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45 So.3d 627 (2010)
Glenn CATTLES
v.
ALLSTATE INSURANCE COMPANY, et al.
No. 2009-CA-1576.
Court of Appeal of Louisiana, Fourth Circuit.
August 4, 2010.
Rehearing Denied September 15, 2010.
*628 Joel Waltzer, Waltzer & Associates, Harvey, LA, for Plaintiff/Appellee, Glenn Cattles.
John I. Hulse IV, John A. Stewart, Stuart G. Richeson, Hulse & Wanek, APLC, New Orleans, LA, for Defendant/Appellant, Allstate Insurance Company.
(Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN,)
DAVID S. GORBATY, Judge.
Allstate Insurance Company appeals a judgment notwithstanding the verdict rendered against it in favor of Glenn Cattles. For the following reasons, we reverse.
PROCEDURAL HISTORY:
Glenn Cattles was involved in a vehicular accident on October 21, 1999. Mr. Cattles, an employee of Brown's Dairy, was riding in a milk delivery truck to supervise the delivery of milk to Orleans Parish Schools. The driver of the truck was an independent contractor of Brown's Dairy, and maintained his own insurance. As the milk truck proceeded through a controlled intersection, a driver on the cross street ran the red light and was broad-sided by the milk truck. Mr. Cattles complained to the milk truck driver that he was hurt[1], but left the scene with *629 another Brown's Dairy employee and returned to work. He did not seek medical attention for his injuries.
Mr. Cattles settled with GEICO Insurance Company, the insurer of the offending vehicle's driver. He filed suit against Allstate, the insurer of the milk truck driver, for uninsured/underinsured coverage.
Following a jury trial, a verdict was rendered awarding Mr. Cattles past medical expenses only; there was no award of general damages. Both sides filed motions for judgment notwithstanding the verdict. The trial court denied Allstate's motion, but granted plaintiff's motion, awarding $50,000 in general damages, minus a credit for payments already received by Mr. Cattles.
Allstate has filed this appeal seeking a reversal of the JNOV, and a reduction of the medical expense award made by the jury.
FACTS:
The incident sued upon occurred on October 21, 1999. Mr. Cattles did not seek medical attention for knee problems until December 13, 1999. At that time, he saw Dr. McSween, a family practitioner, who testified at trial that Mr. Cattles gave a history of his right knee popping as he squatted two days before the visit. Mr. Cattles did not tell Dr. McSween about the subject accident. Dr. McSween testified that he would have noted a history of an automobile accident because of potential litigation, but his chart did not so reflect. Upon medical examination, Dr. McSween noted moderate swelling and tenderness of the medial collateral ligament. Dr. McSween testified that if Mr. Cattles' knee had been dislocated, it would have shown on the x-ray. The doctor diagnosed a sprained medial collateral ligament, and prescribed an anti-inflammatory, pain medication, application of ice and use of a knee brace to immobilize the knee. Mr. Cattles returned on December 27, 1999, with continued complaints of pain. His knee was still tender. He reported that he was not wearing the prescribed knee brace. Dr. McSween told him to continue the same treatment. Mr. Cattles did not see Dr. McSween again for knee problems. On cross-examination, Dr. McSween testified that in his medical opinion, Mr. Cattles did not have a dislocated knee.
Maria Cattles testified that following the October 21 accident, she continually asked her husband to seek medical attention. She said he finally saw Dr. McSween in December of 1999 because of problems related to the October 21 accident. Mrs. Cattles told the jury about an incident in August of 2000, when she, her husband, their son, and a friend had to cram into the backseat of a taxi in Paris. Mr. Cattles complained that his knee was being "crushed." She testified that she did not know that her husband was taken to the hospital following a May 2000 accident, in which he crashed her car into a porch going 25 miles per hour.[2] In fact, she did not know that her husband had been treating with a doctor for his knee since the May 2000 accident. She testified that because of his knee problems, her husband does not use his boat or walk for exercise anymore.
Mr. Cattles testified that he did not seek medical treatment for the subject accident because he thought the pain would subside. He did not fill out any type of injury report with his employer Brown's Dairy. He did not use the knee brace or take the pain medication prescribed by Dr. *630 McSween because it impaired his ability to drive and his general mobility. When he saw Dr. McSween in December 1999, he did not give a history of the October 21 accident because he had no intention of filing suit. He only told Dr. McSween that he injured his knee while squatting two days earlier.
Despite the doctor's notes contained in the emergency room and the x-rays taken following the May 2000 accident, Mr. Cattles denied that he complained of knee pain at the hospital. He insisted that the EMT told the emergency room doctor about a complaint of knee pain; he only complained of neck and back pain. However, he did admit that the doctor "played with" his joints, popping his knee in and out. He also admitted that the doctor wrapped his knee with a support bandage. According to Mr. Cattles, the report of "contusion to right knee" in the discharge notes referred to a bruise still present from the October 1999 accident.
Dr. John Watermeier, a board certified orthopedic, testified for the plaintiff. Some of his testimony was from notes taken by Dr. Manale, who had initially treated Mr. Cattles, but retired sometime during the treatment. Dr. Watermeier assumed plaintiff's care, and performed the knee surgery of September 12, 2002.
At plaintiff's first visit, February 22, 2000, Dr. Manale noted a history of a vehicular accident in October 1999. An MRI taken on March 29, 2000, did not indicate a dislocated patella, but did reveal chondromalacia and a small effusion. Dr. Watermeier testified that chondromalacia, a degenerative condition, would have been present prior to the October 1999 accident. Notwithstanding the negative MRI result, Dr. Manale's initial diagnosis of Mr. Cattles knee complaints was a recurrent dislocated patella.
Mr. Cattles' next visit was on May 30, 2000. Dr. Manale again diagnosed a dislocation of the patella. Dr. Watermeier explained that the MRI does not show an actual dislocation; rather, it would show soft tissue injury as a result of a dislocation. Dr. Watermeier stated that he would have diagnosed a chronic recurrent dislocation, a condition that does not automatically warrant surgery. Physical therapy would be indicated to restore ligament stability and tightening of the muscles that support the knee. Records indicate that Mr. Cattles was referred to physical therapy by Dr. Manale, and that he attended six sessions in the spring of 2000.
Dr. Watermeier testified that the next visit was March 12, 2002. Mr. Cattles gave a history of the May 2000 accident. He told the doctor that he had hit his knee. Mr. Cattles complained that his knee would pop and click and sometimes give way, which Dr. Watermeier explained were subjective complaints. The doctor did not know if these complaints were caused by the May 2000 accident, or if the May 2000 accident exacerbated a previous injury.
At a March 15, 2002, visit, the examination revealed mild crepitation, which the doctor explained felt like sandpaper rubbing when he manipulated the knee joint. On July 16, Dr. Watermeier diagnosed internal knee derangement (IKD), which he described as unidentifiable symptoms and abnormalities. Normally, injuries associated with IKD would show up on an MRI, but were not indicated on Mr. Cattles' MRI. Nonetheless, Dr. Watermeier recommended surgery. On September 2, 2002, Mr. Cattles was cleared for surgery, which was performed on September 12, 2002.
Dr. Watermeier testified that the arthroscopic examination revealed a mild degree of synovitis (inflammation of the lining of the joint), mild chondromalacia (a *631 degenerative condition marked by softening of the cartilage), and evidence of subluxation syndrome (a condition which allows the patella to leave its normal track and dislocate). The doctor explained that this condition can only be observed arthroscopically; it would not be revealed on an x-ray or MRI. He noted a large plica (rubber band-like tissue inside the knee that with injury can become painful), and repaired a torn medial meniscus. On cross-examination, he opined "... based on the fact that the MRI [of March 2000] did not show a meniscus tear until it's noted after his May 2000 accident, then I would say that's probably correct, that the May 2000 accident was the cause of the medial meniscus tear." Dr. Watermeier stated that he could not say with certainty that the October 21, 1999 accident caused the meniscus tear, especially in light of the negative March 2000 MRI and the May 2000 automobile accident. However, it was his opinion that the October 1999 accident aggravated the chondromalacia, which was debrided during the surgery.
The post-operative examination revealed full mobility of the knee, with ligament stability. Dr. Watermeier assigned a five percent disability to Mr. Cattles' right knee.
STANDARD OF REVIEW:
A motion for judgment notwithstanding the verdict (JNOV) is defined by La.Code Civ. Proc. art. 1811. The article allows for JNOV on the issue of liability or damages, or both. Jurisprudence limits the application of the JNOV doctrine to cases where the jury's verdict is absolutely unsupported by any competent evidence. Sciambra v. Jerome Imports, Inc., 05-0260, p. 5 (La.App. 4 Cir. 12/14/05), 921 So.2d 145, 149; Boudreaux v. Schwegmann Giant Supermarkets, 585 So.2d 583, 586 (La.App. 4 Cir.1991). A JNOV is warranted when the facts and circumstances point so strongly and overwhelmingly in favor of one party that the court believes that reasonable persons could not arrive at a contrary verdict, not merely when the trial court finds that there is a preponderance of the evidence in favor of the mover. Where there is evidence opposed to the motion of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions, the motion should be denied. Anderson v. New Orleans Public Service, Inc., 583 So.2d 829, 832 (La.1991); Sciambra, supra. When deciding a JNOV, the trial court should not evaluate the credibility of witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. Id.
In reviewing a JNOV on appeal, a two-part inquiry is necessary. First, the appellate court must determine if the trial court erred in granting the JNOV. The appellate court uses the same criteria as the trial court in deciding whether or not to grant the motion, i.e., do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict? If the answer to that question is in the affirmative, then the trial court was correct in granting the motion. If, however, reasonable persons exercising impartial judgment could reach a different conclusion, then it is error to grant the motion and the jury's verdict should be reinstated. Torrejon v. Mobil Oil Co., 03-1426, p. 10 (La.App. 4 Cir. 6/2/04), 876 So.2d 877, 885. Second, "[a]fter determining that the trial court correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV using the manifest error standard of review." Torrejon, supra, citing Martin v. Heritage Manor South Nursing Home, 00-0123, at p. 6, at n. 7, (La.4/3/01), 784 So.2d at 632.
*632 DISCUSSION:
According to jurisprudence, we must first examine whether the trial court erred in granting plaintiff's JNOV.
The jury was asked: "Did the automobile accident of October 21, 1999 cause any injuries to plaintiff, Glenn Cattles?" It answered in the affirmative. Next, the jury was asked: "What amount, in dollars and cents will fully and fairly compensate Glenn Cattles for injuries caused by the accident of October 21, 1999?" The jury awarded nothing for pain and suffering, and $31,270.73 for past medical expenses. These expenses were the total amount of medicals presented at trial.
In granting Mr. Cattles' JNOV, the judge opined that "reasonable persons could not reach the conclusion that Mr. Cattles did not sustain a knee injury which was not caused by the subject accident."
Allstate cites to numerous cases in which our courts have determined that it is not error for a jury to award medical expenses, without awarding general damages. The preeminent case cited is Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70, in which the Supreme Court reconciled conflicting decisions among the circuits. Ultimately, the Supreme Court decided:
While at first glance these two lines of cases[3] appear to be contradictory, close scrutiny of the court's rationale in each of the cases reveals that the particular facts of each case are ultimately determinative. There is no question that the rationale of the Robinson line of cases relied upon by the court below has been employed by the courts of appeal in any instances. And we do not dispute that, as a general proposition, a jury verdict such as the one currently before us may be illogical or inconsistent. However, as demonstrated by the Coleman and Olivier cases, a jury in the exercise of its discretion as factfinder, can reasonably reach the conclusion that a plaintiff has proven his entitlement to recovery of certain medical costs, yet failed to prove that he endured compensable pain and suffering as a result of defendant's fault. It may often be the case that such a verdict may not withstand review under the abuse of discretion standard. However, it would be inconsistent with the great deference afforded the factfinder by this court and our jurisprudence to state that, as a matter of law, such a verdict must always be erroneous. Rather, a reviewing court faced with a verdict such as the one before us must ask whether the jury's determination that plaintiff is entitled to certain medical expenses but not to general damages is so inconsistent as to constitute an abuse of discretion. Only after the reviewing court determines that the factfinder has abused its much discretion can that court conduct a de novo review of the record.
* * *
In this case, the jury apparently did not believe that pain and suffering, for example, or missed work, resulted from the injury which [defendant] caused. It did believe that medical and incidental expenses were incurred as a result of the injury, and it awarded damages for those claims. The jury made its determinations, and it is not for this court, *633 absent evidence of unfairness, mistake, partiality, prejudice, corruption, exorbitance, excessiveness, or a result that is offensive to the conscience and judgment of the court, to disturb them.
Wainwright, 00-0492, pp. 8-9, 774 So.2d at 76-77.
Applying the first part of two-part inquiry for review of a JNOV, we find the trial court erred in granting plaintiff's motion. Our review of the record reveals no facts or inferences that point so strongly in favor of Mr. Cattles that the reasonable persons of the jury could not have found as they did.
Mr. Cattles testified that he did not seek medical help after the October 21, 1999 accident, until December 1999, because he believed his discomfort following the subject accident would resolve itself. He saw Dr. McSween in December 1999, relating a squatting accident two days earlier. Dr. McSween had no knowledge of the subject accident. Mr. Cattles first saw Dr. Manale in February 2000, and gave a history of the October 21, 1999 accident. His symptoms were subjective and a subsequent MRI was negative for soft tissue damage. In May 2000, Mr. Cattles was involved in a second automobile accident, which resulted in emergency room treatment, including the wrapping of his knee. Mr. Cattles' wife testified about a European vacation in August 2000, during which her husband experienced pain after being "crammed" into the back seat of a taxi.
It was not until July 2002 that Dr. Watermeier recommended surgery, which was performed in September. During the entire time between the October 1999 accident and the September 2002 surgery, Mr. Cattles did not miss any work, other than for vacation. His wife testified that he no longer used his boat or walked for exercise, but there is no evidence that he was medically precluded from any physical activity because of his knee.
Accordingly, we find that Mr. Cattles' surgery was precipitated by an unrelated accident, and that the subject accident only aggravated a pre-existing condition, which Dr. Watermeier testified would not warrant surgery on its own.
Additionally, we note that the original judgment rendered upon the jury verdict ordered that Allstate be given a $10,000 credit for payment from the tortfeasor's insurer. That amount is imputable to general damages.
We therefore reverse the granting of the JNOV, and reinstate the jury's verdict.
REVERSED.
BAGNERIS, J., Dissents.
LOVE, J., Dissents and Assigns Reasons.
BAGNERIS, J., Dissents.
I respectfully dissent for the reasons assigned by J. Love.
LOVE, J., Dissents and Assigns Reasons.
I respectfully dissent from the majority's opinion, in that I find the facts of Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70, distinguishable from the present case and would affirm. Wainwright established that a factfinder may properly find a defendant legally at fault for a plaintiff's injuries and award medical expenses without awarding general damages under the specific facts and circumstances of the case. Wainwright, 00-0492, p. 11, 774 So.2d at 78. In Wainwright, the jury partially awarded medical expenses, but did not award general damages for three days of an incorrect dosage of Prozac and an overnight hospital stay *634 for observational purposes. Id., 00-0492, pp. 2-4, 774 So.2d at 72-73.
However, in the present case, the jury heard all of the testimony and found that the 1999 accident caused injuries to Mr. Cattles. The jury then awarded the total amount of Mr. Cattles' medical expenses presented at trial, which included the cost of surgery. Pain and suffering is inherent with surgery and/or the possibility that the 1999 accident "exacerbated plaintiff's right knee injury," as stated by the trial court judge. Mr. Cattles testified regarding his knee pain and subsequent surgery over two years after the 1999 accident. Once the jury factually determined that the 1999 accident caused injury to Mr. Cattles and awarded full medical damages, the jury's verdict became inconsistent without any award for general damages.
The majority makes a factual finding that "Mr. Cattles' surgery was precipitated by an unrelated accident, and that the subject accident only aggravated a pre-existing condition." The trial court's reasons for judgment state: "Because this accident may have exacerbated plaintiff's right knee injury, the Court awards $50,000 in general damages." I find that the trial court awarded damages for Mr. Cattles' general pain and suffering, as opposed to the majority's apparent holding that "only" aggravating a pre-existing condition does not warrant general damages. The trial court reviewed the record and found that reasonable persons could not conclude that Mr. Cattles did not have pain and suffering, even if "only" from an aggravated pre-existing condition. Therefore, I do not find that the trial court erred by granting the JNOV and would affirm.
NOTES
[1] The milk truck driver was not called by either party to testify at trial, although it was stipulated that he made the statement in a deposition.
[2] Contrary to her testimony, evidence was introduced indicating that Mrs. Cattles had actually signed the medical release form at the hospital following her husband's May 2000 accident.
[3] Robinson v. General Motors Corp., 328 So.2d 751 (La.App. 4 Cir. 1976), Bienvenu v. State Farm Mut. Auto. Ins. Co., 545 So.2d 581 (La. App. 5 Cir. 1989), and, Charles v. Cecil Chatman Plumbing & Heating Co., 96-299 (La. App. 3 Cir. 10/23/96), 686 So.2d 43, contra Coleman v. U.S. Fire Ins. Co., 571 So.2d 213 (La.App. 3 Cir. 1990), Olivier v. Sears Roebuck & Co., 499 So.2d 1058 (La.App. 3 Cir. 1986).
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980 So.2d 517 (2007)
Daniel TREVINO, Appellant,
v.
STATE of Florida, Appellee.
No. 2D06-5596.
District Court of Appeal of Florida, Second District.
October 10, 2007.
*518 Kevin T. Beck of Cohen, Jayson & Foster, P.A., Tampa, for Appellant.
CASANUEVA, Judge.
Daniel Trevino appeals from the summary denial of his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Mr. Trevino's motion raised several claims, two of which related to prosecutorial misconduct and counsel's failure to object to improper comment in closing argument. We affirm the summary denial of those claims without comment. However, we reverse and remand for an evidentiary hearing on two of Mr. Trevino's facially sufficient claims that are not conclusively refuted by the attachments to the postconviction court's order. "First, Mr. Trevino alleged that his counsel was ineffective for failing to photograph his physical injuries. The photographs would have constituted documentary evidence that would have bolstered his only defense: self-defense." Second, because Mr. Trevino's counsel was a witness to those injuries shortly after they were inflicted, he should have advised his client to obtain a new lawyer so that he could provide exculpatory testimony at trial.
After a jury trial on a charge of attempted first-degree murder, Mr. Trevino was convicted of attempted second-degree murder with a deadly weapon (a knife) and was sentenced to thirty years in prison. After his direct appeal was affirmed, he filed a timely motion for postconviction relief seeking vacation of his judgment and sentence and remand for a new trial.
The crime with which Mr. Trevino was charged arose out of a sexual assignation. *519 Mr. Trevino met the victim, Ms. Hollon, at a bar one evening. They agreed to go to Ms. Hollon's home, where they had sex in her bedroom. Ms. Hollon stated that Mr. Trevino asked her for her phone number and while she was writing it down, he cut her throat with a knife. When she got up, he started stabbing at her. She ran down the hallway to escape, but the door would not open. Eventually, however, she opened the door and ran out.
Mr. Trevino presented a significantly different version of events. He stated that after having sex with Ms. Hollon, he got up, got dressed, told her that he did not want her phone number, and attempted to leave. Ms. Hollon, a transgendered woman several inches taller than Mr. Trevino who outweighed him by fifty pounds, straddled him and pinned him to the bed. He shoved her off of him and stood up. She then tried to block his exit. Mr. Trevino, believing that she had gone crazy and fearing for his life, pulled a knife from his pocket and began flailing it in her direction. He got out of the bedroom, left Ms. Hollon's home, went to his own home, and fell asleep.
At trial, Mr. Trevino attempted to demonstrate that he acted in self-defense. In his postconviction motion, he claims that he was severely hampered in convincing the jury of his position because of his trial counsel's actions. Specifically, Mr. Trevino alleges that on the day after the incident, Mr. Trevino was visited by law enforcement officers who questioned him about Ms. Hollon. He then went to counsel's office seeking representation. While in his attorney's office, Mr. Trevino showed his trial counsel the bruises and injuries he sustained during the struggle the previous evening. However, trial counsel failed to have any photographs taken to document the extent of the injuries. Instead, nine days later, trial counsel's investigator visited Mr. Trevino and took photographs of injuries that were no longer fresh. The bruises had started to heal and did not reflect the severity of his injuries. This omission, Mr. Trevino claims, severely prejudiced the effectiveness of his self-defense claim and led to a conviction rather than a not guilty verdict.
To compound the problem, Mr. Trevino alleges, his trial counsel specifically told Mr. Trevino not to discuss his injuries or any aspect of the altercation unless he was present. In addition, counsel failed to inform Mr. Trevino that he was an exculpatory witness who could testify in his behalf at trial, provided that Mr. Trevino obtained new trial counsel.
The postconviction court summarily denied Mr. Trevino's claims concerning his injuries based on the State's response that evidence of the injuries would not have been admissible. The State explained that trial counsel, with Mr. Trevino's consent, entered a stipulation with the State at trial to exclude all information concerning the defendant's alleged injuries because the State was prepared to present a rebuttal witness should his injuries be mentioned. As evidence of Mr. Trevino's injuries was inadmissible, Mr. Trevino could not be deemed to have been prejudiced by counsel's failure to produce such evidence.
On appeal, Mr. Trevino's appellate counsel persuasively argues that the postconviction court erred in denying the motion based on alleged lack of admissibility of photographs or discussion about the injuries. Absent the stipulation, the photographs would have been admissible as relevant evidence tending to prove a material issue Mr. Trevino's claim of self-defense. See Waggoner v. State, 800 So.2d 684 (Fla. 5th DCA 2001). The State's potential rebuttal evidence consisted of the testimony of the nurse at the Hillsborough County Jail who allegedly would state that *520 Mr. Trevino did not advise her that the injuries she saw when he was admitted were the result of Ms. Hollon's assault upon him. Mr. Trevino's failure to explain the source of his injuries to the jail nurse was the direct result of his counsel's advice not to talk about his injuries unless he was present. Thus, trial counsel's failure to take the initial photographs, together with the advice he gave his client not to discuss the injuries, set Mr. Trevino's self-defense claim up for failure. If trial counsel had adequately documented the injuries, he could have potentially avoided any impeachment of his client through the testimony of the jail nurse; the stipulation would not have been necessary; and the photographs would have been admissible.
Rather than having the ability to focus upon the injuries he sustained in self-defense, Mr. Trevino was forced to observe the prosecution make the victim's injuries a feature of the trial. Mr. Trevino claims that the missing photographic evidence and testimony of his counsel who witnessed the injuries while they were fresh would have bolstered other exculpatory evidence presented at trial, such as the location of the bloodstains.
To state a facially sufficient claim of ineffective assistance of counsel, a defendant must demonstrate that a specific omission of counsel was "a substantial and serious deficiency measurably below that of competent counsel." Knight v. State, 394 So.2d 997, 1001 (Fla.1981). In addition, the defendant must demonstrate that but for "counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Trial counsel's failure to investigate witnesses or physical evidence that could cast doubt on the defendant's guilt can constitute deficient performance. Id. at 691, 104 S.Ct. 2052.
"`[W]here no evidentiary hearing is held below, we must accept the defendant's factual allegations to the extent they are not refuted by the record.'" Foster v. State, 810 So.2d 910, 914 (Fla.2002) (quoting Peede v. State, 748 So.2d 253, 257 (Fla.1999)). Here, Mr. Trevino's allegations that his trial counsel's substantial omissions negated his self-defense claim and deprived him of a fair trial are facially sufficient. Because the record does not conclusively demonstrate that Mr. Trevino is entitled to no relief, we reverse and remand for an evidentiary hearing. See McLin v. State, 827 So.2d 948, 954 (Fla. 2002).
Reversed and remanded for an evidentiary hearing.
SILBERMAN and VILLANTI, JJ., Concur.
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19 B.R. 130 (1981)
FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff,
v.
J. Lofton WESTMORELAND, Trustee for Pat A. Schipani, et al. Defendant.
No. 80-9083.
United States Bankruptcy Court, N.D. Florida, Pensacola Division.
August 4, 1981.
*131 John P. Kuder, Pensacola, Fla., for plaintiff.
J. Lofton Westmoreland, Milton, Fla., for defendant.
OPINION
N. SANDERS SAULS, Bankruptcy Judge.
THIS CAUSE came on for consideration pursuant to the consent of the parties to determination upon the complaint filed by the plaintiff for a declaratory judgment with respect to the interest of the defendants in certain real property and for relief from the automatic stays. Upon consideration of the pleadings, the record herein, the submissions by the parties and being otherwise fully advised in the premises, the court makes the following findings and conclusions of law.
The defendant, Schipani, is the record title holder of certain property located in Escambia County, Florida. The plaintiff, Federal National Mortgage Association, holds a valid first mortgage upon the subject property. The defendant, Financial Marketing Consultants, Inc., claims ownership of the subject property by virtue of an unrecorded warranty deed dated December 13, 1979, whereby the defendant, Schipani, conveyed the subject property to Financial Marketing Consultants, Inc. in conjunction with the obtaining of a loan for operating capital for the defendant Schipani's business. This financial transaction consisted of a sale or conveyance of property by Schipani to Financial Marketing Consultants and a lease back thereof by Financial Marketing Consultants to Schipani, together with a future option to repurchase. The defendant, Westmoreland is the lawfully authorized and acting trustee.
The operative and undisputed fact which directs a determination herein is that the warranty deed was never recorded pursuant to Florida law prior to filing of the petition herein. Pursuant to § 544(a) of Title 11 of the United States Code the trustee is constituted as a bona fide purchaser and a judicial lien creditor. Under Florida's recording statute, § 695.01, Florida Statutes, an unrecorded conveyance or transfer is void as against subsequent purchasers or judgment lien creditors unless the same has been recorded according to law. As a result, the interest in the subject property acquired by Financial Marketing Consultants, Inc. by virtue of the unrecorded warranty deed is void as against the trustee and, as provided by § 541 of Title 11, the trustee must be determined to be the owner of the subject property.
This court is not unmindful that the effect of a judgment lien creditor acquiring superior rights to the interest of Financial Marketing Consultants, Inc. in this case may seem to be and is clearly contrary to the intent of the immediate parties Schipani and Financial Marketing Consultants, Inc. But, that is the effect of the Florida recording statute which clearly provides that an unrecorded conveyance of real property shall not prevail over a subsequent bona fide purchaser or judicial lien creditor. *132 If, under the applicable law of the state, a subsequent bona fide purchaser or judgment lien creditor is accorded superior rights and title to those of a party holding under an unrecorded conveyance or transfer, then pursuant to federal law the trustee should be and is accorded the same status. This result obtains solely by reason of the working of the Florida Recording Act.
McKay v. Trusco, 198 F.2d 431 (5th Cir. 1952); Commercial Credit Co. v. Davidson, 112 F.2d 54 (5th Cir. 1940); Mueller v. Ewing Bank and Trust Co., 5 Bankr.Ct.Dec. 288 (D.N.J.1979); 4 Collier (15th Ed.) § 544.02; 4A Collier (14th Ed.) §§ 70.50, p. 613, 70.52 and 70.53; Sapp v. Warner, 105 Fla. 245, 141 So. 124 (1932); Carolina Portland Cement Co. v. Roper, 68 Fla. 299, 67 So. 115 (1914); Hardaway Timber Co. v. Hansford, 245 So.2d 911 (1 DCA Fla. 1971); 1 Boyer, Florida Real Estate Transactions (1979), § 28.
In accordance with the foregoing, an order shall issue voiding the interest of the defendant Financial Marketing Consultants, Inc., providing that the defendant Financial Marketing Consultants, Inc. shall, according to law, have an unsecured claim against the within estate, and, directing that the trustee immediately investigate and make recommendation with respect to whether or not the value of the subject property exceeds the first mortgage lien held by the plaintiff and whether or not the property should be sold by the trustee or abandoned.
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401 So.2d 213 (1981)
Ex parte Carolyn GOODMAN.
(Re: Carolyn Goodman v. State of Alabama).
80-602.
Supreme Court of Alabama.
July 24, 1981.
MADDOX, Justice.
WRIT DENIEDNO OPINION.
TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.
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[Cite as State v. Pressley, 2012-Ohio-4083.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24852
v. : T.C. NO. 10CR3727/2
JACK R. PRESSLEY : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
..........
OPINION
Rendered on the 7th day of September , 2012.
..........
MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
PETER R. CERTO, Atty. Reg. No. 0018880, One S. Main Street, Suite 1590, Dayton, Ohio
45402
Attorney for Defendant-Appellant
..........
DONOVAN, J.
{¶ 1} Defendant-appellant Jack R. Pressley appeals his conviction and sentence for
burglary (occupied structure), in violation of R.C. 2911.12(A)(1), a felony of the second
2
degree, and one count of possession of criminal tools, in violation of R.C. 2923.24(A), a
felony of the fifth degree. Pressley filed a timely notice of appeal with this Court on
October 14, 2011.
{¶ 2} The basis for the instant appeal occurred on November 22, 2010, at
approximately 2:00 p.m. when the victim, Erin Dues, was alone at home in the upstairs
bathroom of her residence located at 4433 Jonathan Drive in Kettering, Ohio. Upon
hearing her dogs begin barking, Dues stepped out of the bathroom and looked down at the
front door where she observed a man she did not know knocking on her door. Dues
testified that she could clearly see the man at her front door. Further, a large picture
window to the left of the door afforded her a full view of the individual.
{¶ 3} The man continued to knock on the door and ring the doorbell while Dues
studied his appearance. Dues, beginning to fear for her safety, called her neighbor, Jay
Morgan, who lives across the street. Morgan’s residence provides him a good view of
Dues’ residence and driveway. Dues informed Morgan that she did not know the man who
was knocking on her door. Dues testified that she asked Morgan to come over.
{¶ 4} After approximately twenty to thirty seconds of knocking on the door, the
man, later identified as Pressley’s co-defendant, Drexil L. Adkins, left the front porch and
walked around towards the back of the house as Dues continued to observe him. Dues
testified that Adkins had dark hair and facial hair. Dues further testified that Adkins was
wearing a white t-shirt and was walking with a cane. After she observed Adkins walk around
the side of her house, Dues ended her conversation with Morgan and went to her bedroom
with a portable telephone. From her bedroom window, Dues observed Adkins approach a
3
red four-door sedan with faded paint on the rear of the vehicle. Another man with red hair
and a goatee exited the red sedan and spoke briefly with Adkins. Dues testified that the
man with red hair, later identified as Pressley, had a tattoo on his face and was wearing a
hooded gray sweatshirt. At this point, Dues called 911 at approximately 2:14 p.m.
{¶ 5} While she was speaking with the 911 operator, Dues observed Adkins and
Pressley walk towards the back door of her residence which consists of a sliding glass door
that leads into a sunroom which is connected to the next room by two additional glass doors.
Dues testified that she was able to observe both men very closely as they approached the
back door. Eventually, Dues lost sight of the two men, and the 911 operator told her to go
into the bedroom and lock the door. While she was in the bedroom, Dues testified that she
heard the sound of breaking glass followed by the sounds of muffled footsteps as if someone
was shuffling through glass. After a few minutes passed, Dues testified that she heard
someone in her house calling her name. Dues realized it was her neighbor and she called
out to him. Morgan went upstairs and told Dues that he had just seen the red sedan drive
away with four white males inside the vehicle. Dues relayed all of the information to the
911 operator and waited for the police to arrive.
