms of from six to ten years in the penitentiary on each of the two counts. From these judgments, Stewart and Ponton bring writ of error here.
Stewart and Ponton were arrested late in the evening of January 21, 1964 inside the office building which they were charged with burglarizing. Various desks, safes and cabinets in the building had been forced open. After their arrest, the defendants were taken into one of the offices in the building and were searched. Certain items of stolen property were found upon them at that time, and they were handcuffed and taken to the police station.
At the police station they were searched more thoroughly and then placed in jail. During the search at the jail, an automobile *547 key was taken from Stewart and later that night the key was used to open the door of an automobile which the police found parked several blocks from the scene of the arrest. The car was driven to the police station and impounded. Later that night the police found a key for the trunk of the car in a box hidden under the hood of the car and they searched the car and the trunk.
Articles taken from the persons of the defendants at the time of the arrest and at the police station were later admitted into evidence. There were also admitted into evidence articles taken from the automobile. These latter articles consisted of tools and clothing which were similar to the tools and items of property found in the Emigh Building and were offered to connect the automobile and the defendants with the burglary. At no time did the police obtain a warrant to search the automobile. The defendants moved to suppress the evidence obtained by the search of the automobile and this motion was denied. The motion was renewed during the trial and was again denied.
The two substantial grounds of error urged by the defendants deal with their contentions that (1) the motion to suppress the evidence taken from the automobile should have been granted, and (2) that the court used erroneous language when it cautioned the jury at the time of admitting evidence of other acts or transactions.
I.
Stewart and Ponton contend that the fact situation here brings the case squarely within the ambit of Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). While it is true that Preston, under the specific language contained therein, might dictate reversal in this case, the United States Supreme Court in Cooper v. State of California, 386 U.S. 58, 87 S. Ct. 788, 17 L.Ed.2d 730 (decided February 20, 1967) has now elaborated on the meaning of that decision. If, in fact, Cooper does not overrule Preston sub silentio, as contended by the dissent in Cooper, it does very clearly engraft on the Preston rule an extension of the traditional concepts under which searches of automobiles may be conducted without a warrant.
It now appears that insofar as federal constitutional principles apply, an automobile may be searched by the police at a time and place remote from the arrest, providing the police have valid custody of the automobile at the time, and providing the arrest is valid, and providing the search is made for the fruits of the crime, the instruments of the crime, or evidence relating to the crime for which the accused was validly arrested. Of course, no exploratory searches of automobiles are authorized by the rule announced in Cooper, and in order to be reasonable, the search must be one designed to afford evidence in connection with the particular crime for which the person was arrested. The principles of Hernandez v. People, 153 Colo. 316, 385 P.2d 996, therefore, still apply in determining what is a reasonable search under such circumstances.
The police here had valid possession of an automobile used by men who were validly arrested and searched the car for evidence specifically related to the crime for which they had been arrested. We do not think the Colorado Constitution requires a more restrictive rule with respect to automobiles than that applied under federal constitutional standards as determined by the United States Supreme Court. We, therefore, hold the search to be a reasonable one in this case.
II.
Evidence of another transaction of the same nature as the burglary of the Emigh burglary committed on the same night at the Emigh burglary and within a short distance of the Emigh Building was introduced for the purpose of showing plan, scheme or design. At the time it was introduced, the court gave the contemporaneous instruction required by Stull v. People, 140 Colo. 278, 344 P.2d 455. The court unfortunately, in giving this instruction, *548 used the words "other crimes" rather than "other transactions." No objection was made at the time to this statement by the court, and in the final instruction given by the court dealing with the same subject, the court used the proper phraseology, i.e., "other transactions."
In view of the fact that no contemporaneous objection was made and that the court corrected its language in its final instruction to the jury and since the corrected language was used in the written instructions taken by the jury to the jury room, we find no prejudicial error existed.
The judgment is affirmed.
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979 F.2d 466
Curtis HENDERSON, Plaintiff-Appellant,v.Michael P. LANE and J. Gallassi, Defendants-Appellees.Curtis HENDERSON, Plaintiff-Appellee,v.Michael P. LANE and J. Gallassi, Defendants-Appellants.
Nos. 90-2973, 90-3076.
United States Court of Appeals,Seventh Circuit.
Submitted May 26, 1992.Decided Aug. 13, 1992.*
Curtis Henderson, pro se.
Randy E. Blue, Asst. Atty. Gen., Office of the Atty. Gen., Crim. Appeals Div., Springfield, Ill., Daniel N. Malato, Asst. Atty. Gen., Office of the Atty. Gen., Civ. Appeals Div., Neil F. Hartigan, Atty. Gen., Jerald S. Post, Asst. Atty. Gen., Chicago, Ill., for defendants-appellees.
Before EASTERBROOK and KANNE, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.
PER CURIAM.
1
Curtis Henderson, the plaintiff, is an inmate in the custody of the Illinois correctional system. Henderson is an unwilling participant in the "circuit rider" security program which regularly moves certain prisoners to and from segregation units of various state correctional institutions throughout Illinois. Henderson brought this suit under 42 U.S.C. § 1983, challenging the program and several conditions of confinement. He claims that at some of the institutions in which he has been placed, he and other segregated prisoners were allowed to shower only once in a week and given one hour of recreation per week. He also claims that participants in the circuit rider program are denied meaningful access to legal materials. Henderson contends that the circuit rider program constitutes cruel and unusual punishment in violation of the eighth amendment. His complaint requests punitive and compensatory damages, as well as injunctive relief.
2
Henderson's requests for injunctive relief asked that the defendants: (1) be ordered to release him from the circuit rider program; (2) be ordered to allow him to recreate with other inmates; (3) be enjoined from denying him the assistance of inmate law clerks; and (4) be ordered to provide him access to a law library together with free photocopying privileges, a typewriter and a telephone to seek legal assistance. Following a hearing on the requests for injunctive relief, the Magistrate Judge recommended that they be denied, and the district court adopted this recommendation. Henderson filed a timely notice of appeal, No. 90-2973.
3
Michael P. Lane and J. Gallassi, the defendants, filed a motion for partial summary judgment claiming that they are entitled to qualified immunity on the counts alleging cruel and unusual punishment for allowing only one shower and one hour of recreation per week. Once again, the issue of qualified immunity was referred to the Magistrate Judge who recommended denial of the summary judgment motion, a recommendation which the district court adopted. The defendants also filed a timely notice of appeal, No. 90-3076.
4
We have consolidated for review on appeal the denial of plaintiff's request for preliminary injunctive relief and the denial of defendants' motion for summary judgment.
PRELIMINARY INJUNCTIVE RELIEF
5
Our review of a denial of a preliminary injunction is bifurcated. The district court's weighing of evidence or balancing of equitable factors will be overturned only if the court abused its discretion. Kellas v. Lane, 923 F.2d 492, 493 (7th Cir.1990). However, the district court's legal conclusions are subject to de novo review. Id. See also United States v. Rural Elec. Convenience Coop. Co., 922 F.2d 429, 432 (7th Cir.1991). A plaintiff seeking a preliminary injunction must demonstrate: "1) a reasonable likelihood of success on the merits; 2) the inadequacy of a remedy at law; 3) the existence of irreparable harm without the injunction; 4) that the threat of harm to the plaintiff outweighs any harm to the defendant if the injunction were issued; and 5) that the public interest would not be disserved if the injunction were granted." Kellas, 923 F.2d at 493.
6
Based on the limited record developed in the district court, we determine that Henderson's request for preliminary injunctive relief was properly denied. We need only briefly address two points. First, Henderson has not demonstrated that his participation in the circuit rider program will cause him irreparable harm warranting a preliminary injunction. The state's interest in the safe and orderly operation of its penal system greatly outweighs Henderson's interests in more showers and exercise with other inmates. Testimony credited by the district court indicates that Henderson is a fractious and predatory inmate who refuses to conform to the rules of the prison system. The court noted that Henderson has been disciplined on numerous occasions for assaultive behavior "which has not ceased despite all efforts of the prison system." The district court found that "[t]o limit [the defendants'] attempts to assert some type of control over this particular inmate would render a great disservice to the public interest."
7
The circuit rider program represents an effort by the Illinois Department of Corrections to deal with serious disciplinary problems throughout the Illinois penal system. Because of the difficult and complex problems involved in operating a penal system, prison authorities are accorded substantial deference in achieving penalogical goals. See Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 125, 97 S.Ct. 2532, 2537, 53 L.Ed.2d 629 (1977); Campbell v. Miller, 787 F.2d 217, 227 n. 17 (7th Cir.), cert. denied, 479 U.S. 1019, 107 S.Ct. 673, 93 L.Ed.2d 724 (1986); Crusoe v. De Robertis, 714 F.2d 752, 756 (7th Cir.1983).
8
Second, with regard to Henderson's claims concerning access to the courts, we agree with the district court that this § 1983 suit provides Henderson an adequate remedy at law.
DEFENSE OF QUALIFIED IMMUNITY
9
Defendants appeal the district court's ruling that qualified immunity does not shield them from Henderson's allegations that one shower and one hour of exercise per week constitute cruel and unusual punishment. An official is entitled to qualified immunity when his actions do not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Williams v. Anderson, 959 F.2d 1411, 1414 (7th Cir.1992) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). Our determination of whether a right was "clearly established" focuses on the "state of the law at the time of the alleged violation." Id. (quoting Zook v. Brown, 748 F.2d 1161, 1164 (7th Cir.1984)). Our review of this question is de novo. Because the district court decided this issue on a motion for summary judgment, we must determine whether any material facts are in dispute and whether the moving party is entitled to a judgment as a matter of law. Id. at 1413.
10
Henderson filed this suit on September 15, 1987, alleging deprivations beginning on or around October 30, 1986. He amended his complaint on May 3, 1988, alleging continuing constitutional violations as a result of the circuit rider program. Thus, we must determine whether Henderson had a "clearly established" right to shower and to exercise more than once per week during this time frame.
11
Henderson contends that it is clearly established that limiting inmates to one shower per week can constitute a constitutional violation. Henderson relies upon two district court decisions: Davenport v. De Robertis, 653 F.Supp. 649 (N.D.Ill.1987), in which the district court found that limitation to one weekly shower violated the eighth amendment and ordered the prison to provide three showers each week to segregated prisoners, and Lightfoot v. Walker, 486 F.Supp. 504 (S.D.Ill.1980), in which the district court held that allowing an inmate only one shower per week is not medically acceptable and promotes physical deterioration.
12
Henderson's reliance on Davenport is misplaced because the decision was modified on appeal. 844 F.2d 1310 (7th Cir.), cert. denied, 488 U.S. 908, 109 S.Ct. 260, 102 L.Ed.2d 248 (1988). In Davenport, we noted that "[t]he deprivation merely of cultural amenities is not cruel and unusual punishment." Id. at 1316. We determined that one shower per week for inmates was constitutionally sufficient and that the district court's contrary finding was clearly erroneous. Id. In addition, we discounted the Lightfoot decision based on the district court's failure to explain whether the inmates' deteriorating health resulted from the infrequency of showers or from a combination of conditions.
13
Therefore, in light of our decision in Davenport, Henderson cannot demonstrate that there was a "clearly established" right to shower more frequently than once a week. Thus the district court erred in holding that the defendants are not entitled to qualified immunity on this issue.
14
We also disagree with the district court's conclusion that qualified immunity does not shield the defendants' acts with reference to Henderson's complaints about limited exercise. Although we found that the district court's determination in Davenport that one hour of out-of-cell exercise per week was too little was not clearly erroneous, 844 F.2d at 1314, we have never held that limiting such exercise to one hour per week was unconstitutional. See also French v. Owens, 777 F.2d 1250, 1255-56 (7th Cir.1985), cert. denied, 479 U.S. 817, 107 S.Ct. 77, 93 L.Ed.2d 32 (1986). Thus, there is no "clearly established" right to more than one hour of exercise per week, and the defendants are entitled to qualified immunity on this claim.
15
For the foregoing reasons, the decision of the district court reviewed under Cause No. 90-2973 is AFFIRMED and the decision of the district court reviewed under Cause No. 90-3076 is REVERSED.
*
This case originally was decided by unpublished order under Circuit Rule 53. At the request of the defendants-appellees the panel decided to publish its opinion
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614 F.2d 1286
Crosbyv.U. S. Department of Air Force
No. 79-6047
United States Court of Appeals, Second Circuit
9/14/79
1
N.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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401 S.E.2d 741 (1991)
261 Ga. 115
FERRELL
v.
The STATE.
No. S90P1667.
Supreme Court of Georgia.
March 15, 1991.
Reconsideration Denied March 27, 1991.
*743 Alice C. Stewart, Atlanta, for Ferrell.
Robert E. Wilson, Dist. Atty., Desiree Sutton Peagler, James W. Richter, Asst. Dist. Attys., Stone Mountain Judicial Circuit, Decatur, Michael J. Bowers, Atty. Gen., Andrew S. Ree, Atlanta, for the State.
Patsy Morris, Georgia Resource Center, Atlanta.
Joseph L. Chambers, Sr., Pros. Attys.' Council, Smyrna.
CLARKE, Chief Justice.
This is a death penalty case. The defendant, Eric Lynn Ferrell, was convicted by a jury for the murder of his grandmother and his cousin, and for the offenses of armed robbery and possession of a firearm by a convicted felon. He was given the death penalty for each of the murders. This is his appeal.[1]
*744 1. The defendant spent the nights of December 29-30, 1987 at his grandmother's house. He left early that morning. Shortly before noon, another relative stopped by the house and found the bodies of the defendant's grandmother and cousin in a bedroom. Both victims had been shot twice in the head at very close range.
While police officers were at the scene, the defendant returned and tried to enter the house, repeatedly asking "What's happened?" The defendant and other relatives were interviewed at the police station. In the defendant's pockets were four spent rounds of .22 amunition and over $600 in cash. A search of the defendant's home turned up a .22 caliber revolver. The revolver was identified in a ballistics examination as the murder weapon, and the four shell casings found in the defendant's pocket were determined to have been fired from the murder weapon.
The defendant was unable to account satisfactorily for the money in his pocket. A substantial amount of money was missing from his grandmother's house. On the day of the murders, the defendant paid past due moneys to his probation officer to avoid having his probation revoked.
The evidence supports the conviction. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. In his first enumeration of error, Ferrell contends the trial court erred by admitting in evidence his four pre-trial statements.[2] He contends that his first two statements were not admissible because he was not advised of his Miranda rights beforehand. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He contends his third statement was inadmissible because he was only partially advised of his Miranda rights and because it was given after he had been illegally searched. And he contends his fourth statement was inadmissible because it occurred after his 6th Amendment right to counsel had attached and after he had invoked his 6th Amendment right to counsel.
(a) Ferrell arrived at the scene of the crime shortly after 3:00 p.m. on December 30 (the day the crime was committed). Ferrell and other family members were escorted to the police station to be interviewed about the crime. Ferrell was not a suspect at this time. Instead, police suspected this was a revenge-type killing by one or more members of the family of a man murdered by two of Ferrell's uncles a few weeks earlier. This initial suspicion was shared by most members of Ferrell's family, and was consistent with the evidence at the scene: The home had not been ransacked, the police at first did not realize the victims had been robbed, and the victims had been killed execution style by gunshot wounds to the head at very close range.
Ferrell conceded in his testimony that he voluntarily had accompanied the police to the station, and the state's witnesses testified that Ferrell was not under arrest, was not in custody, and could have left during this time if he had chosen to do so.
Ferrell gave a written statement to detective Eunice at 4:00 p.m. He stated he had spent the night with the victims because they had been receiving threatening telephone calls and were afraid to stay alone. He said his grandmother had awakened him at 5:30 a.m., and he had gone home to get ready for work. However, no work was forthcoming, so he had visited his probation officer in another county. He claimed he called his grandmother at 9:00 a.m. and she was still alive. After obtaining this statement, Detective Eunice had no further contact with the defendant.
By 7:30 p.m., many of the relatives had been interviewed. Lead investigator Lindsey and detective Davis reviewed their statements and decided to talk in more detail to Ferrell, who was still not a suspect, and who could still have left if he had wanted to. At this time, they were trying to pinpoint the time of death, and they attempted to establish specific times and *745 details not fully explored in the initial statements.
Ferrell was asked about the condition of the house when he had left, e.g., were the doors and windows locked? He was asked about the alarm clock in his room, set for 6:00 a.m. Ferrell stated that clock did not work, and that his grandmother had awakened him at 5:45 a.m. The investigators asked him why he was on probation. Ferrell told them, and then volunteered the information that he had been previously arrested for murder. The prior arrest for murder was news to the two interviewing officers, who were unarmed. Detective Davis testified:
Well, at that point I realized that I was in there interviewing this guy and I didn't know if anyone had ever searched him. I was concerned if he might have a weapon on him. I asked him if he had anything in his pockets....
[A]s I asked the question, he said, "Nothing, except this money." And as he stood up, I could see there was a big bulge ... in his right front pocket. He reached his hand into the pocket and pulled the money out.
Davis counted the money, so Ferrell could not later accuse them of taking part of it. Davis asked him where he had got "all that money." Ferrell stated he kept his money on him rather than using a bank, that he already had a couple of hundred dollars, and that a man named Murphy had come by his house that morning (December 30) to pay him $450 for a "roofing job."
Lindsey left and attempted to verify the source of the money. He was unable to locate anyone named "Murphy." Ferrell's mother (with whom Ferrell lived) could not recall anyone coming by the house that morning to give Ferrell a large sum of money. The man for whom Ferrell had planned to work that day was contacted, and he stated that Ferrell had worked very little in the last two weeks, knew beforehand he had no work scheduled that day, and usually had little or no money. The employer stated he often had to buy Ferrell's lunch for him. Lindsey also discovered that Ferrell's grandmother usually kept a large amount of money in her house, but that there was none in the house after her death. Moreover, there was no alarm clock in the grandmother's bedroom. Finally, he learned that Ferrell's uncle (one of the two arrested for murder a few weeks previously) had left a handgun with Ferrell before turning himself in.
At 11:15, detectives Mabe and Hall "Mirandized" Ferrell and talked to him again. They told him his employer denied that Ferrell was scheduled to work that day. Ferrell insisted he was going to work when he left his grandmother's house. They told him that according to other witnesses, no one had visited him at his residence that morning. Ferrell was unable to give any information about "Murphy" or where he could be located. Finally, Ferrell stated he could have been mistaken about the alarm clock.
A search warrant was obtained and Ferrell's residence was searched. Three handguns, including the murder weapon, were obtained. Ferrell was formally arrested at 3:45 a.m. During the booking procedure, Ferrell was searched, and four spent rounds fired from the murder weapon were found in his pockets.
The next morning, Ferrell was escorted to a magistrate by detective Dillon to set a date for his committal hearing. According to Dillon, after they returned to jail, Ferrell told him he wanted to give another statement. Ferrell confirmed this in his testimony. Ferrell testified that talking to Dillon was "my suggestion" and "my idea," and that, knowing his right not to talk and to the presence of an attorney, he talked to Dillon freely and voluntarily because he wanted to tell him what he knew about the case. Ferrell was "Mirandized" again, and gave another statement, claiming that, before he left his grandmother's house, two armed men entered, killed both victims, gave Ferrell the money and a gun, and left.