{¶ 6} Officer John Soto of the Kettering Police Department responded to the
dispatch regarding the burglary almost immediately. When Officer Soto received the call,
he was just leaving the parking lot of the Kettering Police Department located on Shroyer
Road which was close to Dues’ residence. After consulting a map of the area, Officer Soto
determined that the perpetrators would be leaving the area by one of only a few possible
routes. Officer Soto positioned his cruiser at the intersection of Maricarr Drive and East
4
Stroop Road in Kettering. From this vantage point, Officer Soto testified that he was able
to observe all vehicles traveling on Stroop Road in both directions. While he waited,
Officer Soto observed a red sedan with “sunspots” on the trunk which he understood to be
the same as faded paint. Officer Soto testified that he also noticed that there were four
individuals in the vehicle and they were all sitting rigidly in their seats looking straight
ahead. Officer Soto testified that he thought it was suspicious that no one in the vehicle
looked in his direction or made eye contact with him. Officer Soto testified that he
observed the vehicle at a distance of approximately two and one-half miles from Dues’
residence.
{¶ 7} Officer Soto pulled onto Stroop Road and began following the red sedan.
Officer Soto checked the license plates and discovered that the vehicle was registered to
Tiffany MacIntosh. Officer Soto testified that the driver of the vehicle was not speeding,
nor did she commit any traffic violations. Based on the matching description of the vehicle
as well as the “suspicious” behavior of its occupants, Officer Soto stopped the vehicle at the
corner of Shroyer Road and Schuyler Drive in Kettering at approximately 2:20 p.m. After
other officers arrived, Officer Soto approached the vehicle and removed the driver, Tiffany
MacIntosh, placing her in the back of his cruiser. The three remaining occupants of the
vehicle were also removed from the vehicle, handcuffed, and ordered to stand against a
fence next to the roadway. The men were flanked by plain clothes detectives and uniformed
police officers on either side.
{¶ 8} While the men stood against the fence, Officer Steven Driscoll of the
Kettering Police Department was dispatched to Dues’ residence. Once he arrived, Officer
5
Driscoll spoke with Dues and Morgan regarding the details of the burglary. While at Dues’
residence, Officer Driscoll received a report that Kettering Police had stopped a vehicle
nearby which matched the description of the vehicle used in the burglary. At that point, it
was decided that Officer Driscoll would conduct a drive-by with Dues in an effort to identify
the possible suspects. Officer Driscoll placed Dues into an unmarked police vehicle and
then drove to the area where the suspects were located.
{¶ 9} Dues subsequently identified both Pressley and Adkins as the two men who
broke into her residence. Dues also identified the red sedan as the vehicle that the suspects
used during the burglary. Upon being searched, several pieces of broken glass were found
in Pressley’s pockets. The police also discovered broken glass in the vehicle, as well as a
glass punch. Pressley was arrested and charged with burglary of an occupied structure and
possession of criminal tools.
{¶ 10} On December 28, 2010, Pressley was indicted for burglary and possession of
criminal tools. At his arraignment on December 30, 2010, Pressley stood mute, and the trial
court entered a plea of not guilty on his behalf. Pressley filed a motion to suppress on
January 19, 2011, wherein he challenged the initial stop and subsequent search of the
vehicle, as well as any incriminating statements that may have been made. After a hearing
held on May 25, 2011, and June 16, 2011, the trial court overruled Pressley’s motion to
suppress orally during a pre-trial hearing on August 16, 2011. The trial court’s ruling was
journalized in an entry filed on August 17, 2011.
{¶ 11} A jury trial was held on August 29, 30, and 31, 2011, and Pressley was
found guilty of both burglary and possession of criminal tools. On September 27, 2011, the
6
trial court sentenced Pressley to an aggregate term of seven years imprisonment.
{¶ 12} It is from this judgment that Pressley now appeals.
{¶ 13} Because they are interrelated, Pressley’s first and second assignments of
error will be discussed as follows:
{¶ 14} “THE TRIAL COURT ERRED WHEN IT FOUND THAT THE
ARRESTING OFFICER HAD [A] REASONABLE ARTICULABLE SUSPICION TO
MAKE AN INVESTIGATORY STOP OF THE DEFENDANT/APPELLANT’S MOTOR
VEHICLE.”
{¶ 15} “THE TRIAL COURT ERRED IN FINDING THERE WAS PROBABLE
CAUSE FOR THE ARREST OF THE DEFENDANT.”
{¶ 16} In his first assignment, Pressley contends that the trial court erred when it
overruled his motion to suppress because the police lacked a reasonable, articulable
suspicion to stop the vehicle in which he was a passenger. In his second assignment,
Pressley argues that because Officer Soto lacked a reasonable suspicion to stop the red
sedan, he was unlawfully placed under arrest at the time of the initial traffic stop.
{¶ 17} In regards to a motion to suppress, “the trial court assumes the role of trier of
facts and is in the best position to resolve questions of fact and evaluate the credibility of
witnesses.” State v. Hopfer, 112 Ohio App.3d 521, 679 N.E.2d 321 (2d Dist.1996), quoting
State v. Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th Dist.1994). The court of
appeals must accept the trial court’s findings of fact if they are supported by competent,
credible evidence in the record. State v. Isaac, 2d Dist. Montgomery No. 20662,
2005-Ohio-3733, citing State v. Retherford, 93 Ohio App.3d 586, 639 N.E.2d 498 (2d
7
Dist.1994). Accepting those facts as true, the appellate court must then determine, as a
matter of law and without deference to the trial court’s legal conclusion, whether the
applicable legal standard is satisfied. Id.
{¶ 18} The Fourth Amendment to the United States Constitution and Section 14,
Article I of the Ohio Constitution protect individuals from unreasonable searches and
seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A traffic stop
by a law-enforcement officer must comply with the Fourth Amendment’s reasonableness
requirement. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89
(1996).
{¶ 19} A police officer may stop and detain a motorist when he has a reasonable
and articulable suspicion that a motorist has committed, is committing, or is about to commit
any criminal offense, including a traffic offense, and no independent reasonable and
articulable suspicion of other criminal activity is required under Terry. State v. Stewart, 2d
Dist. Montgomery No. 19961, 2004-Ohio-1319, at ¶13; Dayton v. Erickson, 76 Ohio St.3d 3,
665 N.E.2d 1091 (1996). We determine the existence of reasonable suspicion by evaluating
the totality of the circumstances, considering those circumstances “through the eyes of the
reasonable and prudent police officer on the scene who must react to events as they unfold.”
State v. Heard, 2d Dist. Montgomery No. 19323, 2003-Ohio-1047.
{¶ 20} “[C]ourts still retain their traditional responsibility to guard against police
conduct which is overbearing or harassing, or which trenches upon personal security without
the objective evidentiary justification which the Constitution requires. When such conduct
is identified, it must be condemned by the judiciary and its fruits must be excluded from
8
evidence in criminal trials.” State v. Studley, 2d Dist. Greene No. 2010 CA 81,
2011-Ohio-5563, quoting Terry, 392 U.S. at 15.
{¶ 21} Initially, we note that after Officer Soto decided to follow the red sedan, he
testified that he did not observe the driver of the vehicle commit any traffic violations, nor
did he observe the four occupants of the vehicle make any furtive movements or gestures.
In fact, Officer Soto testified that all of the occupants of the red sedan were sitting up and
looking straight ahead. Officer Soto testified that none of the occupants looked in his
direction, and he found their failure to acknowledge him to be suspicious behavior. A
driver’s failure to acknowledge or make eye contact with a police officer, in the absence of a
traffic violation or suspicion of another criminal act, is not a valid reason to initiate a stop of
a vehicle. See State v. Lindsey, 2d Dist. Montgomery No. 24943, 2012-Ohio-3105, ¶16.
{¶ 22} Nevertheless, on this record, we conclude that under the totality of the
circumstances, Officer Soto possessed a reasonable, articulable suspicion to initiate a stop of
the red sedan. Significantly, Officer Soto testified that he had just received a call that a
burglary had been committed in the immediate area, and four individuals had left the crime
scene in a red four-door sedan with faded paint on the rear of the vehicle. After he received
the dispatch regarding the burglary, Officer Soto determined a probable route the suspects
would take to leave the area. After positioning himself accordingly, Officer Soto observed
a red four-door sedan with “sunspots” on the rear section drive by him. Officer Soto further
testified that the vehicle had faded paint on the trunk. He further noted that there were four
individuals in the vehicle. Accordingly, the description and location of the red sedan,
coupled with the fact that there were four occupants therein, provided Officer Soto with a
9
reasonable, articulable suspicion to stop the vehicle.
{¶ 23} “Law enforcement officers may briefly stop and detain an individual for
investigation if the officers have a reasonable, articulable suspicion that criminal activity
may be afoot. That is something more than an unparticularized suspicion or mere hunch,
but less than the level of suspicion required for probable cause. To satisfy that standard,
police must be able to point to specific and articulable facts which, taken together with the
rational inferences from those facts, reasonably warrant the intrusion.” State v. Studley, 2d
Dist. Greene No. 2010 CA 81, 2011-Ohio-5563, at ¶ 54. In the instant case, Officer Soto’s
testimony contained specific and articulable facts which reasonably warranted the detention
of the four occupants of the vehicle as set forth above. In light of the evidence adduced at
the suppression hearing, the police acted reasonably by briefly detaining Pressley and the
other three occupants of the suspect vehicle in order to determine whether they were
involved in the nearby burglary. Pressley was not placed under arrest until after the
identification occurred.
{¶ 24} Pressley’s first and second assignments of error are overruled.
{¶ 25} Pressley’s third and final assignment of error is as follows:
{¶ 26} “THE TRIAL COURT ERRED IN NOT SUPPRESSING THE SHOW-UP
IDENTIFICATION EVIDENCE IN VIOLATION OF APPELLANT’S DUE PROCESS
RIGHTS UNDER ARTICLE I, SECTION 10 AND 16 OF THE OHIO CONSTITUTION,
ORC 2933.83, AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION.”
{¶ 27} In his final assignment, Pressley contends that the trial court erred when it
10
overruled his motion to suppress as it related to his on-scene identification by Erin Dues.
Specifically, Pressley argues that the on-scene identification was inadmissible because it was
the result of an “inherently suggestive” procedure and was, therefore, unreliable.
{¶ 28} “Show-ups at or near the scene of a crime, that occur shortly after the crime,
are not only permissible, but useful, since they can lead to an identification or
non-identification while the characteristics of the perpetrator are still fresh in the witness’s
memory. However, the show-up must not be unduly suggestive. The defendant bears the
burden to prove that a show-up procedure was so suggestive of guilt that it requires
suppression. (Internal citations omitted).” State v. McCrary, 2d Dist. Montgomery No.
23360, 2010-Ohio-2011. However, Pressley failed to meet this burden.
{¶ 29} Officer Driscoll transported Dues to the area where the suspects had been
stopped and arrested within thirty minutes of the burglary at Dues’ residence. Officer
Driscoll testified that he informed Dues only that they were going to do a drive-by in order to
determine whether she recognized anyone. Nothing more was said or disclosed to Dues
prior to the on-scene identification. Once at the scene, Dues immediately recognized the
red sedan used in the burglary. Dues also immediately identified Pressley and Adkins as the
two men she observed in her backyard as the burglary occurred. Dues was very confident in
her identification of Pressley and Adkins because she had the opportunity to view both men
during the course of the burglary for a significant amount of time. Moreover, Dues viewed
both men from an unobstructed vantage point. We also note that the burglary occurred
during mid-afternoon on a bright, sunny day.
{¶ 30} Pressley points out that on a portion of the 911 tape, you can hear an
11
unknown individual say, “We got them. We got them,” ostensibly in regards to the
Kettering Police stopping and detaining the suspects in the red sedan. Pressley argues that
Dues was on the phone with the 911 operator when this statement was made, and she may
have, therefore, been predisposed to identifying Pressley and Adkins as the perpetrators
before she reached the scene of the stop. The 911 tape, however, was played during the
suppression hearing, and Dues testified specifically that she did not recall hearing the remark
on the day of the burglary.
{¶ 31} Upon review, we conclude that there is no indication from the record that the
on-scene identification was improperly conducted. Dues was simply asked to look at the
three males to see if she recognized any of them. Such a neutral statement to explain the
procedure is not impermissibly suggestive of guilt. See, e.g., State v. Carruth, 2d Dist.
Montgomery No. 19997, 2004-Ohio-2317, ¶16. There is no evidence that Dues felt forced
to identify anyone or that the police officers were asking her to corroborate the officers’
suspicion of guilt, either of which may make the process impermissibly suggestive. Id.
Most importantly, Dues was able to distinguish between the men she could recognize from
the burglary and the one she could not identify. We note that Pressley argues that the
Kettering Police did not follow their own internal policies regarding the documentation of
information with respect to show-up identifications. The issue before us, however, is
whether the circumstances surrounding the show-up identification were unduly suggestive,
thereby violating Pressley’s due process rights. Accordingly, we find that the on-scene
identification of Pressley was not unduly suggestive, and the trial court did not err in denying
Pressley’s motion to suppress Dues’ identification testimony.
12
{¶ 32} Lastly, Pressley argues that the Kettering Police violated its internal policy
regarding its procedure for conducting a physical line-up identification, as well as R.C.
2933.83, the State of Ohio’s guidelines on line-up identifications. This assignment of error
implicates R.C. 2933.83(B), which took effect in July 2010. State v. Stevenson, 2d Dist.
Montgomery No. 24821, 2012-Ohio-3396. The statute “requires any law enforcement
agency or criminal justice entity that conducts live lineups and photo lineups to adopt
specific procedures for conducting the lineups.” State v. Ruff, 1st Dist. Hamilton No.
C-110250, 2012-Ohio-1910, ¶5. These procedures include, inter alia, using “a blind or
blinded administrator” to conduct a physical live line-up or a photo lineup. R.C.
2933.83(B)(1). Under R.C. 2933.83(C)(1), evidence of a failure to comply with the
required protocol “shall be considered by trial courts in adjudicating motions to suppress
eyewitness identification resulting from or related to the lineup.”
{¶ 33} Initially, we note that what occurred in the instant case was a show-up
identification, not a stereotypical physical line-up identification conducted at a police station.
The Kettering Police Department does not use physical line-ups pursuant to its written
policy in G.O. 42.2.11(A)(2) which specifically states that “because of the cumbersome
nature of physical line-ups and inadequate facilities to perform a physical line-up, KPD
personnel will not put suspects in physical line-ups.” Additionally, the procedures set forth
in R.C. 2933.83 do not apply to the facts herein. R.C. 2933.83(A)(7) defines a “live lineup”
as an “identification procedure in which a group of persons, including the suspected
perpetrator of an offense and other persons not suspected of the offense, is displayed to an
eyewitness for the purpose of determining whether the eyewitness identifies the suspect as
13
the perpetrator of the offense.” No “persons not suspected of the offense” were included in
the show-up identification of Pressley and his accomplices.
{¶ 34} Pressley’s third and final assignment of error is overruled.
{¶ 35} All of Pressley’s assignments of error having been overruled, the judgment
of the trial court is affirmed.
..........
GRADY, P.J. and HALL, J., concur.
Copies mailed to:
Michele D. Phipps
Peter R. Certo
Hon. Gregory F. Singer
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0383n.06
No. 09-1856
FILED
UNITED STATES COURT OF APPEALS Jun 06, 2011
FOR THE SIXTH CIRCUIT
LEONARD GREEN, Clerk
DERRICK D. COLEMAN, )
)
Petitioner-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
CINDI S. CURTIN, ) MICHIGAN
)
Respondent-Appellee. )
Before: KEITH, MARTIN, and COOK, Circuit Judges.
BOYCE F. MARTIN, JR., Circuit Judge. Derrick D. Coleman, a Michigan prisoner
proceeding pro se, appeals the district court’s order denying his petition for a writ of habeas corpus,
filed under 28 U.S.C. § 2254. This case has been referred to a panel of the court pursuant to Rule
34(j)(1), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral
argument is not needed. Fed. R. App. P. 34(a).
Coleman pled guilty to armed robbery and possessing a firearm during the commission of
a felony. The trial court sentenced him to consecutive prison terms of 262 to 600 months and two
years, respectively. The Michigan Court of Appeals and Michigan Supreme Court denied Coleman’s
appeals and his requests for post-conviction relief.
Coleman filed a § 2254 petition, and ultimately an amended petition, asserting three claims:
(1) the Michigan trial court violated his due process rights by not enforcing the plea agreement or
permitting Coleman to withdraw his plea; (2) the trial court violated his due process rights by scoring
the Michigan sentencing guidelines using facts not admitted by Coleman or found by a jury beyond
No. 09-1856
-2-
a reasonable doubt; and (3) the trial court violated his due process rights by improperly scoring
certain offense variables and using inaccurate information to calculate his sentence. Lastly, he
argues his trial and appellate counsel provided ineffective assistance by not objecting. The United
States Magistrate Judge recommended the denial of all issues on the merits. Over Coleman’s
objections, the district court adopted the magistrate judge’s recommendation, denied the petition,
and declined to issue a certificate of appealability. This court granted Coleman a certificate of
appealability for all three of his claims.
Coleman then moved this court to hold his appeal in abeyance and remand the case to the
Michigan Court of Appeals for an evidentiary hearing concerning the impact on his case of the
Michigan Supreme Court’s decision in People v. McGraw, 771 N.W.2d 655 (Mich. 2009). On
appeal, Coleman argues that the district court erred in denying his § 2254 petition.
We review de novo a district court’s denial of a § 2254 petition. Middlebrooks v. Bell, 619
F.3d 526, 534 (6th Cir. 2010). “When a state court does not address the merits of a claim, federal
review is de novo.” Id.; see Dorn v. Lafler, 601 F.3d 439, 443 (6th Cir. 2010).
Coleman first argues that the trial court violated his due process rights by not enforcing the
plea agreement he made with the Michigan prosecutor or allowing him to withdraw his plea. “The
longstanding test for determining the validity of a guilty plea is whether the plea represents a
voluntary and intelligent choice among the alternative courses of action open to the defendant.”
Railey v. Webb, 540 F.3d 393, 417 (6th Cir. 2008) (internal quotation marks and citation omitted).
“The plea must be made with knowledge of the relevant circumstances and likely consequences.”
King v. Dutton, 17 F.3d 151, 153 (6th Cir. 1994) (internal quotation marks and citation omitted).
At his plea hearing, the trial court advised Coleman of the charges against him and the
consequences of his plea. Further, after the prosecutor stated that offense would be scored as zero
and the prosecution would dismiss the third-felony habitual offender charge in exchange for
Coleman pleading guilty to being a second-felony habitual offender, Coleman acknowledged that
no other promises had been made and that he had not been told how the court would sentence him
except that the Michigan guidelines would be utilized. Coleman has thus failed to show that his plea
No. 09-1856
-3-
was involuntary or unknowing or that the trial court did not properly enforce the plea agreement.
Coleman’s claim that the trial court improperly prevented him from withdrawing his guilty plea lacks
merit because Coleman specifically declined to withdraw his plea when given the opportunity to do
so at the sentencing hearing.
Coleman next argues that the trial court violated his rights under Blakely v. Washington, 542
U.S. 296 (2004), when it scored certain offense variables using facts not admitted by Coleman or
found by a jury beyond a reasonable doubt. There is no basis for this allegation because Coleman
did not receive a sentence beyond the statutory maximum for his crimes. See Mich. Comp. Laws
§§ 750.227b(1), 750.529; Montes v. Trombley, 599 F.3d 490, 496-97 (6th Cir. 2010).
Coleman also argues that the trial court violated his due process rights by assessing points
for offenses based on inaccurate information. Coleman also argues that his trial and appellate
counsel performed ineffectively by not arguing that the variables were incorrectly calculated.
Federal habeas review “is limited to deciding whether a conviction violated the Constitution,
laws, or treaties of the United States.” Bey v. Bagley, 500 F.3d 514, 519 (6th Cir. 2007) (internal
quotation marks omitted). As a result, an error in the application of state law will be reviewed “only
if it were so fundamentally unfair as to violate the petitioner’s due process rights.” Coleman v.
Mitchell, 244 F.3d 533, 542 (6th Cir. 2001). To the extent that Coleman asserts his sentence was
improperly calculated under state law, his claim is not cognizable in federal habeas proceedings.
Further, he has not shown that the scoring of the offense variables was so unfair as to violate his due
process rights, and he has not made a factual showing that the trial court relied on inaccurate
information during sentencing.
“Ineffective assistance under Strickland [v. Washington, 466 U.S. 668 (1984),] is deficient
performance by counsel resulting in prejudice, with performance being measured against an
objective standard of reasonableness under prevailing professional norms.” Rompilla v. Beard, 545
U.S. 374, 380 (2005) (citations and internal quotation marks omitted). Coleman has not established
that he was prejudiced by counsel’s failure to argue that offense variables 12 and 19 were improperly
scored because there was a sufficient factual basis for the scoring of each variable. Coleman’s claim
No. 09-1856
-4-
that McGraw prohibited the trial court from considering his post-offense conduct when scoring
offense variable 19 lacks merit because “scoring OV 19 necessarily is not limited to consideration
of the sentencing offense.” People v. Smith, 793 N.W.2d 666, 667 (Mich. 2010). Coleman’s claim
that, when scoring offense variable 12, the trial court was prohibited from considering uncharged
contemporaneous felonious criminal acts also lacks merit. See People v. Light, __N.W.2d __, 2010
WL 4751768 (Mich. Ct. App. Nov. 23, 2010).
We deny Coleman’s motion to remand and affirm the district court’s judgment. Rule
34(j)(2)(C), Rules of the Sixth Circuit.
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774 F.2d 1148
Pastrana De Caraballov.Secretary of Health and Human Services
84-1279
United States Court of Appeals,First Circuit.
7/26/85
1
D.P.R.
VACATED AND REMANDED
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Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00497-CV
IN RE Natalie BAKER
Original Mandamus Proceeding 1
Opinion by: Patricia O. Alvarez, Justice
Dissenting Opinion by: Jason Pulliam, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Patricia O. Alvarez, Justice
Jason Pulliam, Justice
Delivered and Filed: August 19, 2015
PETITION FOR WRIT OF MANDAMUS DENIED
Late on August 7, 2015, relator Natalie Baker filed a petition for writ of mandamus and a
motion for emergency stay and temporary orders in the underlying child custody proceeding
pending a ruling on the mandamus petition. Natalie challenged the trial court’s authority to assert
temporary emergency jurisdiction to enter an order granting a plea in abatement and making
temporary orders for custody, possession, and access to the children pursuant to Texas Family
Code section 152.204(a). TEX. FAM. CODE ANN. § 152.204(a) (West 2014). She requested a stay
of all proceedings in the trial court, as well as a stay of enforcement of the temporary emergency
orders, which included an order requiring Natalie to deliver the children to the father on August 7,
1
This proceeding arises out of Cause Nos. 2015-CI-11242, styled In the Interest of A.N.B. and N.A.B., Children,
pending in the 57th Judicial District Court, Bexar County, Texas, the Honorable Larry Noll presiding; and 2015-CI-
12953, styled Ex parte A.N.B. and N.A.B., Children, pending in the 45th Judicial District Court, Bexar County, Texas,
the Honorable Larry Noll presiding.
04-15-00497-CV
2015 at 6:00 p.m. Natalie also requested that this court enter temporary orders contrary to those
ordered by the trial court. This court issued an order denying Natalie’s request for emergency stay
and temporary orders on August 7, 2015.
On August 10, 2015, Natalie filed an amended mandamus petition which included
reporter’s records from two hearings conducted in the trial court. On August 11, 2015, Natalie
filed a second petition for writ of mandamus and motion for emergency stay. In the second
mandamus petition, Natalie again seeks to challenge the emergency temporary orders on the basis
of jurisdiction. In addition, Natalie complains of the trial court’s subsequent order for issuance of
writ of attachment and order to appear and produce the children, signed by the trial court on August
10, 2015 in Cause No. 2015-CI-12953, an original proceeding for writ of attachment initiated by
the father on August 10th after Natalie failed to produce the children on August 7th as ordered. In
her second motion for emergency stay, Natalie asks this court to stay the enforcement and
execution of the writ of attachment and order to appear.
The court has considered the initial, amended and second petitions for writ of mandamus,
as well as the mandamus record provided to this court, and is of the opinion that relator is not
entitled to mandamus relief. Accordingly, the petitions for writ of mandamus and relator’s second
motion for emergency stay are denied. See TEX. R. APP. P. 52.8(a).
Patricia O. Alvarez, Justice
-2-
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In the Supreme Court of Georgia
Decided: April 20, 2015
S15A0110. CORDOVA v. THE STATE.
HINES, Presiding Justice.
David Cordova, also known as David Cordoba, (hereinafter “Cordova”)
brings this pro se appeal from an order of the Superior Court of Long County
denying his “motion to vacate void sentence” following his entry of negotiated
pleas of guilty to malice murder, armed robbery, and kidnapping with bodily
injury, and his consequent sentencing to three terms of life in prison without the
possibility of parole. For the reasons which follow, we reverse and remand this
case with direction to the superior court.
On August 26, 1997, a Long County grand jury indicted Cordova along
with two other men for the August 16, 1995 malice murder, armed robbery, and
kidnapping with bodily injury of Mary Ann Prescott. On September 12, 1997,
the State filed a notice of intent to seek the death penalty for Cordova, alleging
as aggravating circumstances that the murder was done during the commission
of the felonies of armed robbery and kidnapping with bodily injury, and for the
purpose of receiving money or any other thing of monetary value as provided
in then OCGA § 17-10-30, which set forth the statutory aggravating
circumstances for imposition of the death penalty; it further alleged that the
kidnapping with bodily injury involved the death of the victim. On May 10,
1999, Cordova entered negotiated pleas of guilty to all three charges. On May
13, 1999, he was sentenced to life in prison without the possibility of parole for
malice murder, a consecutive term of life in prison without the possibility of
parole for the armed robbery, and a third term of life in prison without the
possibility of parole for the kidnapping, the sentence to be served concurrently
with the sentence for malice murder; the sentences on all counts were to run
concurrently with a federal sentence of Cordova’s. An application for sentence
review was filed on June 7, 1999, and on September 22, 1999, the Sentence
Review Panel responded that it was without jurisdiction to review Cordova’s
sentences. On February 3, 2014, Cordova filed the present pro se “motion to
vacate void sentence,” contending that his sentences are void “as a result of the
trial court’s failure to make a contemporaneous specification, beyond a
reasonable doubt, the statutory aggravating circumstance required by O.C.G.A.
2
§ 17-10-32.1 (b) authorizing imposition of a life sentence without possibility of
parole.” And, so they are.
Former OCGA § 17-10-32.11 applicable to the time frame of Cordova’s
sentencing provided,
a) Subject to the provisions of subsection (b) of this Code section,
any person who has been indicted for an offense for which the death
penalty or life without parole may be imposed may enter a plea of
guilty at any time after indictment, and the judge of the superior
court having jurisdiction may, in the judge's discretion, sentence the
person to life imprisonment or to any other punishment authorized
by law for the offense named in the indictment.
(b) Unless the district attorney has given notice that the state intends to
seek the death penalty pursuant to the Uniform Rules of the Superior
Courts, the judge shall sentence the defendant to life imprisonment. In
cases where such notice has been given, the judge may sentence the
defendant to death or life without parole only if the judge finds beyond a
reasonable doubt the existence of at least one statutory aggravating
circumstance as provided in Code Section 17-10-30.
(Emphasis supplied.)
This Court has determined that this criminal statute must be strictly
construed against the State, so that,
1
The statute was repealed by Georgia Laws 2009, Act 62, § 7, effective April 29, 2009. The
Act provided, however, that “the amendment or repeal of a Code section by this Act shall not affect
any sentence imposed by any court of this state prior to the effective date of this Act,” and that
OCGA § 17–10–32.1 “as it existed prior to the effective date of this Act shall apply to all offenses
committed on and before such date.” Ga. L.2009, pp. 223, 227, §§ 9, 11(a).
3
it is clear that a defendant who pleads guilty in a death penalty case
cannot be sentenced to life without parole unless the judge
contemporaneously makes a specific finding of a statutory
aggravating circumstance beyond a reasonable doubt.
Pierce v. State, 289 Ga. 893, 896 (3) (717 SE2d 202) (2011), quoting Hughes
v. State, 269 Ga. 819, 821(2) (504 SE2d 696) (1998). That did not happen in
this case; the plea court did not specify an aggravating circumstance at the time
of sentencing, so the statutory requirement was not met. Id.
Consequently, Cordova’s imposed sentences of life without the possibility of
parole are void and must be vacated. Id.
Accordingly, the superior court’s order denying Cordova’s “motion to
vacate void sentence” is reversed with the direction that his sentences of life in
prison without the possibility of parole be vacated.2
Judgment reversed and case remanded with direction. All the Justices
concur.
2
As this Court explained in Pierce v. State, in this circumstance, the defendant, upon remand,
can be resentenced to life without the possibility of parole if the resentencing court then complies
with the requirements of former OCGA § 17–10–32.1, that is, if the resentencing court finds the
existence of at least one aggravating circumstance as provided in OCGA § 17–10–30 and the
applicable case law; it is then within the resentencing court’s discretion whether to impose a sentence
of life in prison without the possibility of parole. Pierce v. State at 896-897 (3).
4
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs October 7, 2003
STATE OF TENNESSEE v. THELISA EMERY and MAURICE EMERY
Appeal from the Humboldt Law Court for Gibson County
Nos. H6980 & H6981 Clayburn Peeples, Judge
Nos. W2002-02698-CCA-R3-CD & W2003-03355-CCA-R3-CD
Filed March 15, 2004
The defendants, Thelisa Emery and Maurice Emery, sister and brother, were each convicted in a joint
jury trial of possession with intent to sell .5 grams or more of cocaine, possession of marijuana, and
possession of drug paraphernalia. On appeal, Thelisa Emery claims that the convicting evidence is
insufficient and that the trial court erred in not severing the defendants’ trials, in allowing testimony
about Thelisa Emery’s use of cocaine, in allowing evidence of her prior sale of cocaine, and in
instructing the jury as to her guilt via criminal responsibility for the acts of Maurice Emery. Maurice
Emery raised some of the same issues, but because he failed to file a timely motion for new trial,
appellate review of his convictions is limited to the sufficiency of the convicting evidence.
Discerning no reversible error with respect to either defendant, we affirm the judgments of the trial
court.
Tenn. R. App. P. 3; Judgments of the Humboldt Law Court are Affirmed.
JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and NORMA MCGEE OGLE, JJ., joined.
Kyle Atkins, Humboldt, Tennessee, for the Appellant, Thelisa Emery; and Shannon Jones, Alamo,
Tennessee, for Appellant, Maurice Emery.
Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General;
Garry G. Brown, District Attorney General; and Edward L. Hardister, Assistant District Attorney
General, for the Appellee, State of Tennessee.
OPINION
Law enforcement officers testified that on December 15, 2000, they went to Thelisa
Emery’s mobile home residence in Humboldt to execute a search warrant. When the officers arrived,
they saw three persons outside the mobile home, and upon seeing the officers, one of the persons,
Andrea Huspen, ran; the others went inside the mobile home. One officer pursued and apprehended
Huspen, on whose person the officer found cocaine and cash made up mostly of five-, ten- and
twenty-dollar bills. The officers who entered the mobile home found the defendants and William
King in the front room and pursued Clifford Woodruff, a juvenile, into the back bedroom. The
officers found a bag of marijuana on Woodruff and two “crack pipes” on King. They found no drugs
or money on Thelisa Emery or Maurice Emery, the latter of whom was wearing only a pair of shorts.
Upon searching the mobile home pursuant to the search warrant, the officers found
3.0 grams of cocaine and 1.2 grams of marijuana stuffed into a decorative wall fixture hanging in
the back bedroom. In the bedroom, they also found a Swisher Sweet Blunts cigar box which
contained marijuana residue, rolling papers, and a cigar wrapper.1 In a kitchen cabinet, the officers
found a utility knife with cocaine residue, a crack pipe, rolling papers, and a compact mirror with
cocaine residue.
Maurice Emery stated that he had been hunting earlier in the day. After questioning
by the police, he went to the back bedroom to retrieve and don a pair of jeans. Although Thelisa
Emery’s son occupied this bedroom, it contained, in addition to Maurice Emery’s jeans, hunting
clothes, boots, and shotgun shells.
Thelisa Emery admitted to the officers that she resided in the mobile home and stated
that Maurice Emery did not reside there but stayed there occasionally. Over the objection of Thelisa
Emery, an officer testified that, during the search, Thelisa Emery told him that she had used cocaine.
Clifford Woodruff testified that he arrived at the Emery residence about an hour
before the police arrived. After he had been there about thirty minutes, Brandon Hunt came to the
mobile home and purchased a rock of crack cocaine from the defendants. Woodruff testified that
Maurice Emery took the rock from his pocket and gave it to Thelisa Emery, who gave it to Hunt.
Hunt then handed cash to Thelisa Emery, who handed it to Maurice Emery. Woodruff denied that
he placed drugs in the bedroom wall fixture.
On cross-examination, Woodruff admitted that on December 15, 2000, he told the
officers that he had never seen drugs sold in the Emery residence. He further admitted that he
changed his story to the current version on the day he appeared in juvenile court on his possession
charge. In exchange for his agreement to testify against the defendants, the juvenile court possession
charge was dismissed.
The defendants did not testify. Based upon the foregoing evidence, the jury convicted
the defendants of possession of .5 grams or more of cocaine with intent to sell, possession of
marijuana, and possession of drug paraphernalia. The trial court sentenced Maurice Emery, as a
multiple offender, to an effective sentence of twelve years in the Department of Correction, and it
1
One officer testified that a common practice among marijuana users was to remove the tobacco from Swisher
Sweet Blunts and refill the cigar wrapper with marijuana.
-2-
sentenced Thelisa Emery, as a standard offender, to an effective sentence of ten years in the
Department of Correction.
Before we address the substantive issues raised on appeal, we must address the
untimely motion for new trial filed by Maurice Emery. The trial court entered the judgments of
conviction on March 25, 2002. On December 30, 2002, the trial court entered an order that vacated
and reentered the judgments, and on that same day, Maurice Emery filed a motion for new trial.
It is beyond question that motions for new trial must be filed within 30 days of the
entry of the judgment of conviction, Tenn. R. Crim. P. 33(b); Massey v. State, 592 S.W.2d 333, 334
(Tenn. Crim. App. 1979), and this time period is not subject to extension, Tenn. R. Crim. P. 45(b);
State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997). When thirty days elapsed following the entry
of the judgments on March 25, 2002, the trial court lost jurisdiction to vacate the convictions. See
Martin, 940 S.W.2d at 569.2 In short, the December 30, 2002 motion for new trial was untimely,
and Maurice Emery’s issues, except for the claim of insufficiency of the evidence, may not be
reviewed on appeal. Tenn. R. App. P. 3(e) (in jury case, “no issue presented for review shall be
predicated upon error . . . on [] ground[s] on which a new trial is sought, unless the same was
specifically stated in a motion for a new trial; otherwise such issues will be treated as waived”); State
v. Johnny Owens, No. W2001-01397-CCA-R3-CD, slip op. at 10 (Tenn. Crim. App., Jackson, Nov.
8, 2002) (failure to file timely motion for new trial does not precluded appellate review of issue of
sufficiency of the evidence), perm. app. denied (Tenn. 2003). Accordingly, our review of the
sufficiency of the evidence will relate to both defendants, but the discussion of the remaining issues
on appeal will relate only to Thelisa Emery.
Our standard of review when the sufficiency of the evidence is questioned on appeal
is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” See
Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This
means that we do not re-weigh the evidence but presume that the factfinder has resolved all conflicts
in the testimony and drawn all reasonable inferences from the evidence in favor of the state. See
State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978). Because a verdict of guilt against a defendant removes the presumption of innocence and
raises a presumption of guilt, the convicted criminal defendant bears the burden of showing that the
evidence was legally insufficient to sustain a guilty verdict. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982).
It is an offense for a defendant to knowingly possess a controlled substance with
intent to sell the controlled substance. Tenn. Code Ann. § 39-17-417(a) (2003). With certain
exceptions not presently applicable, “It is unlawful for any person to use, or to possess with intent
2
Because M aurice Emery’s motion for new trial was untimely, his February 7, 2003 notice of appeal was also
untimely, see Tenn. R. App. P. 4(a); however, in the interest of justice, this court may excuse the untimely filing of a
notice of appeal, id. In this case, we choose to do so and decline to dismiss Maurice Emery’s appeal in toto.
-3-
to use, drug paraphernalia to . . . store, contain, conceal, inject, ingest, inhale, or otherwise introduce
into the human body a controlled substance in violation of [the law].” Id. § 39-17-425(a)(1) (2003).
The primary issues raised as to the sufficiency of the evidence are whether the state
established that the defendants possessed the controlled substances and paraphernalia and whether
the defendants, if in possession of the cocaine, intended to sell the cocaine. Tennessee courts
recognize that possession may be either actual or constructive. State v. Shaw, 37 S.W.3d 900, 903
(Tenn. 2001); see also State v. Bigsby, 40 S.W.3d 87, 90 (Tenn. Crim. App. 2000). A person
constructively possesses a controlled substance when he or she has “the power and intention at a
given time to exercise dominion and control over [the contraband] either directly or through others.”
Shaw, 37 S.W.3d at 903 (quoting State v. Patterson, 966 S.W.2d 435, 445 (Tenn. Crim. App. 1997)).
Said differently, constructive possession is the “ability to reduce an object to actual possession.”
State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987). However, “[t]he mere presence of
a person in an area where drugs are discovered is not, alone, sufficient.” Bigsby, 40 S.W.3d at 90;
see also Cooper, 736 S.W.2d at 129. “Likewise, mere association with a person who does in fact
control the drugs or property where the drugs are discovered is insufficient to support a finding that
the person possessed the drugs.” Cooper, 736 S.W.2d at 129.
Applying the inferences from the evidence most favorable to the state, we conclude
that the evidence was sufficient to establish that the defendants constructively possessed the drugs
and paraphernalia. Thelisa Emery resided at the mobile home, and Maurice Emery stayed there
occasionally. On the date in question, Maurice Emery was apparently using the back bedroom, at
least to the extent that his clothing was lying in that room. Most of the paraphernalia was found in
the kitchen, a common area of the residence. The amount of the crack cocaine found in the bedroom
wall fixture was substantial.3 Significantly, Woodruff testified that thirty minutes before the officers
arrived, the defendants sold a rock of crack cocaine to Brandon Hunt. Although the officers found
no drugs on the defendants’ persons and found no money in the mobile home, the evidence showed
that the defendants exercised dominion and control over the drugs and the paraphernalia and had the
ability to reduce these materials to their actual possession. Accordingly, the evidence is sufficient
to establish that both of the defendants constructively possessed the drugs and paraphernalia.
Also, we hold that Woodruff’s testimony in the light most favorable to the state
establishes that the defendants’ possession of the cocaine was attended by an intent to sell.
In her next issue, Thelisa Emery claims that the trial court erred in denying her motion
to sever the trials of the two defendants. Neither a written motion to sever defendants nor a
transcript of a severance hearing appears in the record, but prior to beginning the trial, the trial judge
announced that he had denied the motion to sever.
3
One of the officers testified that the street value of the three grams of cocaine was about $600.
-4-
A defendant’s motion for severance of offenses or defendants must be made before
trial, except that a motion for severance may be made before or at the close of all evidence if based
upon a ground not previously known. Tenn. R. Crim. P. 14(a). In general, the court
shall grant a severance of defendants if: (i) before trial, it is deemed
necessary to protect a defendant’s right to a speedy trial or it is
deemed appropriate to promote a fair determination of the guilt or
innocence of one or more defendants; or (ii) during trial, with consent
of the defendant to be severed, it is deemed necessary to achieve a fair
determination of the guilt or innocence of one or more defendants.
Id. 14(c)(2). Our supreme court has said that, with respect to a Rule 14 motion to sever offenses,
a motion to sever “is typically a pre-trial motion, see Tenn. R. Crim. P. 12(b)(5), and consequently,
evidence and arguments tending to establish or negate the propriety of consolidation must be
presented to the trial court in the hearing on the motion,” Spicer v. State 12 S.W.3d 438, 445 (Tenn.
2000). “Further,” the court said,
because the trial court’s decision of whether to consolidate offenses
is determined from the evidence presented at the hearing, appellate
courts should usually only look to that evidence, along with the trial
court’s findings of fact and conclusions of law, to determine whether
the trial court abused its discretion by improperly joining the offenses.
Applying this notion from Spicer to a Rule 14 motion to sever defendants, the state
of the record obviously hampers this court’s ability to review the claim. Apparently, Thelisa Emery
moved pretrial to sever her trial from that of her brother, but the record contains no copy of the
motion, no transcript of a severance hearing, and no findings and conclusions of the trial court. Also,
we find no mention in the record that Thelisa Emery made any further effort as the trial progressed
to obtain a severance. Thus, she strives on appeal to place the trial court in error for denying a
pretrial motion to sever, despite that she has presented us with no basis for reviewing the lower
court’s pretrial determination. The defendant, as the appellant, is obliged to furnish this court with
a fair, accurate, and complete record of what transpired in the trial court with respect to the issues
that form the bases of the appeal. Tenn. R. App. P. 24(b); State v. Banes, 874 S.W.2d 73, 82 (Tenn.
Crim. App. 1993); State v. Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987). In the absence
of such a record, the appellate court presumes that the trial court’s action was correct. State v. Oody,
823 S.W.2d 554, 559 (Tenn. Crim. App. 1991).
Even if we were to analyze the evidence at trial in the light of Thelisa Emery’s claim
that her trial should have been severed from that of Maurice Emery, we would find no basis for
ordering a severance. We discern nothing in the record that indicates that Thelisa Emery was denied
a fair trial as a result of being tried jointly with Maurice Emery. In particular, we discern no
inculpating evidence that would have been excluded had Maurice Emery’s trial been held separately.
Thelisa Emery claims in her brief that the joint trial enabled the state to argue that the two defendants
-5-
conspired to sell drugs, but even if this claim warranted further analysis, we would be unable to
address it because the arguments of counsel are not included in the record. Again, the appellant is
obliged to provide a full and fair record of the proceedings below, and in the absence of a record of
the arguments of counsel, we cannot review the claim that the joint trial resulted in prejudice via the
state’s argument. Thus, the claim of error in denying a severance fails.
Next, Thelisa Emery claims that the trial court erred in admitting two items of
evidence in contravention of Tennessee Rule of Evidence 404(b). First, she complains that the trial
court erroneously allowed Woodruff to testify that he saw the defendants sell cocaine to Brandon
Hunt 30 minutes before the police arrived. Second, she claims that the lower court erred in allowing
a police officer to testify that Thelisa Emery told him that she had used cocaine.
Tennessee Rule of Evidence 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity with
the character trait. It may, however, be admissible for other purposes.
The conditions which must be satisfied before allowing such evidence
are:
(1) The court upon request must hold a hearing outside the
jury’s presence;
(2) The court must determine that a material issue exists other
than conduct conforming with a character trait and must upon request
state on the record the material issue, the ruling, and the reasons for
admitting the evidence;
(3) The court must find proof of the other crime, wrong, or act
to be clear and convincing; and
(4) The court must exclude the evidence if its probative value
is outweighed by the danger of unfair prejudice.
Tenn. R. Evid. 404(b).
With regard to Woodruff’s testimony, the state argues that evidence that Thelisa
Emery sold cocaine to Brandon Hunt 30 minutes before the police arrived to search the mobile home
is probative of her intent to possess cocaine with intent to sell. We agree with the state.
Evidence may be admissible despite the prohibition of Tennessee Rule of Evidence
404(b) when the evidence of other acts is relevant to a material issue, such as identity, intent, or
motive and when its probative value is not outweighed by the danger of unfair prejudice. State v.
-6-
Robinson, 73 S.W.3d 136, 151-52 (Tenn. Crim. App. 2001). In such a situation, the court must
further find that the evidence of the prior act is clear and convincing as required by State v. Parton,
694 S.W.2d 299, 303 (Tenn. 1985). Id. When a trial court substantially complies with the
procedural requirements of Rule 404(b), its determination will not be overturned absent an abuse of
discretion. State v. Dubose, 953 S.W.2d 649, 652 (Tenn. 1997).
In the present case, Thelisa Emery claims in her brief that the evidence failed to
establish that she possessed the controlled substances and that if she possessed the cocaine, she had
no intent to sell it. Accordingly, evidence that she sold cocaine is relevant to the material issue of
intent. State v. Samuel L. Giddens, No. M2002-00163-CCA-R3-CD, slip op. at 4 (Tenn. Crim. App.,
Nashville, Apr. 4, 2003); State v. Robert Wayne Herron, No. M2002-00951-CCA-R3-CD, slip op.
at 3-4 (Tenn. Crim. App., Nashville, Jan. 22, 2003), perm. app. denied (Tenn. 2003); State v. Little,
854 S.W.2d 643, 649 (Tenn. Crim. App. 1992). This is especially true when the prior sale occurred
only minutes before the drugs were discovered in the defendant’s home.
In the present case, the trial court conducted a hearing as contemplated by Rule
404(b)(1). It determined that the central issues in the case were whether Thelisa Emery possessed
the drugs and the paraphernalia and whether, if she possessed the cocaine, she did so with intent to
sell. The court determined that evidence of the sale just minutes before the officers’ arrival was
highly probative of intent to sell and that the probative value outweighed the danger of unfair
prejudice. We note that the trial court did not specifically state that the prior act of selling cocaine
had been established by clear and convincing evidence, but the conclusion is inescapable that
Clifford Woodruff clearly testified that Thelisa Emery sold cocaine to Brandon Hunt. The import
of that expected testimony was imparted to the trial court in the Rule 404(b) hearing, and although
Woodruff’s actual testimony was attended by a strong defense effort to impeach him, we conclude
that the trial court did not abuse its discretion in admitting Woodruff’s testimony.
With regard to the police officer’s redirect testimony that Thelisa Emery admitted
using cocaine, we again apply a Rule 404(b) analysis. The court conducted a jury-out hearing
pursuant to Thelisa Emery’s objection to the proposed testimony. Although she initially objected
on the ground that the proposed redirect testimony was beyond the scope of cross-examination, she
ultimately claimed that the testimony would constitute inadmissible character evidence. In response,
the trial judge stated that, although the evidence could not be used as character or propensity
evidence, it was relevant and admissible to show “the likelihood that the cocaine that is very
definitely in dispute as to the ownership was, in fact hers.” On this basis, the trial court allowed the
evidence.
The trial court determined that a material issue existed other than the defendant’s
propensity to sell cocaine, and it stated its findings and conclusion. Although the trial court did not
explicitly mention whether the probative value was outweighed by the danger of unfair prejudice or
whether the prior act had been shown by clear and convincing evidence, we discern that the
relevance and probative value of the evidence outweighs the danger of an unfair prejudicial effect.
Thelisa Emery’s home contained drug paraphernalia and cocaine residue in a common area; evidence
-7-
that she used cocaine was invidious. As for the showing of the prior act by clear and convincing
evidence, the evidence emanates from Thelisa Emery’s own admission; the record contains
controversy that the officer reported the admission truthfully. In sum, we find no merit in this issue.
In her final issue, Thelisa Emery asserts that the trial court erred in charging the jury
as to the principle of criminal responsibility. See Tenn. Code Ann. §§ 39-11-401, -402 (2003). She
claims that she had a right to be notified via the indictment that the state would pursue this theory
of prosecution. In counterpoint, the state argues that criminal responsibility is but a mode or theory
by which the state may prove the charged offense, and it is not a separate offense. We agree with
the state.
“An indictment that charges an accused on the principal offense ‘carries with it all
the nuances of that offense,’ including criminal responsibility.” State v. Lemacks, 996 S.W.2d 166,
173 (Tenn. 1999). Thus, when the defendants’ indictments were consolidated for trial, Thelisa
Emery was essentially apprized of the aptness of the theory of criminal responsibility. At any rate,
her indictment need not have stated criminal responsibility as a theory available to support a
prosecution. See id. at 172. Moreover, the evidence in the case supported a jury instruction that
Maurice and Thelisa Emery acted complicity in the possession of cocaine with intent to sell. See
State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990) (criminal accused entitled to a complete and correct
charge of the law); State v. Zirkle, 910 S.W.2d 874, 892 (Tenn. Crim. App. 1995) (criminal
defendant entitled to jury instructions on the law governing the issues raised by the evidence). We
see no error in the trial court’s instructing the jury on the law of criminal responsibility.
In conclusion, we affirm the judgments of the trial court as to both defendants.4
___________________________________
JAMES CURWOOD WITT, JR., JUDGE
4
W e have considered whether the issues raised by Thelisa Emery pose any need to notice plain error in Maurice
Emery’s case. See Tenn. R. Crim. P. 52(b) (appellate court may notice plain error despite defendant’s waiver of issue
when error affected the substantial rights of an accused). Of course, we discern no errors in Thelisa Emery’s case, but
we have considered whether the police officer’s testimony that Thelisa Emery used cocaine prejudiced his case by virtue
of the joint trial. W e conclude that it is as likely that the officer’s testimony tended to exculpate Maurice Emery as much
as inculpate him. To be sure, we find no basis for noticing plain error.
-8-
| {
"pile_set_name": "FreeLaw"
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/28/2019 09:07 AM CDT
- 251 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
JONAS v. WILLMAN
Cite as 27 Neb. App. 251
Grant Jonas, appellant, v. Brent Willman, M.D., and
Doctors of Children - Lincoln, P.C., appellees.
___ N.W.2d ___
Filed May 21, 2019. No. A-17-1016.
1. Jury Instructions. Whether the jury instructions given by a trial court
are correct is a question of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court has an obligation to resolve the questions independently
of the conclusion reached by the trial court.
3. Directed Verdict: Appeal and Error. In reviewing a trial court’s rul-
ing on a motion for directed verdict, an appellate court must treat the
motion as an admission of the truth of all competent evidence submit-
ted on behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed is entitled
to have every controverted fact resolved in its favor and to have the
benefit of every inference which can reasonably be deduced from
the evidence.
4. Trial: Courts: Juries: Appeal and Error. A trial court’s response to a
question posed by the jury is reviewed for an abuse of discretion.
5. Motions for New Trial: Appeal and Error. An appellate court reviews
a denial of a motion for new trial for an abuse of discretion.
6. Negligence: Trial. Generally, it is error to submit a general allegation of
negligence to the jury.
7. Pretrial Procedure: Parties. A pretrial order is binding upon the
parties.
8. Pretrial Procedure: Evidence. In relation to evidence, the pretrial
conference is designed for and primarily used to restrict evidence to the
issues formulated, secure admissions or stipulations, and avoid unduly
cumulative evidence and the necessity of proving foundation in regard
to clearly competent evidence.
9. Jury Instructions: Pleadings: Evidence. A litigant is entitled to have
the jury instructed upon only those theories of the case which are
- 252 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
JONAS v. WILLMAN
Cite as 27 Neb. App. 251
presented by the pleadings and which are supported by competent
evidence.
10. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s failure to give a requested jury instruction, an appel-
lant has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction was warranted by the
evidence, and (3) the appellant was prejudiced by the court’s failure to
give the requested instruction.
11. Malpractice: Physicians and Surgeons: Proximate Cause: Damages.
In the medical malpractice context, the element of proximate causation
requires proof that the physician’s deviation from the standard of care
caused or contributed to the injury or damage to the plaintiff.
12. Physician and Patient: Negligence. Nebraska does not recognize the
loss-of-chance doctrine.
13. Trial: Evidence: Juries. Before evidence is submitted to a jury, there
is a preliminary question for the court to decide, when properly raised,
not whether there is literally no evidence, but whether there is any upon
which a jury can properly proceed to find a verdict for the party produc-
ing it and upon whom the burden is imposed.
14. Malpractice: Physicians and Surgeons: Expert Witnesses: Words
and Phrases. Medical expert testimony regarding causation based upon
possibility or speculation is insufficient; it must be stated as being at
least “probable,” in other words, more likely than not.
15. Trial: Evidence: Proof. The burden of proof is not sustained by evi-
dence from which a jury can arrive at its conclusions only by guess,
speculation, or conjecture.
16. Trial: Juries. The trial judge is in the best position to sense whether
the jury is able to proceed with its deliberations and has considerable
discretion in determining how to respond to communications indicating
that the jury is experiencing confusion.
17. Rules of the Supreme Court: Appeal and Error. Under Neb. Ct. R.
App. P. § 2-109(D)(4) (rev. 2014), a party filing a cross-appeal must set
forth a separate division of the brief prepared in the same manner and
under the same rules as the brief of appellant.
Appeal from the District Court for Lancaster County: John
A. Colborn, Judge. Affirmed.
Diana J. Vogt, of Sherrets, Bruno & Vogt, L.L.C., and
Patrick J. Cullan and Joseph P. Cullan, of Cullan & Cullan,
L.L.C., for appellant.
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Patrick G. Vipond, William R. Settles, and John M.Walker,
of Lamson, Dugan & Murray, L.L.P., for appellees.
R iedmann, Bishop, and A rterburn, Judges.
R iedmann, Judge.
I. INTRODUCTION
Grant Jonas brought a medical malpractice action alleg-
ing that his pediatrician failed to diagnose and treat him for
congenital bilateral undescended testicles. Following a jury
verdict in favor of the defendants, Jonas appeals, arguing
that the district court erred in instructing the jury, answering
questions from the jury, and denying his motion for a new
trial. The defendants attempt to cross-appeal from the district
court’s denial of their motion for sanctions. For the reasons
set out below, we affirm the order of the district court in
all respects.
II. BACKGROUND
Jonas brought a medical malpractice suit against Brent
Willman, M.D., and his professional practice, Doctors of
Children - Lincoln, P.C., in 2013. Jonas alleged that he
was born with congenital bilateral cryptorchidism and that
Willman was negligent in not diagnosing, treating, or refer-
ring him to a specialist for his condition. Congenital bilateral
cryptorchidism was defined at trial as testicles that had not
descended at birth. Thus, Jonas claimed that he was born with
testicles that did not descend and that Willman did not recog-
nize and treat his condition.
The defendants countered Jonas’ allegations by attempting
to establish that Jonas had descended testicles at birth, but his
testicles later ascended out of his scrotum. One of their experts
explained that “[an] ascended testicle is a testicle that was
descended at birth, and then at some point it ascended [and]
can no longer [be brought] into the scrotum.” The defendants
argued that Jonas did not suffer any injuries as a result of his
ascended testicles.
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1. Jonas’ Medical History
Jonas was born in July 1997. The day after he was born,
he was examined by Willman, who found Jonas’ testicles to
be descended and in the scrotum. Willman again examined
Jonas when he was 4 days old and noted that his testicles
were descended. Before leaving the hospital, Jonas was also
examined by Dr. Brad Brabec, who found Jonas’ testicles to
be normal.
Jonas’ 2-month checkup was performed by Willman, and his
testicles appeared normal and descended. Dr. Barton Bernstein
performed Jonas’ 4-month checkup and noted on Jonas’ medi-
cal chart that he was a normal, healthy child. Jonas then saw
Willman regularly for checkups, and on each visit, Willman
found Jonas’ testicles to be normal and descended. Additional
medical professionals examined Jonas while he was a young
child, including Kathy Carter, a nurse practitioner, who exam-
ined him when he was 2 years old, and Dr. Susan Johnson,
who examined him when he was 6 years old, and each found
his testicles to be descended and in his scrotum.
In 2003, Jonas was examined by Erin Hoffman, a new
physician assistant who worked for Willman. While examin-
ing Jonas, Hoffman had difficulty locating his testicles due to
extra fat tissue in his genital region. Being inexperienced in
these examinations, Hoffman requested that Willman assist
her, which he did, and Hoffman was able to “visualize” Jonas’
testicles. Between 2003 and 2008, Jonas was seen regularly
by Willman and Hoffman, and there were no concerns that his
testicles had not descended.
In 2008, Hoffman became concerned that Jonas’ penis was
abnormally small and that his genitalia were not develop-
ing at the same rate as the rest of his body. However, after
being informed of Hoffman’s concerns, Willman examined
Jonas and found Jonas’ testicles to be descended. Willman ran
tests to determine whether Jonas had started puberty, and the
tests indicated that he had low testosterone and had not yet
started puberty. In 2009, Jonas’ mother contacted Willman with
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concerns about Jonas’ penis size and testicles. Willman referred
Jonas to Dr. Jean-Claude Desmangles, an endocrinologist, to
evaluate him for delayed puberty.
In March 2009, Desmangles performed a physical examina-
tion on Jonas and could not locate his testicles. Desmangles
then ordered an ultrasound examination of Jonas, which indi-
cated that his testicles were not in his scrotum. Jonas was
referred to Dr. Euclid DeSouza, a urologist, who diagnosed him
with bilateral undescended testicles at the age of 11. DeSouza
performed an orchiopexy, which is a surgery to bring testicles
into the scrotum. Prior to his surgery, Jonas was examined by
Hoffman for a physical to ensure he was healthy enough for the
procedure. At the same visit, Hoffman performed a 12-year-old
checkup on Jonas and indicated on his medical chart that his
testicles were normal at that time.
After surgery, Jonas was informed that he was at a higher
risk of testicular cancer and likely would have fertility issues
due to his undescended testicles. He subsequently underwent
testing where it was determined that his sperm count rendered
him infertile.
2. Pretrial Procedure
In 2013, Jonas’ parents, individually and as next friends
of Jonas, filed a complaint in the district court for Lancaster
County against Willman; Complete Children’s Health, P.C.;
and Doctors of Children - Lincoln, alleging that the defendants
were negligent in failing to identify Jonas’ bilateral unde-
scended testicles and in failing to timely refer him to specialty
care for this condition. Complete Children’s Health was subse-
quently dismissed from the case.
After multiple continuances and lengthy discovery, a pre-
trial conference was held in June 2015. Prior to the pretrial
conference, the parties were ordered to submit a pretrial con-
ference memorandum. Jonas and his parents submitted their
memorandum on June 15, which stated, in relevant part: “On
July . . . 1997 Grant Jonas was born. Plaintiffs contend [Jonas]
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was born with a medical condition known as a congenital
bilateral cryptorchidism.”
On September 2, 2015, Jonas’ parents were dismissed after
the defendants filed a motion for partial summary judgment,
arguing that the parents’ claims were barred by the appli-
cable statute of limitations, and the parents agreed. The case
proceeded with Jonas, who was no longer a minor, as the
sole plaintiff.
Trial on Jonas’ claim was held in February 2017.
3. Trial
During Jonas’ opening statement, his counsel repeatedly
stated that Jonas was born with undescended testicles, which
caused his injuries. Specifically, counsel stated:
He was diagnosed, at age 11, with undescended testicles
at birth. Let me say that again. His diagnosis from age
11 until today, his diagnosis is undescended testicles.
Words matter. That matters, because that diagnosis is
going to try to be changed here in court, but that is his
current diagnosis. And if his current diagnosis is true
and accurate, then our case is made for us, because if
his testicles were undescended from birth, it should have
been caught.
Jonas’ counsel later stated, “A diagnosis, not some ascend-
ing testicles, some vanishing testicle theory, his diagnosis at
that stage is undescended testicles. . . . His diagnosis, unde-
scended testicles. That means from birth, that’s what that term
means.” His counsel continued to emphasize that Jonas had
undescended testicles from birth by explaining, “this diag-
nosis, undescended testes, means from birth, they’ve never
been in the scrotum.” Finally, while discussing Jonas’ alleged
injuries, his counsel stated, “And the only cause of testicular
dysfunction that we’re aware of in [Jonas] is the fact that these
things were never descended.”
Jonas’ first witness was DeSouza, the urologist who per-
formed Jonas’ surgery to bring his testicles into the scrotum.
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DeSouza testified that Jonas’ right testicle was located in his
abdomen and that his left testicle was located in the inguinal
canal, above the scrotum. DeSouza opined that it was unlikely
that either testicle was ever in the scrotum because the guber-
naculum, the structure that brings a male’s testicles to his
scrotum, did not lead to Jonas’ scrotum. During DeSouza’s
testimony, Jonas’ counsel continued to attempt to demonstrate
that Jonas was born with bilateral undescended testicles,
even attempting to impeach DeSouza when he opined that
Jonas’ left testicle may or may not have been descended at
one point. DeSouza also indicated that Jonas’ testicles were
atrophic, or small, because they were located in his groin and
inguinal canal, not the scrotum.
On cross-examination, DeSouza testified that he did not
observe a hernia sac while he performed Jonas’ surgery and
that a hernia sac is usually present when there are undescended
testicles. DeSouza also acknowledged that in his operative
report, written directly after the surgery, he stated that Jonas’
testicles were “anatomically normal.”
Jonas next called Dr. Kevin Ferentz, a family physician,
as an expert witness. Ferentz testified that Jonas was born
with undescended testicles that were not diagnosed. Ferentz
explained that there are increased risks of infertility and
testicular cancer in a male who has undescended testicles.
However, if undescended testicles are diagnosed and cor-
rected at approximately 1 year of age, the male should not
have any increased health risks. Ferentz stated that his opin-
ion Jonas had undescended testicles since birth was based on
Desmangles’ medical reports and DeSouza’s findings during
surgery. It was Ferentz’ opinion that Willman breached his
duty of care because Willman indicated that he felt Jonas’
testicles, but, based on DeSouza’s findings during surgery, it
was not possible that Jonas’ testicles were ever in the scrotum.
Finally, Ferentz opined that it was not possible for Jonas’ tes-
ticles to descend, and then reascend into his body, because his
gubernaculum did not reach his scrotum.
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Jonas also called Dr. Dudley Danoff, a urologic surgeon,
as an expert witness. Danoff concurred with Ferentz’ opin-
ion that Jonas was born with undescended testicles and that
he was not diagnosed with bilateral undescended testicles
until he was 11 years old. Danoff also opined that it was
impossible for Jonas’ testicles to have ever been in his scro-
tum. After reading the test results from Jonas’ fertility test,
Danoff testified that Jonas was infertile. Danoff further testi-
fied that the injuries Jonas suffered were proximately caused
by the delayed diagnosis of his undescended testicles. Danoff
indicated he did not believe the concept of ascending tes-
ticles was a “viable concept.” Danoff further stated that not
only did he not believe the concept of descending testi-
cles that then ascend, but he could not “conceive” how that
would happen.
Following Jonas’ case in chief, the defendants moved for a
directed verdict, which was denied by the court. The defend
ants then presented their case, attempting to demonstrate that
Jonas had descended testicles at birth that later ascended.
They elicited testimony from Bernstein, Brabec, Johnson,
Carter, and Hoffman who all testified that Jonas’ testicles were
descended when they examined him. Willman also testified
Jonas’ testicles were descended when he was born. He fur-
ther stated that it was virtually impossible for all the medical
professionals who examined Jonas to miss his undescended
testicles. Willman conceded that he examined Jonas in 2008
prior to referring him to Desmangles and that it was possible
he did not feel Jonas’ testicles at that visit.
The defendants also called two expert witnesses to testify
on their behalf. Dr. John Weiner, a pediatric urologist, testi-
fied that it was possible for a male to have ascending tes-
ticles, meaning testicles that retreat into the body after being
descended at birth. Weiner further testified that “the risk of
infertility and cancer are well known for undescended tes-
ticles from birth”; however, he stated that there is no medical
literature stating that there is an increased risk of infertility
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or cancer in ascended testicles. He stated that although the
exact cause of increased risk of infertility and cancer for unde-
scended testicles is unknown, most people believe that there is
something “wrong” with the testicle from the very beginning
and that the testicle was not destined to be a “good testicle[].”