(b) The trial court found that Ferrell was not in custody when he gave his first two statements. The evidence supports this finding. Thus, the court did not err by ruling that these statements were admissible even though Ferrell was not *746 advised of his Miranda rights before he gave either of these two statements. Beckwith v. U.S., 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976); U.S. v. Long, 866 F.2d 402 (II B) (11th Cir.1989); Devier v. State, 253 Ga. 604(7), 323 S.E.2d 150 (1984).
(c) We do not agree that the officers' discovery of money in Ferrell's pocket was the result of an illegal search. In the circumstances, the police were entitled to a limited intrusion to ensure their own safety. What occurred was more limited than a pat-down search for weapons which they could have performed; the defendant was not touched, and after he displayed to the officers the source of the bulge in his pocket, he was not further searched until after he was formally arrested. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
(d) Ferrell contends the "waiver part of Miranda was not read" before the third interview. The record shows that Ferrell's Miranda rights were fully explained to him, and that he read and signed the waiver form. His third statement was properly admitted.
(e) The facts set forth above demonstrate that the search warrant was supported by probable cause.
(f) Assuming, arguendo, that Ferrell's 6th Amendment right to counsel attached when he appeared before a magistrate the morning of December 31, and that he invoked his right to counsel at the hearing (and the record is not clear on this point), there was no violation of Ferrell's right to counsel because Ferrell, himself, initiated the interrogation. Housel v. State, 257 Ga. 115, 120-22, 355 S.E.2d 651 (1987). Compare Roper v. State, 258 Ga. 847(1), 375 S.E.2d 600 (1989).
3. In his second enumeration of error, Ferrell contends he received ineffective assistance of counsel.
Ferrell was represented by two experienced public defenders, one of whom had spent nine years as a criminal prosecutor. They filed numerous pre-trial motions, investigated the case legally and factually, conducted an extensive voir dire examination of prospective jurors, cross-examined state's witnesses, presented defense witnesses, and delivered substantial closing arguments. The test for effectiveness of Ferrell's trial counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984):
A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
There is a strong presumption that trial counsel's performance "falls within the wide range of professional assistance," and that any challenged action by trial counsel "might be considered sound trial strategy." Id. at 689-90, 104 S.Ct. at 2065.
Ferrell attacks virtually every decision made by trial counsel. He complains he was not sufficiently prepared for his Jackson-Denno testimony, no handwriting expert was consulted about the genuineness of Ferrell's signature on his written statements, the search warrant was not challenged even though the application was based in part on "hearsay," some state's witnesses were not interviewed, cross-examination of some of the state's witnesses was cursory, expert conclusions were not objected to, etc.
It is not necessary to address specifically and individually each and every one of these numerous instances of challenged trial *747 tactics. It is sufficient to note that "strategic choices [made] after thorough investigation are virtually unchallengeable." Sullivan v. Fairman, 819 F.2d 1382, 1391 (7th Cir.1987). The trial court found, and the evidence supports the finding, that trial counsel thoroughly investigated the case and prepared for trial. Ferrell has shown nothing that would demonstrate that his trial attorneys failed to exercise reasonable professional judgment in their handling of the case. See U.S. v. Balzano, 916 F.2d 1273 (IV) (7th Cir.1990).
Ferrell complains about the evidence presented on his behalf at the sentencing phase of the trial. Trial counsel interviewed numerous potential witnesses in mitigation, many of whose names had been furnished by the defendant. Only a very few could say anything favorable on the defendant's behalf, and these testified at the trial. Although we do not find deficient attorney performance, we also note that Ferrell has not since the trial discovered witnesses whose testimony, if presented at the sentencing phase of the trial, in reasonable probability "would have caused the sentencer to conclude `that the balance of aggravating and mitigating circumstances did not warrant death.' [Cit.]" Elledge v. Dugger, 823 F.2d 1439, 1448 (11th Cir.1987).
Ferrell has not shown he was denied effective assistance of counsel. See Hance v. Kemp, 258 Ga. 649(2), 373 S.E.2d 184 (1988).
4. Ferrell contends the trial court erred by not providing him with "conflict-free" counsel in response to his pre-trial objection to his representation by public defenders. The alleged conflict is that the public defender's office also represented the defendant's two uncles who had committed murder a few weeks before the defendant committed murder.
There was no relationship between the two separate cases of murder, and the defendant's uncles did not testify at, and had no information relevant to, this trial. There was no actual conflict of interest adversely affecting trial counsel's performance in this case. Wharton v. Thomas, 256 Ga. 76, 343 S.E.2d 694 (1986). The trial court did not err in its handling of the defendant's objection to representation by public defenders. Davis v. State, 255 Ga. 598(14), 340 S.E.2d 869 (1986).
5. The court did not err by instructing the jury that "[m]alice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart." OCGA § 16-5-1(b); Isaacs v. State, 259 Ga. 717(35), 386 S.E.2d 316 (1989); Welch v. State, 254 Ga. 603(5), 331 S.E.2d 573 (1985).
The court's instructions defining the offense of armed robbery were correct as a matter of state law, Lipham v. State, 257 Ga. 808, 809, 810(1), 364 S.E.2d 840 (1988)[3] and did not shift any burden of proof to the defendant.
The court's instructions on credibility were not erroneous. Felker v. State, 252 Ga. 351(3), 314 S.E.2d 621 (1984).
Ferrell's fourth enumeration of error is without merit.
6. We find no merit to Ferrell's complaints about the sentencing phase instructions. Romine v. State, 251 Ga. 208(10), 305 S.E.2d 93 (1983).
7. The court did not err, as Ferrell contends, by failing to charge on theft by taking as a lesser included offense of armed robbery, since Ferrell did not request such an instruction. King v. State, 178 Ga.App. 343(2), 343 S.E.2d 401 (1986).
8. We find no abuse of discretion in the trial court's rulings on the admissibility of evidence and testimony. Spencer v. State, 260 Ga. 640(8), 398 S.E.2d 179 (1990); Brown v. State, 250 Ga. 862(5), 302 S.E.2d 347 (1983). We find no merit to Ferrell's 10th and 11th enumerations of error, complaining of alleged prosecutorial misconduct and improper argument. Spencer v. State, supra, (9); Brooks v. Kemp, 762 F.2d 1383 (11th Cir.1985).
*748 9. On each count of murder, the jury found as statutory aggravating circumstances that the murders were committed while the offender was engaged in the commission of the offenses of murder and armed robbery. OCGA § 17-10-30(b)(2). The evidence supports these findings. OCGA § 17-10-35(c)(2). As to Count 1, the murder of the defendant's grandmother, the jury also found that the murder was outrageously and wantonly vile, horrible or inhuman in that it involved torture and depravity of mind. OCGA § 17-10-30(b)(7). The state's theory of the evidence is that the defendant killed his cousin while the latter was in bed asleep; that the grandmother was awakened by the noise and went to the cousin's bedroom; that the defendant grabbed her, forced her to the floor, and shot and killed her. The state conceded at trial that the victim was not physically tortured but contends she was psychologically tortured. We cannot agree. While the defendant undeniably committed a heinous offense, for which the death penalty is appropriate based upon the jury's subsection b(2) findings, the evidence in this case does not show serious psychological abuse. Compare Phillips v. State, 250 Ga. 336(6c), 297 S.E.2d 217 (1982) (finding of serious psychological abuse may be found, e.g., where victim accosted, forcibly transported to another location, taunted with prospect of death and then killed, but not where evidence shows only victim's apprehension of death immediately before fatal wounds inflicted, as latter circumstance is present in almost every murder case); Rivers v. State, 250 Ga. 303, 298 S.E.2d 1 (1982). (Division (8 d)victim, a 13-year-old boy, was anally sodomized in presence of grandmother before being killed; Division (8 e)victim, a seven-year-old girl, was taken over a mile from her house to a woodpile where she was murdered. Held; both victims suffered serious psychological abuse).
The evidence does not support the jury's subsection b(7) finding as to Count 1. Phillips v. State, supra 250 Ga. at 340, 297 S.E.2d 217. However, the jury's remaining findings of statutory aggravating circumstances were sufficient to allow the jury to consider imposing death sentences on both counts. In making its determination, the jury was entitled to consider all the facts and circumstances of the case, including evidence that the defendant killed his own grandmother and his cousin, execution-style, for a few hundred dollars. We conclude that the jury's subsection b(7) finding as to Count 1 did not lead to the imposition of death sentences on Counts 1 and 2 under the impermissible influence of passion, prejudice or other arbitrary factors. Compare Davis v. State, 255 Ga. 588, 595, 340 S.E.2d 862 (1986).
10. There is no merit to the defendant's contention that the subsection b(2) statutory aggravating circumstance fails meaningfully to narrow the class of those eligible for the death penalty, Ford v. State, 257 Ga. 461(1), 360 S.E.2d 258 (1987); Cargill v. State, 255 Ga. 616(34), 340 S.E.2d 891 (1986).
11. Ferrell complains that defense counsel's examination was improperly restricted at the sentencing phase of the trial. An examination of the record shows that defense counsel successfully restricted the state's examination, not vice versa. Defense counsel was given as much latitude as he desired.
12. Very early in the pre-trial proceedings, the trial judge met with the attorneys in the case to discuss scheduling of hearings. The court also questioned the defense attorney whether he could be retained and could represent the defendant. He could not, and the trial court thereafter appointed two attorneys to represent the defendant.
Ferrell contends this pre-trial conference was a "critical" stage of the proceedings and his absence denied him his constitutional right to be present at every stage of the trial. In view of the limited scope of the conference, we find no constitutional error. See Kentucky v. Stincer, 482 U.S. 730(III), 107 S.Ct. 2658(III), 96 L.Ed.2d 631 (1987); see also Leroux v. State, 58 Wis.2d 671, 207 N.W.2d 589, 600 (1973) (a conference in chambers dealing solely with questions of *749 law or preliminary matters of procedure is not part of the trial in a constitutional sense).
13. There was no abuse of discretion in the court's conduct of the jury voir dire examination, and no error in the court's rulings on the qualifications of the prospective jurors. Jefferson v. State, 256 Ga. 821, 824(2), 353 S.E.2d 468 (1987); Curry v. State, 255 Ga. 215(2), 336 S.E.2d 762 (1985).
14. Ferrell contends the trial court denied him a "full and fair hearing" on his motion for new trial when it sustained the state's objection to the admission of a document showing he had been placed on a "suicide watch" after his trial. Ferrell did not and has not shown how such a document would have been relevant to any issue, and we find no merit to this claim of error.
Ferrell also contends that, during this post-trial period, his due-process rights were violated when he was examined by a psychiatrist without notice to counsel. Even if such an examination occurred, however, no harm has resulted, since the examination occurred after trial and the state has not sought to introduce any evidence resulting from such an interview.
15. There is no merit to the defendant's constitutional attacks upon our capital punishment laws.
16. The sentences of death imposed in this case are neither excessive nor disproportionate to sentences imposed in similar cases, considering both the crime and the defendant. The similar cases listed in the Appendix support the imposition of death sentences in this case.
Judgment affirmed.
All the Justices concur.
APPENDIX.
Stripling v. State, 261 Ga. 1, 401 S.E.2d 500 (1991); Lee v. State, 258 Ga. 762, 374 S.E.2d 199 (1988); Frazier v. State, 257 Ga. 690, 362 S.E.2d 351 (1987); Ford v. State, 257 Ga. 461, 360 S.E.2d 258 (1987); Romine v. State, 256 Ga. 521, 350 S.E.2d 446 (1986); Cargill v. State, 255 Ga. 616, 340 S.E.2d 891 (1986); Ingram v. State, 253 Ga. 622, 323 S.E.2d 801 (1984); Finney v. State, 253 Ga. 346, 320 S.E.2d 147 (1984); Spivey v. State, 253 Ga. 187, 319 S.E.2d 420 (1984); Roberts v. State, 252 Ga. 227, 314 S.E.2d 83 (1984); Putman v. State, 251 Ga. 605, 308 S.E.2d 145 (1983); Mincey v. State, 251 Ga. 255, 304 S.E.2d 882 (1983); Wilson v. State, 250 Ga. 630, 300 S.E.2d 640 (1983); Rivers v. State, 250 Ga. 288, 298 S.E.2d 10 (1982); Jones v. State, 249 Ga. 605, 293 S.E.2d 708 (1982); Berryhill v. State, 249 Ga. 442, 291 S.E.2d 685 (1982); Solomon v. State, 247 Ga. 27, 277 S.E.2d 1 (1981); Dick v. State, 246 Ga. 697, 273 S.E.2d 124 (1980); Jones v. State, 243 Ga. 820, 256 S.E.2d 907 (1979); Amadeo v. State, 243 Ga. 627, 255 S.E.2d 718 (1979); Corn v. State, 240 Ga. 130, 240 S.E.2d 694 (1977); Peek v. State, 239 Ga. 422, 238 S.E.2d 12 (1977); Birt v. State, 236 Ga. 815, 225 S.E.2d 248 (1976); Pulliam v. State, 236 Ga. 460, 224 S.E.2d 8 (1976); Dobbs v. State, 236 Ga. 427, 224 S.E.2d 3 (1976); Goodwin v. State, 236 Ga. 339, 223 S.E.2d 703 (1976); Mitchell v. State, 234 Ga. 160, 214 S.E.2d 900 (1975); Moore v. State, 233 Ga. 861, 213 S.E.2d 829 (1975); Gregg v. State, 233 Ga. 117, 210 S.E.2d 659 (1974).
NOTES
[1] The crime occurred the morning of December 30, 1987. The defendant was formally arrested early the next morning. He was indicted during the January term of 1988, and the case was tried from September 12 through September 17, 1988. A motion for new trial was filed on September 23, 1988. Amendments to the motion were filed, and the motion was heard on January 4, 1989, and April 10-11, 1990. The motion was denied on July 30, 1990. The case was docketed in this court on September 24, 1990, and oral arguments were heard on November 19, 1990.
[2] There possibly was a brief fifth statement during the booking process when the defendant was formally arrested, but the state did not try to admit this statement.
[3] See Beverly v. Jones, 854 F.2d 412, 416 (11th Cir.1988).
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21 F.3d 428
91 Ed. Law Rep. 30
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Virginia KAUFFMAN, Plaintiff-Appellant,v.KENT STATE UNIVERSITY, et al., Defendants-Appellees.
No. 93-3302.
United States Court of Appeals, Sixth Circuit.
April 1, 1994.
Before: MARTIN, RYAN, and SUHRHEINRICH, Circuit Judges.
PER CURIAM.
1
Plaintiff Virginia Kauffman appeals an award of summary judgment to defendant Kent State University in this employment discrimination action. Plaintiff alleges two actions taken by defendant violated the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-634 ("ADEA"): the University's failure to promote her to the position of office manager; and its decision to transfer her from the Central Office to another department. For the reasons stated below, we AFFIRM the district court's grant of summary judgment in favor of defendant.1
I.
2
Defendant Kent State University hired Kauffman in 1979, to fill the position of Clerk I in the Department of Physical Plant Services. At the time she was hired, Kauffman was fifty years old. In 1982, Kauffman, at age fifty-four, was promoted to Clerk II. Kauffman's supervisor and the officer manager, Virginia Eustice, retired in 1989, and it is the defendant's conduct during the replacement process that is at issue regarding the first claim.
3
Plaintiff claims that she was qualified for the position and that she would have applied for the position had it been posted and advertised. The defendant maintains that Chester Williams, Department Head of Physical Plant Services, hired Ann Metham, plaintiff's coworker in the Physical Plant Central Office, to fill the position of office manager after he requested and received approval from the Office of Affirmative Action for a waiver.2 At the time Metham was promoted, she was under the age of 40. After Metham's promotion, Kauffman continued in her position of Clerk II at the Central Office.
4
The facts relevant to plaintiff's second claim occurred in May of 1990, when Kauffman was assigned to a different location, the Heating Plant. Plaintiff contends that she was transferred because of her age but admits that she retained her job classification as Clerk II and her same rate of pay. Kauffman nevertheless contends that the lateral transfer was to a less desirable position.
5
Plaintiff appeals the award of summary judgment on two grounds: (1) that the district court erred in finding that the plaintiff failed to rebut the defendant's legitimate nondiscriminatory reason for failing to promote the plaintiff to the position of office manager; and (2) that the district court erred, as a matter of law, in holding plaintiff's lateral transfer was not an adverse employment action.
II.
6
We uphold the grant of summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir.1988).
7
To establish a prima facie case under the ADEA, Kauffman must establish: (1) that she belonged to the protected class, in this case that she was between the ages of 40 and 65; (2) that her employer subjected her to an adverse employment decision, in this case the failure to promote her and the decision to transfer her; (3) that her qualifications did not disqualify her from the position she was seeking; and (4) that she was replaced by a person not a member of the protected class. Gagne v. Northwestern Nat'l Ins. Co., 881 F.2d 309, 313 (6th Cir.1989).
8
The plaintiff bears the burden of proving a prima facie case of employment discrimination. Once the plaintiff meets his burden, the defendant may "articulate some legitimate, nondiscriminatory reason for the employee's rejection." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The plaintiff then has the opportunity to rebut any legitimate reason offered by the defendant. Id., at 804.
A. Failure to Promote
9
The district court determined that Kauffman established a prima facie case of age discrimination with regard to the defendant's failure to promote her to the office manager position. Plaintiff contends, however, that the district court erred in ruling that she failed to rebut defendant's legitimate nondiscriminatory reason for promoting Metham, and not her, to the position of office manager.
10
Although Williams testified in deposition that Metham was promoted because she alone had the qualifications for the position, the district court found and the record supports that Kauffman met the minimum qualifications for the position of office manager. Plaintiff had filled in as office manager on two occasions. Nevertheless, defendant's contention that Metham's qualifications were superior to Kauffman's is also supported by the record. Borom stated that at the time he granted William's request for a waiver, he reviewed the qualifications of the existing employees in the Central Office at the Department of Physical Plant Services. Borom testified that Kauffman had not passed the typist test but Metham had; that Kauffman was a clerk whereas Metham was a clerical specialist;3 and that he concluded that the person with the higher level of skill had to be the office manager. Borom decided that Metham's skills were better suited to the position of office manager. Accordingly, he granted Williams the requested waiver.
11
The district court found that this evidence constituted a legitimate business reason for not promoting Kauffman.4 We agree. Therefore, we address the evidence offered by plaintiff to rebut defendant's legitimate reason.
12
In rebuttal, plaintiff did not protest the assessment of Metham's qualifications but attempted to establish the existence of a discriminatory reason for defendant's failure to promote her through the affidavits of two coworkers. Janice Burke, a coworker hired after Metham was promoted, stated that Williams and Metham told her that "the older lady in the Department was resistive to change" and that Burke should not associate with her. Because Burke became employed after Metham had already become office manager, the district court found that the statement lacked probative value as to William's motivation at the time of the promotion. We agree and additionally note that the age remark goes to identification, not discrimination. This isolated and innocuous mention of age does not support a finding of pretext. See Chappell v. GTE Prods. Corp., 803 F.2d 261, 268 (6th Cir.1986), cert. denied, 480 U.S. 919 (1987).