Weiner opined that Jonas had no more risk of infertility or tes-
ticular cancer “than any other young boy” because he did not
have undescended testicles. Weiner concluded that Jonas did
not suffer an increased risk of cancer or infertility due to his
ascended testicles.
Dr. Timothy Bukowski, another pediatric urologist, also
testified that at birth, Jonas had descended testicles, and that
as time went on, they ascended. He based this opinion in part
upon the fact that there was no hernia sac found during surgery.
According to Bukowski, with a “true undescended testicle,”
a hernia sac exists. Similar to Weiner, Bukowski opined that
Jonas did not have an increased risk of infertility or can-
cer, explaining:
[A] boy whose testicles are descended should function
normally throughout puberty, throughout adulthood, pro-
vide normal fertility, normal pubertal growth, have a
minimal risk of testicular cancer development. And as
opposed to a boy whose testicles were not descended at
birth, they have a higher risk of testis tumor development
and a little bit higher rate of fertility problems.
Bukowski attributed the increased risk of infertility and cancer
with undescended testicles to a defect in the testicle itself.
Prior to the end of the trial, the district court held a
jury instruction conference. At the conference, Jonas’ counsel
objected to instruction No. 5, which contained the statement of
the case. Instruction No. 5, as given to the jury, states:
I. PLAINTIFFS’ CLAIMS
A. ISSUES
The Plaintiff, Grant Jonas, claims that Defendant[s]
Brent Willman, M.D. and Doctors of Children-Lincoln,
P.C. were professionally negligent in the following ways:
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1. In failing to timely identify Grant Jonas’ unde-
scended testicles;
2. In failing to timely manage Grant Jonas’ unde-
scended testicles;
3. In failing to arrange a proper referral for Grant
Jonas’ undescended testicles condition.
Defendants deny all allegation of negligence; deny that
the Plaintiff’s injuries were proximately caused by the
actions of Brent Willman, M.D. and Doctors of Children-
Lincoln, P.C. and defendants employees; and deny the
nature and extent of the Plaintiff’s damages.
Jonas objected, believing that the evidence was broader than
the court’s limitation of “undescended testes.” Specifically,
Jonas’ counsel argued that
at any time testicles were not in the scrotum and a find-
ing of normal was done, that, that was negligence. . . .
And so it’s the limitation in the term undescended testes
in those three items, which we believe makes it prejudi-
cial and confuses the jury, and is not in conformance with
the evidence proffered at trial.
In conformity with an amended pretrial order, Jonas had
submitted a proposed jury instruction which stated:
I. Plaintiffs’ Claims
A. ISSUES
The Plaintiff, Grant Jonas, claims that Defendants
Brent Willman, M.D. and Doctors of Children-Lincoln,
P.C. were professionally negligent in the following ways:
1. In failing to timely identify Grant Jonas’ unde-
scended testicles[;]
2. In failing to timely manage Grant Jonas’ unde-
scended testicles[;]
3. In providing false assurance to the family of Grant
Jonas regarding his testicular descent; and
4. In failing to arrange a proper referral for Grant
Jonas’ undescended testicle condition.
5. Otherwise to conform to the testimony at trial.
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The district court overruled Jonas’ objection, stating that
instruction No. 5 was taken from Jonas’ theory of the case and
that there was not any expert testimony that associated Jonas’
injuries with ascending testicles.
After the case was submitted to the jury, it posed two ques-
tions. First, the jury asked, “‘Does the plaintiff’s claim of
undescended testicles mean both testicles, e.g., bilateral?’”
Second, the jury asked, “‘Does “undescended” mean from
birth?[’”] After consulting with counsel for both parties, the
court answered “yes” to each question. The jury subsequently
returned a verdict in favor of the defendants.
4. Posttrial Proceedings
Following trial, Jonas moved for a new trial and the defend
ants sought sanctions against Jonas under Neb. Rev. Stat.
§ 25-824(4) (Reissue 2016). Jonas argued two grounds for a
new trial. First, he asserted that Weiner testified regarding the
absence of a hernia sac, which was an opinion that was not dis-
closed prior to trial. Second, he alleged that the use of the plu-
ral form of “testicle” in instruction No. 5 was erroneous. Jonas
further argued that the evidence presented at trial would have
allowed the jury to find in his favor if they had determined
that only one testicle was undescended. Jonas also alleged that
the court’s error in issuing instruction No. 5 was compounded
by the court’s answer of “yes” to the jury’s questions.
The district court denied Jonas’ motion for a new trial.
It found that Jonas failed to establish unfair surprise with
Weiner’s testimony. The court further stated that Jonas’ expert
witnesses did not present sufficient testimony to allow the
court to submit his requested instruction, allowing the jury to
find for him even if they found that only one testicle was unde-
scended. The court indicated that Jonas was attempting to use
expert testimony regarding bilateral undescended testicles to
prove causation and damages resulting from one undescended
testicle. Finally, the court stated that Jonas’ claim that he was
at an increased risk of cancer due to a single testicle being
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undescended failed because it was based on a lost chance of
survival, which the Nebraska Supreme Court had recently pro-
hibited. See Cohan v. Medical Imaging Consultants, 297 Neb.
111, 900 N.W.2d 732 (2017), modified on denial of rehearing
297 Neb. 568, 902 N.W.2d 98. The district court also denied
the defendants’ motion for sanctions.
Jonas appeals, and the defendants attempt to cross-appeal.
III. ASSIGNMENTS OF ERROR
Jonas assigns, restated and renumbered, that the district
court erred in (1) refusing to give Jonas’ proposed statement-
of-the-case jury instruction; (2) entering a directed verdict
against Jonas on damages arising from Willman’s failure to
diagnose, treat, or refer for ascended testicles; (3) answering
jury questions which precluded the jury from acting as fact
finder; (4) answering jury questions that indicated the court’s
opinion of the evidence and credibility of the witnesses; (5)
using a “general dictionary” and conducting its own research
in answering the jury questions; and (6) denying Jonas’ motion
for a new trial.
IV. STANDARD OF REVIEW
[1,2] Whether the jury instructions given by a trial court are
correct is a question of law. Armstrong v. Clarkson College,
297 Neb. 595, 901 N.W.2d 1 (2017). When reviewing ques-
tions of law, an appellate court has an obligation to resolve
the questions independently of the conclusion reached by the
trial court. Id.
[3] In reviewing a trial court’s ruling on a motion for
directed verdict, an appellate court must treat the motion as an
admission of the truth of all competent evidence submitted on
behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed
is entitled to have every controverted fact resolved in its favor
and to have the benefit of every inference which can reason-
ably be deduced from the evidence. Lesiak v. Central Valley
Ag Co-op, 283 Neb. 103, 808 N.W.2d 67 (2012).
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[4] A trial court’s response to a question posed by the jury
is reviewed for an abuse of discretion. See In re Petition
of Omaha Pub. Power Dist., 268 Neb. 43, 680 N.W.2d 128
(2004). See, also, In re Estate of Clinger, 292 Neb. 237, 872
N.W.2d 37 (2015).
[5] An appellate court reviews a denial of a motion for new
trial for an abuse of discretion. See Hemsley v. Langdon, 299
Neb. 464, 909 N.W.2d 59 (2018). A judicial abuse of discre-
tion exists when the reasons or rulings of a trial judge are
clearly untenable, unfairly depriving a litigant of a substantial
right and denying just results in matters submitted for disposi-
tion. Id.
V. ANALYSIS
1. Jury Instruction No. 5
Jonas asserts that the district court erred in refusing to give
the jury his proposed jury instruction on acts of negligence
shown by the evidence and supported by the record. Relatedly,
Jonas also argues that the district court erred by entering
a “directed verdict” against him on damages arising from
Willman’s failure to diagnose, treat, or refer him for ascended
testicles. Because our analysis of these assigned errors impacts
Jonas’ remaining errors, we address these errors first. We
determine that the district court did not err in refusing to give
Jonas’ proposed jury instruction and that the court did not err
in directing a verdict against Jonas on his claim of damages
resulting from Willman’s alleged failure to diagnose, treat, or
refer Jonas for ascended testicles.
During the jury instruction conference, Jonas’ counsel
objected to instruction No. 5, which reads in pertinent part:
I. PLAINTIFFS’ CLAIMS
A. ISSUES
The Plaintiff, Grant Jonas, claims that Defendant[s]
Brent Willman, M.D. and Doctors of Children-Lincoln,
P.C. were professionally negligent in the following ways:
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1. In failing to timely identify Grant Jonas’ unde-
scended testicles;
2. In failing to timely manage Grant Jonas’ unde-
scended testicles;
3. In failing to arrange a proper referral for Grant
Jonas’ undescended testicles condition.
Jonas argued that the evidence presented during trial was
broader than the specific acts contained in instruction No. 5
and that the instruction should have included a claim of gen-
eral negligence against the defendants and should not have
been limited to “undescended testes.” The district court over-
ruled the objection, stating that Jonas’ expert witnesses testi-
fied Jonas’ injuries and damages were based on undescended
testicles from birth and that that had been Jonas’ theory of the
case since the beginning.
In his appeal, Jonas argues that the court erred in giv-
ing instruction No. 5, because the evidence presented at trial
entitled Jonas to recover even if the jury found his testicles
were descended at birth and then ascended, or if only one tes-
ticle was undescended. Jonas’ argument is flawed for numer-
ous reasons.
[6] First, Jonas’ proposed instruction contained a catch-all
allegation of negligence. Specifically, he sought to include
a statement that defendants were negligent: “Otherwise to
conform to the testimony at trial.” Such an instruction is
improper. See Graham v. Simplex Motor Rebuilders, Inc., 189
Neb. 507, 203 N.W.2d 494 (1973) (stating it is error to submit
general allegation of negligence to jury).
As to Jonas’ argument that the court should not have lim-
ited the instruction to bilateral testicles or to undescended
testicles, Jonas is attempting to expand the case beyond the
allegations laid out in his complaint and pretrial memoran-
dum. In his complaint, he specifically pled that the defend
ants were negligent in failing to identify Jonas’ “bilateral
undescended testicles.” In his pretrial memorandum, Jonas
again identified “congenital bilateral cryptorchidism,” which
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his experts defined as testicles that had not descended from
birth. And pursuant to the amended pretrial conference order,
he submitted a jury instruction setting forth the specific act of
negligence in “failing to timely identify Grant Jonas’ unde-
scended testicles.”
[7,8] A pretrial order is binding upon the parties. Hall v.
County of Lancaster, 287 Neb. 969, 846 N.W.2d 107 (2014),
overruled on other grounds, Davis v. State, 297 Neb. 955, 902
N.W.2d 165 (2017). In relation to evidence, the pretrial confer-
ence is designed for and primarily used to restrict evidence to
the issues formulated, secure admissions or stipulations, and
avoid unduly cumulative evidence and the necessity of prov-
ing foundation in regard to clearly competent evidence. See
Cockrell v. Garton, 244 Neb. 359, 507 N.W.2d 38 (1993). The
Supreme Court has affirmed the limiting of the issues at trial
to those specified in the pretrial order and limiting the admis-
sion of evidence to the issues thus established. See, Hall v.
County of Lancaster, supra; Cockrell v. Garton, supra.
Here, a pretrial conference was held by the district court in
June 2015. The order specifically stated: “[T]his Order shall
control the subsequent course of this action. A copy of each
party’s Pretrial Conference Memorandum shall be attached to
and filed with this Order. Such Memoranda shall be deemed
incorporated in this Order . . . .” In his pretrial conference
memorandum, Jonas stated: “On July . . . 1997 Grant Jonas
was born. Plaintiffs contend [Jonas] was born with a medical
condition known as congenital bilateral cryptorchidism. . . .
Plaintiffs contend that Defendant Dr. Willman failed to rec-
ognize[] and failed to diagnose [Jonas’] congenital bilateral
cryptorchidism for over 11 years.” Thus, according to Jonas’
own pretrial memorandum, his claim was that he had congeni-
tal bilateral cryptorchidism, defined as undescended testicles
from the time of birth. Therefore, Jonas could not change his
theory of the case during the jury instruction conference to
allow him relief for something other than undescended bilat-
eral testicles from birth.
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The Supreme Court has either affirmed a trial court’s refusal
to allow a plaintiff to modify his or her theory of the case to
encompass alleged negligence, beyond what was laid out in the
complaint, or reversed a trial court’s decision to instruct the
jury on issues that could mislead them. In Hunt v. Methodist
Hosp., 240 Neb. 838, 485 N.W.2d 737 (1992), the Supreme
Court affirmed the trial court’s refusal to give the plaintiff’s
requested instruction which would have shifted liability to a
separate physician under the doctrine of respondeat superior,
when the plaintiff’s complaint was predicated on specific acts
of negligence of another named physician.
In contrast, in Long v. Hacker, 246 Neb. 547, 520 N.W.2d
195 (1994), the Supreme Court determined that the trial court
erred in instructing the jury regarding alternate methods of
localization for a spinal surgery because this was not at issue
in the case. To the extent that it was raised, it was raised by
the defendant. The Supreme Court found that the instruction
could mislead the jury about the issues in the case, and thus, it
reversed the judgment and remanded the cause for a new trial.
In the present case, Jonas requested that the court give
an instruction which would hold the defendants liable for a
greater swath of negligence than that on which Jonas predi-
cated his case. Jonas’ theory of the case from the time he
filed his complaint was that he was born with bilateral unde-
scended testicles and that Willman failed to diagnose and
treat his condition for over 11 years. This theory remained
the same throughout the pretrial process, throughout opening
statements, and throughout examination of the witnesses. The
defendants based their defense on Jonas’ theory and attempted
to show that Jonas was born with descended testicles that later
ascended. Jonas’ requested jury instruction would have allowed
him to recover even if the jury found that he had only one
undescended testicle or if they had ascended; yet, as discussed
below, no evidence supported a finding that either of these
resulted in injury to Jonas. The district court was correct to
refuse the proposed instruction.
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[9,10] Additionally, the evidence produced at trial did not
warrant Jonas’ requested instruction. A litigant is entitled to
have the jury instructed upon only those theories of the case
which are presented by the pleadings and which are sup-
ported by competent evidence. First Nat. Bank North Platte v.
Cardenas, 299 Neb. 497, 909 N.W.2d 79 (2018). To establish
reversible error from a court’s failure to give a requested jury
instruction, an appellant has the burden to show that (1) the
tendered instruction is a correct statement of the law, (2) the
tendered instruction was warranted by the evidence, and (3)
the appellant was prejudiced by the court’s failure to give the
requested instruction. Id. If the instructions given, which are
taken as a whole, correctly state the law, are not misleading,
and adequately cover the issues submissible to a jury, there
is no prejudicial error concerning the instructions and neces-
sitating a reversal. Id.
[11,12] In the medical malpractice context, the element
of proximate causation requires proof that the physician’s
deviation from the standard of care caused or contributed to
the injury or damage to the plaintiff. Thone v. Regional West
Med. Ctr., 275 Neb. 238, 745 N.W.2d 898 (2008). Expert tes-
timony is almost always required to prove proximate cause.
Id. Additionally, Nebraska does not recognize the loss-of-
chance doctrine. Cohan v. Medical Imaging Consultants, 297
Neb. 111, 900 N.W.2d 732 (2017), modified on denial of
rehearing 297 Neb. 568, 902 N.W.2d 98.
Jonas’ proposed instruction sought to allow him to recover
damages if the jury found that his testicles were descended
at birth, but later ascended, or if only one testicle was unde-
scended at birth. The injuries and damages that Jonas alleged
he suffered included infertility, an increased risk of testicular
cancer, and psychological distress. However, Jonas’ expert
witnesses testified that he suffered his injuries because of
bilateral undescended testicles from birth. They explicitly
disagreed with the theory of ascending testicles presented by
the defendants, and Jonas’ experts did not testify that Jonas
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would have the same damages if only one testicle was unde-
scended. Moreover, Jonas’ experts were not in a position to
opine on damages caused by ascending testicles, because both
experts stated that it was impossible that Jonas had ascending
testicles. Danoff went on to state that the concept of ascending
testicles was not a “viable concept.” Consequently, Jonas did
not establish proximate cause between his alleged injuries and
the defendants’ failure to diagnose and treat him for a single
undescended testicle or ascending testicles.
Additionally, and as noted by the district court in its order
denying Jonas’ motion for a new trial, Jonas’ alleged injury
of an increased risk of testicular cancer is not a recognized
injury under Nebraska law. See Cohan v. Medical Imaging
Consultants, supra.
The district court did not err by refusing to give Jonas’
requested jury instruction because such an instruction was
incompatible with Jonas’ theory of the case contained in his
pretrial memorandum, was contrary to established law in
Nebraska, and was not warranted by the evidence.
2. Directed Verdict
In its response to Jonas’ objection to instruction No. 5
at the jury instruction conference, the district court stated:
“Therefore, I guess, in essence, I’m directing a verdict on
your request, or your claim, that the ascended testicle resulted
in some injury to your client, because you have offered no
evidence that an ascended testicle causes infertility or an
increased risk of cancer.” In its denial of Jonas’ motion for a
new trial, the court again stated that it was directing a verdict
against Jonas’ claim for relief on his claim that he suffered
damages even if he had only a single undescended testicle or
ascending testicles. In his appeal, Jonas argues that there was
sufficient evidence presented to survive a directed verdict.
We disagree.
[13-15] Before evidence is submitted to a jury, there is a
preliminary question for the court to decide, when properly
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raised, not whether there is literally no evidence, but whether
there is any upon which a jury can properly proceed to find
a verdict for the party producing it and upon whom the bur-
den is imposed. Doe v. Zedek, 255 Neb. 963, 587 N.W.2d
885 (1999). A directed verdict is proper only when reason-
able minds can draw but one conclusion from the evidence.
Scheele v. Rains, 292 Neb. 974, 874 N.W.2d 867 (2016).
Medical expert testimony regarding causation based upon
possibility or speculation is insufficient; it must be stated as
being at least “probable,” in other words, more likely than not.
Doe v. Zedek, supra. The burden of proof is not sustained by
evidence from which a jury can arrive at its conclusions only
by guess, speculation, or conjecture. See id.
As iterated above, and as stated by the district court in its
denial of Jonas’ motion for a new trial, no expert testimony
was presented by Jonas which connected his alleged injuries
to only a single undescended testicle or ascending testicles.
Jonas’ experts testified that he suffered from congenital bilat-
eral cryptorchidism, which condition caused him to be infertile
and have an increased risk of cancer. Notably, both Ferentz
and Danoff testified that it was not physically possible for
Jonas’ right testicle to have ever descended, because his guber-
naculum, the structure which brings a male’s testicles into
his scrotum, did not reach his scrotum. Further, both experts
testified that it was not possible for the left testicle to have
descended because it was “heavily scarred” and adhered to the
structures of Jonas’ inguinal canal, the area directly above a
male’s scrotum. Therefore, Jonas’ entire theory of the case was
that his testicles could not have descended into his scrotum
and were undescended from birth.
Additionally, Ferentz testified that it was not possible for
Jonas to have ascending testicles and Danoff indicated that
the theory of ascending testicles was not a “viable concept”;
therefore, neither expert was in a position to offer opinions
on any damages that Jonas may have suffered even if he had
ascending testicles. Although Jonas argues on appeal that
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both Ferentz and Danoff testified that Jonas could have suf-
fered injuries even if his testicles had descended at birth and
then later ascended, we disagree that the experts’ testimony
supports this conclusion.
Jonas argues that Ferentz’ testimony that “[a]fter a year, if
the testicle is still too warm, if it’s still inside the body, it’s
going to lead to problems down the road,” supports a finding
that even ascended testicles can result in an increased risk of
infertility or of cancer. However, this statement came after
Ferentz testified, “So generally speaking, if a testicle doesn’t
descend within about a year of child — after childbirth, then
the problems will seem — will develop, or can develop, or
are more likely to develop.” Thus, Ferentz was not testifying
that a testicle could be damaged any time it was not in the
scrotum; rather, he was specifically testifying that a testicle
could become damaged if it did not descend at childbirth and
was not corrected within a year of childbirth.
We recognize that Danoff testified that “if the testicle is
exposed to body temperature for a long period of time, i.e.
being undescended, it will result in a severely damaged tes-
ticle.” However, Danoff’s statement again directly followed a
statement indicating that injuries associated from undescended
testicles occur when the testicles are not descended at birth,
not any time in a male’s life. Danoff stated, “Well, if the tes-
ticles remain undescended past the age of one, perhaps two,
the testicle becomes dystrophic, which means the ability of the
testicle to both make sperm, which we call spermatogenesis,
and make testosterone, is severely damaged . . . .” Therefore,
contrary to Jonas’ assertion on appeal, Danoff was not testi-
fying that any time a male’s testicles are not in the scrotum,
they can become damaged; rather, he was specifically tes-
tifying that when testicles do not descend at birth and then
remain undescended for a year, they can become dystrophic.
Neither expert testified that the dangers inherent in an unde-
scended testicle are the same if the testicle has descended and
later ascended.
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On the other hand, experts for the defense testified that a
male who has ascending testicles has the same risk of devel-
oping cancer as the rest of the male population. Bukowski
expressly stated that a male with descended testicles at birth
should have testicles that function normally, provide normal
fertility, and carry a minimal risk of testicular cancer develop-
ment. Thus, the only expert testimony that addressed damages
for ascending testicles was produced by the defense, and the
testimony expressly stated that Jonas did not suffer damages
as a result of ascended testicles. Therefore, because Jonas’
experts did not present any testimony specifically regarding
Jonas’ injuries as a result of ascended testicles, the jury would
have had to speculate as to whether Jonas’ ascended testicles
caused any injuries and the extent of those injuries. It is the
duty of the district court to refrain from submitting to the jury
the issue of damages where the evidence is such that it can-
not determine that issue without indulging in speculation and
conjecture. Snyder v. Contemporary Obstetrics & Gyn., 258
Neb. 643, 605 N.W.2d 782 (2000). Consequently, the district
court was correct in directing a verdict against Jonas’ claim
that his alleged injuries were caused by a single undescended
testicle or ascending testicles.
3. Jury Questions Submitted to Court
Jonas has multiple assigned errors related to the court’s
response to the jury’s two questions submitted during its delib-
erations which we address together. We find that the dis-
trict court did not abuse its discretion in answering these
questions.
After the case was submitted to the jury, the jury asked the
court two questions. First, the jury asked, “‘Does the plain-
tiff’s claim of undescended testicles mean both testicles, e.g.,
bilateral?’” Second, it asked, “‘Does “undescended” mean
from birth?[’”] After consulting with counsel for both par-
ties by telephone on the record, the court answered “yes” to
each question.
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[16] The trial judge is in the best position to sense whether
the jury is able to proceed with its deliberations and has
considerable discretion in determining how to respond to
communications indicating that the jury is experiencing con-
fusion. In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d
37 (2015). Further, Neb. Rev. Stat. § 25-1116 (Reissue 2016)
states:
After the jury have retired for deliberation, if there
be a disagreement between them as to any part of the
testimony, or if they desire to be informed as to any part
of the law arising in the case, they may request the offi-
cer to conduct them to the court where the information
upon the point of law shall be given, and the court may
give its recollection as to the testimony on the point in
dispute in the presence of or after notice to the parties or
their counsel.
Therefore, the court has discretion to further instruct the
jury and is not limited to simply directing the jury to reread
the instructions previously given as Jonas asserts should have
been done.
(a) Court Did Not Preclude Jury From Performing
Its Function as Fact Finder and Did Not
Comment on Credibility of Witnesses
Jonas asserts that, in answering “yes” to each question sub-
mitted by the jury, the district court did not allow the jury to
perform its role as a fact finder and directed the jury to rely on
the defendants’ witnesses. We disagree.
In support of his argument, Jonas directs us to numerous
cases in which a trial judge went outside his or her role and
commented during trial on the evidence from the bench. We
find those cases inapplicable to a situation in which the judge
provides a response to a jury question, and we decline to fur-
ther address them.
However, Jonas also relies upon Bahrs v. R M B R Wheels,
Inc., 6 Neb. App. 354, 574 N.W.2d 524 (1998), a premises
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liability action against two separate entities. In that case, we
determined it was improper to instruct the jury that the two
defendants were to be treated the same and that if one was
liable, so was the other. Jonas cites this case, stating that we
determined “it was prejudicial error requiring reversal for
the court to have sua sponte decided there was a joint enter-
prise between the defendants” because such a decision is for
the jury. Brief for appellant at 24. However, we specifically
stated, “assuming, without deciding, that the trial court had
the authority to determine sua sponte as a preliminary matter
the existence of a joint enterprise between the defendants,” it
was error to do so because there was no evidence of a joint
enterprise. Bahrs v. R M B R Wheels, Inc., 6 Neb. App. at 361-
62, 574 N.W.2d at 529.
Here, the court did not instruct the jury requiring it to
treat a certain set of facts as true. As discussed in more detail
below, the court answered the jury’s questions in a manner
that was consistent with Jonas’ theory of the case. The court
did not instruct the jury that Jonas had ascended testicles or
a single undescended testicle; rather, it simply responded
to the jury’s questions in a manner which was consistent
with Jonas’ theory of the case—that he had bilateral unde-
scended testicles.
Furthermore, Jonas cannot prove he was prejudiced by
the court’s answers to the jury questions. As stated above,
the court’s answers to the jury questions are consistent with
Jonas’ theory of the case as stated in his complaint, pretrial
memorandum, and opening statement. Additionally, the court
stated that the only definition of “undescended” given during
trial was “undescended from birth.” Finally, the court based
its answers on the fact that both of Jonas’ expert witnesses
testified that Jonas had bilateral undescended testicles from
birth. Thus, the court’s answers to the jury’s questions were
taken directly from Jonas’ complaint and the evidence that
Jonas presented during trial. Jonas was not prejudiced by the
court’s answers to the jury’s questions.
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(b) District Court Did Not Abuse Its Discretion
in Consulting Dictionary to Answer
Jury’s Questions
Jonas also assigns that the district court erred in consulting
a “general dictionary” in answering the jury’s questions. This
assigned error is without merit. In explaining to counsel its
decision to answer the jury’s questions, the court stated:
With respect to, “Does undescended mean from
birth?” I’m going to answer, as used in Instruction No.
5, undescended testicles means from birth. And the rea-
son I’m going to do that is because, one, the definition
— I looked for a definition of undescended, and they all
refer, basically, back to undescended testicles. And in
the Merriam-Webster Dictionary, it says, retained within
the inguinal region rather than descending into the scro-
tum, undescended.
Jonas argues that this constituted the trial judge’s conducting
his own independent investigation of the facts, contrary to
Nebraska law. However, the trial judge went on to state that
his response to the question was also based on the testimony
from Jonas’ witnesses and how the term “undescended” was
used throughout the trial. Thus, the trial judge did not base
his answer to the jury’s question solely on the dictionary
definition of undescended. The court’s response was based on
Jonas’ complaint, pretrial memorandum, and opening state-
ment where he stated, “His diagnosis, undescended testicles.
That means from birth, that’s what that term means.” And it
was consistent with the testimony of Jonas’ expert witnesses.
Thus, the court did not abuse its discretion in consulting a
“general dictionary” because the court’s response was consist
ent with Jonas’ theory of the case and the evidence presented
at trial.
4. Motion for New Trial
In his final assigned error, Jonas asserts that the district
court abused its discretion in denying his motion for a new
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trial. We disagree. Jonas’ motion was predicated on his belief
that the district court erred in issuing instruction No. 5 and
erred again by answering the jury’s questions. However, as
stated above, we find no error in either of these. Therefore,
there are no grounds for a new trial, and the district court was
correct in denying the motion.
5. Defendants’ Cross-A ppeal
[17] The defendants attempted to file a cross-appeal in
this case, arguing that the district court erred in denying their
motion for sanctions against Jonas. Under Neb. Ct. R. App. P.
§ 2-109(D)(4) (rev. 2014), a party filing a cross-appeal must
set forth a separate division of the brief prepared in the same
manner and under the same rules as the brief of appellant.
Vokal v. Nebraska Acct. & Disclosure Comm., 276 Neb. 988,
759 N.W.2d 75 (2009). Thus, under § 2-109(D)(1), the cross-
appeal section must set forth a separate title page, a table of
contents, a statement of the case, assigned errors, propositions
of law, and a statement of facts. See Vokal v. Nebraska Acct.
& Disclosure Comm., supra.
Here, the defendants failed to properly set forth any assign-
ment of error in their cross-appeal. Errors argued but not
assigned will not be considered on appeal. Id. Therefore, we
decline to address the defendants’ attempted cross-appeal.
VI. CONCLUSION
For the foregoing reasons, we affirm the decisions of the
district court.
A ffirmed.
| {
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} |
442 F.Supp. 482 (1977)
James E. HENDLEY, Plaintiff,
v.
CENTRAL OF GEORGIA RAILROAD COMPANY, Defendant.
No. CV477-269.
United States District Court, S. D. Georgia, Savannah Division.
December 28, 1977.
*483 Billy E. Moore, Edward W. Szczepanski, Moore & Szczepanski, Columbus, Ga., John Wright Jones, Jones & Cheek, Savannah, Ga., for plaintiff.
John B. Miller, Miller, Beckmann & Simpson, Savannah, Ga., for defendant.
ORDER
LAWRENCE, District Judge.
I
James E. Hendley is an employee of Central of Georgia Railroad Company which is a part of the Southern Railway System. He seeks an injunction against defendant's pending disciplinary investigation growing out of his activities in connection with a co-employee's personal injury suit against Central under the Federal Employers' Liability Act.
Mr. Hendley is a switch engine foreman. It appears that in off-duty hours, he assisted Daniel Razook in the latter's personal injury action against Central and Union-Camp Corporation. He was present in a switch engine which carried one of plaintiff's *484 attorneys (a former officer in the Switchmen's Union) onto Union-Camp's woodyard where photographs were made for use in the FELA action filed by Razook.[1]
Following the trial and settlement of the damage suit, written notice was sent to Hendley scheduling a disciplinary investigation based on "disloyalty" and the violation of rule R of Southern Railway System's operating rules.[2] Hendley who has been suspended responded with a suit seeking injunctive relief in this Court. Jurisdiction is predicated upon 28 U.S.C. § 1331(a) [federal question]; 45 U.S.C. § 60 [prohibiting a carrier's prevention of an employee's volunteering information as to a claim to one in interest], and 45 U.S.C. § 56 [jurisdiction over personal injury cases under the Federal Employers' Liability Act].
Hendley maintains that the investigation is intimidatory in nature and is a palpable violation of 45 U.S.C. § 60. The disciplinary proceeding constitutes, plaintiff complains, a mere reprisal because Central was the loser in Razook's action for damages. Plaintiff argues that relief can and should be granted by this Court in the way of enjoining the imminent disciplinary investigation.
The Railroad contends that this Court is without jurisdiction to do so and that Mr. Hendley has no remedy in the courts until he has exhausted the procedures provided for in the collective bargaining contract and the Railway Labor Act, 45 U.S.C. §§ 151-159. Central takes the position that the statute in question establishes "primary exclusive jurisdiction" in the National Railroad Adjustment Board and the procedures created in that Act.
The scheduled investigation was postponed pending a decision by this Court as to the jurisdictional question. Briefs have been filed and oral argument heard.