13
The second coworker, Darla Spellman, stated that Williams and Metham told her not to train Kauffman on the computer. From this remark, Spellman surmised that Williams and Metham believed that plaintiff was too old to learn to use a computer. Spellman also stated that Metham was openly rude to plaintiff. Plaintiff's argument that the statements attributed to Williams and Metham regarding computer training create an inference of age discrimination requires the court to go beyond the parameters of inference-drawing into the realm of speculation and imagination. This comment does not support the conclusion drawn by Spellman that Williams believed Kauffman was too old to learn. Mitchell v. Toledo Hospital, 964 F.2d 577, 584 (6th Cir.1992) (affidavits containing conclusory allegations and subjective beliefs are insufficient evidence to establish a claim of discrimination as a matter of law). Nor will we equate rudeness with age discrimination. Accordingly, we find that Kauffman presented insufficient evidence to rebut defendant's legitimate reason for promoting Metham rather than Kauffman and affirm the district court's grant of summary judgment on this claim.
B. Lateral Transfer
14
As to her second claim, plaintiff contends that the district court erred in holding she did not meet her burden of establishing a prima facie case of age discrimination because she suffered no adverse employment decision. She argues that her intradepartmental transfer to the Heating Plant constituted an adverse employment action because her responsibilities were decreased, and because her promotional opportunities were curtailed in that there is no office manager position at the Heating Plant. According to plaintiff, the absence of an officer manager position is disadvantageous in that she can no longer earn extra income by filling in as office manager, as was possible in the Central Office. On two occasions during Kauffman's approximately ten-year tenure in the Central Office, she filled in for the office manager.
15
The district court evaluated the transfer under a constructive discharge standard. Under this standard, a lateral transfer is actionable as an adverse employment action provided the conditions are objectively intolerable to a reasonable person. Darnell v. Campbell County Fiscal Court, 731 F.Supp. 1309 (E.D.Ky.1990), aff'd, 924 F.2d 1057 (6th Cir.1991) (table). To apply the standard, the court examines the transfer position to determine whether it is so intolerable to a reasonable person that it amounted to a constructive discharge. Id. Among those factors relevant to the assessment are: decrease in salary, grade level or benefits, and change in job duties or responsibilities. Id.
16
In Darnell, the plaintiff refused the lateral transfer, a transfer offered by defendant because the plaintiff's position was being terminated. Consequently, she lost her job. Here, Kauffman did not refuse the transfer or lose her job. Although her claim is more aptly characterized as a constructive "demotion" rather than a constructive "discharge," we find the same factors considered by the Darnell court are applicable in the assessment of this claim. The factual distinction between the plaintiff's refusal to accept the transfer in Darnell, and Kauffman's acceptance of the transfer is irrelevant to the assessment of liability.
17
Here, the district court correctly determined that the conditions of transfer did not constitute an adverse employment action. Not only were these conditions objectively tolerable, they were tolerable to Kauffman.
18
Kauffman offers the deposition of Janice L. Burke as support for her contention that the transfer to the Heating Plant resulted in conditions that were intolerable to a reasonable person. Burke states that there are fewer promotional opportunities but offers no basis for her opinion. Nor is there any evidence in the record to show that Kauffman could not be promoted in the Heating Plant or that a worker from the Heating Plant could not be promoted to office manager in the Central Office. Even if Burke is correct, the district court correctly held that the reduction in promotional opportunities is insufficient as a matter of law to overcome the cumulative weight of the other factors. See Cloverdale Equip. Co. v. Simon Aerials, Inc., 869 F.2d 934, 937 (6th Cir.1989).
19
Kauffman's second complaint is that there is not enough work to keep her busy; however changes in responsibilities or job site that do not materially disadvantage an older employee are not actionable. Spring v. Sheboygan Area School Dist., 865 F.2d 883 (7th Cir.1989). Kauffman is not disadvantaged by a lightened work load.
20
Finally, plaintiff admitted in her deposition that she enjoyed working at the Heating Plant. Accordingly, we agree with the district court that Kauffman's lateral transfer does not constitute an adverse employment decision.
21
In sum, we find the district court's award of summary judgment to the defendant was proper and is AFFIRMED.
1
The court also granted summary judgment to defendants Chester Williams and Ann Metham, holding that they were not employers under the ADEA. Plaintiff does not appeal this holding
2
Raymond Borom, Director of the Office of Affirmative Action at the University, granted Williams a waiver so he did not have to post the position
3
Williams testified at deposition that Metham was classified as a Typist II at the time she was promoted. The actual classification is not material because classification indicates a higher skill level that a clerk classification
4
Additionally, the district court noted that at the time Kauffman was hired, Williams stated a preference for older employees, and that Kauffman received a promotion at the age of 54
5
Although Kauffman now claims she was forced to transfer, she wrote a letter which reads, "I wish to be transferred to the Heating Plant as you previously requested and feel the sooner the better." There is much made that the transfer was a punishment, and that Kauffman and her supervisor did not get along, however, this evidence is not indicative of age discrimination so much as a personality conflict. There is no evidence that the transfer was motivated by a discriminatory animus
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884 F.2d 585
U.S.v.Miller*
NO. 88-8934
United States Court of Appeals,Eleventh Circuit.
AUG 09, 1989
1
Appeal From: N.D.Ga.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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495 N.E.2d 550 (1986)
Mitchell Dean HAYRE, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee.
No. 89A01-8602-PC-40.
Court of Appeals of Indiana, First District.
July 24, 1986.
Mitchell Dean Hayre, pro se.
Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
*551 RATLIFF, Judge.
STATEMENT OF THE CASE
Mitchell Dean Hayre appeals the denial of his petition for post-conviction relief. We affirm.
FACTS
On May 24, 1982, Mitchell Dean Hayre (Hayre) was charged with burglary, a class B felony, appearing at the initial hearing without counsel. The trial court, upon inquiry, learned that Hayre could not afford his own attorney and so the trial court appointed the public defender to represent Hayre. The trial court then advised Hayre of the charge against him, the elements of the crime alleged, and the minimum and maximum penalties involved. The trial court also advised Hayre of his rights and entered a not guilty plea for him.
On August 11, 1982, Hayre was sentenced to ten years after the court accepted his guilty plea. Prior to accepting Hayre's guilty plea, the trial court made the usual inquiries and advisements. However, the trial court inadvertently failed to inquire whether Hayre's plea had been entered voluntarily, as required by Indiana law. Consequently, on August 12, 1982, the trial court brought Hayre back before it, explained its error, and offered to vacate the guilty plea and start anew. Hayre declined this offer, and assured the trial court that his plea had been entered voluntarily. The trial court then accepted Hayre's guilty plea.
On August 14, 1984, Hayre filed a petition for post-conviction relief which was denied on September 13, 1985. Thereafter, Hayre perfected this appeal.
ISSUES
Hayre presents two issues for review:
1. Whether Hayre was denied his right to counsel at a critical stage of the proceedings, namely the initial hearing.
2. Whether Hayre's guilty plea was fatally defective due to the trial court's failure to inquire into the voluntariness of the plea.
DISCUSSION AND DECISION
Issue One
Hayre argues that due to lack of assistance of counsel at the initial hearing the State was able to discover additional evidence, namely a ring Hayre was wearing at the hearing which was later confiscated and used as evidence by the State. Hayre asserts that counsel, knowledgeable of the case, would have advised Hayre not to wear the ring.
It is a function of the trial court to determine whether counsel shall be appointed at public expense. Fulks v. State (1970), 255 Ind. 81, 85, 262 N.E.2d 651, 653. It is unrealistic to say that when an accused is first arrested and informs a police officer of his desire to be represented by counsel that it would be a denial of constitutional rights to bring him before a magistrate for a preliminary hearing or before a court having felony jurisdiction, unless he is accompanied by an attorney. On the contrary, if he is indigent he must enter the court room in order to obtain counsel. Fulks, at 85, 262 N.E.2d at 653; Anderson v. State (1973), 155 Ind. App. 121, 124, 291 N.E.2d 579, 581.
In the present case, Hayre's right to counsel was not violated during the initial hearing. In fact, the first thing the trial court did was to inquire as to whether Hayre required counsel. Upon Hayre's affirmative response the trial court appointed counsel to represent Hayre. The remainder of the hearing consisted of the trial court advising Hayre of the charge, possible penalties, and Hayre's rights. The trial court, again noting Hayre's lack of counsel at the initial hearing, proceeded to enter a preliminary not guilty plea for Hayre, as required by statute.[1] It must be noted that *552 this initial hearing, unlike arraignment,[2] is not a critical stage of the process requiring the presence of counsel. Instead, the trial court automatically enters a not guilty plea. Thus, Hayre was not called upon to use his discretion or to make any type of decision that would require an attorney's advice. Hayre's argument essentially demands that he had the right to counsel prior to the initial hearing. Of course, if a person is able, at that time, to employ private counsel he or she is free to do so. However, the State cannot be required to furnish counsel prior to the time defendant appears before the court having jurisdiction to provide the same. Fulks, 255 Ind. at 85, 262 N.E.2d at 653; Anderson, 155 Ind. App. at 124, 291 N.E.2d at 581. The trial court fully complied with the constitutional mandate for providing counsel when it immediately responded to Hayre's application and proof of indigency. This initial hearing was not a critical stage of the proceeding requiring the assistance of counsel. Johnson, Criminal Law and Procedure, 16 Ind.L.Rev. 119, 138 (1983). Thus, Hayre was not prejudiced.
Issue Two
Hayre further argues that the trial court's failure to inquire into the voluntariness of his guilty plea rendered that plea defective. In German v. State (1981), Ind., 428 N.E.2d 234, our Supreme Court held that a defendant must be specifically advised of the rights he or she is waiving by pleading guilty so that a guilty plea is entered knowingly, intelligently and voluntarily. The purpose of this is to ensure that persons pleading guilty receive the proper advisements and to facilitate review in those cases where adequacy of such advisements is later challenged. Martin v. State (1985), Ind., 480 N.E.2d 543, 547.
In the present case, the guilty plea statute in effect at the time of Hayre's plea, Indiana Code section 35-4.1-1-4 (Burns 1979), states, in pertinent part:
"(a) The court shall not accept a plea of guilty without first personally addressing the defendant and determining that the plea is voluntary. The court shall address the defendant and determine whether any promises, force or threats were used to obtain the plea."
On August 11, 1982, when Hayre entered his guilty plea, the trial court inadvertently failed to inquire as to whether his plea had been made free of any promises, threats, or force. Realizing its error, the trial court, the following day, brought Hayre back into court, explained the error, and offered to vacate Hayre's guilty plea and readvise him. Hayre declined readvisement and accepted the court's inquiry regarding voluntariness which ended with the following colloquy:
"THE COURT: And I assume you waive the fact that the Court did not prior to the entry of the plea of guilty, deal with the matter of coercion and promise?
"MR. TURNER [defense counsel]: Yes, Your Honor, I believe Mitchell Hayre wants the same plea today.
"THE COURT: Is that correct, Mr. Hayre?
"THE DEFENDANT: Yes."
Record at 44. The trial court, therefore, remedied its error before finally and irrevocably accepting Hayre's plea. Moreover, Hayre accepted the trial court's solution and therefore waived any error regarding its initial failure to inquire into the voluntariness of his guilty plea.
*553 We therefore affirm the judgment of the trial court.
ROBERTSON, P.J., and NEAL, J., concur.
NOTES
[1] In fact, all of the trial court's actions were properly conducted in accordance with Indiana Code section 35-33-7-5 (Burns 1985).
[2] Arraignment, under the prior statutory scheme, was construed as a crucial step in the course of criminal proceedings since it was at that juncture that the accused heard the formal charge and was called upon to enter his plea. Rader v. State (1979), 181 Ind. App. 546, 550, 393 N.E.2d 199, 202. However, under the new scheme, there is no technical arraignment hearing. Johnson, Criminal Law and Procedure, 16 Ind.L.Rev. 119, 132 (1983). Instead, a defendant is advised of the charge against him at the initial hearing and an automatic not guilty plea is entered on his behalf. This preliminary not guilty plea becomes a formal plea of not guilty twenty days after completion of the initial hearing if the crime charged is a felony or ten days if it is a misdemeanor. Of course, within this period a defendant may consult counsel and enter a different plea if he so desires.
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. 1567-06
WILLIAM RONALD HOLLANDER, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE NINTH COURT OF APPEALS
MONTGOMERY COUNTY
Per curiam. KEASLER and HERVEY, JJ., dissent.
ORDER
The petition for discretionary review violates Rules of Appellate Procedure 9.3 and
68.5, because the original petition is not accompanied by 11 copies and grounds and
reasons for review are longer than 15 pages.
The petition is struck. See Rule of Appellate Procedure 68.6.
The petitioner may redraw the petition. The redrawn petition must be filed in the
COURT OF CRIMINAL APPEALS within thirty days after the date of this order.
En banc
Filed: February 28, 2007
Do Not Publish
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26 Cal.App.4th 568 (1994)
31 Cal. Rptr.2d 595
DONNA SHAVER, Individually and as Trustee, etc., Plaintiff and Appellant,
v.
ROBERT A. CLANTON et al., Defendants and Appellants.
Docket No. G013816.
Court of Appeals of California, Fourth District, Division Three.
June 30, 1994.
*570 COUNSEL
Carlos F. Negrete for Plaintiff and Appellant.
Coontz & Matthews and M. Stephen Coontz for Defendants and Appellants.
OPINION
SONENSHINE, J.
This case of first impression requires us to analyze every first-year law student's worst nightmare: the rule against perpetuities. (1) "No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest." (Gray, The Rule Against Perpetuities (4th ed. 1942) § 201, p. 191.) As one sage stated in 1916 regarding the rule's applicability, "Before we pull the heavens down, *571 let us sit and think a little."[1] It has been said, "The rule against perpetuities is as clear and distinct as any other rule which has ever been declared by the court.... No difference of opinion exists as to [its] terms...."[2] Another commentator was perhaps more accurate, however, when he observed, "The rule ... is one upon which the authorities refuse to come to any semblance of agreement as to its reason for existence."[3]
At issue is whether a lease amendment which provides for perpetual options to renew is void because it violates the rule. Until 1991, California law applied the rule to commercial transactions and, accordingly, to options to renew. That changed with the adoption of the Uniform Statutory Rule Against Perpetuities. Now, commercial, nondonative transactions are exempt from the rule. However, if, as here, the transaction involves the lease of a town or city lot, it is limited to 99 years under Civil Code section 718.
I
Robert and Helen Clanton entered into a 10-year lease with Martin Wagner for shopping center space, effective May 1, 1971. The lease provided for a minimum annual rent of $11,400 and an "additional ... amount, if any, by which Three % of [the] gross sales for each calendar year period exceeds the guaranteed minimum rental...." It also provided a renewal option for another 10 years.
Emerson Stanley purchased the property shortly after the lease was executed. During the first 10-year term, no percentage rent was ever due. When the lease came up for renewal, the Clantons requested the 3 percent provision be deleted. Stanley agreed and his counsel sent a letter memorializing the extension on those terms.
In 1985, the Clantons attempted to sell the business and assign their rights to the Rosenbergs. Stanley executed an amendment removing the percentage rent provision and adding an option to renew the lease for two additional five-year periods. However, the sale was subsequently canceled and the assignment and amendment rescinded, returning all parties to their 1981 status quo.
The Clantons and Stanley amended the lease in 1988 and again in January 1989. The last amendment granted the Clantons options to extend the lease *572 for additional five-year periods beginning at the end of each prior lease period and gave them a right of first refusal if the property were offered for sale.
Donna Shaver is Stanley's daughter and sole heir. Shortly after her father died, she challenged the validity of the lease amendments and filed the underlying complaint seeking declaratory relief, rescission, an accounting, back rent, and damages for fraud. The trial court concluded her fraud allegations were without foundation and the 3 percent provision had been validly deleted from the lease. The 1988 amendment was valid, but the 1989 amendment was not because "the parties attempted to provide for option renewals into infinity. This they cannot do.... Therefore, this provision of the lease cannot be upheld, [and] since it is an integral part of this amendment the whole amendment goes out."[4] The court ruled there was no prevailing party and did not award costs. This appeal followed.
II
The common law policy favoring alienation of property led to the establishment of the rule against perpetuities. The sole test was whether an interest might vest beyond the maximum period permitted by the rule. As stated by our Supreme Court in Wong v. Di Grazia (1963) 60 Cal.2d 525 [35 Cal. Rptr. 241, 386 P.2d 817], "The rule ... originated as a rule of property law during the mercantilistic period of English history.... The social order of 1682 demanded as to its property transactions certainty in title and fixation of ownership; the idea of titles which had not vested or ownership which remained inchoate was necessarily anathema. Indeed, the basic purpose of the rule was to limit family dispositions, and in that context the period of lives in being plus 21 years served as a proper measurement. Only later by an overextension of nineteenth century concepts did the courts apply the rule to commercial transactions." (Id. at p. 533; see also 4 Witkin, Summary of Cal. Law (9th ed. 1987) § 377, p. 568.)
From the earliest stages of the doctrine's development, the English courts and many American courts found covenants to renew leases exempt from the *573 rule on two grounds: "First, under the view that the Rule is designed to destroy indirect restraints upon the practical alienability of property which are brought about by remote nonvested future interests, covenants to renew leases, without time limits, do not suspend the practical power to alienate land. So long as the value of the land does not drop to the point where the rental becomes prohibitive, the lessee always has in himself the legal as well as the practical power to convey that which is substantially a fee simple. On the other hand, when the lease becomes unprofitable, the lessee will give up his right to renew and the lessor will resume complete ownership. [¶] Second, and of greater importance, is the proposition that the perpetual renewal covenant should never have been classified as an `exception' to the Rule, but that it should have been considered to be outside the province of the Rule." (Berg, Long-Term Options and the Rule Against Perpetuities, supra, 37 Cal.L.Rev. at p. 23, fn. omitted.)
Simply stated, the purpose of the rule against perpetuities was found to be inapt to commercial arrangements. "The courts must have realized that covenants to renew leases were devices employed by business [people] to secure the safety of their investments in real property business enterprises." (Berg, Long-Term Options and the Rule Against Perpetuities, supra, 37 Cal.L.Rev. at p. 24.) "The lessor's desire to retain ownership of the land as a good business investment might influence him [or her] in granting a lease with such a convenant. On some occasions he [or she] might be motivated by a sentimental unwillingness to part with the land, but in any event it is difficult to twist the transaction so as to impute to him [or her] the desire to create an inalienable interest." (Ibid.)
In 1991, California became the 12th state to adopt the Uniform Statutory Rule Against Perpetuities (Uniform Act). (Prob. Code, § 21200 et seq.)[5] Twenty jurisdictions have now adopted it. The California Law Revision Commission observed the common law rule could operate harshly and invalidate a disposition if there were any conceivable possibility it would violate the rule, regardless of whether it was likely to do so or how reasonable the disposition appeared. (See Recommendation Relating to Uniform Statutory Rule Against Perpetuities (Sept. 1990) 20 Cal. Law Revision Com. Rep. (1990) pp. 2501, 2511 [hereinafter Report].) Noting the history of the common law rule in California was "convoluted and confusing" (ibid.), the commission sought uniformity, simplicity and easy administration. (Id. at p. 2513.) Accordingly, the Uniform Act supersedes the common law rule against perpetuities (§ 21201) and applies to nonvested property interests regardless of whether they were created before or after January 1, 1992. (§ 21202, subd. (a).)