II
Under 45 U.S.C. § 60, which is an adjunct of the Federal Employers' Liability Act, any contract, rule or device is void that is intended or has the effect of preventing employees of a common carrier from voluntarily furnishing information to a person in interest as to the facts incident to the injury or death of an employee. Anyone who by threat, intimidation, contract, rule or device attempts to prevent the voluntary furnishing of information or who disciplines or attempts to discipline an employee for doing so is guilty of a criminal offense. 45 U.S.C. § 60. It was the intent of Congress to see to it that an injured employee could readily obtain all the available information from witnesses, particularly employees of the railroad company. Dugger v. Baltimore & O. R. Co., 5 F.R.D. 334 (E.D., N.Y.). The purpose of the statute is to prevent the coercion of employees upon whom an employee claimant depends to substantiate his claim against the railroad. Kozar v. Chesapeake and Ohio Railway Company, 320 F.Supp. 335, 369-70, 383-85 (W.D., Mich.), reversed in part upon other grounds, 449 F.2d 1238 (6th Cir.). In Kozar the District Judge observed that where there are coercive practices by a carrier, "Every remedial weapon, including contempt, will be available to insure uninhibited exercise of federal rights." p. 386.
The Collective Bargaining Agreement between the Central of Georgia Railroad Company and the Switchmen's Union of which Mr. Hendley was a member provides for an investigation of grievances. Where the Railroad brings charges, the employee has full opportunity to hear the testimony of all witnesses and to present his side of the case. If the result of the investigation is disciplinary action or dismissal of the *485 employee, there is a right of appeal to the next higher officer and from him to the next higher one. Article 18 of the Collective Bargaining Agreement.
Because of the huge backlog of minor disputes before the Adjustment Board, Congress amended the Act in 1966 to provide for the establishment of special adjustment boards to resolve disputes otherwise referable to the Board itself. The machinery created establishes a mandatory arbitration alternative. See Brotherhood of Locomotive Engineers v. Denver & Rio Grande Western Railroad Company, 411 F.2d 1115, 1118 (10th Cir.). The awards of the special adjustment boards are "final and binding upon both parties to the dispute." 45 U.S.C. § 153 First (m). The range of judicial review of an award by such a board is a narrow one. See Central of Georgia Railway Company v. United Transportation Union[s], 353 F.Supp. 293, 302 (S.D., Ga.).
The Railway Labor Act (45 U.S.C. §§ 151-163) contemplates and commands that the parties attempt to settle all minor disputes through grievance procedures, failing which either party has the right of recourse to compulsory arbitration by way of appeal to the National Railroad Adjustment Board. 45 U.S.C. § 153 First (i). A "minor" dispute generally concerns the meaning or proper interpretation and application of rules or working conditions under the collective bargaining agreement. Major disputes "look to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past." Itasca Lodge 2029 of Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees v. Railway Express Agency Incorporated, 391 F.2d 657, 662-664 (8th Cir.), quoting Elgin, Joliet & Eastern Railway Co. v. Burley, 325 U.S. 711, 723, 65 S.Ct. 1282, 89 L.Ed. 1886.
III
The logical extreme to which plaintiff's argument leads us is that a Railroad may not discipline an employee who aids a fellow employee in developing his case against the carrier. According to plaintiff, there can be no "disloyalty" grievance since 45 U.S.C. § 60 makes a federal crime out of disciplinary reprisals by the carrier.
I cannot agree that that statute abolishes employer charges and grievances as to employee disloyalty. Internal disciplinary hearings at company level under a collective bargaining agreement constitute neither harassment nor other violation of 45 U.S.C. § 60. Clark v. Seaboard Coast Line Railroad Company, 332 F.Supp. 380, 381 (N.D., Ga.). See also Seaboard Air Line Railroad Company v. Wilkinson, 216 Ga. 338, 342, 116 S.E.2d 588.
Much in point is Brotherhood of Railway and Steamship Clerks v. Atlantic Coast Line Railroad Company, 154 F.Supp. 71 (E.D., N.C.), aff'd. 253 F.2d 753 (4th Cir.). The underlying facts in that case bear striking resemblance to those in the present case. A Union official who was an employee of ACL had assisted the attorney for another employee in the preparation of his FELA suit by surreptitiously arranging for the access of a photographer to the Railroad's office building in order to take pictures of a spiral stairway on which plaintiff had been injured. The plaintiff was discharged following disciplinary proceedings pursuant to the bargaining agreement. The Railroad Adjustment Board found such termination of employment to be without cause. In the ensuing enforcement proceeding in connection with such award the district court reversed on the ground of the employee's disloyalty. On appeal to the Fourth Circuit that ruling was affirmed.
In the case of Greenwood v. Atcheson, Topeka and Santa Fe Railway Company, 129 F.Supp. 105 (S.D., Cal.) the employee sued for damages for wrongful discharge. He had previously processed his grievance through the National Railroad Adjustment Board which denied his claim and refused reinstatement. The District Court held that the award in question was final and that no remedy existed beyond *486 the administrative claim.[3] It found that 45 U.S.C. § 60 conferred no right of action on a plaintiff pursuant to the Federal Employers' Liability Act.
IV
Title 45 U.S.C. § 60 is a criminal, not a jurisdictional statute. I have little doubt that violations of that Section may be enjoined in connection with an on-going FELA case. See Clark v. Seaboard Coast Line Railroad Company, supra, 332 F.Supp. 380; Kozar v. Chesapeake and Ohio Railway Company, supra, 320 F.Supp. 335. Here, however, the Razook case has been tried and settled. There was no suppression of evidence through coercion by the Railroad. The purpose of the present suit for injunction is not to obtain relief under 45 U.S.C. § 60. It is to by-pass the mandatory remedies prescribed by Congress, under the guise of the criminal statute. Clearly plaintiff has an adequate administrative remedy under the law. It is no answer to say that proceedings under the National Railway Labor Act take too long.
The dispute involved in this case is part of the ordinary, diurnal grist of employee-employer relations. The questions involved in the disciplinary investigation include whether or not the conduct complained of constituted disloyalty. Was Switch Foreman Hendley merely voluntarily furnishing information for use in the suit against Central? Did Mr. Hendley have the right to furnish or provide same to a co-employee? Is the disciplinary investigation punitive or coercive in motive or effect? Such questions of fact (or law) are determinable under established grievance and arbitral procedures, contractual and statutory.
Awards of the special adjustment boards are, as stated, "final and binding upon both parties to the dispute." 45 U.S.C. § 153 First (m). The jurisdiction of the National Railroad Adjustment Board and its remedial processes is exclusive, primary and mandatory in the case of minor disputes under collective bargaining agreements. The statutory procedures represent a comprehensive system for resolving such controversies and a party may not turn to the courts for relief before the administrative body has first evaluated and decided the dispute. See Slocum v. Delaware Lackawanna & Western Railroad Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795; Union Pacific Railroad Co. v. Price, 360 U.S. 601, 616, 79 S.Ct. 1351, 3 L.Ed.2d 1460; International Brotherhood of Electrical Workers v. Washington Terminal Company, 154 U.S.App. D.C. 119, 135-36, 473 F.2d 1156, 1172-73, cert. den. 411 U.S. 906, 93 S.Ct. 1530, 36 L.Ed.2d 195. The role of the courts in adjustment of labor disputes does not begin until there has been exhaustion of the contractual and statutory arbitration processes. Andrews v. Louisville & Nashville Railroad Co., 406 U.S. 320, 325-26, 92 S.Ct. 1562, 32 L.Ed.2d 95.
The courts that have considered the effect of 45 U.S.C. § 60 on jurisdiction in suspensions or terminations growing out of charges of employee perfidy have concluded that that provision of FELA does not preclude, in a proper case, such punishment. Nor does it confer jurisdiction upon the district courts to decide that issue. I have read the authorities relied on by plaintiff's counsel and do not find them to be persuasive.[4]
*487 Finding neither a clear and specific grant of federal jurisdiction nor any statutory overriding of the remedies established in labor disputes, the injunctive relief sought must be and is denied and the complaint dismissed. The defendant Railroad is free to reschedule the disciplinary investigation and to proceed therewith.
NOTES
[1] See Hendley's pre-trial deposition in the Razook case. He did not testify at the trial of the claim against Central of Georgia and Union-Camp Corporation. The pictures taken at the woodyard were used in the trial.
[2] "Information detrimental to the Company's interests must not be divulged except to proper officers or to others authorized to obtain such information." The letter scheduling the hearing on the charge of disloyalty is dated December 1, 1977, immediately following the trial of the case in the Superior Court of Chatham County.
[3] The Supreme Court agreed in Union Pacific Railroad Company v. Price, supra, 360 U.S. 601, 79 S.Ct. 1351, 3 L.Ed.2d 1460 that the submission by the plaintiff of his grievance to the Adjustment Board in respect to his discharge from employment precludes him from seeking damages in a subsequent common-law action. Congress never intended that the Railroad Adjustment Board should only render advisory opinions.
[4] A few words probably should be said concerning Texas & New Orleans Railroad Company v. Brotherhood of Railway & Steamship Clerks et al., 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034. The Railway Labor Act of 1926 contained a provision that representatives of the disputant parties should be selected by the respective parties without influence or coercion by the other. The defendant Railroad had recognized a company Union as the representatives of its clerical parties and an injunction against it was granted below. Defendants contended in the Supreme Court that the statutory provision referred to created a mere abstract right without provision for enforcement by legal proceedings. The Court affirmed. It said: "The definite prohibition which Congress inserted in the Act cannot . . . be overridden in the view that Congress intended it to be ignored. As the prohibition was appropriate to the aim of Congress, and is capable of enforcement, the conclusion must be that enforcement was contemplated." At 569, 50 S.Ct. at 433.
But this is not to say that a right to be free from coercion as set forth in a criminal law operates to displace a statutory system of mandatory arbitration embracing the very controversy between the parties in respect to loyalty.
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426 F.Supp.2d 321 (2005)
Thomas W. GRESHAM
v.
LUMBERMAN'S MUTUAL CASUALTY CO.
No. Civ. JFM-03-2243.
United States District Court, D. Maryland.
November 10, 2005.
*322 Francis J. Collins, Kahn Smith and Collins PA, Baltimore, MD, for Thomas W. Gresham.
Jessica Regan Hughes, Seyfarth Shaw LLP, Washington, DC, Thomas James Piskorski, Seyfarth Shaw LLP, Chicago, IL, for Lumberman's Mutual Casualty Co.
OPINION
MOTZ, District Judge.
Plaintiff Thomas W. Gresham brought this action against Defendant Lumbermens Mutual Casualty Company ("Kemper") on August 1, 2003, asserting claims for breach of contract and violation of the Maryland Wage Payment and Collection Act ("WPA"), Md. Labor & Employ. Code Ann. § 3-501 et seq. After I granted Kemper's motion for summary judgment, the Fourth Circuit reversed, ruling that Gresham was entitled to judgment on his claim for breach of contract and remanding the WPA claim. Gresham v. Lumbermen's Mutual Casualty Co., 404 F.3d 253 (4th Cir.2005). On May 25, 2005, I entered an order awarding Gresham the principal amount of his underlying claim plus accrued interest, totaling $145,236. That judgment has now been satisfied. The only remaining issue is whether under the WPA Gresham should receive attorney's fees and additional damages up to twice the amount of his claim.[1] The parties have filed cross-motions for summary judgment on this question.
I.
Kemper hired Gresham in January 1999 as Vice-President of a new subsidiary responsible for developing a professional liability line of insurance. An offer letter sent to Gresham by Kemper's President and Chief Operating Officer William Smith on Dec. 14, 1998, served as Gresham's employment agreement. This letter included a severance provision: "Severance Protection One year base salary will be paid if terminated without cause." (Pl.'s Opp'n to Def.'s Renewed Mot. for Summ. J. and Pl.'s Cross-Mot. for Summ. J., Ex. B.) The agreement included no other language regarding the severance provision.
During the time of Gresham's hiring and employment, Kemper maintained a severance plan that was subject to the Employee Retirement Income Security Act of 1974 ("ERISA") (hereinafter the "ERISA Severance Plan" or "Plan"). Under the terms of this plan, employees were ineligible for severance if they left before their scheduled termination date or were offered comparable positions with a purchaser. Kemper took the position that Gresham's severance was subject to the conditions set forth in the ERISA Severance Plan, even though the Plan was not referenced in his employment agreement.
On May 1, 2003, Kemper provided Gresham with a 60-day notice of his termination. Kemper's planned termination was not grounded upon any contention *323 that Gresham had committed an act constituting "cause" but rather upon Kemper's decision to sell its professional liability line of insurance to another company. Kemper completed the sale to The St. Paul Insurance Companies ("The St. Paul") on May 9, 2003. On May 19, 2003, Kemper received an e-mail from The St. Paul stating that Gresham had accepted a position with The St. Paul. At that point, Kemper removed Gresham from its payroll. The transition was seamless; Gresham never missed a day of work and continued to report to the same office.
When Gresham requested the severance pay described in his employment agreement, Kemper refused because of Gresham's employment with The St. Paul. Kemper communicated its position to Gresham in emails sent on May 9, 2003 and May 19, 2003 from Kemper's Human Resources Manager to Gresham: The May 9, 2003 email states, in part, "You are not eligible to receive severance benefits if you accept a position as part of a renewal rights transaction." The May 19, 2003 email states, in part "Due to your continued employment, no severance benefits will be paid." (Def.'s Renewed Mot. For Summ. J., Ex. E).
Gresham subsequently filed suit. In defending against the, claims, Kemper asserted that Gresham was not entitled to a severance payment because (1) his contract right to receive such a payment was preempted by the company's ERISA Severance Plan, (2) the provisions of the ERISA Severance Plan were implicitly incorporated into his contract, and/or (3) he left Kemper's employ prior to his proposed separation date. I declined to address the ERISA issues and held that Gresham had been terminated. "for cause" when he departed Kemper because "a corporate executive cannot be simultaneously performing effective services to different companies at the same time." The Fourth Circuit reversed this ruling. The Fourth Circuit also found that Gresham's contract claim for a severance benefit was not preempted by ERISA and that under the unambiguous terms of the contract the terms of the ERISA Severance Plan were not incorporated into the contract. Accordingly, the Fourth Circuit held that Gresham was entitled to receive a severance payment and remanded the case to this court for further proceedings.
II.
The WPA protects employees from wrongful withholding of wages by employers upon termination. See generally Stevenson v. Branch Banking & Trust Corp., 861 A.2d 735, 743-44 (Md.Ct. Spec.App.2004) (explaining the purpose of the WPA). Section 3-505 of the WPA provides that each employer shall pay a terminated employee all wages due for work that the employee performed before termination. Md. Labor & Employ. Code Ann. § 3-505. Wages are defined as "all compensation that is due to an employee for employment" and include a bonus, commission, fringe benefit, or "[a]ny other remuneration promised for service." Id. § 3-501(c). Section 3-507.1 of the WPA creates a private right of action to recover unpaid wages. Id. § 3-507.1(a). If a court finds that an employer withheld owed wages not as a result of a "bona fide dispute," the court may award the employee an amount not exceeding three times the wages, along with reasonable attorney's fees and other costs. Id. § 3-507.1(b).
Two questions are presented by Gresham's claim for treble damages and attorney's fees. First, does his severance pay constitutes "wages" within the meaning of the WPA? Second, if severance pay does qualify as wages, did a bona fide dispute *324 exist as to Kemper's responsibility to make the severance payment?
III.
The answer to the first question whether the severance pay to which plaintiff was entitled constitutes "wages" within the meaning of the WPA is yes. In Whiting-Turner Contracting Co. v. Fitzpatrick, 366 Md. 295, 783 A.2d 667, 672-73 (2001), the Maryland Court of Appeals stated that "[o]nce a bonus, commission, or fringe benefit has been promised as part of the compensation for service, the employee would be entitled to its enforcement as wages." The following year, summarizing the Whiting-Turner test, the Court of Appeals explained: "[i]t is the exchange of the remuneration for the employee's work that is crucial for the determination that compensation constitutes a wage. Where the payments are dependent upon conditions other than the employee's efforts, they lie outside of the definition." Medex v. McCabe, 372 Md. 28, 811 A.2d 297, 301 (2002). The court further noted that "an employee's right to compensation vests when the employee does everything required to earn the wages." Id. at 305. Accordingly, the court held that incentive fees earned during employment constituted wages, and it refused to enforce a contractual provision that required employees still be working for the company at the time the fees were actually paid.
In Stevenson v. Branch Banking & Trust Corp., 159 Md.App. 620, 861 A.2d 735, 749 (2004), the Court of Special Appeals opined that "a severance benefit that is based upon the length and/or nature of the employee's service and promised upon termination, may be recoverable under the Wage Payment Act." Because the severance benefit in Stevenson was tied to a non-compete agreement, the court found that the severance pay did not represent deferred compensation but was a quid pro quo for the noncompete agreement. Id. at 749-50. In contrast, in the present case the severance payment to which plaintiff was entitled related solely to his satisfactory service during the period of employment. The parties' agreement was that the benefit was to be paid if plaintiff was terminated without cause. Kemper makes no contention that Gresham engaged in any conduct that constituted cause for his discharge. To the contrary, he was a well regarded and highly performing executive. Accordingly, his severance benefit constitutes wages within the meaning of the WPA. Cf. Provident Bank of Maryland v. McCarthy, 2005 WL 2016923, at *2 (D.Md. Aug. 23, 2005) (finding that an imputed interest payment conditioned in part on the employee's termination without cause qualified as wages under the WPA).
IV.
The second question whether there was an absence of a bona fide dispute so as to permit Gresham to recover an amount not exceeding three times his wages, plus his reasonable attorney's fees and other costs is more difficult. In Admiral Mortgage, Inc. v. Cooper, 357 Md. 533, 745 A.2d 1026 (2000), the Maryland Court of Appeals granted certiorari "to examine . . . whether the determination of additional statutory damages, attorneys' fees, and costs under § 3-507.1 is to be made by a judge or, when the plaintiff has sought a jury trial, by the jury." Id. at 1032. The court answered that question by ruling that while "the determination of attorneys' fees and costs is for the judge," "discretionary damages is for the trier of fact [i.e. the jury in a case where a jury trial has been requested] to determine." Id. at 1035. While in Admiral Mortgage the court was primarily focusing on who should decide the amount or extent of statutory damages, in Baltimore Harbor *325 Charters Ltd. v. Ayd, 365 Md. 366, 780 A.2d 303, 321 (2001), the court stated more broadly that "[t]he existence of a bona fide dispute under § 3-507.1 is a question of fact left for resolution by the jury, not the trial judge." However, as in any case, in order for an employee to withstand a summary judgment motion, there must be "sufficient evidence adduced to permit a trier of fact to determine that . . . [the employer] did not act in good faith when it refused to pay. . . ." Admiral Mortgage, 357 Md. at 543, 745 A.2d 1026.
Gresham asserts as his primary position that an objective standard applies to the bona fide dispute question. Defendant concurs with that proposition but the parties' agreement there ends. Gresham argues that because the Fourth Circuit ruled in his favor on the three governing issues (no ERISA preemption, no incorporation of the terms of Kemper's ERISA plan into his individual contract, and no cause for termination by virtue of his having begun work with The St. Paul before the date on which his employment with Kemper ended), there was no objective basis for Kernper's decision not pay him his severance benefit. According to Gresham, he is therefore entitled to summary judgment under § 3-507.1, at least as to the issue of liability. Kemper, on the other hand, contends that the legal defenses it raised themselves establish the existence of a bona fide dispute concerning Gresham's right to receive severance pay, thereby entitling it to summary judgment under § 3-507.1.
I find Kemper's argument under an objective standard to be persuasive. Of course, if an employer were to assert an insubstantial legal defense to a wage claim, the assertion of the defense would not establish that a bona fide dispute existed between the parties. However, Kemper's defenses that Gresham's individual contract was preempted by Kemper's ERISA Severance Plan or that the terms of the Plan were implicitly incorporated into Gresham's contract were not insubstantial.[2] The Fourth Circuit did not summarily reject them. Rather, it wrote a somewhat extensive thirteen page published opinion in which, inter alia, it noted that one of its prior decisions, Stiltner v. Beretta U.S.A. Corp., 74 F.3d 1473 (4th Cir.)(en banc) contained arguably contrary dictum on the ERISA preemption issue. Gresham, 404 F.3d at 259.
Gresham argues in his reply memorandum that even if there was an objectively reasonable basis for Kemper's decision not to pay him his severance benefit, there is sufficient evidence of Kemper's subjective bad faith to entitle him to have the case submitted to a jury to decide whether a bona fide dispute existed and, if not, the amount of multiplied damages to which he is entitled. As a threshold matter, I find that Gresham's initial position is correct that an objective, rather than a subjective, standard applies. If the legal position taken by a party is objectively reasonable, its motive for taking the position is, in my judgment, immaterial. In any event, I also find that the three pieces of evidence upon which Gresham relies to support his allegation of Kemper's subjective *326 bad faith are not sufficient to create a triable issue.
First, he cites the testimony of Reina Gregorio, the president of the professional liability line who hired Gresham, that her "assumption would have been that if his [Gresham's] employment with the company was terminated for any reason other than cause he would have gotten his severance." Gregorio Dep., at 21. Gregorio further testified that she "felt that whether they [Gresham and other people she had recruited] got employment offers from the acquiring company or not was not particularly relevant, that Kemper should honor their commitments to these individuals under the terms of their employment letters." Id. at 24. Her views stemmed from her perception that a substantial severance package had been necessary to hire high-quality people in the professional liability line "because it was a start-up and it was a risk associated with a start-up organization. . . ." Id. at 161.
Gregorio's testimony is the strongest evidence Gresham has to support his position. It is not, however, sufficient to establish that Kemper did not have bona fide grounds for its decision. As a manager, Gregorio understandably (and commendably) was loyal to the people in her group. However, she did not have the perspective of those charged with uniform application of company-wide policy, and she was not responsible for the decision not to pay severance benefits to Gresham and others who received comparable offers from The St. Paul. Indeed, Gregorio's testimony tends to show that Kemper acted in good faith. She said that Bob Lineman, a member of Kemper's executive management board, told her that the board had discussed the severance issue with Kemper's general counsel's office and decided that Kemper executives who received offers with acquiring companies would not receive severance payments. Id. at 23. Although Gregorio does not recall what the stated justification for this position was, id. at 25, her account shows that Kemper management officials reviewed the matter with the company's lawyers before making their decision. Moreover, her testimony corroborates that the decision was based upon the view, consistently maintained by Kemper, that Gresham's right to a severance payment was governed by the ERISA Severance Plan. In the latter regard, there is nothing in the record to suggest that Gresham was treated any differently from anyone similarly situated to him. No one who received a comparable offer from The St. Paul received a severance benefit. Compare Admiral Mortgage, 745 A.2d at 1031 (commissions not paid to plaintiff were paid to a similarly situated employee who had left the company).
Second, Gresham relies upon the testimony of Craig Richards, the headhunter who assisted Kemper in recruiting Gresham, that he believed that Gresham was entitled to receive severance pay unless he was terminated for acts conventionally understood to constitute "cause" such as "fraud, embezzlement, being arrested and convicted of a crime, maybe repeated insubordination after multiple warnings." Richards Dep., at 9. Richards' understanding of Gresham's contract rights is completely immaterial because the record is clear he had no authority to speak for Kemper, interpret its contracts with its employees, or explain the relationship between those contracts and the company's ERISA plans.[3]
*327 Third, Gresham suggests that the evidence shows that Kemper was motivated by "greed" in its dealings with him because, as he learned during the course of discovery, under a provision of Kemper's agreement with The St. Paul, Kemper was required to pay $833,333 back to The St. Paul if Gresham did not accept a job offer from The St. Paul. According to Gresham, Kemper "knew that a working man who was the sole support for a wife and several children would try to avoid any period of time without a paycheck" and that this provided a motive to Kemper to refuse his severance payment.
Gresham's contention is speculative and unsupported by any evidence (or reasonable inferences from any evidence) in the record. No testimony or documentation reflects that Kemper considered Gresham's alleged vulnerability in making its decision, and the fact that Kemper treated all employees who received offers from The St. Paul the same weights against the allegation that Kemper singled Gresham out for unfavorable treatment because of the payback position in the acquisition agreement. Moreover, Gresham's implication that Kemper took advantage of an unfair bargaining position over a powerless "working man" is contradicted by the facts that (1) Gresham cut a special deal when he was hired by Kemper giving him a better severance benefit than the one available to Kemper's regular employees covered by the company's ERISA Severance Plan, and (2) Gresham likewise negotiated with The St. Paul to improve the compensation package originally offered to him at the time of the acquisition. Finally, if Kemper's primary concern was, as asserted by Gresham, to save the 33,333 it would have to pay back to The St. Paul if Gresham did not join The St. Paul, it is at least as arguable that Kemper would have made the severance payment to Gresham in order to maintain good will and entice him to accept The St. Paul's offer. From that perspective, the fact that it did not do so but instead treated Gresham as it did all other similarly situated employees tends to show its good faith. In any event, Kemper's position was consistent throughout. Compare Admiral Mortgage, 745 A.2d at 1031 (a token commission payment was made that was not consistent with refusal to pay other commissions); Baltimore Harbor Charters, 780 A.2d at 321-22 (employer conceded that a portion of the claimed wages were improperly withheld).
In sum, I find that applying an objective standard a bona fide dispute existed as to whether Gresham was entitled to receive a severance payment. I also find that assuming Kemper's subjective intentions and motivations are a proper subject of inquiry under the WPA, there is insufficient evidence in the summary judgment record to entitle Kemper to proceed to trial on the question of Kemper's alleged bad faith.
V.
Let me finally note that I am ruling in defendant's favor with some reluctance.
First, I do not want it to appear that my present ruling is colored in any way by the fact the Fourth Circuit reversed my prior *328 decision in this case. Of course, whether or not I agree with the conclusion the Fourth Circuit reaches on an appeal from a ruling I have made, I fully respect the court's higher authority in the judicial hierarchy. Here, however, my respect for the Fourth Circuit's opinion is not merely formal; I have come to the view that the court was correct in reversing my prior decision on the underlying question of Gresham's entitlement to a severance benefit.
Second, although Gresham has not raised the issue, he might reasonably contend that the Fourth Circuit implicitly ruled he has a viable claim under § 3-507.1 simply by virtue of the fact that it remanded the case for further proceedings in connection with his WPA claim. Strictly as a matter of logic, it could be said there would have been no need for further proceedings on remand (other than the entry of judgment) if the Fourth Circuit did not believe that Gresham has a viable claim under § 3-507; its reversal of my ruling on the contract claim itself entitled Gresham to the unmultiplied amount of his severance pay. However, I believe that the Fourth Circuit would have expressly stated its view if it had concluded that Kemper had no "bona fide dispute" defense under § 3-507.1, and I read its opinion only as directing me to take a fresh look at the WPA issues.
Third, Gresham asserts, and defendant does not deny, that defendant is now in financial straits and that unless his claim under the WPA is resolved quickly, it may as a practical matter be lost. Therefore, Gresham requests that if I have doubts about the viability of the claim, I should nevertheless permit the case to proceed to trial and grant defendant's post-trial motion for judgment as a matter of law in the event the jury returns a verdict I believe to be legally unsustainable. Judges should not be deaf to pleas that justice delayed may be justice denied. However, in this instance I have concluded I cannot grant Gresham's request. I believe that the question of whether a bona fide dispute existed between the parties cannot be resolved without an assessment of the merits of the reasons Kemper refused to make a severance payment to Gresham, and I do not see how a jury can be asked to make that assessment. Thus, in my view, as the issues now stand any trial on Gresham's WPA claim would be inherently flawed and itself would constitute an injustice.[4]
A separate order is being entered herewith.
ORDER
For the reasons stated in the accompanying Opinion, it is, this 10th day of November 2005
ORDERED
1. Defendant's motion for summary judgment is granted;
2. Plaintiffs motion for summary judgment is denied; and
3. Judgment is entered in favor of defendant against plaintiff.
NOTES
[1] The WPA allows for recovery of treble damages, but in this case Gresham has already received the principal amount. He is only entitled to receive twice that amount in additional damages.
[2] I am not addressing whether the "termination for cause" ground upon which I ruled in Kemper's favor was insubstantial because (1) that was not a basis contemporaneously articulated by Kemper when it decided not to pay Gresham a severance benefit, and (2) it would be somewhat unseemly for me to evaluate the quality of my own reasoning which the Fourth Circuit found to be unpersuasive. I note only that I found the ERISA questions to be sufficiently difficult that I sidestepped them by basing my decision on a different ground.
[3] Richards did testify about a conversation he had with William D. Smith, Kemper's President and Chief Operating Officer, in which Smith confirmed that he shared Richards' understanding of the term "cause." Assuming (as, of course, one must in considering defendant's summary judgment motion) that Smith said what Richards avers, the statement is irrelevant because it does not negate Kemper's articulated position that the question of "cause" aside, Gresham's right to a severance benefit was governed by the terms of the ERISA severance plan. Richards also testified that Smith never told him that Gresham would not receive a severance payment if Gresham received a comparable offer from an acquiring company. However, Richards did not give any testimony indicating that the question was ever raised in his conversations with Smith. Thus, Smith's silence cannot be deemed to be an admission.
[4] Because of what appears to be defendant's precarious financial position, the Fourth Circuit should perhaps consider, if Gresham requests, that any appeal of my rulings be expedited.
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NUMBER 13-07-00082-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
LORENZO GOMEZ, Appellant,
v.
VERTEX AEROSPACE, LLC, THE
BOEING COMPANY, AND
MCDONNELL DOUGLAS CORPORATION, Appellees.
On appeal from the 105th District Court of Kleberg County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Vela
Memorandum Opinion by Justice Garza
Appellant, Lorenzo Gomez, challenges the trial court’s summary judgment in favor
of appellees, Vertex Aerospace, LLC (“Vertex”), The Boeing Company (“Boeing”), and
McDonnell Douglas Corporation (“McDonnell Douglas”). Gomez sued appellees, his
former employers, alleging employment discrimination. The trial court granted summary
judgment dismissing all of Gomez’s claims against all defendants. On appeal, Gomez
contends that: (1) he filed a timely and sufficient charge of discrimination; (2) the trial court
erred in granting summary judgment on all of his claims against Vertex; and (3) the trial
court erred in granting summary judgment on all of his claims against Boeing. We affirm.
I. BACKGROUND
Gomez was hired in June of 1987 as an aircraft corrosion control inspector at Naval
Air Station Kingsville (“NAS Kingsville”). Lockheed Support Systems (“Lockheed”) was the
civilian contractor in charge of performing aircraft maintenance and other functions at NAS
Kingsville until 1990, when it lost its contract to Grumman Technical Services (“Grumman”).
Gomez worked first for Lockheed as an aircraft corrosion control inspector, then for
Grumman as an aviation ordnance corrosion inspector when Grumman took over as the
contractor. Later, when Grumman lost its contract to UNC Technical Services (“UNC”),
Grumman laid off Gomez and UNC hired Gomez to perform the same job.
In April 1992, Gomez was hired as an ordnance mechanic by McDonnell Douglas,
which had contracted to manufacture a new training aircraft, the T45, at NAS Kingsville.
Boeing later acquired McDonnell Douglas, and Gomez then became a Boeing employee.
Beginning in 1998, Gomez filed a series of workers’ compensation claims for back
injuries he claimed to have suffered while on the job. Because of the injuries, Gomez was
subjected to lifting restrictions and reduced hours. By August 1, 2003, Gomez’s physician
had cleared him to work eight hours per day, six days per week, with a lifting restriction of
sixty pounds. In a grievance filed with his union, Gomez claimed that he suffered hostility
and harassment by his supervisors and co-workers as a result of these restrictions.
Like Lockheed, Grumman, and UNC before it, Boeing eventually lost its contract.