*574 III
Until the adoption of the Uniform Act, California common law applied the rule against perpetuities to commercial transactions. Accordingly, the rule was applied to such interests as options to renew, rights of first refusal, and commercial leases.[6] (2) The Uniform Act changed California law by explicitly excluding such commercial transactions from coverage under the rule.[7] The rule is now irrelevant to such transactions: "It makes no sense to apply a rule based on family-oriented donative transfers to interests created by contract whose nature is determined by negotiations between the parties." (Rep., supra, at p. 2516.) "The rationale for this exclusion is that the rule against perpetuities is a wholly inappropriate instrument of social policy to use as a control over such arrangements. The period of the rule a life in being plus 21 years is not suitable for nondonative transfers...." (1991 Addition to Law Revision Com. com., 54A West's Ann. Prob. Code, § 21225 (1994 pocket supp.) p. 60 [hereafter Commission 1991 Addition].)
The Law Revision Commission Comment explains, "[S]ubdivision (a) [of section 21225,] is ... inconsistent with decisions holding the common law rule to be applicable to the following types of property interests or arrangements when created in a nondonative, commercial-type transaction, as they almost always are: options [citation]; preemptive rights in the nature of a right of first refusal [citations]; leases to commence in the future, at a time certain or on the happening of a future event...." (Com. 1991 Addition, supra, at p. 60.)
(3) The parties' 1989 amendment is exempt from the rule because it involves the nondonative transfer of three subdivision (a)-type exclusions: an option to renew, a right of first refusal, and a lease to commence in the future at a time certain. Shaver concedes the Probate Code governs, but argues the Uniform Act should not apply to commercial transactions between individuals where "controlling the duration of certain interests and allowing for free alienability of property is clearly desirable." She relies on Metropolitan Transportation Authority v. Bruken Realty Corp. (1986) 67 N.Y.2d 156 [501 N.Y.S.2d 306, 492 N.E.2d 379], and argues only large *575 commercial or governmental entities should be excluded from the common law rule. But Metropolitan was decided prior to the enactment of the Uniform Act in a jurisdiction which has still not adopted it. Moreover, it was specifically cited in the comment to point out "the inappropriateness of the period of a life in being plus 21 years to cases of commercial ... transactions and noting that the rule against perpetuities can invalidate legitimate transactions in such cases." (Com. 1991 Addition, supra, at p. 60.)
Shaver argues even if the Uniform Act applies to commercial transactions, it should not apply here. She claims the transaction was donative because it had "some of the elements of a donative, family-type transaction" and was "at least quasi-donative." The question is whether the transaction was "essentially gratuitous in nature, accompanied by donative intent on the part of at least one party to the transaction...." (Com. 1991 Addition, supra, at p. 60.)
The amendment ties the monthly rental for each new five-year period to "the smallest value of the Cost of Living Indexes published by the Federal Government as measured over the prior five (5) year period." It is a common business practice to make cost-of-living adjustments in long-term leases. (See Wolfen v. Clinical Data, Inc. (1993) 16 Cal. App.4th 171, 175 [19 Cal. Rptr.2d 684].) Shaver stresses the Clantons testified Stanley was "a close personal friend," "wanted to help them out," and their son was "the son ... Stanley never had." Although the lease amendments did give the Clantons favorable terms, there is no evidence of any detriment to Stanley which would characterize the amendments as donative, nor that either party had donative intent. The terms Stanley offered in 1985 to a third party, the Rosenbergs, were similar to those he offered the Clantons, tenants for more than 16 years, in the 1988 amendment. Moreover, the terms were not specific to the Clantons. The 1989 amendment allowed the Clantons to assign the lease with Stanley's written consent which he could not unreasonably withhold. Since the transaction was commercial and nondonative, the rule against perpetuities does not apply.
IV
The trial court found although the original lease and the 1988 amendment were valid, the 1989 amendment and the provision for option renewals were not, because "the parties attempted to provide for option renewals into infinity. This they cannot do...." This would have been error even without the adoption of the Uniform Act because under Civil Code former section 715.5, the court was "required ... to construe or reform [a] document to avoid violating the Rule if it is possible to do so consistently *576 with the creator's general intent." (Taormina Theosophical Community, Inc. v. Silver (1983) 140 Cal. App.3d 964, 977 [190 Cal. Rptr. 38].)[8]
Civil Code section 718, which both parties concede applies, provides, "No lease or grant of any town or city lot, which reserves any rent or service of any kind, and which provides for a leasing or granting period in excess of 99 years, shall be valid." The parties' 1989 amendment, when read in context with Civil Code section 718, should have been construed to avoid a violation of the rule against perpetuities. As explained over 90 years ago by our Supreme Court in Harter v. San Jose (1904) 141 Cal. 659 [75 P. 344], a lease in violation of Civil Code section 718 "would not be void except as to the excess of the period." (141 Cal. at p. 667, italics added; see also 4 Witkin, Summary of Cal. Law, supra, § 550, p. 719.)[9]
By adopting the Uniform Act while preserving Civil Code section 718, we conclude the Legislature intended the two statutes to be read together. When that is done, the rule is clear: commercial, nondonative transactions such as options to renew, rights of first refusal, and commercial leases are exempt from the provisions of the Uniform Act (§ 21225), but if they involve a lease or grant of a town or city lot, they are limited to 99 years. (Civ. Code, § 718.)[10]
For these reasons, the 1989 amendment is valid and gives the Clantons a series of five-year options to renew their lease on the terms stated in the lease amendment. The total term of the lease, however, is limited to 99 years from its effective date, May 1, 1971.[11]
*577 V
(4) Shaver also argues the court erred by finding the 3 percent provision was deleted by the amendments. We disagree.
Where there is any substantial evidence, either contradicted or uncontradicted, in support of the factual conclusion reached by the trial court, its decision must be affirmed. (Estate of Silverstein (1984) 159 Cal. App.3d 221, 226 [205 Cal. Rptr. 294].) Stanley's attorney testified the 3 percent provision was deleted because "Mr. Clanton refused to extend the lease with that provision in there, so it was taken out." The agreement memorialized in Stanley's attorney's letter indicates the percentage provision was deleted. The original lease sets forth the rent under "minimum rental" and "additional rental," the total of which is the annual rent. The 1981 amendment defines rent as "annual rental amount of $16,800.00" and does not break up the amounts into "minimum" and "additional."
In its statement of decision, the trial court found, "The 1970 Lease provided for fixed rent plus 3% gross sales, whichever was greater. When the lease came up for renewal in 1990 Clanton rebelled against the 3 percent clause. Stanley, through his attorney, acquiesed [sic] to the deletion of this provision in an exchange of letters." We must resolve every evidentiary conflict in favor of the judgment if it is supported by substantial evidence. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925 [101 Cal. Rptr. 568, 496 P.2d 480]; Orange County Employees Assn. v. County of Orange (1988) 205 Cal. App.3d 1289, 1293 [253 Cal. Rptr. 584].) The evidence requires we affirm that portion of the judgment finding the 3 percent provision was deleted.
VI
Both parties contend they were the prevailing party entitled to attorney fees and costs. Under Civil Code section 1717, the determination of whether there is a prevailing party is discretionary. (Civ. Code, § 1717, subd. (b)(1).) In view of our holding, however, the Clantons clearly prevail. Accordingly, the matter is remanded to the trial court with directions to determine the amount of attorney fees and costs to which the parties are entitled. (McLarand, Vasquez & Partners, Inc. v. Downey Savings & Loan Assn. (1991) 231 Cal. App.3d 1450, 1456 [282 Cal. Rptr. 828].)
DISPOSITION
The judgment is reversed as to the validity of the 1989 Amendment and affirmed as to the deletion of the percentage provision. The total term of the *578 lease with amendments is limited to 99 years from its effective date, May 1, 1971. The matter is remanded and the trial court directed to determine the amount of attorney fees and costs to which the Clantons are entitled. The Clantons shall recover their costs on appeal.
Wallin, Acting P.J., concurred.
CROSBY, J., Concurring.
The majority opinion reaches a correct result, but the holding is hornbook law and hardly worthy of publication. (See, e.g., 4 Witkin, Summary of Cal. Law (9th ed. 1987) Real Property, § 550, pp. 719-720; Civ. Code, § 718.) Moreover, open-ended leases and options in perpetuity must be about as common as polar bear sightings in Death Valley. The Court of Appeal is not likely to see another such case in the next 99 years.
A petition for a rehearing was denied July 22, 1994, and the petition of appellant Donna Shaver for review by the Supreme Court was denied September 14, 1994.
NOTES
[1] Note (1916) 14 Mich. L.Rev. 231, 233.
[2] Thomas v. Gregg (1892) 76 Md. 169, 174 [24 A. 418, 419].
[3] Langeluttig, Options to Purchase and the Rule against Perpetuities (1931) 17 Va.L. Rev. 461; see also Berg, Long-Term Options and the Rule against Perpetuities (1949) 37 Cal.L.Rev. 1, 2.
[4] Shaver's complaint made no reference to the 1989 amendment; the complaint was never amended. Nevertheless, the court allowed her to introduce the 1989 amendment into evidence and, in one sentence of a supplemental brief and in closing argument, her counsel challenged its validity. Although the Clantons understandably challenge the method by which the issue of the rule against perpetuities was raised below, and the trial court's failure to permit them to brief the issue, the rule is one of public policy and its application is a matter of law. Its operation is not waived by failure to raise it in the trial court, and it must be considered even though raised for the first time on appeal. (United California Bank v. Bottler (1971) 16 Cal. App.3d 610, 616 [94 Cal. Rptr. 227].)
[5] All statutory references are to the Probate Code unless otherwise specified.
[6] However, Civil Code section 718 validated leases of town or city lots up to 99 years. (See post, pt. IV.)
[7] Section 21205 states: "A nonvested property interest is invalid unless one of the following conditions is satisfied: [¶] (a) When the interest is created, it is certain to vest or terminate no later than 21 years after the death of an individual then alive. [¶] (b) The interest either vests or terminates within 90 years after its creation."
Section 21225 lists the exclusions. As relevant here, it states: "This chapter does not apply to any of the following: [¶] (a) A nonvested property interest ... arising out of a nondonative transfer...."
[8] The principle requiring a court to reform a disposition to effectuate the parties' intentions was adopted in section 21220, in the Uniform Act.
[9] The trial court relied on Epstein v. Zahloute (1950) 99 Cal. App.2d 738 [222 P.2d 318] which held a right to perpetual renewal of a lease violates Civil Code section 718. But as explained above, Epstein's holding is a departure from a clear line of case law holding a lease in excess of a statutory period is not void except as to the excess. (See, e.g., Harter v. San Jose, supra, 141 Cal. at p. 667; Klepper v. Hoover (1971) 21 Cal. App.3d 460, 464-465 [98 Cal. Rptr. 482]; Fisher v. Parsons (1963) 213 Cal. App.2d 829, 842 [29 Cal. Rptr. 210]; Kendall v. Southward (1957) 149 Cal. App.2d 827, 828 [308 P.2d 915].)
[10] Section 21225, in the Uniform Act does not totally eliminate the ban against open-ended real estate transactions. As explained above, city or town lot leases can last no longer than 99 years from inception. For other examples of statutory limitations preserved by the Legislature, see Civil Code sections 715 (lease to commence at time certain or upon happening of a future event is invalid if not commenced within 30 years), 717 (lease of agricultural or horticultural land limited to 51 years), 718f (leases for production of minerals, oil, gas or other hydrocarbons limited to 99 years), 719 (leases of city-owned or -managed property limited to 99 years).
[11] We also note prior to the adoption of the Uniform Act, Civil Code section 718 served as a "lengthening" statute, preserving interests from the harshness of the rule against perpetuities. Now, its function is a "limiting" one.
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549 F.2d 806
Certified Grocers of California, Ltd.v.General Teamsters, Sales Drivers, Food Processors,Warehousemen and Helpers, Local 871
No. 74-3284
United States Court of Appeals, Ninth Circuit
1/25/77
1
C.D.Cal.
REVERSED AND REMANDED
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904 F.Supp. 932 (1995)
Bonnie EDDINGER, Plaintiff,
v.
Robert WRIGHT, Defendant.
No. H-C-94-45.
United States District Court, E.D. Arkansas, Eastern Division.
August 21, 1995.
Order Denying Rehearing September 20, 1995.
*933 B. Michael Easley, Easley, Hicky & Cline, Forrest City, AR, Mike White, Cordova, TN, for plaintiff.
Elton A. Rieves, IV, Rieves & Mayton, West Memphis, AR, for defendant.
MEMORANDUM OPINION & ORDER
SUSAN WEBBER WRIGHT, District Judge.
This Court issued a stay and administratively terminated this case in November 1994 pending resolution of a matter then before a state court. [Doc. # 12, Memorandum & Order.] Following a decision by the Arkansas Supreme Court, the plaintiff filed a motion to reopen the above-styled case, which was granted June 19, 1995. [Doc. # 17 Order.] The defendant also was granted permission to revive his summary judgment motion, which the Court now decides. For the reasons that follow, defendant Robert A. Wright's motion for summary judgment is denied.
This cause of action arises from a motor vehicle collision occurring in West Memphis, Arkansas, on March 3, 1990 between the plaintiff, a resident of West Memphis, and the defendant, who is a resident of Tennessee. The Court has jurisdiction under 28 U.S.C. § 1332(a)(1).
*934 I.
The accident report listed "Robert Wright" as operator and reported his address as 921 Rosewood, West Memphis, Arkansas. On March 3, 1993, the plaintiff filed a complaint against "Robert Wright" and Nationwide Mutual Insurance Company in Crittenden County Circuit Court.[1] Her complaint in federal court was filed June 6, 1994 and named only "Robert Wright" as a defendant. The facts and allegations of the two complaints are almost identical.
The events are complicated by the fact that there are two Robert Wrights the father, Robert L. Wright, and the son Robert A. Wright. Both men are represented by the same attorney, Elton Rieves IV of the Rieves & Mayton law firm of West Memphis, Arkansas. The state court complaint and summons were sent certified mail to the Rosewood address, where both father and son were residing at the time of the accident. However, by the time suit was filed and process was served, the son had moved to Tennessee. The father, Robert L., filed an answer to the Circuit Court complaint denying he was negligent. On July 6, 1993, which was several days after expiration of the time in which plaintiff had to obtain proper service under Ark.R.Civ.P. 4(i), Robert L. moved for summary judgment in the state case on the basis that he was not the driver of the car involved in the accident. He acknowledged that his son was the operator of the vehicle. [Doc. # 7, Ex. J.] On July 30, 1993, the plaintiff amended her Circuit Court complaint to specify that Robert A. Wright was the defendant. Robert A. was served, and he filed an answer. On August 24, 1993 he moved for summary judgment or dismissal in state court on the grounds that the action was barred by the statute of limitations because the amended complaint was filed more than three years after the accident, or alternatively, because he was served more than 120 days after the filing of the original complaint.
On March 10, 1994, the state court granted both motions for summary judgment.[2] But before an order was entered, the plaintiff moved the Circuit Court for permission to non-suit her complaint; the motion was granted, and an order of non-suit was entered April 14, 1994. Subsequently, the Circuit Court denied a motion by both Wrights to set aside the order of non-suit. On May 12, 1994, the Wrights appealed the order of non-suit to the Arkansas Court of Appeals. The case was transferred to the Arkansas Supreme Court, which found the trial court acted within its discretion in granting the non-suit after it had announced its decision to grant summary judgment, but not yet entered an order. [Robert L. Wright and Robert A. Wright v. Bonnie Eddinger, No. 94-816, March 27, 1995.]
The issue before this Court is whether a defendant may purposely mislead a plaintiff into believing proper service has been made and then succeed in having the case dismissed for improper service and expiration of the statute of limitations.
II.
Summary judgment may be granted if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Evans v. Pugh, 902 F.2d 689, 691 (8th Cir.1990). The burden on the moving party is only to demonstrate that the record does not disclose a genuine issue as to a material fact. Once that is done, the non-moving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). Rather, the non-moving party must "come forward with `specific facts showing there is a genuine *935 issue for trial.'" Id. at 587, 106 S.Ct. at 1356 (quoting Fed.R.Civ.P. 56(e) and adding emphasis). The inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Id. (citations omitted). However, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Id. (citation omitted).
The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather the dispute must be outcome determinative under prevailing law. Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir.1989).
The Eighth Circuit Court of Appeals has observed that recent Supreme Court decisions
demonstrate that we should be somewhat more hospitable to summary judgments than in the past. The motion for summary judgment can be a tool of great utility in removing factually insubstantial cases from crowded dockets, freeing courts' trial time for those cases that really do raise genuine issues of material fact.
City of Mount Pleasant v. Associated Electric Cooperative, Inc., 838 F.2d 268, 273 (8th Cir.1988).
III.
Robert A. Wright argues that the plaintiff's action is barred by the three-year statute of limitations set out in Ark.Code Ann. § 16-56-105. The original complaint naming "Robert Wright" was filed within the limitations period. The defendant argues proper service on this complaint was not made within the 120 days mandated by Ark.R.Civ.P. 4(i) because it was Robert L., not Robert A., who was served within the 120 days. The defendant contends that later service of the amended complaint on Robert A. does not save the plaintiff's cause of action because the amended complaint was filed on July 30, 1993, after the statute of limitations period had expired. The defendant also argues that the amended complaint does not relate back to the first complaint under Ark.R.Civ.P. 15(c).
Ark.R.Civ.P. 4(i) in relevant part provides:
Time Limit for Service: If service of the summons is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court's initiative. If a motion to extend is made within 120 days of the filing of the suit, the time for service may be extended by the court upon a showing of good cause....
After the original complaint was filed on March 3, 1993 and Robert L. answered, the plaintiff understandably did not attempt to correct the defective service or file a motion for an extension of time in which to do so. It was understandable because Robert L.'s answer, in violation of Ark.R.Civ.P. 8(b), artfully avoided revealing that he was not the operator of the car involved in the accident and that he knew his son was the person the plaintiff intended to sue. Rule 8(b) requires denials to "fairly meet the substance of the averments denied."
Under the rules of civil procedure, a defendant must file an answer or other responsive pleading within 20 days of service of the summons and complaint. Ark.R.Civ.P. 12(a). If Robert L.'s answer had "met the substance" of the allegations that he was involved in a motor vehicle collision, the plaintiff would have realized her mistake and had ample time in which to perfect service on Robert A. As it was, Robert L. waited until after the 120-day period expired and then filed a motion for summary judgment which stated for the first time that he was not involved in the accident, but his son was.
Robert L.'s answer [Doc. # 7, Ex. H] admits "the motor vehicle collision which gives rise to this cause of action occurred in Crittenden County, Arkansas," and admits "on Saturday, March 3 (not 5), 1990, the Plaintiff was in a 1991 Mercury Sedan." It denies the plaintiff "was traveling east on Oliver Street in West Memphis, Arkansas" and denies the allegation that when the plaintiff attempted to stop her vehicle at 228 West Oliver, the defendant negligently operated his vehicle *936 and caused a rear-end collision between his vehicle and that of the plaintiff.
Robert L.'s answer also denied the allegations of the complaint which specified certain negligent acts, such as failing to keep a proper lookout. The answer stated he denied "that this Defendant was in any way negligent with regard to the occurrence."
The defendant's admission of some facts, such as the occurrence of the accident and the kind of car the plaintiff was driving, is surprising to the Court in light of his later statement that he was not operating the other car involved. The Court notes the accident report does not indicate there were any passengers in the car with driver "Robert Wright." Robert L.'s admissions, plus his denial of negligence, understandably led the plaintiff to conclude that proper service had been made.