Vertex, formerly known as Raytheon Aerospace, assumed the contract as of October 1,
2003. On September 30, 2003, the day before Vertex assumed the contract, all Boeing
employees at NAS Kingsville were laid off. Gomez was rehired by Vertex on October 1 as
an aircraft servicer, or washer, rather than as an ordnance mechanic. As an aircraft
servicer, Gomez was required to work under and around aircraft in positions that
aggravated his back injuries. In December of 2003, an ordnance mechanic position
2
opened up. Gomez applied, but was told that the position required working more than
eight hours per day. Vertex notes that, unlike Boeing, it requires ordnance mechanics to
be available to work night shifts and weekends, as well as ten-hour or twelve-hour shifts.
As part of its interview process, Vertex administered a five-question quiz to applicants for
the position; Gomez answered two of the questions incorrectly whereas the successful
applicant answered all five correctly. According to Gomez, the position went instead to a
“white, younger, and less qualified” applicant. Having been denied the promotion to
ordnance mechanic, Gomez resigned on January 12, 2004. He later obtained employment
at the Corpus Christi Army Depot.
On May 27, 2004, Gomez filed a Charge of Discrimination (“Charge”) with the Equal
Employment Opportunity Commission (“EEOC”), claiming that both Vertex and Boeing
discriminated against him on the basis of his national origin, age,1 and disability.
Specifically, Gomez stated in the Charge that:
I was denied training that others were allowed to attend by McDonnell
Douglas/Boeing. I was then chosen for layoff on September 30, 2003.
I was placed in a lower-paying, lower skilled position by Vertex, beginning
October 2003. As a result, I was forced to quit my job on January 23, 2004.
I feel I have been discriminated against because of my national origin,
Hispanic, in violation of Title VII of the Civil Rights Act of 1964, as amended;
my age, d.o.b. July 13, 1960, in violation of the Age Discrimination
Employment Act of 1967, as amended, and Title I, the Americans with
Disabilities Act of 1990, as amended.
Gomez received a right to sue letter on February 28, 2005. See TEX . LAB. CODE
ANN . § 21.252 (Vernon 2006) (stating that a complainant who receives notice that a
discrimination complaint is not dismissed or resolved is entitled to request a written notice
of the complainant’s right to file a civil action). He then filed suit on April 28, 2005, against
Boeing and Vertex, alleging violations of the Texas Commission on Human Rights Act
(“TCHRA”), negligence, and intentional infliction of emotional distress. In his original
1
Gom ez was 43 years of age at the tim e he resigned from Vertex.
3
petition, Gomez made the following specific allegations of discrimination and retaliation:
Mr. Gomez was given notice that he would be terminated effective
September 30, 2003. As a result of such notice, he was denied training that
other persons who were similarly situated were given to advance their job
skills and employability with the Defendants.
....
Mr. Gomez was discriminated in his termination from Boeing in [sic] or about
October 1, 2003, because of his age (44), national origin (Hispanic),
perceived disability (back), and the fact that he had complained about
preceding acts of discrimination through the Union and his Union
membership.
....
Vertex . . . placed Mr. Gomez in a lower-paying and lower-skilled position, as
an Aircraft Servicer, a demotion undeserved by any fault on the part of Mr.
Gomez.
....
Mr. Gomez was required to work 8.5 hours in each workday, when others
were required to work the usual 8.0 hours in each workday.
....
Mr. Gomez complained of his treatment to the Union. He was retaliated
against for his Union complaint and membership when he was terminated.
....
Mr. Gomez applied for the position of Ordinance [sic] Mechanic [with Vertex].
Vertex gave Mr. Gomez a position, but did not offer him the same position
in Ordinance [sic] in which he had 9.5 years of experience. Vertex increased
Mr. Gomez’s workload and put him in a position where his physical
restrictions and limitations – a back injury – affected his ability to perform his
duties.
....
Mr. Gomez was demoted to Aircraft Servicer (Washer).
....
Vertex discriminated in its hiring practices in that the person who got the
position was less qualified, Anglo, and younger.
....
During his employment, Mr. Gomez made complaints about his assignment
4
through the Union, as was customary. Because of his complaints, Vertex
retaliated against Mr. Gomez by precluding him from training, demotion, and
ultimately by constructive discharge.
....
Mr. Gomez was constructively discharged on or about January 23, 2004,
from his position as Aircraft Servicer.
Gomez sought damages for “back pay, front pay, lost earnings, lost wages, diminished
earnings [sic] capacity, physical and mental pain and anguish [and] loss of benefits,” as
well as exemplary damages and attorney’s fees.
Vertex filed a motion for traditional summary judgment on April 4, 2006, contending
that: (1) Gomez’s claims of discrimination under the TCHRA were procedurally barred and
substantively deficient; (2) his claim of negligence was barred by the Texas Workers’
Compensation Act (“TWCA”); and (3) his intentional infliction of emotional distress claim
was barred because it was not independent of his discrimination claims. On April 17, 2006,
Boeing filed its own motion for summary judgment which incorporated both traditional and
no-evidence grounds. Specifically, Boeing argued that it was entitled to judgment as a
matter of law on Gomez’s discrimination claims because: (1) Gomez admitted that his
layoff was not discriminatory; (2) the denial of training as alleged in the Charge did not
cause Gomez to suffer any adverse employment action; (3) Gomez admitted that Boeing
was not responsible for Vertex’s actions; and (4) even if Boeing was responsible for
Vertex’s actions, Gomez produced no evidence showing that Vertex discriminated against
him. Boeing also alleged that Gomez’s retaliation claims must fail because (1) Gomez did
not exhaust his administrative remedies, and (2) he did not engage in any of the“protected
activities” enumerated in the Texas Labor Code. See id. § 22.055(1)-(4) (Vernon 2006).
Finally, Boeing, like Vertex, claimed that Gomez’s negligence and intentional infliction of
emotional distress claims were groundless.
Gomez filed his responses to the summary judgment motions of both Vertex and
Boeing on May 12, 2006. In his response to Vertex’s motion, Gomez contended that his
5
TCHRA claims were not procedurally barred and that neither the TCHRA nor common-law
negligence were pre-empted by the TWCA. In his response to Boeing’s motion, Gomez
claimed that he did not admit that his layoff was not discriminatory and that there were
questions of material fact as to his claims of discrimination, retaliation, and negligence.2
On October 20, 2006, the trial court granted Vertex’s and Boeing’s motions for
summary judgment. The order stated specifically that “[t]he Court is of the opinion that the
Motions [for summary judgment] are each well-taken in all respects and should be and
hereby are GRANTED in their entirety.” The trial court dismissed all of Gomez’s claims
and assessed costs against Gomez. Gomez filed a motion for new trial on November 17,
2006, which was overruled by operation of law. See TEX . R. CIV. P. 329b(c). This appeal
followed.
II. STANDARD OF REVIEW
The function of summary judgment is to eliminate patently unmeritorious claims and
defenses, not to deprive litigants of the right to a trial by jury. Tex. Dep’t of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004); Alaniz v. Hoyt, 105 S.W.3d 330, 345 (Tex.
App.–Corpus Christi 2003, no pet.). We review a trial court’s grant or denial of a traditional
motion for summary judgment under a de novo standard of review. Creditwatch, Inc. v.
Jackson, 157 S.W.3d 814, 816 n.7 (Tex. 2005) (citing Schneider Nat’l Carriers, Inc. v.
Bates, 147 S.W.3d 264, 290 n.137 (Tex. 2004)); Alaniz, 105 S.W.3d at 345.
To obtain relief via a traditional motion for summary judgment, the movant must
establish that no material fact issue exists and that it is entitled to judgment as a matter of
law. TEX . R. CIV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.
2002); Mowbray v. Avery, 76 S.W.3d 663, 690 (Tex. App.–Corpus Christi 2002, pet.
denied). After the movant produces evidence sufficient to show it is entitled to summary
2
In his responses to Vertex’s and Boeing’s m otions for sum m ary judgm ent, Gom ez abandoned his
claim of intentional infliction of em otional distress.
6
judgment, the non-movant must then present evidence raising a fact issue. See Walker
v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). In deciding whether there is a disputed fact
issue that precludes summary judgment, evidence favorable to the non-movant will be
taken as true. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997) (citing Nixon
v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985)). Evidence favorable to the
movant, however, will not be considered unless it is uncontroverted. Great Am. Reserve
Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). Moreover,
every reasonable inference must be indulged in favor of the non-movant and any doubts
resolved in its favor. Grinnell, 951 S.W.2d at 425 (citing Nixon, 690 S.W.2d at 549).
For a no-evidence summary judgment motion to be successful, the movant must
assert that no evidence exists as to one or more of the essential elements of the non-
movant’s claims upon which he would have the burden of proof at trial. See TEX . R. CIV.
P. 166a(i); Holstrom v. Lee, 26 S.W.3d 526, 530 (Tex. App.–Austin 2000, no pet.). When
responding to a no-evidence motion, the non-movant is only required to present evidence
that raises a genuine issue of material fact on the challenged elements. See AMS Constr.
Co., Inc. v. Warm Springs Rehab. Found., Inc., 94 S.W.3d 152, 159 (Tex. App.–Corpus
Christi 2002, no pet.) (citing McCombs v. Children’s Med. Ctr., 1 S.W.3d 256, 258 (Tex.
App.–Texarkana 1999, pet. denied)). The non-movant must produce more than a scintilla
of probative evidence to raise an issue of material fact. Oasis Oil Corp. v. Koch Ref. Co.,
60 S.W.3d 248, 252 (Tex. App.–Corpus Christi 2001, pet. denied). More than a scintilla
of evidence exists when the evidence rises to a level that would enable reasonable and
fair-minded people to differ in their conclusions. Merrell Dow Pharms., Inc. v. Havner, 953
S.W.2d 706, 711 (Tex. 1997).
If the trial court’s order granting summary judgment does not specify the ground or
grounds relied upon for the ruling, as is the case here, we will affirm the judgment on
appeal if any of the theories advanced by the movant are meritorious. Dow Chem. Co. v.
7
Francis, 46 S.W.3d 237, 242 (Tex. 2001) (quoting Carr v. Brasher, 776 S.W.2d 567, 569
(Tex. 1989)).
III. APPLICABLE LAW
The Legislature enacted the TCHRA in 1983 for the purpose of correlating state law
with federal law in employment discrimination cases. TEX . LAB. CODE ANN . § 21.001
(Vernon 2006); see NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999). The
TCHRA, mirroring Title VII of the Civil Rights Act of 1964, see 42 U.S.C. § 2000e-2, the
Age Discrimination in Employment Act of 1967, see 29 U.S.C. § 623, and the Americans
with Disabilities Act of 1990, see 42 U.S.C. § 12112,3 prohibits an employer from
discharging or in any other way discriminating against an employee because of the
employee’s race, color, disability, religion, sex, national origin, or age. See TEX . LAB. CODE
ANN . § 21.051 (Vernon 2006).
Before suing an employer in state court, an employee must exhaust his
administrative remedies by first filing a complaint with the Texas Commission on Human
Rights (“TCHR”)4 within 180 days of the alleged discriminatory act.5 Schroeder v. Tex. Iron
3
Adhering to legislative intent, Texas courts have looked to federal law in interpreting the TCHRA’s
provisions. See NME Hosps., Inc. v. Rennels, 994 S.W .2d 142, 144 (Tex. 1999).
4
The powers and duties exercised by the Texas Com m ission on Hum an Rights have since been
transferred to the civil rights division of the Texas W orkforce Com m ission. T EX . L AB . C OD E A N N . § 21.0015
(Vernon 2006).
5
Gom ez, Boeing, and Vertex agree that the TCHRA’s lim itations period is m andatory and
jurisdictional. See Specialty Retailers, Inc. v. DeMoranville, 933 S.W .2d 490, 492 (Tex. 1996) (per curiam );
Schroeder v. Tex. Iron W orks, Inc., 813 S.W .2d 483, 486 (Tex. 1991). However, courts of appeals have
questioned whether the suprem e court’s decision in Dubai Petroleum Co. v. Kazi, 12 S.W .3d 71, 76-77 (Tex.
2000), altered this rule. See id. (overruling Mingus v. W adley, 115 Tex. 551, 285 S.W . 1084 (Tex. 1926) “to
the extent it characterized the plaintiff’s failure to establish a statutory prerequisite as jurisdictional”). Compare
W al-Mart Stores, Inc. v. Canchola, 64 S.W .3d 524, 534 (Tex. App.–Corpus Christi 2001), rev’d on other
grounds, 121 S.W .3d 735 (Tex. 2003) (questioning whether TCHRA’s requirem ents are jurisdictional after
Dubai but not resolving the issue); and King v. Tex. Dep’t of Human Servs., 28 S.W .3d 27, 31 & n.1 (Tex.
App.–Austin 2000, no pet.) (sam e); with El Paso County v. Navarrete, 194 S.W .3d 677, 681-82 (Tex. App.–El
Paso 2006, pet. denied) (noting Dubai but instead relying on Schroeder); and Czerwinski v. Univ. of Tex.
Health Sci. Ctr., 116 S.W .3d 119, 121 (Tex. App.–Houston [14th Dist.] 2002, pet. denied) (failure to tim ely file
an adm inistrative com plaint deprives the trial court of subject m atter jurisdiction).
W e need not resolve this apparent conflict, however, because regardless of whether a failure to tim ely
file a charge of discrim ination deprives the trial court of jurisdiction, such a failure would indisputably constitute
sufficient grounds upon which to base a sum m ary judgm ent. See Creditwatch, Inc. v. Jackson, 157 S.W .3d
8
Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991); see TEX . LAB. CODE ANN . § 21.202(a)
(Vernon 2006). In order to comply with the exhaustion requirement, an employee must:
(1) file a complaint with the TCHR within 180 days of the alleged discriminatory act; (2)
allow the TCHR to dismiss the complaint or resolve the complaint within 180 days before
filing suit; and (3) file suit no later than two years after the complaint is filed. See TEX . LAB.
CODE ANN . §§ 21.201-.202, 21.208, 21.256 (Vernon 2006).
A lawsuit filed pursuant to the TCHRA is then limited to claims made in the
discrimination complaint as well as any “factually related claims that could reasonably be
expected to grow out of the [TCHR]’s investigation of the charge.” Johnson v. Hoechst
Celanese Corp., 127 S.W.3d 875, 878 (Tex. App.–Corpus Christi 2004, no pet.); Thomas
v. Clayton Williams Energy, Inc., 2 S.W.3d 734, 738 (Tex. App.–Houston [14th Dist.] 1999,
no pet.) (citing Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (5th Cir. 1993)).
In discrimination cases that have not been fully tried on the merits, Texas appellate
courts apply the burden-shifting analysis established by the United States Supreme Court.
See Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003) (citing Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000); St. Mary’s Honor Ctr.
v. Hicks, 509 U.S. 502, 506-07 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 252-53 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973);
M.D. Anderson Hosp. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000) (per curiam)). Under this
analysis, the employee has the initial burden of proving a prima facie case of discrimination
by a preponderance of the evidence. Stanley Stores, Inc. v. Chavana, 909 S.W.2d 554,
559 (Tex. App.–Corpus Christi 1995, writ denied). If the employee is successful in
establishing a prima facie case, the burden shifts to the employer to provide evidence of
a non-discriminatory and legitimate reason for the employment decision. Id. at 560.
814, 816 n.4 (Tex. 2005); Ramirez v. DRC Distribs., 216 S.W .3d 917 (Tex. App.–Corpus Christi 2007, pet.
denied).
9
Once the employer provides such evidence, the burden reverts back to the
employee to prove by a preponderance of the evidence that the legitimate reason offered
by the employer for the employment decision was not its true reason, but merely a pretext
for discrimination. Id. To establish this, the employee must show that: (1) the asserted
non-discriminatory reason was false; and (2) discrimination was the actual motivation. St.
Mary’s Honor Ctr., 509 U.S. at 515. The employee may also provide evidence that the
employer’s decision was based on a mixture of legitimate and illegitimate reasons. Rachid
v. Jack in the Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004). If the employee proves that the
unlawful reason was a motivating factor, the employer must demonstrate that it would have
taken the same action in the absence of the impermissible motivating factor. Id. at 309-10.
IV. ANALYSIS
Gomez raises three issues on appeal, contending that: (1) the Charge was timely
filed; (2) summary judgment in favor of Boeing was error because Boeing did not address
certain of Gomez’s claims; and (3) summary judgment in favor of Vertex was error because
Vertex did not address Gomez’s constructive discharge, successor-entity liability, and
respondeat superior claims.
A. Timeliness of Charge
Gomez was laid off by Boeing on September 30, 2003, when Boeing’s contract to
operate the Kingsville facility ended. He filed his Charge with the EEOC more than 180
days later, on May 27, 2004.6 Gomez’s allegations of discrimination against Boeing are
based entirely on the following facts: (1) Boeing failed to provide him with certain training
that was made available to other employees, and (2) Boeing laid him off on September 30,
2003, supposedly in retaliation for complaints made by Gomez to his union. None of these
discriminatory acts allegedly committed by Boeing occurred within 180 days of Gomez’s
6
A com plaint initially filed with the EEOC is deem ed to have been filed with the TCHR as well. Price
v. Phila. Am. Life Ins. Co., 934 S.W .2d 771, 773 (Tex. App.–Houston [14th Dist.] 1996, no writ).
10
filing of the Charge.7
Gomez contends that the discrimination and retaliation on the part of Boeing was
a “continuing violation” and therefore that his Charge was timely filed with respect to
Boeing. “The continuing violation theory relieves a plaintiff of establishing that all of the
complained-of conduct occurred within the actionable period if the plaintiff can show a
series of related acts, one or more of which falls within the limitations period.” Cooper-Day
v. RME Petroleum Co., 121 S.W.3d 78, 86 (Tex. App.–Fort Worth 2003, no pet.) (citing
Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998)). However, the theory does not
apply here because Gomez failed to allege, either in the Charge8 or in his petition, that
Boeing committed “one or more” acts of discrimination within the applicable time period.
See Cooper-Day, 121 S.W.3d at 86.
We therefore conclude that the trial court did not err in granting summary judgment
in favor of Boeing on the grounds that Gomez did not file his Charge within the limitations
period.9 See TEX . LAB. CODE ANN . § 21.202(a); Schroeder, 813 S.W.2d at 486.
The discriminatory or retaliatory acts allegedly committed by Vertex, however, did
7
W e note also that Gom ez appeared to adm it, in deposition testim ony included with Boeing’s m otion
for sum m ary judgm ent, that there was no discrim inatory or retaliatory m otive underlying Boeing’s decision to
term inate him on Septem ber 30, 2003. Gom ez testified as follows:
Q. [Boeing’s attorney] You’re not telling the Court that you were selected for layoff in – that
your selection for layoff was discrim inatory or retaliatory?
A. [Gom ez] Everybody got laid off at the sam e tim e.
Q. So answer m y question, you’re not saying you were discrim inated
or retaliated against when you were perm anently laid off?
A. No.
8
The Charge, which was com pleted on an form prom ulgated by the EEOC, contained a box labeled
“Continuing Action” which was not checked by Gom ez. However, “[m ]arking ‘continuing action’ is not required
to establish a claim of continuing violation so long as ‘allegations or predicate facts [are] sufficient in the EEOC
com plaint’ to establish that a continuing violation theory is being alleged.” Strouss v. Mich. Dep't of Corr., 75
F. Supp. 2d 711, 723 (E.D. Mich. 1999) (citing Haithcock v. Frank, 958 F.2d 671, 676 (6th Cir. 1992)).
Nevertheless, Gom ez did not allege sufficient facts to establish a continuing violation on the part of Boeing.
9
Because we find that the trial court’s sum m ary judgm ent in favor of Boeing was justified based on
Gom ez’s failure to file his Charge within the lim itations period, we need not address Gom ez’s second issue.
T EX . R. A PP . P. 47.1.
11
occur within the limitations period. Specifically, Gomez alleged that Vertex discriminated
against him when it declined to hire him for the ordnance mechanic position in January of
2004. Although Gomez did not specifically refer to this employment decision in the
Charge, Gomez did state that he “was forced to quit my job on January 23, 2004.” The
employment decision by Vertex, which occurred less than 180 days prior to the filing of the
Charge, was “factually related” to the specific allegations contained in the Charge and
“could reasonably [have been] expected to grow out of the [TCHR]’s investigation” of the
Charge. See Johnson, 127 S.W.3d at 878; Thomas, 2 S.W.3d at 738. Therefore,
Gomez’s first issue is sustained as it relates to Vertex.
B. Claims Against Vertex
By his third issue, Gomez claims that summary judgment in favor of Vertex on his
TCHRA claims was erroneous because Vertex did not address his successor-entity liability,
respondeat superior, or constructive discharge claims in its motion for summary
judgment.10
1. Successor-Entity Liability and Respondeat Superior
With regard to Gomez’s claim that it failed to address his theories of recovery based
on successor-entity liability and respondeat superior, Vertex responds by claiming that
Gomez failed to preserve these issues because he did not raise them in response to
Vertex’s motion for summary judgment. We agree that Gomez failed to preserve these
issues for our review.
“Issues not expressly presented to the trial court by written motion, answer or other
response shall not be considered on appeal as grounds for reversal.” TEX . R. CIV. P.
166a(c). Gomez did not allege in his response to Vertex’s motion for summary judgment
10
Although Gom ez purports to challenge the sum m ary judgm ent in favor of Vertex “on all of Gom ez’s
claim s,” he does not provide any argum ent or authority pertaining to his claim s of negligence and intentional
infliction of em otional distress. Accordingly, we consider any issue challenging the sum m ary judgm ent on
these claim s to have been waived. T EX . R. A PP . P. 38.1(h).
12
that such judgment was improper because Vertex failed to address his successor-entity
liability or respondeat superior theories. Rather, in his response, Gomez sought only to (1)
refute Vertex’s claim that the trial court lacked subject matter jurisdiction, and (2) establish
that there is a genuine issue of material fact regarding whether Vertex discriminated or
retaliated against Gomez. Accordingly, we may not reverse the trial court’s judgment on
these grounds.
2. Constructive Discharge
To establish a prima facie case of employment discrimination based on an
employer’s failure to promote, a plaintiff must show that he or she: (1) was a member of
a protected class; (2) sought and was qualified for an available employment position; (3)
despite his qualifications, was not selected for the position; and (4) the employer selected
someone not in plaintiff’s protected class or continued to seek applicants with the plaintiff’s
qualifications. See McDonnell Douglas Corp., 411 U.S. at 802; Elgaghil v. Tarrant County
Junior Coll., 45 S.W.3d 133, 139 (Tex. App.–Fort Worth 2000, pet. denied) (citing Scales
v. Slater, 181 F.3d 703, 709 (5th Cir. 1999)). Constructive discharge serves as a legal
substitute for the element of a prima facie case of discrimination requiring the plaintiff to
show that he or she was not selected for the position. See Passons v. Univ. of Tex. at
Austin, 969 S.W.2d 560, 562 (Tex. App.–Austin 1998, no pet.) (citing Hammond v. Katy
Indep. Sch. Dist., 821 S.W.2d 174, 177 (Tex. App.–Houston [14th Dist.] 1991, no writ)).
Constructive discharge occurs when an employer makes conditions so intolerable that an
employee reasonably feels compelled to resign. Hammond, 821 S.W.2d at 177 (citing
Shawgo v. Spradlin, 701 F.2d 470, 481 (5th Cir. 1983)).
Gomez claims that summary judgment for Vertex was improper because Vertex did
not address the constructive discharge allegation in its motion for summary judgment.
However, constructive discharge constitutes only one element in a discrimination cause
of action. See Bertrand, 37 S.W.3d at 8. As a movant for traditional summary judgment,
13
Vertex had the burden to negate only one essential element of Gomez’s causes of action
or prove all essential elements of an affirmative defense. See Randall’s Food Markets, Inc.
v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). In its motion, Vertex contended that it
declined to promote Gomez because (1) he admitted he could not perform the essential
duties of the job, and (2) the other applicant that was subsequently hired was “the better
applicant overall and correctly answered 100% of his questions during his interview, while
Gomez correctly answered only 60%.” This was sufficient to negate the second element
of a discrimination cause of action, requiring the plaintiff to show that he was qualified for
the available employment position. See McDonnell Douglas Corp., 411 U.S. at 802;
Elgaghil, 45 S.W.3d at 139. That Vertex did not attempt to negate the constructive
discharge element of Gomez’s discrimination claims does not, by itself, establish that
summary judgment in favor of Vertex was unfounded. In other words, even if Vertex failed
to address constructive discharge in its motion for summary judgment, it still could have
obtained summary judgment by successfully attacking any one of the other elements of a
discrimination cause of action.
Accordingly, Gomez’s third issue is overruled.
V. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS GARZA,
Justice
Memorandum Opinion delivered and
filed this the 23rd day of October, 2008.
14
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585 S.E.2d 711 (2003)
262 Ga. App. 385
HARALSON
v.
JOHN DEERE COMPANY.
No. A03A0583.
Court of Appeals of Georgia.
July 16, 2003.
Kitchens, Kelley & Gaynes, Mark A. Kelley, Atlanta, for appellant.
Alston & Bird, Candace N. Smith, Paul J. Kaplan, Atlanta, for appellee.
MILLER, Judge.
John Deere Company (JDC), a division of Deere & Company, sued Tommy H. Haralson, *712 Sr. on a guaranty he signed for the debts of Farmers Supply Store, Inc. Moving for summary judgment, Haralson argued that the guaranty fell within the Statute of Frauds (OCGA § 13-5-30(2)) and was unenforceable in that it failed to identify the promisor and the promisee sufficiently. JDC cross-moved for summary judgment on all claims, including the Statute of Frauds defense. Denying Haralson's motion and most of JDC's motion, the court granted JDC's motion in part and struck the Statute of Frauds defense. Haralson appeals. We hold that the guaranty did not sufficiently identify the promisor and therefore reverse.
The undisputed facts (for purposes of the summary judgment motions) show that Haralson executed a guaranty directed to "JOHN DEERE COMPANYA DIVISION OF DEERE & COMPANY OR JOHN DEERE INDUSTRIAL EQUIPMENT COMPANY." The guaranty provided:
In consideration of your past and/or future extension of credit to FARMERS SUPPLY STORE, INC. DBA BIG BOYS EQUIPMENT OF LAGRANGE, GA 30240 its successors and assigns (hereinafter called "principal debtor"), for the financing of goods, wares, merchandise and services, the undersigned guarantor(s) hereby (jointly and severally if signed by two guarantors) unconditionally guarantee(s) payment of whatever sums said principal debtor shall at any time owe you or any company affiliated with you....
Haralson illegibly signed the guaranty on a signature line over which the word "Guarantor(s)" was placed and under which the word "Name" was placed. Outside of his signature, Haralson's name appeared nowhere on the guaranty.
JDC sold a variety of supplies to Farmers Supply. When Farmers Supply failed to pay, JDC contacted Haralson, who paid JDC approximately $81,000 to stave off foreclosure temporarily. JDC eventually repossessed and sold most of the supplies and sued Haralson for the approximate $180,000 deficiency. Haralson defended on the ground that the guaranty was unenforceable under the Statute of Frauds. Haralson also counterclaimed against JDC, alleging among other things that JDC converted his interests as a subrogated joint security interest holder (arising out of his $81,000 payment) when it released certain security to another creditor.
Contending that the guaranty insufficiently identified the promisor and the promisee (and was therefore unenforceable under the Statute of Frauds), Haralson moved for summary judgment on JDC's claims. JDC in turn cross-moved for summary judgment on all claims, including the Statute of Frauds defense. JDC also moved to dismiss the conversion count of Haralson's counterclaim. The court granted JDC summary judgment on the Statute of Frauds defense only and denied Haralson's and JDC's motions for summary judgment in all other respects. After Haralson appealed the order to this Court, the trial court granted JDC's motion to dismiss the conversion count of the counterclaim, which ruling Haralson also challenges in his appellate brief.
1. We cannot consider Haralson's enumeration that challenges the trial court's August 21, 2002 order dismissing the conversion count of the counterclaim because this order was entered after Haralson on July 22, 2002 filed the present appeal from the trial court's order on the summary judgment motions. Holy Fellowship Church of God in Christ v. Greater Travelers Rest Baptist Church, 236 Ga.App. 177, 179(2), 511 S.E.2d 280 (1999). As stated in Costanzo v. Jones, 200 Ga.App. 806, 811(3), 409 S.E.2d 686 (1991), "[a]n enumeration cannot be considered if the ruling that it complains of was entered subsequent to filing of the notice of appeal. Judgments cannot be considered on appeal if rendered subsequent to the judgment appealed from." (Citations and punctuation omitted.) Thus, we do not address the August 21, 2002 order dismissing the conversion count of the counterclaim.
2. Haralson's other two enumerations of error challenge the denial of his motion for summary judgment and the partial grant of JDC's motion for summary judgment. The issue is whether the guaranty sufficiently identified the promisor so as to be enforceable under the Statute of Frauds.
*713 "A promise to answer for the debt of another, to be binding on the promisor, must be in writing and signed by the party to be charged therewith. OCGA § 13-5-30(2)." Schroeder v. Hunter Douglas, Inc., 172 Ga. App. 897, 898(2), 324 S.E.2d 746 (1984). To satisfy the Statute of Frauds, the writing relied upon as the guaranty must sufficiently identify the debt, the principal debtor, the promisee, and the promisor. Id.; Roach v. C.L. Wigington Enterprises, 246 Ga.App. 36, 37, 539 S.E.2d 543 (2000); see Roden Elec. Supply v. Faulkner, 240 Ga.App. 556(1), 524 S.E.2d 247 (1999); Johnson v. Rycroft, 4 Ga.App. 547(2)(a), 61 S.E. 1052 (1908). Where the guaranty omits the name of the principal debtor, of the promisee, or of the promisor, the guaranty is unenforceable as a matter of law. See Roden Elec. Supply, supra, 240 Ga.App. at 556(1), 524 S.E.2d 247; Sysco Food Svcs. v. Coleman, 227 Ga.App. 460, 461-463, 489 S.E.2d 568 (1997); Schroeder, supra, 172 Ga.App. at 898(2), 324 S.E.2d 746. Even where the intent of the parties is manifestly obvious, where any of these names is omitted from the document, the agreement is not enforceable because it fails to satisfy the Statute of Frauds. See generally Roden Elec. Supply, supra, 240 Ga.App. at 557(1), 524 S.E.2d 247; Sysco Food Svcs., supra, 227 Ga.App. at 461, 489 S.E.2d 568.
A court must strictly construe an alleged guaranty contract in favor of the guarantor. OCGA § 10-7-3; Rohm & Haas Co. v. Gainesville Paint &c. Co., 225 Ga.App. 441, 444(2)(b), 483 S.E.2d 888 (1997); Arnold v. Indcon, L.P., 219 Ga.App. 813(1), 466 S.E.2d 684 (1996); cf. OCGA § 10-7-1. The guarantor's liability may not be extended by implication or interpretation. OCGA § 10-7-3. Furthermore, "[p]arol evidence is not admissible to supply any missing essential elements of a contract required to be in writing by our statute of frauds. Gatins v. NCR Corp., 180 Ga.App. 595, 597, 349 S.E.2d 818 (1986)." Sawyer v. Roberts, 208 Ga.App. 870, 871, 432 S.E.2d 610 (1993). Thus, this Court is not authorized to determine the identity of the principal debtor, of the promisee, or of the promisor by inference as this would entail consideration of impermissible parol evidence. See Fontaine v. Gordon Contractors Bldg. Supply, 255 Ga.App. 839, 840, 567 S.E.2d 324 (2002); Roden Elec. Supply, supra, 240 Ga.App. at 557(1), 524 S.E.2d 247. There must be clear and explicit identification of these three entities in the guaranty document or in a document expressly incorporated by reference in the guaranty document. Fontaine, supra, 255 Ga.App. at 840, 567 S.E.2d 324; see Roach, supra, 246 Ga. App. at 37, 539 S.E.2d 543; Sysco Food Svcs., supra, 227 Ga.App. at 461, 489 S.E.2d 568.