The Court, and apparently the parties, have been unable to locate an Arkansas case where the person served has pretended to be the correct party until after the end of the 120-day period for perfecting service. While Ark.R.Civ.P. 4 "is designed to be generally consistent with" Fed.R.Civ.P. 4, it is not identical. Ark.R.Civ.P. 4, Reporter's Notes at 393 (Michie 1995). A few cases construing the federal version of Rule 4 do concern situations where a plaintiff has been misled regarding service.
In In re Hollis & Company, 86 B.R. 152, 154 (Bankr.E.D.Ark.1988), the court found good cause existed for improper service because, based on all the circumstances, it was reasonable for the plaintiff to believe that service had been properly accomplished within the appropriate time period. The court stated, "The Court further finds that justice would not be served by granting the Motion to Dismiss after actions of the Defendant reasonably gave the Plaintiff the impression that service had been made." Id. at 154. The court noted that under the legislative history of Rule 4, the defendant's evasion of service was good cause for failure to serve. Id. at 153.
In Ditkof v. Owens-Illinois, Inc., 114 F.R.D. 104, 105 (E.D.Mich.1987), the court excused a complete lack of service on one defendant because the plaintiff "understandably [had been] lulled ... into believing that service had been accomplished." In that case, as this one, the plaintiff would have been unable to refile suit because the statute of limitations period had expired by the time the defendant raised the issue of lack of service.
In Broadcast Music, Inc. v. M.T.S. Enterprises, 811 F.2d 278, 281 (8th Cir.1987), the court observed that the federal rules "do not in any way suggest that a defendant may halfway appear in a case, giving plaintiff and the court the impression that he has been served, and, at the appropriate time, pull failure of service out of the hat...."
Looking at the record as a whole and at this answer in particular, the Court finds that the plaintiff was deceived into thinking her complaint had been properly served on the Robert Wright who was involved in the accident. Arkansas Rule of Civil Procedure 4(i) permits a court to extend the time in which service may be perfected upon a showing of good cause and if a motion to extend is made within the 120-day period. No motion to extend the time for service was made by the plaintiff within the 120 days. However, Robert A. was served promptly with an amended complaint after the plaintiff received notice that Robert L. was the father of the Robert Wright involved in the accident. In these circumstances, the Court finds there was good cause for failure to perfect the service on the original complaint within 120 days. The Court will not penalize the plaintiff for her failure to file a motion requesting an extension. The result of requiring a motion before the Court can grant an extension for good cause would be nonsensical in cases involving an evasion of service through the use of an imposter. The result would be that those defendants who successfully fooled the plaintiff into thinking service had been perfected, and thereby prevented them from filing a motion for an extension, would be able to have their cases dismissed for improper service. This Court does not believe the Arkansas Supreme Court would consider that a reasonable interpretation of Ark.Rule Civ.P. 4(i). The Court finds that the lack of service of the original complaint *937 on Robert A. should be excused because of Robert L.'s deceptive answer.[3] See Ditkof v. Owens-Illinois, Inc., supra. The Court simply does not believe that Robert L.'s answer was not part of a scheme by defendant Robert A. to enable Robert A. to evade service until after the statute of limitations had expired.
In Ditkof, supra, the Court excused the failure to serve within 120 days and directed the plaintiff to serve the defendant "forthwith." Ditkof, 114 F.R.D. at 105. In this case, defendant Robert A. has been served twice, once with the amended state court complaint and once with the federal court complaint. Nevertheless, the Court now directs the plaintiff to serve the original state court complaint on Robert A. within 20 days of the date of this Order.
The last issue to be addressed involves the plaintiff's taking of a non-suit on April 14, 1994. Under Ark.Code Ann. § 16-56-126, a plaintiff who commences a suit within the applicable statute of limitations period may take a voluntary non-suit and then start a new action on the same matter within one year after the non-suit. Carton v. Missouri Pacific Railroad Co., 747 S.W.2d 93, 94 (Ark. 1988). The Court has found that the original complaint was within the statute of limitations period and has excused the plaintiff's failure to serve Robert A. within 120 days. The plaintiff refiled her suit in federal court on June 6, 1994, which is within the one-year time period allowed by the statute.
Defendant Robert A.'s motion for summary judgment should be, and hereby is, denied.[4]
IT IS SO ORDERED.
MEMORANDUM & ORDER
Several motions are pending in this case, which involves an automobile accident. The parties have been informed orally of the following rulings:
Defendant's motion for continuance [Doc. # 39] is denied. In that motion, the defendant questioned whether this Court has diversity jurisdiction. The Court will hold a hearing on the issue at 8:30 a.m., September 25, 1995. If the Court finds that it does have jurisdiction, the trial will immediately proceed.
The plaintiff's motion for oral argument and sworn testimony of Robert L. Wright, Robert A. Wright, and the claims adjuster [Doc. # 36] is granted. If the case is tried, the Court will hold a hearing on plaintiff's motion for sanctions [Doc. # 29] while the jury is deliberating.
The defendant's motion for reconsideration of the Court's Memorandum Opinion and Order of August 21, 1995 is denied [Doc. # 27] for the reasons that follow.
I.
The August 21, 1995 Memorandum Opinion and Order denied the defendant's motion for summary judgment. Because it appears to the Court that its reasoning was not sufficiently clear to the defendant, the Court will attempt to restate its position in terms that should be crystal clear regardless of whether the defendant agrees with them or not.
This case was filed in the Circuit Court of Crittenden County, Arkansas, as the result of an automobile accident which occurred on March 3, 1990. The accident report listed the owner of the defendant's vehicle as "Robert Allen Wright" of 921 Rosewood in West *938 Memphis, Arkansas, and the operator as "Robert Wright" of that same address. Suit was subsequently filed against Robert Wright, and service was obtained on Robert Wright of 921 Rosewood in West Memphis, Arkansas, and Nationwide Insurance Company.
There are two Robert Wrights. Robert Allen Wright is the son of Robert L. Wright. Robert A. was the driver of the car and was living at the same address as his father at the time of the accident. Robert A. later moved to Tennessee. An answer to the state court suit was filed by "Robert L. Wright."
The answer of Robert L. was designed to lead any reasonable person, including an attorney or a judge, to believe that Robert L., the person upon whom service was effected, was the one involved in the accident with the plaintiff.
In paragraph one of his answer, Robert L. admitted or denied certain allegations of the complaint. He admitted, for example, that the accident took place in Crittenden County, a fact that presumably would be known only to someone who was either the driver or a passenger in the car or would know from statements made to him by someone present at the accident.
In paragraph two of his answer, Robert L. admitted that the plaintiff "was in a 1991 Mercury sedan" but denied "that she was traveling east on Oliver Street in West Memphis." Again the admission or denial would be known to a driver, passenger, or witness or as the result of hearsay.
In paragraph four, Robert L. denied "that this defendant was in any way negligent with regard to the occurrence." That is a typical allegation that a true defendant would make. The subsequently filed amended answer of Robert L. does not alter any of the foregoing.
Not once when the case started did Robert L. reveal to the court or opposing counsel that he was not the "Robert Wright" involved in the accident. The fact that he styled his answer a "separate answer" does not change that situation because the complaint was filed against both "Robert Wright" and an insurance company.
The proper and ethical action for Robert L. Wright to have taken would have been to reveal to opposing counsel that they had served the wrong person, or to have filed a motion to dismiss stating that he was not the correct defendant, or to have answered with a denial that he was involved in the accident.
This did not happen, however, and he successfully lulled the plaintiff and her attorney into believing that the correct person had been served. Not until July 6, 1993, which was several days past the expiration of the time for the plaintiff to obtain proper service under the Arkansas Rules of Civil Procedure, did Robert L. Wright reveal the truth to the state court that he was not involved in the accident he filed a motion for summary judgment in the state court on the basis that he was not the driver of the car in question.
The defendant, Robert A. Wright, and his counsel would have this Court believe that Rule 4(i) of the Arkansas Rules of Civil Procedure is so rigid and inflexible that no relief can be granted even when the plaintiff has failed to comply because of the deception practiced upon the plaintiff and upon the state court by the defendant. To assert that proposition is to assume that the Supreme Court of Arkansas will countenance fraud and deceit based upon artifice and the deliberate misrepresentation of the facts by concealing the true facts. Perhaps he would argue that the state Supreme Court would have no regard for the "unclean hands" doctrine in equity, even though the court has applied it many times. This Court does not have such a degrading opinion of our state's highest court.
There is no question in the mind of this Court that, given the facts described above, the Supreme Court of Arkansas would grant relief.
In Firemen's Ins. Co. v. Jones, 245 Ark. 179, 431 S.W.2d 728 (1968), the allegation was made that the liability insurance carrier of the Louisiana tortfeasor had, through fraud and deceit, lulled the injured parties into a sense of security until Louisiana's one-year statute of limitations ran on the claims. The agent of a claims' service had promised to settle with the claimants and advised them *939 to wait a year to evaluate their claims. It was held that this had lulled the claimants into a false sense of security and that the company's agent concealed the fact the claims would be barred after one year. They were allowed to recover despite the absence of proof of conspiracy between the insurer and the adjustment company or its employee.
There was a suspension of the running of the statute of limitations in Montgomery v. First Nat'l Bank of Newport, 242 Ark. 329, 414 S.W.2d 109 (1967), in a guardian and ward situation in which the ward first learned of the misappropriation of property at the death of the guardian. Justice George Rose Smith stated for the Arkansas Supreme Court that it was justified in suspending the running of limitations due to concealment of fraud and the fiduciary relationship involved.
In Walters v. Lewis, 276 Ark. 286, 634 S.W.2d 129 (1982), a personal representative was held to have breached her trust and to be guilty of fraud in failing to notify the appellants, decedent's wife and child, of the decedent's death, of failing to disclose her appointment as personal representative, and of failing to advise appellants when the estate was closed. Further, she was held to have perpetrated a fraud upon the court by leaving the appellants' names off the list of heirs, which she was required to prepare under the Probate Code. The court quoted from a prior case Williams v. Purdy, 223 Ark. 275, 265 S.W.2d 534 (1954) as follows:
Mere ignorance of one's rights does not prevent the operation of the statute of limitations, but where the ignorance is produced by affirmative and fraudulent acts of concealment, the statute of limitations does not begin to run until the fraud is discovered.
634 S.W.2d at 132. (Emphasis added.) The court added: "Silence on the part of one who is under no duty to speak will not prevent the statute from running. However, if there is some positive act of fraud which would conceal a plaintiff's cause of action then the statute is tolled." Id. (Citation omitted.)
What applies to a state statute of limitations quite obviously would apply to a state Supreme Court rule. In our case, Robert L. Wright did perform a "positive act of fraud" on both the plaintiff and on the state trial court by affirmatively leading them to believe summons was served on the Robert Wright who was involved in the accident.
There are other similar Arkansas cases. In State of Tennessee v. Barton, 210 Ark. 816, 198 S.W.2d 512 (1946), Dr. Barton had his insane wife committed to a state hospital in Nashville, Tennessee, and he agreed to pay her hospital expenses. When he later wrote the hospital that he was no longer able to keep up the payments, and the hospital authorities relied on his representation, he was estopped to plead the statute of limitations either individually or as guardian of his wife's separate estate. An interesting aspect of this case is that Dr. Barton's estoppel was imputed to his wife's estate also. So, also, in this lawsuit, Robert A. Wright cannot be permitted to profit from the deception practiced by his father.
The statute of limitations on medical malpractice actions was held tolled by fraudulent concealment in Jones v. Central Arkansas Radiation Therapy Inst., 270 Ark. 988, 607 S.W.2d 334 (1980) in which a defendant physician had a report from the Veterans Administration Hospital that treatment by him had resulted in severe and permanent injuries to the patient, and he repeatedly postponed further examinations to determine the cause until the statute of limitations had expired.
A recent Arkansas federal court case on this subject is Jackson v. Swift-Eckrich, 830 F.Supp. 486 (W.D.Ark.1993). The court quoted approvingly from Hughes v. McCann, 13 Ark.App. 28, 678 S.W.2d 784 (1984) as follows: "Affirmative action on the part of the person charged with fraud to conceal a plaintiff's cause of action will toll the running of the statute of limitations." Jackson, 830 F.Supp. at 489. In the present case, as stated, the affirmative action taken by defendant's father was to file an answer which could only be construed as leading the plaintiff and her attorney to believe that they had service on the true defendant.
Judge H. Franklin Waters in the Jackson case also quoted from Howard W. Brill, Arkansas *940 Law of Damages § 35-7 at 489 (2d ed. 1990) as follows:
This cause of action, which would be described as innocent misrepresentation or non-disclosure in other jurisdictions, exists even though any evil intention or moral wrong is absent. The action may be based on a mistake of fact. The essential element is that a legal or equitable duty has been breached in such a way that the law declares that breach to be fraudulent because of its tendency to deceive others, regardless of the moral guilt or intent of the fraud-feasor.
Jackson, 830 F.Supp. at 488. That is more far-reaching than the present case. This was no innocent misrepresentation or non-disclosure on the part of defendant's father. He knew that he was not driving the car. His answer was intended to deceive, and it succeeded.
As stated in Dupree v. Twin City Bank, 300 Ark. 188, 777 S.W.2d 856 (1989):
As to fraud or misrepresentation, mere ignorance of one's rights does not prevent the running of the statute of limitations or laches, unless such ignorance is due to fraudulent concealment or misrepresentation on the part of those invoking the benefit of the statute ... While an action for fraud must be brought within three years from the date the cause of action accrues, the fraud does suspend the running of the statute of limitations and the suspension remains in effect until the party having the cause of action discovered the fraud or should have discovered it by the exercise of reasonable diligence. (Citations omitted.)
Id. 777 S.W.2d at 858. (Quoted approvingly in Jackson v. Swift-Eckrich, supra.)
Of course, state Circuit Judge Gerald Pearson commented in court on the existence of a suit based on fraud by the plaintiff against Robert L. Wright. That is a possible separate cause of action the plaintiff may have, but it is not the subject of the instant suit. Moreover, although the plaintiff may have a separate cause of action against Robert L. Wright, that does not prevent this Court from construing the Arkansas Rules of Civil Procedure in the manner in which it appears the Supreme Court of Arkansas would have construed them based on the cases previously discussed.
II.
The defendant supported his motion for reconsideration with excerpts from a transcript, a deposition, and a note from the plaintiff's employer, which the defendant believes show that the plaintiff and her attorney knew Robert A. Wright was the "Robert Wright" involved in the accident before the state court complaint was filed. Even if this is correct, this does not change the fact that Robert L. Wright affirmatively acted to mislead the plaintiff into thinking the proper party had been served.
III.
In sum, the defendant's motions for reconsideration and for a continuance are denied. The plaintiff's motion for oral argument and sworn testimony is granted.
IT IS SO ORDERED.
NOTES
[1] On March 4, 1993, the plaintiff filed an amended complaint substituting Allstate Insurance Company for Nationwide Mutual.
[2] The Circuit Court heard oral arguments on the two summary judgment motions. The court granted defendant Robert L. Wright's motion after his counsel presented evidence that Robert L. was not involved in the accident and therefore could not have been negligent in the collision. On Robert A. Wright's motion, the Circuit Court concluded the amendment of the complaint to name Robert A. did not relate back to the date of the original complaint, so the plaintiff's suit was barred by the statute of limitations.
[3] The Court agrees with the defendant that the amended complaint served on Robert A. does not relate back to the original complaint under Ark. R.Civ.P. 15(c) because Robert A. did not receive notice of the suit against him before the statute of limitations period expired. Southwestern Bell v. Blastech, Inc., 313 Ark. 202, 852 S.W.2d 813, 814-15 (1993). Process in the state court suit was not served on Robert L. until after the limitations period ended because suit was filed on the last day of the period. However, like the state trial court, this Court finds unbelievable the Wrights' assertions that Robert L. never told his son about the lawsuit and Robert A. knew nothing of the action until he was served with the amended complaint. These assertions are made more incredible by the fact that father and son have the same attorney. See Doc. # 7, Ex. N, "Hearing March 10, 1994" at 129, 136; "Hearing April 29, 1994" at 153.
[4] The Court would carefully consider a motion by the plaintiff for costs and attorney's fees arising from the deceptive answer of Robert L. Wright.
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837 F.Supp. 222 (1992)
Margaret ZETTLE, Plaintiff,
v.
HANDY MANUFACTURING COMPANY, Defendant.
No. 91-CV-10153-BC.
United States District Court, E.D. Michigan, N.D.
February 21, 1992.
*223 Kevin J. Rieman, Patterson, Gruber, Kennedy, Gill & Milster, Bay City, MI, Themistocles L. Majoros, Mossner, Majoros & Alexander, Saginaw, MI, for plaintiff.
Stephanie A. Neal, Neal, Neal & Stewart, Flint, MI, for defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
CLELAND, District Judge.
This products liability action is presently before the Court on defendant's motion for summary judgment. Both parties submitted briefs in support of their respective positions and on January 28, 1992, the Court heard oral argument on defendant's motion. Because the Court finds 1) plaintiff's legal theory that failure to notify of post-sale safety advances is not cognizable under Michigan law, 2) plaintiff has failed to make out a prima facie case of negligent design, and 3) that no reasonable juror could find that defendant's warning was inadequate, defendant's motion will be granted.
BACKGROUND
This action arises from the tragic death of a young man who was electrocuted while working on a neighbor's farm. At the time of his death, plaintiff's decedent was operating a power washer manufactured by defendant. The power washer was plugged into a "homemade" extension cord provided by the decedent's employer. The extension cord was visibly damaged; slashes in several places along its length exposed bare metal conductors. One stretch of several feet was wrapped with black electrical tape, giving the impression that two cords had been spliced together. In addition, although it appeared *224 to be a three-conductor "grounded" extension cord, the third, round grounding prong at the male end of the cord had never been connected to the ground wire that ran through the cord itself. The cord was therefore not grounded. While plaintiff's decedent was operating the power washer, the metal junction box at the female end of the extension cord became "energized". Because the ground wire in the cord was not connected to the grounding prong, an electrical current flowed into the grounding prong of the power washer plug and through the grounding wire in the washer's electrical cord, thereby electrifying the cabinet of the power washer. The current may have even traveled through the stream of water in the water hose to the spray gun used to aim and discharge a pressurized stream of water. Plaintiff's decedent, who was operating the washer, died instantly.
After plaintiff's state court action against the decedent's employer was resolved, defendant removed the case to this Court. Plaintiff advances three theories of liability on the part of defendant. First, plaintiff contends that defendant owed a duty to notify users of this washer about post-manufacture safety advances made in connection with its power washers. Second, plaintiff alleges that defendant breached its acknowledged duty of manufacturing a reasonably safe product by failing to incorporate certain safety devices into the power washer. Finally, plaintiff alleges that defendant failed to adequately warn users of the dangers involved with operating the power washer.
DISCUSSION AND ANALYSIS
A. Duty to Notify of Safety Advances
Plaintiff acknowledges that product manufacturers have no duty to retrofit their products with safety devices that become available after the date of manufacture. However, plaintiff cites Comstock v. General Motors Corp., 358 Mich. 163, 99 N.W.2d 627 (1959), for the proposition that defendant owed a duty to notify users of its power washers of post-manufacture safety advances. The Court cannot agree with plaintiff's reading of Comstock. First, the Court finds the facts of Comstock readily distinguishable from the facts presented here. At issue in Comstock was an automobile with defective brakes. The court held that General Motors had a duty to notify users of its products of the defective nature of the brakes. Plaintiff here makes no allegations that defendant's power washer was defective in any way. In fact, for some time after the accident, the owner of the power washer continued to use it on his farm, apparently without incident. Second, as the courts in many other states have recognized, imposing a duty to notify of post-manufacture safety devices would "inhibit manufacturers from developing improved designs that in any way effect the safety of their products, since the manufacturer would then be subject to the onerous, and often times impossible, duty of notifying each owner of the previously sold product that the new design is available for installation...." Lynch v. McStome and Lincoln Plaza Assoc., 378 Pa.Super. 430, 548 A.2d 1276 (1988). Thus, the public interest in encouraging safer product designs clearly counsels against imposing such a duty.
B. Breach of Duty to Provide Reasonably Safe Product
Plaintiff next alleges that defendant breached its duty of providing a reasonably safe product by failing to incorporate certain safety devices into its power washer. Plaintiff alleges that defendant should have used one of two safety devices: 1) a plastic handle on the spray gun[1] or 2) a cord-mounted ground fault circuit interrupter (GFCI).
The Court notes initially that defendant has brought its motion pursuant to Fed. R.Civ.P. 56. Under Rule 56, summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. "Where the moving party has carried its burden of showing that the pleadings, depositions, answers to interrogatories, admissions *225 and affidavits in the record construed favorably to the non-moving party, do not raise a genuine issue of material fact for trial, entry of summary judgment is appropriate." Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987), citing, Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is not appropriate when "the evidence presents a sufficient disagreement to require submission to a jury." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986). The existence of a factual dispute does not necessarily defeat a properly supported motion for summary judgment; there must be an issue of material fact in order to necessitate trial.
The burden placed upon the movant for summary judgment is to show that the non-moving party has failed to establish an essential element of his case upon which the non-moving party would bear the ultimate burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). But the moving party need not support its motion with affidavits or other similar materials "negating" the opponent's claim. Id. at 323, 106 S.Ct. at 2553. Once the moving party meets this burden, the burden passes to the non-moving party to establish, after an adequate opportunity for discovery, the existence of a disputed factual element necessary to his or her case with respect to which he or she bears the burden of proof. Id. at 323, 106 S.Ct. at 2553. The non-moving party must show that there is sufficient evidence for a jury to return a verdict in its favor, Street v. J.C. Bradford & Co., 886 F.2d 1472 (6th Cir.1989), i.e., that there is doubt as to the material facts and that the record, taken as a whole, does not lead to a judgment for the movant. Id. at 1476. The non-moving party must present affirmative evidence on critical issues. Id. at 1477.
The Michigan Court of Appeals recently summarized the elements of a prima facie case of failure to provide adequate safety devices:
[A] prima facie case of a design defect premised upon the omission of a safety device requires first a showing of the magnitude of foreseeable risks, including the likelihood of occurrence of the type of accident precipitating the need for the safety device and the severity of the injuries sustainable from such an accident. It secondly requires a showing of alternative safety devices and whether those devices would have been effective as a reasonable means of minimizing the foreseeable risk of danger. This latter showing may entail an evaluation of the alternative design in terms of its additional utility as a safety measure and its trade-offs against the costs and effective use of the product.
Reeves v. Cincinnati, Inc., 176 Mich.App. 181 at 187-8, 439 N.W.2d 326 (1989).
Plaintiff points out that of the three power washer models manufactured by defendant in 1980, only the model at issue here, the "Model 1000", incorporated a metal instead of a plastic spray gun handle. Moreover, in the model years immediately following 1980, defendant began to use plastic handles on the Model 1000. These facts constitute evidence that non-metal handles were available, cost-effective, and would not drastically impair the usefulness of the Model 1000. Plaintiff offers the deposition testimony of defendant's experts to show that a plastic handle "would have been effective as a reasonable means of minimizing the foreseeable risk of danger". Reeves, supra. Both of defendant's experts agreed that a plastic handle would not conduct electricity. The Court finds that this evidence alone, however, would not allow a reasonable juror to find that a plastic handle would have been effective in minimizing the risk of harm.
Photographs of the power washer and diagrams contained in the instruction manual reveal that the handle is but one of several metal components that make up the spray gun. Most notably, the tubing leading from the handle to the point of discharge (the barrel of the gun) is made of metal. Since nobody witnessed the electrocution, there is no evidence as to which electrified part or parts of the power washerthe cabinet, the spray gun, or otherwiseplaintiff's decedent touched. If it was the spray gun, there is no evidence which would prove that his contact was limited to the handle portion of the gun. *226 Indeed, the first witness on the scene noted that the spray gun had been handed over to the decedent moments before the tragedy occurred. See Labor Department Accident Investigation Report, attached to defendant's brief as Exhibit C, fourth page ("Bill handed him the wane [sic][2] of the power washer and headed for the garage"). The spray gun appears in the photographs to be fairly large, but not so massive that it could effectively passed from one person to another while both people make contact only with the handle. Further, from the owner's manual, it appears that the spray hose and gun portion of the machine were designed to be hung up and stored on the metal cabinet itself. From all this, there is no evidence to prove, and it is unreasonable even to infer that the decedent held only the handle of the sprayer with one hand and made no contact at any time with the barrel or some other metal portion of the gun or cabinet. In fact, the first witnesses on the scene found the spray gun laying across the decedent's chest. See Exhibit C to defendant's brief, fourth page ("He looked back and seen [sic] the deceased laying on the ground with the wane [sic] across his [the decedent's] chest"). There is furthermore no direct evidence that the spray gun itself was electrifiedthis concept rests on plaintiff's expert's theory that electric current could travel through the pulsing stream of water being projected down the nonconductive rubber or vinyl hose to the nozzle.
Aside from their relevance to the element of causation, the above facts impact significantly on plaintiff's ability to show alternate design efficacy: that use of a plastic handle would have been an effective means of minimizing the risk of harm. These facts demonstrate clearly that a power washer with a plastic handle would have been safer than the Model 1000 with its metal handle only if individuals using the washer were expected to touch only the plastic handle and carefully avoid every momentary or accidental contact with any other metal part of the spray gun or the washer cabinet. Such an expectation simply is not reasonable in the real world. Accordingly, the Court finds, that on the evidence before it, no reasonable juror could conclude that incorporating one small plastic part in a unit made predominantly of metal would constitute an effective means of minimizing the risk of harm.
Plaintiff's theory that the power washer was unreasonably dangerous for failure to incorporate a cord-mounted GFCI fails for a different reason. Along with duty, breach of duty, and damages, plaintiff must prove proximate cause to recover on a theory of negligence. Moning v. Alfono, 400 Mich. 425, 254 N.W.2d 759 (1977). Plaintiff here has failed to come forward with any evidence to show that a cord-mounted GFCI would have prevented the electrocution.[3] In simple terms, the path followed by the fatal stream of current to the power washer, through the washer's grounding wire, was completely independent of the circuit that a GFCI would have monitored and protected. Thus, even if the Court assumes that defendant's failure to provide a GFCI constitutes a breach of the standard of care, plaintiff has no evidence to connect the breach with the death of plaintiff's decedent. Plaintiff is therefore unable to carry her burden of proof with respect to proximate cause.
C. Failure to Provide Adequate Warning
Plaintiff's final theory of liability is that defendant failed to adequately warn of the risk of harm associated with the operation of its power washer. A reasonably large and visible warning label, which was made of a durable material and affixed to the top of the washer cabinet, read:
STOP
Read instructions on inside of lid before operating.
Connect only to grounded 115 volt supply of ample capacity.
*227 Extension cords should be no. 12 grounded wire.
Removal of ground (3rd) prong on plug could cause death.
(capitalization and underlining emphasis in original). The label was in good condition, was positioned by itself on the top of the cabinet, and the message was bordered by a thick dark line broken only by the large word "STOP". Additionally, the first instruction on the inside lid warned: "Never use machine if not properly grounded".
In circumstances wherein there exists a duty to warn at all, the appropriate inquiry with respect to a warning alleged to be inadequate is simply whether the manufacturer used reasonable care under the circumstances. Antcliff v. State Emp. Credit Union, 414 Mich. 624, 327 N.W.2d 814 (1982). The warning, if required, must be adequate, accurate and effective. Id. Beyond the court's initial determination of the legal question of the existence of a duty to warn, a particular warning's accuracy, adequacy and effectiveness are questions which, if supported by competent evidence, are reserved for the jury. Hill v. Husky Briquetting, Inc., 54 Mich.App. 17, 220 N.W.2d 137 (1974). However, if the evidence would not allow a reasonable juror to find that the warning is inadequate, the Court must enter judgment against plaintiff. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1480 (6th Cir.1989) ("where the record taken as a whole could not lead a rational trier of fact to find for the respondent, the motion [for summary judgment] should be granted").
Here, the defendant clearly has assumed a warning responsibility, and the evidence of record (most notably photographs of the power washer) shows that defendant placed the warning label in a highly visible location, atop the power washer cabinet. The word "Stop" appeared in bold capital lettering, obviously designed to attract the attention of potential users. The warning stressed the importance of using only grounded ancillary equipment and warned of the possibility of death. In short, the warning instructed as to how to properly operate the washer in this respect, and warned of the danger associated with failure to do so.
Plaintiff offers the deposition testimony at pages 122-124 of her witness, William Heilman, offered as an expert, suggesting that it stands as evidence that the warning was unreasonable and inadequate. Here Mr. Heilman opined that defendant's warning transmitted "a misleading message ... which indicates that there is little to worry about in the operation of this piece of equipment when the opposite is actually true...." (Deposition of William Heilman, pp. 123-4). Although he declined to offer an alternative warning which, in his opinion, would have been adequate ("I didn't plan on designing their warning for them...." Heilman Deposition p. 122), Heilman suggested that the warning should have incorporated the words "danger" and "electrocution hazard". He distinguished between the "low-level" warning word "caution", criticizing it, and the "highest-level" warning word "danger", which he praised although saying at the same time that it "should be used sparingly" (Heilman Deposition, p. 123). No mention appears anywhere in his testimony of the actual wording, STOP, chosen by the defendant. No basis for the opinion is afforded other than his reference to a 1971 publication of the Society of Automotive Engineers.
Plaintiff urges the Court to send to the jury the proposition that this warning was unreasonable solely because of her expert's view that a simple, English language warning which begins with the word "STOP" and ends with the phrase "could cause death", indicates "that there is little to worry about".
No evidence exists on this record to support such a conclusion. The opinion of the witness proffered by plaintiff misses the mark here firstly in its factual predicates. Heilman apparently thought the warning word used was "caution", not "STOP"[4].
Secondly, even if the Court were to annex this witness's opinion to the facts with a broad (and unwarranted) inference that the witness might have actually meant to attack the use of "STOP" instead, the result does *228 not change. While it is held up by plaintiff's counsel as a challenge to the warning's adequacy, the testimony does nothing more than quibble without foundation about the difference between the word "STOP" and the word "DANGER". Heilman offers no datapsychological, statistical or otherin support of his expressed belief that "DANGER" would be more effective in communicating a risk of harm. He further claims, without support, that the manufacturer's specific warning of the prospect of "death" was insufficient to raise to the consciousness of an average user that grievous possibility. He does not explain, nor does he present any evidence to suggest why the average power washer user would pay any greater attention to the arcane substitution of some few words for some few others on this cabinet-mounted warning when just such an "average user" in these circumstances, the decedent, had already blithely ignored not only the printed direction to "STOP", but also the clear, indeed dazzling, danger presented by using a chopped-up, cobbled-together and obviously damaged electric cord stretching through the water and mud of the farmyard that day, expecting it to provide the electric current needed for the task at hand.
This witness's opinion, of course, remains an opinion to which he is fully entitled, but, being unsupported by evidence, it legally amounts to nothing more than his personal belief and is simply insufficient to qualify as "affirmative evidence" on the genuine issue of material fact: warning sufficiency. To send this question to the jury for determination on the strength of this testimony would leave the jury groping for guidance, and finding none in the evidence, turning to whim or prejudice.
The Court finds that the evidence of record would not allow a reasonable juror to find the warning inadequate, inaccurate or ineffective. As a matter of law, then, this question as well is resolved in favor of the defendant.
CONCLUSION
The Court finds that plaintiff's legal theory of failure to notify of post-sale safety advances is not cognizable under Michigan law, that plaintiff has failed to make out a prima facie case of negligent design, and that no reasonable juror could find that defendant's warning was inadequate. For these reasons, defendant's motion for summary judgment is HEREBY GRANTED.
IT IS SO ORDERED.
NOTES
[1] In its brief, defendant addressed a related theory, failure to use a "double insulated" handle. Plaintiff did not respond either by brief or at oral argument to the defendant's arguments with respect to the double insulated handle, and plaintiff has thus withdrawn this theory.
[2] Three pages later in the Labor inspector's handwritten report, he makes reference again to the "wand" of the washer and appears to have gone over the last letter two or three times, more clearly forming a "d" and thus correcting a misspelling.
[3] On the other hand, defendant's experts testified that a cord-mounted GFCI would not have prevented the tragedy. See deposition of Earl Roberts, pp. 61-5.
[4] The word "caution" does appear at least at one place in the printed manual of instructions, a warning which no one suggests is at issue in the decedent's circumstances.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-1753
___________
United States of America, *
*
Appellee, *
*
v. *
*
Nathan Williams, Jr., *
*
Appellant. *
Appeals from the United States
__________ District Court for the Eastern
District of Missouri.
No. 99-1755
__________ [UNPUBLISHED]
United States of America, *
*
Appellee, *
*
v. *
*
Jerry Tronne Brown, *
*
Appellant. *
___________
Submitted: September 14, 1999
Filed: September 22, 1999
___________
Before McMILLIAN, FAGG, and MURPHY, Circuit Judges.
___________
PER CURIAM.
Nathan Williams, Jr. and Jerry Tronne Brown (collectively the appellants) appeal
their drug-related convictions. Brown also raises a sentencing argument. Having
carefully considered the record and the appellants' arguments, we conclude the record
supports the district court's decisions because the appellants' contentions are foreclosed
by this court’s holdings, otherwise without merit, or both.
First, the district court did not abuse its discretion in denying Brown's motion for
severance. Second, the district court did not commit error in admitting tape-recorded
conversations between Williams, a coconspirator, and a nontestifying informant or by
permitting the jury to use transcripts of the taped conversations while listening to the
tapes, and, even if there was error, it was harmless beyond a reasonable doubt in light
of the overwhelming evidence of the appellants' guilt. Third, we reject Brown's
sentencing argument because the district court's findings about the amount of drugs
involved are not clearly erroneous.
Because an extended opinion would simply rehash this court’s well-established
precedents, we summarily affirm the appellants' convictions and Brown's sentence. See
8th Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-2-
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224 S.C. 510 (1954)
80 S.E.2d 114
INDUSTRIAL EQUIPMENT CO.
v.
MONTAGUE.
16826
Supreme Court of South Carolina.
January 27, 1954.
*511 *512 Messrs. Robinson, Robinson & Dreher, of Columbia, and Messrs. Nash & Wilson, of Sumter for Appellant.
Messrs. Lee & Moise, and George D. Levy, of Sumter, for Respondent.
*513 Messrs. Robinson, Robinson & Dreher, of Columbia, and Messrs. Nash & Wilson, of Sumter, in reply, for appellant.
January 27, 1954.
STUKES, Justice.
Industrial Equipment Company of Sumter was formerly a partnership composed of respondent, his son and E.L. Freeman. The business was incorporated early in 1946 and the three former partners were the sole stockholders and in the same proportions that they had owned the partnership, which was forty-five per cent by the elder Montague (respondent) who was president, forty-five per cent by Freeman who was treasurer and general manager, and ten per cent by the younger Montague who was secretary. It was thus a "close corporation" in the popular sense of that term; cases defining such are found in 7A Words and Phrases, p. 41, and in the footnote to the text definition in 14 C.J.S., p. 1276. At the end of 1950 Freeman and his associates acquired the stock of the Montagues, after which the latter retired from the corporation.
This action was commenced in January, 1952, upon a complaint which alleged for a first cause of action that during the period from July, 1946, until December, 1950, respondent converted to his own use "bonus volume checks" issued to the corporation by International Harvester Company and by United States Rubber Company aggregating over $18,000.00; for a second cause of action that during the same period respondent drew $18,000.00 from the corporation *514 as salary, which was not authorized, incurred personal indebtedness to the corporation of $380.06 for merchandise, which has not been paid, caused payment of unauthorized salary of $175.00 to his son-in-law, and sold to the corporation used automobiles at prices exceeding their real value to the extent of $900.00. Judgment was demanded for the total of the stated amounts.
Respondent alleged in his answer that the checks were cashed by him upon the suggestion of Freeman and the proceeds divided among the stockholders of the corporation in the proportion of their stockholdings, which had been the practice of the partnership for the four years prior to its incorporation, except that one 1950 check in the amount of $2,586.22 was used in part payment of a note of the corporation to a local bank; it was also alleged that respondent received no salary from the corporation; further that he ran an account with the corporation which he paid monthly but if he is additionally indebted in that manner, he stands ready to pay; overpayment of salary to his son-in-law, alleged in the second cause of action of the complaint, was denied, as was the sale of automobiles to the corporation at excessive prices.
It is unnecessary for the purpose of the appeal to discuss the testimony which was adduced upon trial before a jury, except to say that that of Freeman, on the one hand, and respondent and his son on the other, was in direct conflict. The verdict and judgment are the solution by the jury of the controlling issues of fact. It found in favor of respondent on the first cause of action and upon the issue of the alleged salary payments to respondent which were referred to in the second cause of action.
At the close of the evidence appellant moved as follows for direction of the verdict:
"We would like to move for a directed verdict on the first cause of action, upon the ground that the admitted evidence shows that these checks totaling some eighteen or nineteen thousand dollars belonged to the Industrial Equipment Company, *515 and were converted by the defendant B.L. Montague when he cashed the checks and did not pay any portion of it into the plaintiff corporation.
"Now, in connection with the account of the $380.00, I don't believe that there is any appreciable, any jury issue left in that. Your Honor held that we could only offer the items which the particular witness identified, those aggregated fifty or sixty dollars, and there is no contradiction of his testimony, and we believe we are entitled to a directed verdict for whatever that amount was, but under Your Honor's ruling we can't recover the rest of that account; I think it would be desirable to eliminate that from the jury's consideration.
"Now, on the question of the automobiles, there is a jury issue, and I make no motion on that.
"With regard to the salary, I submit to you that the general manager gave him notice that his service be terminated on the 30th of November, he had fifteen days' notice. The contract calls for five days' notice, and he cannot collect for half of December, and we are entitled to collect on that small item."
The motion was refused and all of the issues made by the pleadings were submitted to the jury which returned verdict for appellant in the amount of $756.35. There was thereafter no motion thereabout.
The appeal is upon two exceptions, the first of which imputes error in the refusal of the motion for direction of verdict in favor of appellant upon the first cause of action; and, the second, that the court erred in instructing the jury, in effect, that appellant was not entitled to recover on the first cause of action if they found that the respondent paid the proceeds of the bonus volume checks to the three stockholders of the corporation, who were its officers, as salary or wages.