The guaranty only refers to the promisor as the "undersigned," and nowhere in its preamble, in its text, nor near the signature line is the name of the promisor found. Haralson's illegible signature on the signature line under the word "Guarantor(s)" and above the word "Name" is the only identification of the promisor in the agreement. In Sysco Food Svcs., supra, 227 Ga.App. at 461, 489 S.E.2d 568, this Court held (despite a contrary position taken in the dissenting opinion, 227 Ga.App. at 464, 489 S.E.2d 568) that the promisor's signature was alone insufficient to identify the promisor and thus concluded that the guaranty was invalid. Holding a similarly deficient guaranty unenforceable, we reaffirmed this position in Workman v. Sysco Food Svcs. of Atlanta, 236 Ga.App. 784, 785, 513 S.E.2d 523 (1999). Compare Roach, supra, 246 Ga.App. at 37, 539 S.E.2d 543 ("`undersigned'" sufficiently identified as "`First Custom Builders'" above the signature line).
Since the promisor was insufficiently identified in the guaranty, the trial court erred in denying Haralson's motion for summary judgment and in granting JDC's motion for summary judgment on the Statute of Frauds ground. Accordingly, we reverse the judgment and remand the case to the trial court to enter an order consistent with this opinion.
Judgment reversed and case remanded.
RUFFIN, P.J., concurs specially and concurs in judgment only.
SMITH, C.J., concurs in judgment only.
*714 RUFFIN, Presiding Judge, concurring specially.
Although I concur in the result reached by the majority, I do not agree with all that is said in the opinion. In particular, I disagree with the majority's apparent conclusion in Division 2 that a signature can never sufficiently identify a guarantor in a guaranty agreement.
"To satisfy the Statute of Frauds, the guaranty must identify the debt, the promisee and the promisor."[1] And, as noted by the majority, "[w]hile parol evidence may be admitted to explain ambiguities in descriptions, it cannot be admitted to supply a description entirely omitted" from the guaranty.[2] Applying this rule, we have found a guaranty that omits the name of the principal debtor unenforceable as a matter of law.[3]
I view the illegible signature in this case as equivalent to a missing term. The agreement provides insufficient information regarding the guarantorthe promisor in this situationand parol evidence cannot be admitted to supply the missing information.[4] Accordingly, the guaranty agreement does not adequately identify the promisor and violates the Statute of Frauds.
In addition, I question whether the agreement sufficiently identifies the promisees and the debts covered by the guaranty. Under the terms of the agreement, the guarantor must pay sums owed by the principal debtor to any company affiliated with John Deere Company or John Deere Industrial Equipment Company. The guaranty does not designate these "affiliates" or define what type of relationship brings a company within the guaranty. Given this broad, undefined language, I agree with the result reached by the majority.
Nevertheless, I cannot concur with the majority's determination that, as a matter of law, a guarantor can never be identified by a signature. This sweeping conclusion is not necessary to the issue at handwhether the signature in this particular guaranty sufficiently identifies the promisor. Furthermore, the cases cited by the majority, Sysco Food Svcs. v. Coleman[5] and Workman v. Sysco Food Svcs. of Atlanta,[6] do not support the majority's proposition. In Sysco, this Court deemed a guaranty agreement unenforceable because the agreement did not identify the principal debtor.[7] Although the Court also noted that the principal debtor's guarantor was identified only by signature, the analysis in Sysco does not rest on that fact. Similarly, the Workman decision, which found Sysco controlling, does not establish that a signature can never identify a guarantor.[8]
For these reasons, I concur in the judgment only.
NOTES
[1] Roach v. C.L. Wigington Enterprises, 246 Ga. App. 36, 37, 539 S.E.2d 543 (2000).
[2] Sysco Food Svcs. v. Coleman, 227 Ga.App. 460, 462, 489 S.E.2d 568 (1997).
[3] See id. at 461, 489 S.E.2d 568.
[4] See id. at 462, 489 S.E.2d 568.
[5] Id.
[6] 236 Ga.App. 784, 513 S.E.2d 523 (1999).
[7] See Sysco, supra at 461-463, 489 S.E.2d 568.
[8] See Workman, supra at 785-786, 513 S.E.2d 523.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-20-00083-CV
Petra Ugarte, Appellant
v.
Eureka Holdings Acquisitions, LP and 2019 FOREAL, LP, Appellees
FROM COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY
NO. C-1-CV-19-008503, THE HONORABLE ERIC SHEPPERD, JUDGE PRESIDING
ORDER
PER CURIAM
Appellant Petra Ugarte has filed an emergency motion for temporary relief
seeking a stay of the trial court’s February 20, 2020 order granting request for issuance of writ of
possession. See Tex. R. App. P. 24.4(a)(4); id. R. 24.4(c). We grant the motion and temporarily
stay the trial court’s February 20, 2020 order granting request for issuance of writ of possession
and suspend the execution of any writ that may already have been issued, pending further order
of this Court. See id. 24.4(c). The Court orders the appellees to file a response to the emergency
motion for temporary relief on or before February 28, 2020.
It is ordered on February 24, 2020.
Before Chief Justice Rose, Justices Baker and Triana
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498 So.2d 902 (1986)
Bobby Earl LUSK, Appellant,
v.
STATE of Florida, Appellee.
No. 67335.
Supreme Court of Florida.
November 26, 1986.
Rehearing Denied January 5, 1987.
*903 Richard Ware Levitt, New York City, for appellant.
Jim Smith, Atty. Gen., and Mark C. Menser and John W. Tiedemann, Asst. Attys. Gen., Tallahassee, for appellee.
EHRLICH, Justice.
Appellant, while an inmate at Florida State Prison in 1978, stabbed to death another inmate, Michael Hall, during Thanksgiving Day lunch and in front of numerous witnesses. A jury convicted appellant of first-degree murder and recommended a life sentence. The trial court, however, overrode the jury and imposed a sentence of death. We affirmed the conviction and sentence in Lusk v. State, 446 So.2d 1038 (Fla.), cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984). This appeal is from the trial court's denial, following an evidentiary hearing, of post-conviction relief, pursuant to Rule of Criminal Procedure 3.850. We have jurisdiction, article V, section 3(b)(1), Florida Constitution. We affirm.
The only issue raised by appellant which warrants discussion is that he received ineffective assistance of counsel at the guilt and penalty phases of his trial. As set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the proper standard for reviewing counsel's performance is whether a defendant received "reasonably effective assistance." Id. at 687, 104 S.Ct. at 2064. In order to determine whether counsel's performance fell below the level of reasonably effective assistance, the Court developed a two-part test:
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 *904 deprive the defendant of a fair trial, a trial whose result is reliable.
Id. In order to satisfy the first component of this test, a convicted defendant must identify acts or omissions of counsel that were not the result of reasonable professional judgment. Courts reviewing ineffectiveness claims must "determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. at 690, 104 S.Ct. at 2066. We find that under the facts presented, appellant has failed to satisfy this first component.
Employing the Strickland analysis requires us to evaluate the challenged conduct from "counsel's perspective at the time." Id. at 689, 104 S.Ct. at 2065. At the time of appellant's trial, his counsel was faced with defending a prisoner who was serving three consecutive life terms for two convictions of armed robbery and a simultaneous conviction for first-degree murder. Appellant fatally stabbed a fellow inmate, Hall, three times in the back in the Florida State Prison cafeteria during the Thanksgiving Day noon meal; this killing was witnessed by numerous inmates and prison personnel. There was evidence which showed that the victim Hall and two other inmates had robbed appellant in his cell the morning of the murder and had threatened reprisals against appellant if he reported the attack. Trial counsel testified at the hearing below that he understood the overwhelming evidence against his client and therefore felt his primary purpose was to save his client's life.[1] Accordingly, at trial the defense strategy was one of self-defense; appellant testified that Hall had threatened to "take him out" and that Hall attacked him first with a knife of his own.
In the motion for post-conviction relief and as presented at the evidentiary hearing thereon, appellant alleged that trial counsel's reliance during the guilt phase on the "all or nothing" strategy of self-defense was, under the facts confronting counsel, such an unreasonable choice that it fell outside the wide range of competent assistance. According to this theory, trial counsel was faced with defending a client who, if convicted of first-degree murder, would then be faced at sentencing with at least two "automatic" aggravating factors, i.e., committed while under sentence of imprisonment; and, previous conviction of another capital felony. Therefore, as it was the sole job of trial counsel to save his client's life, and conviction of a lesser degree of homicide would, in practical effect, be as advantageous as an acquittal, trial counsel's failure to pursue another defense was simply unreasonable. According to appellant's expert who testified below, the defense that should have been presented was that set forth in Forehand v. State, 126 Fla. 464, 171 So. 241 (1936). In Forehand we held that a "dominating passion" operates to exclude premeditation and reduces a first-degree homicide to a lesser degree of murder or manslaughter. Under appellant's theory, trial counsel should have presented this defense based on the following facts: The victim, Hall, was serving a thirty-year sentence for the "sexually related, gang torture murder" of an inmate at another prison; appellant's well-grounded fear that reporting Hall's threats to prison officials would only increase the danger to appellant; the prison officials inability or unwillingness to protect inmates from other inmates; and appellant's "exemplary" behavioral record at Florida State Prison prior to his encounters with Hall.[2]
*905 The issue before us is whether trial counsel's decision to rely solely on a theory of self-defense was so unreasonable as to fall outside the wide range of professionally competent assistance. Mindful that "[e]ven the best criminal defense attorneys would not defend a particular client in the same way," 466 U.S. at 689, 104 S.Ct. at 2065, we must conclude that trial counsel's decision to rely on self-defense here was a strategic choice which did not fall outside the acceptable range of competent choices. Considering all the circumstances facing trial counsel initially, self-defense was arguably the only viable choice: Appellant and others were willing to testify about Hall's threats towards appellant, including the robbery incident occurring the morning of the murder; Hall's violent character was brought out at trial and his nickname of "Yard Dog" was explained to the jury to mean an inmate gang leader. While it may have been desirable, as appellant now suggests, to have introduced, during the guilt phase, Hall's conviction for murdering another inmate, the jury was made aware of Hall's reputation for violence and we cannot conclude that this single omission was such so as to render counsel ineffective. Neither can we conclude that the failure to present a defense based on "dominating passion" was an unreasonable choice under the circumstances. The cases cited by appellant supporting this defense, e.g., Forehand v. State; Quintana v. State, 452 So.2d 98 (Fla. 1st DCA 1984); Tien Wang v. State, 426 So.2d 1004 (Fla. 3d DCA), review denied, 434 So.2d 889 (Fla. 1983), all point out that the defendant acted in a moment of rage without time to cool off or reflect. The facts here show that the incident involving Hall's threats against appellant on the morning of the homicide transpired at approximately 9:00 a.m.; appellant's fatal attack against Hall occurred around 1:00 p.m. This four hour period to reflect negates the existence of a dominating passion murder which occurs without the time necessary to form a premeditated design to kill. Appellant's own testimony was that after Hall's threat, appellant told himself, "I ain't gonna take it no more." Indeed, we can discern no evidence from the record before us which would have even warranted a jury instruction on this defense.[3]
Appellant's argument that trial counsel was ineffective at the penalty phase must similarly fail. It must be noted from the outset that trial counsel secured a jury recommendation of life. Appellant alleges here that this recommendation can only be attributed to the fact that trial counsel "finally" introduced Hall's prior conviction for murdering another inmate. This is a totally speculative contention. As previously discussed, Hall's reputation for violence and his threats against appellant were before the jury during the guilt phase. It is equally possible that the jury's recommendation of life was based on trial counsel's persuasive plea to the jury for mercy, or on the less palatable, but equally possible assessment by the jury that appellant deserved some "break" for ridding the world of the likes of Michael Hall. In short, we cannot know, and will not speculate on, what prompted the jury's decision. It may have been a combination of all of these or other factors. What is clear however, is that the jury's recommendation cannot be alleged to have been produced by counsel's ineffectiveness.
Appellant's expert below contends that had trial counsel introduced more evidence in mitigation, then it would have either persuaded the trial court to follow the *906 jury's recommendation, or it would have forced this Court to disapprove the trial court's override of the jury's recommendation under the applicable standard set forth in Tedder v. State, 322 So.2d 908 (Fla. 1975). We find these contentions too, to be totally speculative. The evidence now claimed by appellant that should have been admitted in mitigation is largely evidence of appellant's troubled family background. Appellant testified about his background and personal problems during the penalty phase. We must agree with the trial court below in its order denying relief, that this "new evidence" is largely cumulative and would not have affected the ultimate sentence imposed in view of the aggravating factors affirmed by this Court in appellant's direct appeal.
It is easy in studied hindsight to conclude that more should have been done. However, under the strictures of Strickland v. Washington, the purpose of the sixth amendment guarantee of assistance of counsel is to ensure the criminal defendants receive a fair trial, one that "will render the trial a reliable adversarial testing process." 466 U.S. at 688, 104 S.Ct. at 2065. Our review of this entire record leads us to conclude that appellant received a fair trial and was not deprived of the right of the effective assistance of counsel.
Accordingly, the order under review is affirmed.
It is so ordered.
McDONALD, C.J., and ADKINS, BOYD, OVERTON, SHAW and BARKETT, JJ., concur.
NOTES
[1] Trial counsel had experience in at least forty capital trials from both the defense and prosecutorial sides of a case. Most of these trials, like this one, were held in Bradford County, where Florida State Prison is situated. Trial counsel testified below that his experience with Bradford County juries was that they were extremely familiar with cases involving inmate crimes, and that there exists almost a "defense bias" in such cases, so long as no prison guards were injured. Trial counsel further testified that Bradford County juries were leery of "lawyer games" and were similarly disdainful of attempts to "put the system on trial."
[2] Appellant also urges that these same facts should have been brought out to support the chosen theory of self-defense.
[3] Appellant's expert at the hearing below opined that given the prison's "violent and dangerous" environment, and the knowledge that complaining to prison officials about the psychotic killer Hall would have only increased the danger, appellant lived in such a total, animated fear of Hall so as to make dominating passion the only reasonable defense under the circumstances. Trial counsel's failure to raise ingenious arguments or theories does not render the assistance ineffective. Further, establishing this type of a dominating passion defense would require putting the prison system "on trial," a fact which trial counsel, experienced with Bradford County juries, felt was inherently unsound. We will not "second-guess" such reasonable strategic choices.
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Electronically Filed
Intermediate Court of Appeals
CAAP-14-0000858
05-AUG-2014
10:12 AM
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Slip Op. 11-83
UNITED STATES COURT OF INTERNATIONAL TRADE
__________________________________________
:
QINGDAO TAIFA GROUP CO., LTD., :
:
Plaintiff, :
:
v. : Before: Jane A. Restani, Judge
:
UNITED STATES, : Court No. 08-00245
:
Defendant, : Public Version
:
and :
:
GLEASON INDUSTRIAL PRODUCTS, INC. :
and PRECISION PRODUCTS, INC., :
:
Intervenor Defendants. :
__________________________________________:
OPINION
[Judgment sustaining third remand results setting a separate entity AFA antidumping duty rate
will be entered.]
Dated: July 12, 2011
Adduci, Mastriani & Schaumberg, LLP (Louis S. Mastriani and William C.
Sjoberg) for the plaintiff.
Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Patricia M.
McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department
of Justice (Stephen C. Tosini); Thomas M. Beline, Office of the Chief Counsel for Import
Administration, U.S. Department of Commerce, of counsel, for the defendant.
Crowell & Moring LLP (Matthew P. Jaffe and Alexander H. Schaefer) for the
intervenor defendants.
Restani, Judge: This matter comes before the court following its decision in
Qingdao Taifa Grp. Co. v. United States, 760 F. Supp. 2d 1379, 1380 (CIT 2010) (“Taifa III”), in
Court No. 08-00245 Page 2
which the court remanded the Final Results of Redetermination Pursuant to Court Remand
(Dep’t Commerce July 27, 2010) (Docket No. 118) (“Second Remand Results”) on Hand Trucks
and Certain Parts Thereof from the People’s Republic of China; Final Results of 2005-2006
Administrative Review, 73 Fed. Reg. 43,684 (Dep’t Commerce July 28, 2008) (“Final Results”)
to the United States Department of Commerce (“Commerce”). For the reasons stated below, the
court sustains Commerce’s third remand results.
BACKGROUND
The facts of this case have been well documented in the court’s previous three
opinions. See Taifa III, 760 F. Supp. 2d at 1381–82; Qingdao Taifa Grp. Co. v. United States,
710 F. Supp. 2d 1352, 1353–55 (CIT 2010) (“Taifa II”); Qingdao Taifa Grp. Co. v. United
States, 637 F. Supp. 2d 1231, 1234–36 (CIT 2009) (“Taifa I”). The court presumes familiarity
with those decisions, but briefly summarizes the facts relevant to this opinion.
Plaintiff Qingdao Taifa Group Co., Ltd. (“Taifa”) challenged the final results of
an administrative review of the antidumping (“AD”) duty order on hand trucks and certain parts
thereof from the People’s Republic of China (“PRC”), which assigned Taifa the PRC-wide
dumping margin1 of 383.60% based on total adverse facts available (“AFA”). See Final Results,
73 Fed. Reg. at 43,687. The court, granting Taifa’s motion for judgment on the agency record in
1
A dumping margin is the difference between the normal value (“NV”) of merchandise
and the price for sale in the United States. See 19 U.S.C. § 1673e(a)(1); 19 U.S.C. § 1677(35).
Unless nonmarket economy (“NME”) methodology is used, an NV is either the price of the
merchandise when sold for consumption in the exporting country or the price of the merchandise
when sold for consumption in a similar country. 19 U.S.C. § 1677b(a)(1). In an NME case, NV
is calculated using information from comparable surrogate market economies. 19 U.S.C.
§ 1677b(c)(1). An export price or constructed export price is the price that the merchandise is
sold for in the United States. 19 U.S.C. § 1677a(a)-(b).
Court No. 08-00245 Page 3
part and denying it in part, remanded the matter to Commerce to determine whether a
government entity exercised nonmarket control over Taifa sufficient to link the PRC-wide rate to
Taifa and to calculate a separate, substitute AFA rate if the PRC-wide was not warranted.
Taifa I, 637 F. Supp. 2d at 1244.
In its first remand results, Final Results of Redetermination Pursuant to Court
Remand (Dep’t Commerce Jan. 22, 2010) (Docket No. 100), Commerce assigned Taifa a
separate AFA rate of 227.73% stating that it could not affirmatively demonstrate that a
government entity exercised control over the company. Id. at 3. The court, however, held that
Commerce “did not comply with [its] remand instructions to make a determination based on a
proper analysis of nonmarket control” because it “still ha[d] not made a final finding about the
presence or absence of de jure and de facto government control over Taifa, including a finding
and explanation which substantiates or rejects a sufficient link to a country-wide PRC rate.”
Taifa II, 710 F. Supp. 2d at 1357. The court, therefore, remanded to Commerce, instructing it “to
determine, after proper investigation and analysis, whether a government entity exercised
nonmarket control over Taifa sufficient to link the PRC-wide rate to Taifa.” Id.
In its Second Remand Results, “Commerce found that Taifa had not established a
legitimate separation from the town government and applied a ‘presumption’ that a respondent in
a nonmarket economy (‘NME’) country such as the PRC is state-controlled.” Taifa III, 760 F.
Supp. 2d at 1381–82; Second Remand Results, at 13–19. Nevertheless, the court held that the
factual “presumption” made in this case was not supported by record substantial evidence.
Taifa III, 760 F. Supp. 2d at 1384–85. As a result, the court remanded to Commerce for a third
Court No. 08-00245 Page 4
time with instructions to either “explain why substantial record evidence supports a finding of
central government control that justified imposition of the PRC-wide entity rate” or to give Taifa
“the rate its own lack of verifiable production evidence warrants, without resort to an
unconnected country-wide rate.” Id. at 1385.
On remand, Commerce concluded that “there [was] not substantial record
evidence to conclude that the central government controlled Taifa’s business decisions” and
therefore, “assign[ed] Taifa a separated antidumping duty rate of 145.90 percent.” Final Results
of Redetermination Pursuant to Court Remand, 1–2 (Dep’t Commerce Mar. 17, 2011) (Docket
No. 145) (“Third Remand Results”).2 Taifa now challenges the 145.90% AFA rate as
uncorroborated, punitive, aberrational, and an unexplained departure from Commerce’s ordinary
practice. See Taifa Cmts., 6, 16. In addition, intervenor defendants Gleason Industrial Products,
Inc. (“Gleason”) and Precision Products, Inc. ask the court to reconsider Taifa III, and in the
alternative, affirm the Third Remand Results. See Gleason Cmts. 2, 5.
2
In footnote one of the Third Remand Results, Commerce states it makes its
determination under protest, but it does not indicate there as to which issue it believes it is
compelled to act in a way it would not choose. See Third Remand Results, at 2 n.1. The court
has not compelled a specific determination. It has ordered Commerce to explain its legal
conclusions, support its factual conclusions and add evidence to the record or conduct further
investigation, if necessary. See Taifa I, 637 F. Supp. 2d at 1244; Taifa II, 710 F. Supp. 2d at
1357; Taifa III, 760 F. Supp. 2d at 1385. Commerce appears to have made little effort to support
its decision to calculate a separate rate for plaintiff and no effort to support a link to a PRC-wide
rate. See Third Remand Results, at 6. It has devoted considerable effort, however, to its choice
of a specific rate. See id. at 7–13. Whether substantial evidence supports that rate is the issue
that the parties have substantively briefed and it is the issue that the court addresses here. See
Qingdao Taifa Grp. Co., Ltd. Cmts. on the U.S. Department of Commerce’s Final Results of
Redetermination Pursuant to Court Remand Qingdao Taifa Grp. Co., Ltd v. United States Court
No. 08-00245; Slip Op. 10-126 (CIT Nov. 12, 2010), 6–37 (Apr. 8, 2011) (“Taifa Cmts.”); Cmts.
on Final Results of Redetermination Pursuant to Court Third Remand, 5–9 (Apr. 8, 2011)
(“Gleason Cmts.”).
Court No. 08-00245 Page 5
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to 28 U.S.C. § 1581(c). The court will not
uphold Commerce’s final determination in an AD review if it is “unsupported by substantial
evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i).
DISCUSSION
I. Commerce’s Finding of No Central Government Control
In its last opinion, the court remanded this case to Commerce with instructions to
support its finding as to whether Taifa was state-controlled with substantial evidence. See
Taifa III, 760 F. Supp. 2d at 1385. Upon reconsideration of the record evidence, Commerce
concluded that “[a]lthough there is record evidence to demonstrate that Taifa is actually owned
by the town government and there is reason to doubt the identity of an independent board of
directors directing Taifa’s activities in contradiction to how Taifa originally reported its
ownership and management to the Department . . . there is insufficient record evidence to support
a conclusion that Taifa operated under central government control.” Third Remand Results, at 6.
Although Gleason now asks the court to reconsider its earlier ruling on lack of evidence
supporting central government control, no parties challenge Commerce’s current determination
on this issue as unsupported. See Gleason Cmts., at 2–4; Taifa Cmts., at 4.
There is no statutory compulsion of a country-wide rate, and in this case the
record shows no necessity for using such a rate. But cf. Watanabe Grp. v. United States, Slip Op.
10-139, 2010 WL 5371606, *4–5 (CIT Dec. 22, 2010) (holding that Commerce may select the
PRC-wide rate when it received no information, whatsoever, from respondent). Whether or not
Court No. 08-00245 Page 6
Commerce may in some cases choose this avenue as a permissible convenience or perhaps as an
added deterrent does not give a petitioner a right to demand such a rate. A substantially
supported rate is all the competitor may demand. See 19 U.S.C. § 1677e(b)-(c). Thus, as the
court has not been presented a sufficient basis to revisit its holding in Taifa III, its discussion will
be limited to the lawfulness of Taifa’s separate rate.
II. Taifa’s Separate Rate
In the case of such lack of connection to central government control, the court
instructed Commerce to give Taifa its own separate rate. Taifa III, 760 F. Supp. 2d at 1385–86.
In its Third Remand Results, Commerce calculated a separate AFA rate of 145.90% using a
portion of Taifa’s verified sales from the initial investigation. Third Remand Results, at 9. To
calculate this margin, Commerce first generated a list of the hand truck models sold by Taifa,
ranking them in order of highest to lowest model-specific margin. Id. at 9, 21. Commerce then
used the quantity of each model sold to calculate the cumulative percentage each model
represented of Taifa’s total sales from the top down. Id. at 9. Finally, Commerce calculated the
weighted-average margin of 145.90% using data from the sales of the three models with the
highest margins, which accounted for 36% of Taifa’s total sales by quantity. Id.
During an AD review, when “an interested party has failed to cooperate by not
acting to the best of its ability to comply with a request for information from the administering
authority . . . the administering authority . . . may use an inference that is adverse to the interests
of that party in selecting from among the facts otherwise available.” 19 U.S.C. § 1677e(b).
Under these circumstances, the AD duty rate is known as an AFA rate and may be based on
Court No. 08-00245 Page 7
information obtained from: “(1) the petition, (2) a final determination in the investigation under
this subtitle, (3) any previous review under [19 U.S.C. § 1675] . . . or determination under [19
U.S.C. § 1675b] . . ., or (4) any other information placed on the record.” Id. Nevertheless, “the
purpose of section 1677e(b) is to provide respondents with an incentive to cooperate, not to
impose punitive, aberrational, or uncorroborated margins.” F.lii De Cecco Di Filippo Fara S.
Martino S.p.A. v. United States, 216 F.3d 1027, 1032 (Fed. Cir. 2000). Thus, Commerce’s broad
discretion under the statute is not without limitations. See PAM S.p.A. v. United States, 582
F.3d 1336, 1340 (Fed. Cir. 2009).
Taifa now challenges this AFA rate as uncorroborated, punitive, and aberrational.
See Taifa Cmts., at 16. In addition, Taifa contends that Commerce’s methodology unlawfully
departed from its normal practice. Id. at 6. These claims lack merit.
A. Commerce Corroborated Taifa’s AFA Rate
Pursuant to 19 U.S.C. § 1677e(c), “[w]hen the administering authority . . . relies
on secondary information rather than on information obtained in the course of an investigation or
review, the administering authority . . . shall, to the extent practicable, corroborate that
information from independent sources that are reasonably at their disposal.” 19 U.S.C.
§ 1677e(c). Commerce, therefore, must corroborate Taifa’s AFA rate because it was calculated
using secondary information, namely, sales data from the previous investigation. See KYD, Inc.
v. United States, 607 F.3d 760, 765 (Fed. Cir. 2010) (providing that “[s]econdary information
includes [i]nformation derived from the petition that gave rise to the investigation or review, the
final determination concerning the subject merchandise, or any previous review under [19 U.S.C.
Court No. 08-00245 Page 8
§ 1675] concerning the subject merchandise” (internal quotation marks omitted)).
In order to corroborate an AFA rate, Commerce must show that it used “reliable
facts” that had “some grounding in commercial reality.” Gallant Ocean (Thai.) Co., Ltd. v.
United States, 602 F.3d 1319, 1324 (Fed. Cir. 2010) (internal quotation marks omitted). On
remand, Commerce reasoned that the 145.90% AFA rate was representative of Taifa’s
commercial reality because it was calculated using 36% of Taifa’s verified sales data from the
last time it was found to be cooperative, approximately two years earlier.3 Third Remand
Results, at 9. Commerce also concluded that this rate was corroborated because discredited
margins calculated for the preliminary results exceeded this amount.4 Id. at 13.
The court recognizes that there is no verified sales data on the record for the
relevant period of review, as Taifa was the only respondent and it failed to cooperate. See
3
For the purposes of the Final Results, the period of review was December 1, 2005,
through November 30, 2006. 73 Fed. Reg. at 43,685. The verified data used to make this
calculation was from sales made during the period of investigation, April 1, 2003 through
September 30, 2003. Amended Final Determination of Sales at Less Than Fair Value: Hand
Trucks and Certain Parts Thereof From the People’s Republic of China, 69 Fed. Reg. 65,410,
65,411 (Dep’t Commerce Nov. 12, 2004) (“Amended Final Determination”).
4
[[ ]] sales from the period of review, constituting [[ ]]% of total sales, were
found to be dumped at transaction-specific margins exceeding 145.90%. Third Remand Results,
at 13. The court notes that if this sales data had been verified, it likely would not be enough to
corroborate an AFA rate so large. See Taifa III, 760 F. Supp. 2d at 1386 n.7 (“When rates are in
multiples of 100%, one might assume that a bit more corroboration or record support is
warranted.”). Nevertheless, as Commerce points out, “Taifa withheld data and otherwise failed
verification and the rates are likely significantly lower than they would be if Taifa had
cooperated.” Third Remand Results, at 13. The court has already found that Taifa failed to
cooperate fully and its data was therefore unreliable. See Taifa III, 760 F. Supp. 2d at 1386.
Thus, the current sales data provides little, if any, evidence of Taifa’s actual commercial reality.
Confidential Data Deleted
Court No. 08-00245 Page 9
Taifa III, 760 F. Supp. 2d at 1386; Third Remand Results, at 11. Under such circumstances,
Commerce’s corroboration may be less than ideal because the uncooperative acts of the
respondent has deprived Commerce of the very information that it needs to link an AFA rate to
commercial reality. See 19 U.S.C. § 1677e(c) (stating that Commerce must corroborate “to the
extent practicable”); Gallant, 602 F.3d at 1324. Thus, Taifa’s sales data from April 1, 2003
through September 30, 2003, may be used because it is the only verified sales data on record for
this company and is not so outdated so as to compel its rejection on grounds of lack of relevance.
Third Remand Results, at 9. Furthermore, 36% of sales by quantity from the previous
investigation is a large enough proportion to demonstrate some form of a commercial reality
when the record is otherwise barren.5 Cf. Mid Continent Nail Corp. v. United States, 712 F.
Supp. 2d 1370, 1378 (CIT 2010) (providing that, in the context of targeted dumping, 33% is
considered reasonable for establishing a pattern of activity). Commerce, therefore, in this
difficult circumstance has corroborated the selected AFA rate of 145.90% “to the extent
practicable.”6 19 U.S.C. § 1677e(c).
5
Taifa argues that Commerce’s use of 33% in other contexts is distinguishable. See
Taifa’s Cmts., at 21. The history of such a threshold does not determine whether or not there is
evidence to establish Taifa’s commercial reality in this context.
6
The selected AFA rate of 145.90%, much like the previously proposed rate of 227.73%,
is not an actual rate, but rather is calculated using a portion of Taifa’s sales. Third Remand
Results, at 9; see Taifa III, 760 F. Supp. 2d at 1386. This fact, however, does not automatically
render the 145.90% unusable. Although some sources are generally better than others, there is no
statutory provision that requires Commerce to select a preexisting rate. See PSC VSMPO-
AVISMA Corp. v. United States, 755 F. Supp. 2d 1330, 1337 n.7 (CIT 2011). Rather,
Commerce must be fair and reasonable. See F.lli De Cecco, 216 F.3d at 1032. If it has a viable
rate that achieves statutory ends it should use it. See Taifa III, 760 F. Supp. 2d at 1386. If not, it
will be forced to construct a rate. See PSC VSMPO-AVISMA, 755 F. Supp. 2d at 1337 n.7.
(continued...)