Respondent insists that the appeal should be dismissed because the verdict was in favor of appellant which made no motion in the trial court for new trial on the ground of inadequacy *516 of the verdict or for the correction of it, in the absence of which appeal will not lie from a favorable verdict. Principally relied upon for this position is Wilson v. Southern R. Co., 123 S.C. 399, 115 S.E. 764. However, it is so plain that the judgment should be affirmed upon the merits we pass over, without deciding, this procedural question.
Whether or not the checks, which were the property of the corporation, were cashed by respondent and the proceeds divided pro rata among the stockholders was the controlling issue of fact which arose out of the first cause of action, as already pointed out, and the jury found against the testimony of Freeman, who denied knowledge even of the existence of the checks. The court instructed the jury to the effect that respondent committed no wrong if he cashed the checks and distributed the proceeds to the stockholders of the corporation, who were also all of its officers and directors, as salary or wages, despite the lack of formal corporate action, directors' meetings and minutes; but that respondent would be liable if the distribution of the proceeds of the checks was in the nature of a dividend. In the latter respect we think that the court erred and instructed the jury more favorably to appellant than it was entitled. Formal directors' meetings and minutes are not indispensable to corporate action in all cases. Alderman v. Alderman, 178 S.C. 9, 181 S.E. 897, 105 A.L.R. 102. The following is from 2 Fletcher, Corporations, 177, Sec. 395: "If the directors own all of the stock, a conveyance, mortgage or contract authorized by them when not assembled at a meeting is valid * * *," citing cases in the footnotes and in the cumulative supplement. See also 13 Am. Jur. 909, Corporations, Sec. 948; and 19 C.J.S., Corporations, § 751, p. 96.
The funds were the property of the corporation and the recipients, in the light of the verdict, were, as all of the stockholders, the real owners of the funds, in the proportion of their stockholdings, absent the claims *517 of creditors of the corporation or other third persons, as here. Undoubtedly, corporate directors are at least quasi-trustees in their dealings with the property of their corporation and the relation is fiduciary in nature. Gilbert v. McLeod Infirmary, 219 S.C. 174, 64 S.E. (2d) 524, 24 A. L.R. (2d) 60. But here the directors were also all of the stockholders in this private, business corporation, whence they may be said, for the purpose of this decision, to have been the corporation itself. In that light, the trust relation disappears because one cannot be a trustee of property for himself. Lynch v. Lynch, 161 S.C. 170, 159 S.E. 26, 80 A.L.R. 997. And it is presently immaterial, under the facts of this case, whether the distribution was intended to be in the nature of dividends or compensation for services. No dividends were paid by the corporation in the usual manner, nor were salaries paid to respondent or his son, but Freeman received a large salary.
Section 12-201 of the Code of 1952 prohibits the payment of dividends by a corporation unless they have been earned either currently or theretofore and paid out of undesignated surplus. The only reasonable inference from the evidence in this case is that the proceeds of the checks represented earnings of the corporation because the record discloses that respondent subsequently sold his stock to Freeman and his associates for four and one-half times its face or par value.
Appellant argues that any agreement of respondent and the other corporate officers and stockholders to cash and divide the proceeds of the checks as they did, according to the verdict, was void for illegality because it was an unlawful scheme to evade the payment of State and Federal income taxes, which the court will not countenance. Pendarvis v. Berry, 214 S.C. 363, 52 S.E. (2d) 705. In the first place, the point was not made or decided in the trial court; and, secondly, the court is not enforcing the agreement, but is leaving the parties thereto as it found them. Moreover, if the practice was to conceal income of the corporation and the stockholders, as appellant *518 contends, that was a fraud upon the State and Federal governments, not upon appellant who therefore cannot attack it on that ground; it was a beneficiary, under this theory, rather than a victim whom the court should aid. Applicable is the following excerpt from Frank v. Frank's, Inc., 9 N. J. 218, 87 A. (2d) 724, 727, 32 A.L.R. (2d) 700: "The plaintiff stresses Frank's fraud in the formation of the corporation, but the fraud of Frank was not on the plaintiff but on his judgment creditor, Mahr, and he alone had the right to complain of it. That fraud, as the trial court properly found, gives the plaintiff no cause of action."
It should be added that respondent and his son testified that they later amended their personal income tax returns to the State and Federal governments and paid taxes upon the portions of the proceeds of the checks which they respectively received.
A case of considerable similarity is M. Groh's Sons v. Groh, 80 App. Div. 85, 80 N.Y.S. 438, 443, which was tried by jury and their verdict for defendant was upheld on appeal. From the opinion the following is taken: "As between the owners and holders of all the stock of the corporation, it must, in principle, follow that the members of such corporation, entitled to receive dividends, may agree among themselves, either by conversation or otherwise, to appropriate of the funds of the corporation a specified sum, as agreed upon, and distribute the same; and the stockholder, upon the receipt of it, will acquire good title thereto as against the other members of the corporation. It amounts to a mere division of the property by agreement of all the parties in interest, and, as between them, it is perfectly good, and may not be attacked, where the act does not impair the rights of third parties. * * * It only remains, therefore, to see if the evidence was sufficient (to establish that the division of the funds was agreed upon while the parties owned the stock of the corporation, which it was)." There the actual payment of the funds was after the control of the corporation had passed from the payees.
*519 It must be concluded that the trial court properly refused to direct verdict for appellant on the first cause of action; and that appellant was not prejudiced by the instructions thereabout which were given to the jury. These conclusions dispose of the main appeal.
Appellant also appealed from the order of the trial judge settling the case for appeal. The order is affirmed for the reasons which are sufficiently stated in the following excerpt from it:
"In one of the exceptions the plaintiff says that a verdict should have been directed against the defendant for the $18,408.11 of so-called bonus checks. Ordinarily, when the question is whether a verdict should have been directed it is quite difficult to leave out any testimony which may have even a remote bearing on the issue. It is true that most of the testimony which the plaintiff desires to omit bears primarily upon the other cause of action, but I believe that all of the testimony has an indirect bearing upon the exception, since it shows how the corporation conducted its affairs, the authority granted to its officers, the actions taken without formal meetings of the board of directors, and without formal resolutions entered upon the minutes.
"I think that the Supreme Court should have the same broad picture and background of the company's method of taking corporate action which were presented to the Trial Judge."
The contents of the record, as first sought to be submitted, were somewhat reduced by the order, we think as much so as fairness to respondent permitted, in view of the nature of the appeal.
All exceptions are overruled and the judgment affirmed.
BAKER, C.J., TAYLOR and OXNER, JJ., and G. BADGER BAKER, A.A.J., concur.
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378 F.Supp.2d 100 (2005)
Joseph BRUNSON, pro se, Petitioner,
v.
Frank TRACY, Superintendent, Downstate Correctional Facility, Respondent.
No. 03-CV-1895 (DLI)(ASC).
United States District Court, E.D. New York.
March 2, 2005.
*101 *102 *103 Joseph Brunson, Fishkill, NY, pro se.
New York State Attorney Generals Office-Generic, John M. Castellano, Queens County DA's Office, Kew Gardens, NY, for Respondent.
OPINION AND ORDER
IRIZARRY, District Judge.
Petitioner Joseph Brunson seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, the petition is denied.
Background
Petitioner was arrested, charged and tried in New York State Supreme Court with acting in concert in committing the crimes of Attempted Robbery in the First and Second Degrees, Assault in the Second Degree, Criminal Possession of a Weapon in the Third Degree, Criminal Possession of a Weapon in the Fourth Degree, and Unlawful Possession of Marijuana under the New York State Penal Law. Petitioner's friend, Luis Rodriguez, also was arrested and charged with Attempted Robbery in the First and Second Degrees, Criminal Possession of a Weapon in the Fourth Degree, two counts of Assault in the Second Degree, and Menacing in the Second Degree. Rodriguez pled guilty to Criminal Possession of a Weapon *104 in the Fourth Degree and was sentenced to three years' probation.
The prosecution adduced the following evidence at trial: On August 22, 1998, Norman Kennerly and his brother, Kelvin, were attacked by petitioner and Rodriguez, who tried unsuccessfully to steal a gold chain from Norman Kennerly's neck. In the process, petitioner slashed Kennerly's face with a boxcutter. The Kennerly brothers immediately flagged down Officer Robert Glenn's police patrol car. A few blocks from the site of the incident, Officer Glenn and his partner seized petitioner and Rodriguez who not only matched the description given by the Kennerlys but were also identified by Norman Kennerly as his attacker. Officer Glenn recovered several boxcutters from garbage cans near where petitioner and Rodriguez were apprehended. The Officer also recovered another boxcutter and marijuana from petitioner's pocket.
At trial, petitioner testified that the Kennerlys caused the altercation, that he never intended to steal the gold chain, and that Rodriguez alone and without petitioner's knowledge produced the boxcutter and slashed Norman Kennerly's face.
The jury initially acquitted petitioner of Attempted Robbery in the First and Second Degrees, Criminal Possession of a Weapon in the Third and Fourth Degrees, and Assault in the Second Degree during the commission of a felony or of immediate flight therefrom, but found him guilty of Assault in the Second Degree with a dangerous instrument and Unlawful Possession of Marijuana. After the initial verdict was read, counsel for petitioner argued that the verdict was repugnant.[1] Specifically, counsel for petitioner argued that the verdict of guilty on the charge of Assault in the Second Degree, which required the use of a "dangerous instrument," was inconsistent with the acquittals on the weapons possession charges.
At defense counsel's urging, the trial judge initially resubmitted to the jury the charge of Assault in the Second Degree with the use of a "dangerous instrument." The prosecutor argued that the judge should have resubmitted all of the inconsistent counts to the jury (i.e., Assault in the Second Degree during the commission of a felony or of immediate flight therefrom and Criminal Possession of a Weapon in the Third Degree and Fourth Degrees). The trial judge denied this application. The jury then sent two notes to the judge asking for clarification on the weapon possession charges.[2] At this time, the trial judge reconsidered his prior ruling and granted the prosecutor's application to re-submit the weapon possession charges to the jury and re-read the prior instructions on those charges.
Petitioner ultimately was convicted of Assault in the Second Degree, Criminal Possession of a Weapon in the Third Degree, and Unlawful Possession of Marijuana in violation of New York State law. On October 25, 1999, petitioner was sentenced, as a persistent felony offender, to concurrent indeterminate terms of imprisonment of from twelve years to life, three and one-half *105 to seven years, and a definite term of 15 days for these crimes, respectively. Petitioner remains incarcerated pursuant to this sentence.
Through counsel, petitioner appealed his conviction to the New York State Appellate Division, Second Department, citing prosecutorial misconduct based on both the prosecutor's failure to abide by over forty court rulings on defense counsel's objections during petitioner's cross-examination and the prosecutor's inflammatory remarks during summation. On June 11, 2001, the Appellate Division unanimously rejected these arguments and affirmed petitioner's conviction, ruling that the prosecutor's remarks during summation were either fair comment on the evidence or fair response to defense counsel's summation. People v. Brunson, 284 A.D.2d 406, 726 N.Y.S.2d 281 (2d Dep't 2001). As to the prosecutor's alleged disregard of the court's rulings during petitioner's cross-examination, the Appellate Division found that argument "unpreserved for appellate review [citations omitted] and, in any event, without merit...." Id. (citing People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 (1st Dep't 1997)). On July 19, 2001, the New York State Court of Appeals denied petitioner's request for leave to appeal the Appellate Division's ruling. People v. Brunson, 96 N.Y.2d 899, 730 N.Y.S.2d 796, 756 N.E.2d 84 (2001).
On November 29, 2001, petitioner moved the trial court to vacate his conviction, arguing that: (1) the prosecutor knowingly and willfully used false evidence to obtain the conviction; (2) Officer Glenn misrepresented the facts of the case; and (3) petitioner's sentence as a persistent felony offender violated his due process rights under the New York Constitution and the Sixth Amendment to the U.S. Constitution. The trial court denied that motion on January 18, 2002 as procedurally barred because petitioner failed to raise these issues on direct appeal despite their being readily ascertainable from the trial record.
On August 21, 2002, petitioner filed an application for a writ of error coram nobis before the Appellate Division. Petitioner argued that the trial court committed reversible error by: (1) not charging the jury with the lesser included offense of Assault in the Third Degree; and (2) determining that the jury had rendered a repugnant verdict and giving confusing and misleading corrective instructions. Petitioner further argued that his appellate counsel was ineffective based on appellate counsel's failure to raise these issues on appeal. Stating only that "[t]he appellant has failed to establish that he was denied effective assistance of appellate counsel," the Appellate Division denied the application for writ of error coram nobis on December 16, 2002. People v. Brunson, 300 A.D.2d 501, 750 N.Y.S.2d 880 (2d Dep't 2002) (citing Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)). On March 28, 2003, the New York State Court of Appeals denied petitioner's application for leave to appeal the Appellate Division's ruling. People v. Brunson, 99 N.Y.2d 626, 760 N.Y.S.2d 107, 790 N.E.2d 281 (2003).
Discussion
Petitioner filed the instant application seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on April 14, 2003. As a pro se litigant, petitioner's pleadings are held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). According the petition a liberal construction, petitioner raises three issues in support of his application for the writ. First, petitioner claims that he was denied a fair trial under the Sixth Amendment to the U.S. Constitution due to prosecutorial misconduct. *106 The alleged misconduct consisted of the prosecutor's disregard of sustained objections during petitioner's cross-examination and the prosecutor's inflammatory statements during summation. Second, petitioner claims that his Sixth Amendment rights were violated when the trial judge erroneously concluded that the jury verdict was repugnant and issued confusing and misleading instructions in an effort to correct the repugnancy. Third, petitioner claims that he was denied effective assistance of appellate counsel based on his appellate counsel's failure to raise certain issues on direct appeal.
Prosecutorial Misconduct
Petitioner's claim of prosecutorial misconduct, insofar as it is based upon the prosecutor's disregard of sustained objections to her cross-examination of petitioner, is procedurally barred. The Appellate Division ruled that petitioner's claim was "unpreserved for appellate review (see N.Y. CRIM. PROC. LAW § 470.05(2); People v. Medina, 53 N.Y.2d 951, 441 N.Y.S.2d 442, 424 N.E.2d 276[]) and, in any event, without merit...." People v. Brunson, 284 A.D.2d 406, 726 N.Y.S.2d 281 (2001) (citing People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572). It is well-settled that "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir.1990).
As the Appellate Division found, this claim was procedurally barred when petitioner failed to object with sufficient specificity to the alleged errors in the prosecutor's cross-examination, or to demand curative instructions to the jury once the objections were sustained. In such a situation, New York's law deems "the curative instructions ... to have corrected the error to the defendant's satisfaction" People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 (1994) (citing People v. Williams, 46 N.Y.2d 1070, 1071, 416 N.Y.S.2d 792, 390 N.E.2d 299 (1979)); see also Garcia v. Lewis, 188 F.3d 71, 78-79 (2d Cir.1999). The decision of the state court, having rested on "independent and adequate state grounds," is necessarily beyond the reach of federal habeas corpus review. Cotto v. Herbert, 331 F.3d 217, 238 (2d Cir.2003); Garcia, 188 F.3d at 79 ("[W]e have observed and deferred to New York's consistent application of its contemporaneous objection rules.") (citations omitted).
This Court may reach a habeas petitioner's claim despite a procedural default if the petitioner can demonstrate either cause and prejudice from the default or a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). In this case, petitioner has not shown cause for the procedural default. See Bloomer v. U.S., 162 F.3d 187, 191 (2d Cir.1998) (requiring a showing that "some objective factor external to the defense impeded counsel's efforts to raise the claim at an earlier proceeding") (internal quotations and citations omitted). Notably, petitioner has not demonstrated, or even attempted to demonstrate, that trial counsel was ineffective by failing to object with greater specificity or press the court for further relief. See Wood v. Artuz, 39 F.Supp.2d 211, 216 (E.D.N.Y.1999) ("Attorney error short of ineffective assistance of counsel does not constitute cause and will not excuse a procedural default.") (citing cases).
Petitioner also cannot show that failure to consider his claims will result in a fundamental miscarriage of justice.
*107 A habeas petitioner may bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted.... `[A]ctual innocence' means factual innocence, not mere legal insufficiency.' To demonstrate `actual innocence' a habeas petitioner `must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.'
Dunham v. Travis, 313 F.3d 724, 730 (2d Cir.2002) (internal citations omitted).
In order for a claim of actual innocence to be credible, petitioner must "support his allegations of constitutional error with new reliable evidence ... that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful." Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Petitioner has not come forward with any new evidence even suggesting a fundamental miscarriage of justice and therefore is unable to surmount the procedural bar.
Petitioner next argues that the prosecutor engaged in misconduct based on her remarks during summation. 28 U.S.C. § 2254(d) provides that a writ of habeas corpus
shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
The first step is to determine if petitioner's claim of prosecutorial misconduct was "adjudicated on the merits in State court proceedings." "[A] state court adjudicates a state prisoner's federal claim on the merits when it (1) disposes of the claim on the merits, and (2) reduces its disposition to judgment." Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir.2001).
"We determine whether a state court's disposition of a petitioner's claim is on the merits by considering: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits."
Id. at 314 (quoting Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir.1999)).
The issue of prosecutorial misconduct based on the allegedly inflammatory summation was raised by petitioner and fully briefed on appeal. The prosecution responded substantively, and did not argue that the issue was unpreserved for appellate review. The Appellate Division ruled that "the challenged statements were either fair comment on the evidence adduced at trial or fair responses to the defense counsel's summation." People v. Brunson, 284 A.D.2d 406, 726 N.Y.S.2d 281 (2d Dep't.2001) (internal citations omitted). Based on these facts, it is clear that the opinion of the Appellate Division was an adjudication "on the merits" as that term is used in 28 U.S.C. § 2254(d). This court therefore turns to the question of whether the Appellate Division's ruling was "contrary to," or an "unreasonable application of," federal law.
*108 The appropriate standard of review for a habeas corpus petition alleging prosecutorial misconduct is "the narrow one of due process, and not the broad exercise of supervisory power." Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir.1990) (citing Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)). Only comments by a prosecutor that constitute "egregious misconduct" will support a finding of a denial of due process. Duran v. Miller, 322 F.Supp.2d 251, 259 (E.D.N.Y.2004) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). The petitioner must show that the alleged misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly, 416 U.S. at 647, 94 S.Ct. 1868. In order to meet this standard, petitioner may not rely on a "`reasonable possibility' that trial error contributed to the verdict." Bentley v. Scully, 41 F.3d 818, 824 (2d Cir.1994), (quoting Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). Rather, petitioner must show that the prosecutor's comments caused him "actual prejudice." Id.
The court must look at the totality of the circumstances in deciding whether the egregiousness of the prosecutor's comments justifies relief. United States v. Young, 470 U.S. 1, 11 12, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (noting the importance of context, including defense counsel's conduct); Duran, 322 F.Supp.2d at 259. In the Second Circuit, this inquiry includes three factors: (1) the severity of the prosecutor's misconduct, (2) any curative measures taken by the court, and (3) the certainty of the conviction without the prosecutor's comments. See, e.g., U.S. v. Melendez, 57 F.3d 238, 241 (2d Cir.1995); Bentley v. Scully, 41 F.3d 818, 824 (2d Cir.1994); Floyd v. Meachum, 907 F.2d 347, 355 (2d Cir.1990). Standing alone, inappropriate prosecutorial comments are insufficient to overturn a conviction. Duran, 322 F.Supp.2d at 259 (citing Young, 470 U.S. at 11, 105 S.Ct. 1038).
Petitioner's allegations of prosecutorial misconduct during summation focus on the prosecutor's attempt to rehabilitate the credibility of the victim, Norman Kennerly, and Police Officer Robert Glenn. The prosecutor argued in his closing that, because Kennerly was on parole, Kennerly's reporting of the altercation with petitioner to the police bolstered his credibility since involving the authorities runs contrary to the expected behavior of a parolee. As to Officer Glenn, petitioner alleges that the prosecutor improperly argued during summation that Glenn's admitting to a "rookie mistake" in not properly vouchering all of the weapons recovered meant that "he [was] a credible and believable witness" because he "was willing to acknowledge his own error on the stand." The trial court sustained objections to these remarks.
Viewing the prosecutor's comments in the totality of the circumstances, nothing in the Appellate Division's decision was either contrary to, or an unreasonable application of, federal law. First, the prosecutor's remarks were responsive to defense counsel's closing argument. Petitioner's counsel devoted a large portion of his summation to attacking Kennerly and Officer Glenn's credibility. The Supreme Court has held that "if the prosecutor's remarks were `invited,' and did no more than respond substantially in order to `right the scale,' such comments [do] not warrant reversing a conviction." Young, 470 U.S. at 12-13, 105 S.Ct. 1038. Such is the case here.
Second, even if the comments were objectionable, this Court cannot conclude that the prosecutor's remarks "so infected *109 the trial with unfairness as to make the resulting conviction a denial of due process," Donnelly, 416 U.S. at 647, 94 S.Ct. 1868, or that the Appellate Division unreasonably applied or acted contrary to federal law in so concluding. Comparatively speaking, the severity of the prosecutor's misconduct, if indeed it was misconduct, was minimal. Compare Melendez, 57 F.3d at 242 (concluding that the prosecutor's statement that the judge "knows [the government's witness] is telling the truth" was "highly improper"). In addition, the specific testimony of the victim and arresting officer was sufficiently compelling to justify the jury's verdict notwithstanding the prosecutor's allegedly improper remarks. Finally, the jury's acquittal of petitioner on the most serious charges of Attempted Robbery in the First and Second Degrees also supports the conclusion that the jury was not influenced by any of the prosecutor's allegedly improper remarks. See Young, 470 U.S. at 17 n. 15, 105 S.Ct. 1038 (noting that the jury's acquittal of the defendant on the most serious charge "reinforces [the] conclusion that the prosecutor's remarks did not undermine the jury's ability to view the evidence independently and fairly.")
Sixth Amendment "Fair Trial" Claim
Petitioner contends he was denied his Sixth Amendment right to a fair trial based on the trial court's determination that the jury rendered a repugnant verdict and its attempts to correct that verdict. Petitioner argues that the jury's verdict was not repugnant, and that the court's attempts to correct the verdict lead to confusion among the jurors.
Petitioner's claims fail because they were never presented to the state courts on direct appeal. See 28 U.S.C. § 2254(b) ("An application for a writ of habeas corpus ... shall not be granted unless it appears that ... the applicant has exhausted the remedies available in the courts of the State."); Morgan v. Jackson, 869 F.2d 682, 684 (2d Cir.1989) ("[P]rior to seeking federal relief for his state court conviction, the petitioner must have given the state courts a fair opportunity to pass upon his federal claim.") In order to properly preserve this issue for review, petitioner must have fairly presented the issue to the highest state court empowered to hear it. Daye v. Attorney General of New York, 696 F.2d 186, 190 (2d Cir.1982) (en banc). Under New York law, only a reviewing court on direct appeal is empowered to review issues contained within the trial record. People v. Harris, 109 A.D.2d 351, 353, 491 N.Y.S.2d 678 (2d Dep't.1985) (noting that N.Y. CRIM. PROC. LAW § 440, which codified the common-law writ of error coram nobis, is "designed to inform a court of facts not reflected in the record and not known at the time of judgment ... [and] cannot be used as a vehicle for a second appeal or as a substitute for direct appeal....") (citations omitted). Petitioner's claims regarding the repugnancy of the jury's verdict and the Court's corrective instructions are clearly contained within the trial record. Petitioner's failure to present these issues on direct appeal precludes their review here. The fact that these issues were presented in petitioner's coram nobis petition is irrelevant, since they were no more cognizable by the coram nobis court then they are here. Id.
Because petitioner has not presented his claims regarding the repugnancy of the jury verdict and the supplemental jury instructions to the highest state court empowered to hear them, these claims ordinarily would be deemed unexhausted. However, in this case, despite petitioner's failure to raise these issues before the state courts, his petition should nevertheless be deemed exhausted because those *110 claims are now procedurally barred from presentation to the state courts. See Grey v. Hoke, 933 F.2d 117, 120 (2d Cir.1991). The Court therefore finds Petitioner's claims exhausted, but procedurally barred.
As previously noted, procedurally barred claims are beyond the scope of federal habeas review unless the petitioner can demonstrate either cause and prejudice or a fundamental miscarriage of justice. With the exception of his claim of ineffective assistance of counsel (see infra) petitioner has not demonstrated cause for the procedural default, and this Court can find none. Additionally, petitioner cannot demonstrate a fundamental miscarriage of justice.
The Court notes that petitioner argued at trial that the verdict was repugnant.[3] Petitioner now argues that the verdict was not repugnant and that the trial court erred in so finding. Petitioner further contends he was denied effective assistance of appellate counsel because of appellate counsel's failure to argue against the verdict's repugnancy, a position contrary to petitioner's position at trial.
It is well-settled that federal habeas relief is unavailable for inconsistent verdicts. U.S. v. Romano, 879 F.2d 1056, 1060 (2d Cir.1989) (citing U.S. v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984)). Because this Court is without power to set aside a state court conviction on the basis of repugnancy, id., it follows logically that this Court is similarly powerless to set aside a state court's erroneous determination that the jury's verdict was in fact repugnant. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.")
Petitioner's allegation that the trial court's supplemental instructions to the jury "confused and mislead the jury as to the elements of the crime" is similarly flawed. In considering this allegation, the Court notes first that petitioner does not allege that the jury charges were legally incorrect or a misstatement of the law. "A trial judge has broad discretion in determining how, and under what circumstances, a charge will be given." Grey v. Henderson, 788 F.Supp. 683, 694 (E.D.N.Y.1991). The trial court responded to the jury's questions by re-reading the elements of the charges. This response has been held constitutionally sound. Id. (upholding, under federal habeas review, the trial judge's repetition of the same language used in the initial charge when asked by the jury for further instructions). Moreover, contrary to petitioner's claim that the jury was confused further, the fact that the jury returned with a verdict that was not repugnant strongly suggests that the supplemental instructions served well their intended function. See Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) (juries presumed to follow the court's instructions).
Petitioner further alleges that the re-submission of these charges to the jury violated his Fifth Amendment rights. Presumably, petitioner refers to a potential double-jeopardy violation. As the court found in People v. Salemmo, "double jeopardy does not attach where the same jury reconsiders its defective or inconsistent verdict." 38 N.Y.2d 357, 379 N.Y.S.2d 809, 813, 342 N.E.2d 579 (1976). To the extent petitioner alleges a double-jeopardy violation based on the trial court's re-submission *111 to the jury of the counts contained in the indictment, such claim is without merit.
Ineffective Assistance of Counsel
Petitioner claims that he was denied his Sixth Amendment right to effective assistance of counsel on appeal because his appellate counsel did not raise the trial court's failure to charge the jury with the lesser included offense of Assault in the Third Degree and the Sixth Amendment issues concerning the repugnant verdict and, instead, raised the unpreserved issue of prosecutorial misconduct.
As noted above, the first step is for this Court to determine if petitioner's claim of ineffective assistance of counsel was "adjudicated on the merits in State court proceedings." 28 U.S.C. § 2254(d). Petitioner concedes that this issue was raised before the Appellate Division in his petition for Writ of Error Coram Nobis. (Pet. at 20). In response, the Appellate Division issued a one sentence opinion ruling that Petitioner "failed to establish that he was denied the effective assistance of appellate counsel." People v. Brunson, 300 A.D.2d 501, 750 N.Y.S.2d 880 (2d. Dep't.2002). The Appellate Division cited Jones v. Barnes, a case in which the U.S. Supreme Court held that appellate counsel is not required to raise every nonfrivolous issue requested by defendant. Id. (citing Jones, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)).
In order to adjudicate a claim on the merits, the Appellate Division "need not mention the argument raised or cite relevant case law or even explain its reasoning process." Eze v. Senkowski, 321 F.3d 110, 121 (2003) (internal quotation marks and citations omitted). For example, in Eze, the Second Circuit found the Appellate Division's holding that "the record does not support the contentions of the defendant that he was denied effective assistance of counsel" to be an adjudication on the merits sufficient to trigger § 2254(d)(1)'s deferential standard of review. Id. at 122; see also Jenkins v. Artuz, 294 F.3d 284, 291 (2002) (concluding that the words "without merit" constituted an adjudication on the merits); Sellan, 261 F.3d at 314 (concluding that the statement that the "ineffective assistance of counsel claim was denied" constituted an adjudication on the merits). The Appellate Division's citation to Jones v. Barnes, a relevant, if not controlling, case, further supports the conclusion that petitioner's claim was decided on the merits. See Larrea v. Bennett, 368 F.3d 179, 183 (2d Cir.2004) (Appellate Division's citation to a case in which ineffective assistance claim was rejected on the merits indicated that petitioner's claim was also rejected on the merits). In light of these precedents, it is clear that the Appellate Division's statement that petitioner "failed to establish that he was denied the effective assistance of appellate counsel" constitutes an adjudication "on the merits." Furthermore, this adjudication has plainly been reduced to a judgment.
"[W]hen a state court fails to articulate the rationale underlying its rejection of a petitioner's claim, and when that rejection is on the merits, the federal court will focus its review on whether the state court's decision was an `unreasonable application' of clearly established Supreme Court precedent." Sellan, 261 F.3d at 311-12. The applicable Supreme Court precedent here is Strickland v. Washington, 466 U.S. 668, 690-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which sets forth the standard for ineffective assistance of counsel.
To prevail under Strickland, a defendant must show that counsel's representation `fell below an objective standard of reasonableness' *112 based on `prevailing professional norms' and that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' The Strickland Court defined a `reasonable probability' as `a probability sufficient to undermine confidence in the outcome.'
Eze, 321 F.3d at 123 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). This standard applies to both trial and appellate counsel. Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). The only question for this Court is whether the Appellate Division unreasonably applied the Strickland standard in determining that petitioner was not denied effective assistance of appellate counsel based on appellate counsel's failure to raise the trial court's decision not to charge the jury with the lesser included offense of assault in the third degree[4] and the trial court's finding of repugnancy and corrective jury instructions.
"Strategic choices," such as deciding which issues to raise on appeal, "made after thorough investigation of the law and facts ... are virtually unchallengeable." Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. "[T]he decision of appellate counsel to raise a claim on appeal that may reasonably be considered stronger than those asserted by the petitioner in a habeas petition is usually a well-reasoned tactical decision[ and] does not constitute ineffective assistance of counsel." Wood, 39 F.Supp.2d at 216 (citing cases).
An examination of the circumstances attendant to appellate counsel's decision reveals its prudence. Under New York law, upon a party's request, the trial court may submit the lesser included offense of assault in the third degree only if a "reasonable view of the evidence" would support a finding that petitioner committed the lesser offense, but not the greater. N.Y. CRIM. PROC. LAW § 300.50. Thus, in deciding to raise this issue before the Appellate Division, appellate counsel first would have to decide if a reasonable view of the evidence would support a finding that petitioner committed Assault in the Third Degree but not Assault in the Second Degree.
In New York, "a person is guilty of assault in the second degree when: ... with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument...." N.Y. PENAL LAW § 120.05(2). "A person is guilty of assault in the third degree when: ... with intent to cause physical injury to another person, he causes such injury to such person or to a third person...." N.Y. PENAL LAW § 120.00(1). Thus, for purposes of this case, the difference between assault in the second degree and assault in the third degree is the use of a "deadly weapon or dangerous instrument."
Petitioner's theory at trial was that his friend, Rodriguez, produced the boxcutter without petitioner's knowledge and slashed Norman Kennerly's face after Norman and Kelvin Kennerly attacked petitioner. Thus, petitioner's trial strategy was to concede that Norman Kennerly's face was in fact slashed with a boxcutter, but that Rodriguez alone, and not petitioner, did so in defense of petitioner and without petitioner's knowledge. This strategy effectively precluded a charge of assault in the third degree because petitioner was also charged with "acting in concert" as defined *113 by N.Y. PENAL LAW § 20.00.[5] If the jury credited petitioner's testimony that he did not use the boxcutter and had no knowledge of it, the "acting in concert" charge nevertheless imputes to petitioner Rodriguez's use of the boxcutter so long as petitioner intended to assault Kennerly together with Rodriguez. People v. Gage, 259 A.D.2d 837, 687 N.Y.S.2d 202, 204 (3d Dep't.1999) ("[S]trict liability for an aggravating circumstance attaches to an accomplice, regardless of the latter's degree of intent, knowledge or conduct with respect to the aggravating circumstance....") (internal citations omitted). Therefore, the jury's only options were to conclude either that: (1) petitioner did not intend to assault Kennerly a finding the jury obviously rejected; or (2) petitioner did intend to assault Kennerly and that either petitioner or Rodriguez used the boxcutter. Since liability for use of the boxcutter is strict with respect to those "acting in concert," it makes no difference whether the jury concluded that Rodriguez or petitioner used the boxcutter, so long as the requisite level of intent for the underlying assault was met. In short, the jury could have either convicted petitioner of assault in the second degree or acquitted him entirely. The jury chose the former.
In light of the foregoing, there was no way for the jury to "reject a portion of the prosecution's case which is indispensable to establishment of the higher crime and yet accept so much of the proof as would establish the lesser crime." People v. Scarborough, 49 N.Y.2d 364, 369-70, 426 N.Y.S.2d 224, 402 N.E.2d 1127 (1980). As a result, there is no reasonable view of the evidence that would have supported the conclusion that petitioner intended to assault Norman Kennerly without a "deadly weapon or dangerous instrument," given the undisputed fact that Norman Kennerly's face was slashed by somebody during the incident.[6] Since the trial court committed no error, appellate counsel's decision not to argue that the trial court should have charged the jury on the lesser included offense of Assault in the Third Degree cannot have fallen "`below an objective standard of reasonableness' based on `prevailing professional norms.'" Eze, 321 F.3d at 123 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).
Petitioner's final argument is that appellate counsel erred in failing to challenge the trial court's determination that the verdict was repugnant and the trial court's supplemental jury instructions designed to cure the repugnancy. The most obvious answer to the question of why appellate counsel declined to press this argument is that it would have been deemed waived by the Appellate Division when petitioner argued in favor of the verdict's repugnancy at trial. Appellate counsel's decision was therefore not simply not ineffective, but prudent, as the raising of this frivolous argument may well have distracted from other, more meritorious issues urged by appellate counsel. See Jones, 463 U.S. at 752, 103 S.Ct. 3308 (quoting Jackson, Advocacy Before the Supreme Court, 25 TEMPLE L.Q. 115, 119 (1951)) ("`One of the first tests of a discriminating *114 advocate is to select the question, or questions, that he will present orally. Legal contentions, like the currency, depreciate through over-issue....'"). Accordingly, the petition is denied on this ground as well.
Conclusion
For the foregoing reasons, the petition for a writ of habeas corpus is denied. The Clerk of the Court is directed to serve a copy of this Order by forwarding a copy hereof to all parties. The Clerk of the Court is further directed to enter judgment accordingly and to close this case.
SO ORDERED.
NOTES
[1] Under New York law, a repugnant verdict is one that is "inherently self-contradictory." People v. Trappier, 87 N.Y.2d 55, 637 N.Y.S.2d 352, 660 N.E.2d 1131, (1995) (internal citations omitted). In other words, a New York court may set aside a verdict as repugnant "where the defendant is convicted on an offense containing an essential element that the jury has found the defendant did not commit." Id. (internal citation omitted).
[2] The first note asked the Court to "clarify count six [third degree weapons possession] and please explain intent in plain language." The second note asked the Court to "clarify the difference between count three [fourth degree weapons possession] and count six."
[3] Petitioner has never alleged that trial counsel erred by arguing in favor of the verdict's repugnancy.
[4] Trial counsel requested that the court submit to the jury the lesser included offense of Assault in the Third Degree. Accordingly, this issue was appropriately preserved for appellate review.
[5] N.Y. PENAL LAW § 20.00 provides: "When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct."
[6] Petitioner testified that, during the fight, he saw neither the boxcutter nor the slashing. As a result, petitioner's trial counsel realistically could not have argued that one of the Kennerlys produced the boxcutter and was somehow injured with his own weapon. Norman Kennerly testified that both petitioner and Rodriguez cut him with boxcutters.
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409 P.2d 130 (1965)
75 N.M. 611
Donato LOVATO, Plaintiff-Appellant,
v.
Leslie HICKS, Defendant-Appellee.
No. 7775.
Supreme Court of New Mexico.
December 20, 1965.
Melvin L. Robins, Albuquerque, for appellant.
McAtee, Toulouse, Marchiondo, Ruud & Gallagher, James E. Casados, Albuquerque, for appellee.
COMPTON, Justice.
The plaintiff appeals from an order of the district court dismissing his complaint with prejudice under § 21-1-1(41) (e), N.M.S.A. 1953. The pertinent provisions of the rule read:
"(1) In any civil action or proceeding pending in any district court in this state, when it shall be made to appear to the court that the plaintiff therein or any defendant filing a cross-complaint therein has failed to take any action to bring such action or proceeding to its final determination for a period of at least two years after the filing of said action or proceeding or of such cross-complaint unless a written stipulation signed by all parties to said action or proceeding has been filed suspending or postponing final action therein beyond two years, any party to such action or proceeding may have the same dismissed with prejudice to the prosecution of any other or further action or proceeding based on the same cause of action set up in the complaint or cross-complaint by filing in such pending action or proceeding a written motion moving the dismissal thereof with prejudice."
We find no error in the ruling of the court. The court record discloses the following facts. The complaint was filed March 3, 1961; the defendant entered his appearance March 27, 1961; plaintiff's demand for a jury was filed April 24, 1961; defendant's motion to dismiss with prejudice under Rule 41(e) was filed July 16, 1964; the order granting the motion was filed August 17, 1964. Admittedly, there was no written stipulation signed by the parties and filed in the case suspending or *131 postponing final action in the case beyond two years.
However, on August 31, 1962, appellant wrote a letter to the trial court requesting an early hearing of the case. The court responded thereto on September 9, 1962, advising the plaintiff that an early hearing could not be afforded him. Plaintiff's letter and a copy of the reply were mailed by the court to the clerk of the court and placed in the file for future references.
Appellant asserts that the correspondence between the court and counsel was sufficient to withstand the motion to dismiss under Rule 41(e). We disagree; this correspondence was not a part of the court record. A like contention was made in Sarikey v. Sandoval, 75 N.M. 271, 404 P.2d 108, and on authority of that case we conclude that the order of the court should be affirmed.
It is so ordered.
CARMODY, C.J., and CHAVEZ, J., concur.
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