Court No. 08-00245 Page 10
B. The Selected AFA Rate is Not Punitive
Commerce cannot apply an AFA rate if it is punitive. F.lli De Cecco, 216 F.3d at
1032. An AFA rate is punitive if it is not “based on facts” and “has been discredited by the
agency’s own investigation.” Id. at 1033. Taifa claims that the AFA rate of 145.90% is punitive
because it is much higher than all other calculated company-specific rates in previous segments
of the proceedings.7 See Taifa Cmts., at 17. As the court has previously explained, however,
except in some very odd situations not present here, “[i]f [a] rate is sufficiently corroborated as a
reliable rate it will not be found to be punitive.” PSC VSMPO-AVISMA, 755 F. Supp. 2d at
1337; see also Lifestyle Enter. v. United States, Slip Op. 11-16, 2011 Ct. Intl. Trade LEXIS 17,
*20 n.13 (CIT Feb. 11, 2011) (“Although clearly distinct standards[, ] under Federal Circuit
precedent, corroboration and reliability seem to collapse together in that they require
demonstration of the same facts and legal conclusions.”) Thus, the court does not find the AFA
rate of 145.90% punitive for essentially the same reasons that it finds it is not uncorroborated.
C. The Selected AFA Rate is Not Aberrational
Similarly, Taifa claims that the selected AFA rate is aberrational because it is
6
(...continued)
Commerce has broad discretion when selecting an AFA rate, including the ability to calculate a
new percentage based on substantial evidence, so long as it is not “punitive, aberrational, or
uncorroborated.” F.lii De Cecco, 216 F.3d at 1032; see PAM S.p.A., 582 F.3d at 1340.
7
The highest calculated company-specific rate from a previous segment of this
proceeding is 46.48%. See Amended Final Determination, 69 Fed. Reg. at 65,411. The only
calculated rate for Taifa is 26.49%. Id. The highest calculated company-specific rate from the
immediately prior review is 17.59%. Hand Trucks and Certain Parts Thereof From the People’s
Republic of China: Final Results of Administrative Review and Final Results of New Shipper
Review, 72 Fed. Reg. 27,287, 27,290 (Dep’t Commerce May 15, 2007).
Court No. 08-00245 Page 11
rebutted by the calculated company-specific rates in other segments of this proceeding. See
Taifa’s Cmts., at 25. In addition, Taifa claims that Commerce’s methodology, which calculated
the AFA rate using the 36% of Taifa’s sales by quantity with the highest model-specific margins,
impermissibly skews the result. Id. at 24. This is not a case, however, where Commerce is
attempting to corroborate an AFA rate based on the existence of one irregular sale. See PSC
VSMPO-AVISMA, 755 F. Supp. 2d at 1338. The fact that 36% of Taifa’s sales by quantity yield
this rate demonstrates that it is not so out of touch with Taifa’s behavior as to render it
aberrational.8 The AFA rate of 145.90%, therefore, is not aberrational for essentially the same
reasons that it is not uncorroborated.
D. Commerce’s Methodology
Finally, Taifa contends that there was no justifiable basis for Commerce to depart
from its normal practice of adopting the highest weighted-average margin calculated for any
respondent in any previous segment of the proceeding. See Taifa Cmts., at 6–16. When making
a discretionary determination, however, Commerce can use a case-by-case analysis, so long as it
is “consistent with its statutory authority.” See Allied-Signal Aerospace Co. v. United States, 28
8
Taifa’s attempt to analogize the facts of this case with those of Gallant in order to
achieve a similar result is misplaced. See Taifa Cmts., at 23. In Gallant, Commerce selected a
petition rate that was later discredited by its own investigation. Gallant, 602 F.3d at 1323. Here,
Commerce lacks the type of verified data that it had in Gallant. See supra note 4. For this
reason, whatever rate Commerce calculated for Taifa in the preliminary results is irrelevant.
Furthermore, the interpretation of Gallant that Taifa proposes, that a court can determine whether
a rate is aberrational or not by simply comparing it to other calculated rates, is an
oversimplification of that case. See Gallant, 602 F.3d at 1324 (reasoning that “[b]ecause
Commerce did not identify any relationship between the small number of unusually high
dumping transactions with Gallant’s actual rate, those transactions cannot corroborate the
adjusted petition rate”).
Court No. 08-00245 Page 12
F.3d 1188, 1191 (Fed. Cir. 1994). Under such circumstances, Commerce is not required to
justify its determination in terms of past alternatives. See id. Of course, Commerce must always
act reasonably. See id. Here, the reasoning of Commerce’s methodology is clear and simple:
Commerce lacked credible data for sales made during the period of review. See Third Remand
Results, at 13. Commerce then used a substantial portion of Taifa’s sales from the original
investigation, Taifa’s only verified data, to calculate a rate. Third Remand Results, at 9. This
methodology is reasonable considering Taifa’s lack of verified sales data, the percentage of sales
used, and the relatively recent nature of the sales when compared to the time period of the
review. Commerce’s methodology, therefore, is reasonable and not contrary to law.
CONCLUSION
For the foregoing reasons, Commerce’s determinations are supported by
substantial evidence and are in accordance with the law. Accordingly, the Third Remand Results
are sustained.
/s/ Jane A. Restani
Jane A. Restani
Judge
Dated: This 12th day of July, 2011.
New York, New York.
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597 F.2d 485
UNITED STATES of America, Plaintiff-Appellee,v.Donald E. JONES, Defendant-Appellant.
No. 78-5509.
United States Court of Appeals,Fifth Circuit.
June 20, 1979.
1
Neal R. Sonnett, Marc Cooper, Miami, Fla., for defendant-appellant.
2
Jack V. Eskenazi, U. S. Atty., Bruce A. Zimet, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
3
Appeal from the United States District Court for the Southern District of Florida.
4
Before AINSWORTH and VANCE, Circuit Judges, and BOOTLE,* District Judge.
BOOTLE, District Judge:
5
Convicted by a jury of multiple offenses relating to the operation of an illegal whiskey distillery and not challenging the sufficiency of the evidence, appellant urges two grounds for reversal: first, alleged error in denying his motion for new trial upon his showing that someone attempted to bribe a juror during trial and, second, alleged error in denying his motion to suppress evidence seized in a search made without a search warrant. For reasons following we affirm.
6
On August 1, 1975 a jury convicted the appellant, Donald E. Jones, on five counts of a seven count indictment arising out of his participation in the operation of an illegal whiskey distillery. The district court dismissed one count as duplicative of other counts and the jury acquitted appellant on one count. Appellant failed to appear for a hearing and sentencing on August 20, 1975 and was not apprehended until almost three years later. He was finally sentenced on June 23, 1978 and now appeals his conviction.
I. Jury Tampering
7
Two days after the verdict, one of the jurors was contacted by appellant's wife, Debra Jones, and "a huge black man" who was later identified as Willie Lucas. Lucas solicited this juror's agreement that appellant had been "shanghaied" and refused to tell her how her address had been found. This juror, being upset, contacted the trial judge who on August 4, 1975 entered an order directing an investigation by the United States Attorney's office and the Bureau of Alcohol, Tobacco and Firearms. The court directed that all statements taken during the investigation be filed with the Clerk as part of the record. The positive identification of Willie Lucas as the "huge black man" is supplied in a report of an interview with Lucas so filed.
8
On August 5, 1975, appellant submitted a motion to interview jurors pursuant to a local rule and filed in support thereof an affidavit dated August 4, 1975 by the same Willie Lucas which detailed post-verdict statements made by another juror, Arlie Crooms. Ms. Crooms was quoted as saying to him that she did not feel that the right verdict was given, that there was no proof that appellant owned the stills, and that she voted guilty only because of pressure from other jurors and her illness during the deliberations.
9
During the court ordered investigation, ATF agents interviewed all the jurors concerning possible approaches. When they interviewed Ms. Reboso, one of these jurors, they were told that juror Arlie Crooms had told her during the trial that she had been offered $1000 by someone to vote for acquittal. Subsequently, Ms. Crooms was interviewed and denied any improper approach. She later recanted and informed the ATF of a bribe offer by Willie Lucas who asked that she vote to acquit appellant.
10
The district court ordered a hearing on the matter for August 20, 1975. At the hearing, Ms. Crooms, Ms. Reboso, and the juror who was subjected to a post-verdict approach all testified. They were questioned by the Government attorney and by counsel for a co-defendant, B. J. Herndon, but no questions were asked by appellant's counsel. In fact, no evidence at all was submitted on behalf of appellant. The district court was informed that the Marshal had been unable to serve a subpoena on Willie Lucas and that the Marshal had been told that Lucas had decided to go to Nassau until August 24th. As stated previously, appellant also failed to appear and participate in this hearing despite the fact that by order of August 12, 1975 the district court had commanded his presence and despite the fact that at 10:30 A.M. on the morning of the hearing appellant and his wife were in his attorney's office at which time his attorney cautioned him to be present for the hearing at 1:00 P.M. The only explanation of his absence was made by his attorney as follows: "I spoke to Mrs. Debra Jones. She said that she left Donald a while ago and he was on his way down here. They came in separate cars. She made it; I don't know why he didn't make it." As above indicated, appellant's wife Debra (with separate counsel) was present at the hearing and, despite her participation in the post-verdict approach to a juror, was not called by appellant's counsel or by anyone as a witness. At the conclusion of the testimony, appellant's counsel made a motion which in substance was a motion for a new trial1 and the district court denied it.
11
It is well established law that an improper communication such as a bribe offer to a juror during the trial raises a presumption of prejudice and that a new trial must be ordered unless the Government is able to bear its heavy burden of proving harmlessness. Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), Appeal after remand, 350 U.S. 377, 76 S.Ct. 425, 100 L.Ed. 435 (1956). Both appellant and the Government have concentrated their efforts primarily on the question of harmlessness raised in Remmer. The Government has asserted that both jurors, Ms. Reboso and Ms. Crooms showed by their testimony that the bribe offer had no effect on their deliberation.2 Appellant insists that harmlessness was not shown. Both sides have overlooked some fundamental issues inherent in the procedural context in which appellant's motion was made. Since these questions are controlling, this court need not reach the issue of harmlessness.
12
The jury's verdict was returned August 1, 1975. A timely motion for new trial was filed on August 8, 1975 and overruled on August 12, 1975. Appellant's motion which is the subject of this appeal was not made until August 20, 1975. After seven days from the date of the verdict, a motion for new trial cannot be entertained unless it is based on newly discovered evidence. Fed.R.Cr.P. 33. Appellant's motion was thus one which would have to be founded upon allegedly newly discovered evidence of an improper communication to a juror. This court and the Court of Appeals for the Sixth Circuit have recognized the propriety of categorizing such a motion as one for a new trial based upon newly discovered evidence. Richardson v. United States, 360 F.2d 366 (5th Cir. 1966); Zachary v. United States, 275 F.2d 793 (6th Cir. 1960). Both the Government and appellant have treated the issues in this case without recognizing the requirements and burdens placed on a defendant presenting such a motion.
13
In most new trial motions based on newly discovered evidence, the proffered evidence goes directly to proof of guilt or innocence. In such a motion the movant has a burden of showing (1) that the evidence was in fact discovered after the verdict, (2) that the movant's failure to learn of this evidence was not due to any lack of diligence on his part, (3) that the evidence is material and not merely cumulative or impeaching, and (4) that a new trial would probably result in an acquittal. United States v. Bryant,563 F.2d 1227 (5th Cir. 1977); United States v. Rachal, 473 F.2d 1338 (5th Cir. 1973); United States v. Hagerty, 561 F.2d 1197 (5th Cir. 1977); United States v. Schwartzenbaum, 527 F.2d 249 (2d Cir. 1975); United States v. Ellison, 557 F.2d 128 (7th Cir. 1977). Admittedly, there are major distinctions in the substance of the evidence proffered by the appellant and that proffered in the above cited cases since appellant's evidence goes to the fairness of the trial rather than to the usual question of guilt or innocence. Regardless of those distinctions a motion for a new trial can not be based on newly discovered evidence unless that evidence is in fact unknown to the movant until after the verdict. The appellant had the burden of proving that this evidence was in fact newly discovered and that his failure to discover it prior to verdict was not due to his lack of diligence.3 Zachary v. United States, supra; see United States v. Ellison, supra. It deserves note that in Remmer, it was established, by the Government's failure to deny, that "(n)either the judge nor the prosecutors informed the petitioner of the incident, and he and his counsel first learned of the matter by reading of it in the newspapers after the verdict." 347 U.S. at 228, 74 S.Ct. at 451, 98 L.Ed. at 655. Such a burden is eminently reasonable in view of the devastation which jury tampering could bring to our country's highly valued jury system. The burden of proving harmlessness placed on the Government by Remmer is difficult to bear. If all that need be shown by a defendant is the existence of tampering, an unscrupulous defendant could purposefully subvert the administration of justice by initiating such bribery attempts.
14
In this case appellant presented no evidence whatever on the issues of his lack of knowledge or his due diligence. In fact, his counsel did not even disclaim such knowledge on behalf of appellant. All that appellant has ever stated is that no evidence shows that appellant was "connected with" the bribe offer.4 Thus appellant never satisfied his burden of proof as movant and the Remmer presumption does not come into play. The district court was correct in denying appellant's motion for new trial.
II. Motion to Suppress
15
Appellant's other contention is that the district court should have suppressed evidence seized by ATF agents during a search conducted without a warrant. On April 12, 1974, local police officers responded to a reported shooting at premises leased by appellant. During their search for suspects or injured persons, these officers discovered appellant's illegal stills and other related paraphernalia. These local officers then called in ATF agents who seized certain evidence. This court agrees with the district court's conclusion5 that the ATF agents' conduct was proper under the doctrine of United States v. Green, 474 F.2d 1385 (5th Cir. 1973) which was the then prevailing law of this circuit. See, United States v. Brand, 556 F.2d 1312 (5th Cir. 1977).
16
Appellant contends that two recent Supreme Court cases, Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), and Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), invalidate Green and require that the evidence seized in the instant search be excluded. We conclude that Tyler and Mincey should not be applied retroactively on the facts of this case. United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975); United States v. Montgomery, 558 F.2d 311 (5th Cir. 1977).
17
AFFIRMED.
*
District Judge of the Middle District of Georgia, sitting by designation
1
Appellant's motion is quoted in full below:
I would like to make a Motion at this time on behalf of Mr. Donald Jones that based upon the testimony adduced here from the juror, Mrs. Crooms, and which is corroborated by Mrs. Reboso, and whom Mrs. Crooms corroborates, the fact that Mrs. Reboso had made mention she knew a particular witness and the fact that for two days, apparently, Mrs. Reboso had known the name of one of the defendants, and Mrs. Crooms said that she had reached a verdict, apparently not by choice but by what she says was the either the other understanding of Mrs. Reboso or some of the other jurors, that she would have to come back and she wasn't feeling well, and that she reached a verdict that did indicate what she felt to be her verdict; she did it because of compliance with other jurors, so on that basis and on the testimony adduced, I would make a motion on behalf of Don Jones to set aside the verdict as returned by this jury.
2
Juror Crooms testified: "I didn't say anything to her (referring to Juror Reboso) because after she didn't call me, I didn't say anything to her because I had decided to forget about it." (Supp. R. 19). Juror Reboso testified: "I didn't think of it at all. I was having personal problems which were more important to me at the time. I sort of heard her and it went in one ear and out the other because my problems were major problems. I mean, I am being as sincere as I can be." (Supp. R. 38). In addition Juror Crooms argued for appellant's acquittal during jury deliberations and the jury did in fact acquit him of one count
3
Another line of cases forcefully shows the relevance of a defendant's knowledge or lack of knowledge before the verdict of jury tampering. These cases teach that a defendant cannot learn of juror misconduct during the trial, gamble on a favorable verdict by remaining silent, and then complain in a post-verdict motion that the verdict was prejudicially influenced by that misconduct. Oakes v. Howard, 473 F.2d 672 (6th Cir. 1973); United States v. Brumbaugh, 471 F.2d 1128, 1130 (6th Cir. 1973) (McCree, J., concurring); United States v. Carter, 433 F.2d 874 (10th Cir. 1970); Hall v. United States, 396 F.2d 428 (10th Cir. 1968); United States v. Coduto, 284 F.2d 464 (7th Cir. 1960). The rule requiring a showing that the evidence of jury tampering is newly discovered and the rule of waiver established by the above cited cases are not aimed necessarily at discovering a defendant's complicity in the improper communication to the jury. The policies behind both rules fully encompass any knowledge possessed by the defendant before the verdict whether it be innocent or not. Such knowledge should be disclosed to the trial judge before the verdict so that an attempt can be made to salvage the trial by ridding the jury of prejudicial influences
4
It is true that the evidence does not affirmatively establish the appellant's involvement in the bribe offer. However, our decision is grounded on the total lack of evidence disproving such involvement or knowledge. Though not a basis for our decision, it is interesting to note that the circumstances that are shown by the record tend to show rather than negate such knowledge or involvement. Willie Lucas, who offered the bribe, accompanied appellant's wife two days after the verdict in an attempt to solicit a juror to impeach the verdict. In furtherance of this endeavor, Lucas submitted an affidavit as support for appellant's motion to interview jurors. Events that came to light at trial also raise questions. It is clear that Debra Jones and a Government witness, with appellant's knowledge, negotiated an agreement to pay said witness a large sum if he would not testify. The witness claims that appellant offered a bribe; appellant describes these events as an extortion attempt by the witness. Unfortunately, we have no way of knowing what the jury thought of these contacts
5
United States v. Herndon, 390 F.Supp. 1017 (S.D.Fla.1975)
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63 U.S. 96 (1859)
22 How. 96
THE BANK OF PITTSBURGH, PLAINTIFF IN ERROR,
v.
JOHN S. NEAL AND REUBEN E. NEAL.
Supreme Court of United States.
*100 It was argued by Mr. Stanton, upon a brief filed by himself and Mr. Walker, for the plaintiff in error, and by Mr. Thompson, upon a brief filed by himself and Mr. Dunn, for the defendants.
*104 Mr. Justice CLIFFORD delivered the opinion of the court.
This is a writ of error to the Circuit Court of the United States for the district of Indiana. All of the questions presented in this case arise upon the pleadings and the facts therein disclosed. It was an action of assumpsit, brought by the plaintiff in error as the holder of two certain bills of exchange, against the defendants as the acceptors. An amendment to the declaration was filed after the suit was commenced. As now exhibited in the transcript, it contains four counts. Two of the counts were drawn up on the respective bills of exchange, and are in the usual form of declaring in suits, by the holder of a bill of exchange against the acceptor. Those contained in the amendment are special in form, setting forth the circumstances under which the respective bills of exchange were drawn, accepted, and negotiated, and averring that these *105 acts were subsequently ratified by the defendants. To the merits of the controversy the defendants pleaded the general issue, and filed seven special pleas in bar of the action. Demurrers were filed by the plaintiff to each of the special pleas, which were duly joined by the defendants, and after the hearing, the court overruled all of the demurrers. Those filed to the pleas responsive to the first and second counts were overruled upon the ground that the pleas were sufficient, and constituted a good bar to the action; but those filed to the fifth, sixth, seventh, and eighth pleas were overruled, upon the ground that the third and fourth counts, to which those pleas exclusively applied, were each insufficient in law to maintain the action. Whereupon, the plaintiff abiding his demurrers, the court directed that judgment be entered for the defendants, and the plaintiff sued out a writ of error, and removed the cause into this court. It being very properly admitted, by the counsel of the defendants, that the first and second counts of the declaration are in the usual form, it is not necessary to determine the question as to the sufficiency of the third and fourth, and we are the less inclined to do so, from the fact that the counsel on both sides expressed the wish, at the argument, that the decision of the cause might turn upon the question, whether the plaintiff, on the facts disclosed in the pleadings, was entitled to recover against the defendants. That question is the main one presented by the pleadings; and inasmuch as it might well have been tried under the general issue, we think it quite unnecessary to consider any of the incidental questions which do not touch the merits of the controversy. Special pleading in suits on bills of exchange and promissory notes ought not to be encouraged, except in cases where by law the defence would otherwise be excluded or rendered unavailing. Full and clear statements of the facts as disclosed in the pleadings, were presented to the court, at the argument, by the counsel on both sides. They are substantially as follows: In June, 1857, the defendants, residents of Madison, in the State of Indiana, being desirous of procuring a loan of money, made their certain acceptances in writing of two blank bills of exchange, in sets of two *106 parts to each bill, and transmitted the four blanks, thus accepted, to their correspondent, Lot O. Reynolds, then and still residing at Pittsburgh, in the State of Pennsylvania. Both sets of blanks were in the form of printed blanks usually kept by merchants for bills of exchange in double sets, except that each of the four was made payable to the order of the correspondent to whom they were sent, and was duly accepted on its face by the defendants, in the name of their firm. They were in blank as to the names of the drawers and the address of the drawees, and as to date, and amount, and time, and place of payment. When the defendants forwarded the acceptances, they instructed their correspondent to perfect them as bills of exchange, by procuring the signatures of the requisite parties, as accommodation drawers and endorsers, and to fill up each with the appropriate date, and with sums not less than fifteen hundred nor more than three thousand dollars, payable at the longest period practicable, and to sell and negotiate the bills as perfected, for money, and remit the proceeds to the defendants. Afterwards, in the month of July, of the same year, the defendants, at the request of the person to whom those acceptances were sent, made four other similar acceptances, and delivered them to him, to be sold and negotiated as bills of exchange, in double sets, for his own use, and with power to retain and use the proceeds thereof for his own benefit. They were in all respects the same, in point of form, as the four acceptances first named, and, like those, each of the four parts was made payable to the order of the person at whose request they were given, and was duly accepted by the defendants in the name of their firm. When they delivered the sets last named, they authorized the payee to perfect them as bills of exchange, in two parts, in reasonable amounts, and with reasonable dates. Eight acceptances were thus delivered by the defendants to the same person, corresponding in point of form to four bills of exchange, but with blanks for the names of the drawers and the address of the drawees, and for the respective amounts, dates, and times and places of payment. Four contained, in the printed form of the blanks, the words, "first of exchange, second unpaid;" and the other four contained in *107 the corresponding form the words, "second of exchange, first unpaid;" but in all other respects they were alike. All of the first class were perfected by the correspondent as bills of exchange of the first part, and were sold and negotiated by him at certain other banks in the city of Pittsburgh. He perfected them by procuring L.O. Reynolds & Son to become the drawers, addressed them to the defendants, endorsed them himself in blank, and procured another individual or firm to become the second endorser. They were filled up by him for sums varying from about two thousand to three thousand dollars, with dates corresponding to the times when they were negotiated, and were respectively made payable in four months from date. Contrary to his instructions, he retained the proceeds of the one first negotiated, which he had been directed to remit; and he also retained in his possession, but without inquiry or complaint on the part of the defendants, the other four acceptances, constituting the second class. On the first day of August, 1857, he perfected and filled up as a separate bill of exchange one of the last-named acceptances, and sold and negotiated it to the plaintiff for his own use and benefit. He also perfected and filled up, on the eighteenth day of the same month, another of the same class, in the same manner, and for the same purpose, and on the same day sold and negotiated it to the plaintiff. Both of these last-mentioned bills of exchange vary from those of the first class, not only in dates and amounts, but also as to time and place of payment, and are in all respects single bills of exchange. They were each received and discounted by the plaintiff, without any knowledge whatever that either had been perfected and filled up by the payee without authority, or of the circumstances under which they had been intrusted to his care, unless the words, "second of exchange, first unpaid," can be held to have that import.
In all other respects, the bills must be viewed precisely as they would be if they had been perfected and filled up by the defendants, and for two reasons, deducible from the decisions of this court:
First. Because, where a party to a negotiable instrument *108 intrusts it to the custody of another with blanks not filled up, whether it be for the purpose to accommodate the person to whom it was intrusted, or to be used for his own benefit, such negotiable instrument carries on its face an implied authority to fill up the blanks and perfect the instrument; and as between such party and innocent third parties, the person to whom it was so intrusted must be deemed the agent of the party who committed such instrument to his custody or, in other words, it is the act of the principal, and he is bound by it. Goodman v. Simonds, 20 How., 361; Violet v. Patton, 5 Cran., 142.
Secondly. Because a bona fide holder of a negotiable instrument, for a valuable consideration, without notice of the facts which impeach its validity between the antecedent parties, if he takes it under an endorsement made before the same becomes due, holds the title unaffected by these facts, and may recover thereon, although, as between the antecedent parties, the transaction may be without any legal validity. Swift v. Tyson, 16 Peters, 15; Goodman v. Simonds, 20 Howard, 363.
Applying these principles, it is obvious that the only question that arises on this branch of the case is as to the effect of the words, "second of exchange, first unpaid," which appear on the face of the bills. That question, under the circumstances of this case, is a question of law, and not of fact for the jury. Three decisions of this court sustain that proposition; and in view of that fact, we think it unnecessary to do more than refer to those decisions, without further comment in its support. Andrews v. Pond and al., 13 Pet., 5; Fowler v. Brantly, 14 Pet., 318; Goodman v. Simonds, 20 How., 366.
Another principle, firmly established by this court, and closely allied to the question under consideration, will serve very much to elucidate the present inquiry. In Downes and al. v. Church, 13 Pet., p. 207, this court held, that either of the set of bills of exchange may be presented for acceptance, and if not accepted, that a right of action presently arises, upon due notice, against all the antecedent parties to the bill, without any others of the set being presented; for, say the *109 court, it is by no means necessary that all the parts should be presented for acceptance before a right of action accrues to the holder.
Now, if either of the set may be presented, and when not accepted a right of action immediately ensues, it is difficult to see any reason why, if upon presentation the bill is accepted, it is not competent for the endorsee to negotiate it in the market; and clearly, if the endorsee may properly negotiate the bill, a bona fide holder for value, without notice, may acquire a good title. In this connection, Mr. Chitty says, that "unless the drawee has accepted another part of a bill, he may safely pay any part that is presented to him, and that a payment of that part will annul the effect of the others; but if one of the parts has been accepted, the payment of another unaccepted part will not liberate the acceptor from liability to pay the holder of the accepted part, and such acceptor may therefore refuse to pay the bearer of the unaccepted part;' from which he deduces the rule, that a drawee of a bill drawn in sets should only accept one of the set. Chitty on Bills, (10 Am. ed., by Barb.,) 155.
Mr. Byles says: "The drawee should accept only one part, for if two accepted parts should come into the hands of different holders, and the acceptor should pay one, it is possible that he may be obliged to pay the other part also;" which could not be, unless it was competent for the holder of a second part to negotiate it in the market. Byles on Bills, p. 310.
Where the drawee accepted and endorsed one part to a creditor, as a security, and afterwards accepted and endorsed another part for value to a third person, but subsequently substituted another security for the part first accepted, it was held, in Holdsworth v. Hunter, 10 Barn. and Cress., 449, that, under these circumstances, the holder of the part secondly accepted was entitled to recover on the bill; and Lord Tenterden and Baron Parke held that the acceptor would have been liable on the part secondly accepted, even if the first part had been endorsed and circulated unconditionally.
Judge Story says, in his work on bills of exchange, that the *110 bona fide holder of any one of the set, if accepted, may recover the amount from the acceptor, who would not be bound to pay any other of the set which was held by another person, although he might be the first holder. Story on Bills, sec. 226.
No authority is cited, for the defendant, to impair the force of those already referred to; but it is not necessary to express any decided opinion upon the point at the present time. Suffice it to say, that in the absence of any authority to the contrary, we are strongly inclined to think that the correct rule is stated by Mr. Chitty, and that such is the general understanding among mercantile men.
But another answer may be given to the argument for the defendant, which is entirely conclusive against it; and that is, that the bills described in the first and second counts were not parts of sets of bills of exchange. They were perfected, filled up, and negotiated, by the correspondent of the defendants, to whom the blank acceptances had been intrusted as single bills of exchange; and for the acts of their correspondent, in that behalf, the defendants are responsible to a bona fide holder for value, without notice that the acts were performed without authority.
When the transaction is thus viewed, as it must be in contemplation of law, it is clearly brought within the operation of the same rule as it would be if the defendant himself had improvidently accepted two bills for the same debt. In such cases, it is held, that the acceptor is liable to pay both, in the hands of innocent holders for value. Davidson v. Robertson, 3 Dow. P.C., 228.
Lord Eldon said, in that case: "Here were two bills for the same account, and supposed to be for the same sums; they who were to pay them had a right to complain that there were two, and yet they were bound to pay both, in the hands of bona fide holders, if accepted by them or by others for them, having authority to accept."
To suppose, in this case, that the words "second of exchange, first unpaid," import knowledge to the plaintiff that the bills were drawn in sets, would be to give them an effect contrary to the averments of the defendants' pleas, as well as *111 contrary to the admitted fact that they were not so drawn; and for those reasons the theory cannot be sustained.
In view of all the facts as disclosed in the pleadings, we think the case clearly falls within the operation of the rule generally applicable in cases of agency, that where one of two innocent parties must suffer, through the fraud or negligence of a third party, the loss shall fall upon him who gave the credit. Fitzherbert v. Mathen, 1 Term., 16, per Buller; Androscoggin Bank v. Kimball, 10 Cush., 373; Montague v. Perkins, 22 Eng. L. and Eq., 516.
Business men who place their signatures to blanks, suitable for negotiable bills of exchange or promissory notes, and intrust them to their correspondents, to raise money at their discretion, ought to understand the operation and effect of this rule, and not to expect that courts of justice will fail in such cases to give it due application.
According to the views of this court, the demurrers to the several pleas filed to the first and second counts of the declaration should have been sustained. Having come to that conclusion, it is unnecessary to examine the other propositions submitted on behalf of the defendants.
The judgment of the Circuit Court is therefore reversed, with costs, and the cause remanded, with directions to enter judgment for the plaintiff, as upon demurrer, on the first and second counts of the declaration.
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64 F.Supp.2d 69 (1999)
Anthony ZIMMITTI, Plaintiff,
v.
AETNA LIFE INSURANCE CO., Defendant.
No. 2:92CV187 (RNC).
United States District Court, D. Connecticut.
September 13, 1999.
*70 *71 Gregg D. Adler, Livingston, Adler, Pulda & Meiklejohn, James L. Kestell, Kestell & Associates, Hartford, for Plaintiff.
Albert Zakarian, Shane T. Munoz, Victoria Woodin Chavey, Day, Berry & Howard, Hartford, for Defendant.
RULING AND ORDER
CHATIGNY, District Judge.
This employment discrimination case has been remanded by the Court of Appeals for reconsideration of the defendant's motion for judgment as a matter of law in light of Fisher v. Vassar College, 114 F.3d 1332 (2d Cir.1997) (in banc), cert. denied, ___ U.S. ___, 118 S.Ct. 851, 139 L.Ed.2d 752 (1998). After careful review of the trial transcript and the parties' memoranda in light of the opinions in Fisher and other cases, I believe the evidence is sufficient to sustain the jury's verdict. Accordingly, the defendant's motion is denied.
I.
In Fisher, the Court of Appeals addressed the nature and effect of a finding of pretext in an employment discrimination case under the three-step burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In particular, the Court considered whether a sustainable finding of pretext always entitles the plaintiff to prevail. The Court ruled that a "plaintiff may prevail only if an employer's proffered reasons are shown to be a pretext for discrimination, either because the pretext finding itself points to discrimination or because other evidence in the record points in that direction or both." Id. at 1339. The in banc majority explained that
discrimination does not lurk behind every inaccurate statement. Individual decisionmakers may dissemble in order to hide a reason that is non-discriminatory but unbecoming or small-minded, such as back-scratching, logrolling, horse-trading, institutional politics, envy, nepotism, spite or personal hostility .... In short, the fact that the proffered reason was false does not necessarily mean that the true motive was the illegal one argued by the plaintiff.... The sufficiency of the finding of pretext to support a finding of discrimination depends on the circumstances of the case.
Id. at 1337-38.
The plaintiff in Fisher had produced some evidence of pretext. However, the Court determined that neither the pretext *72 finding nor the rest of the record pointed to the conclusion that she was a victim of unlawful discrimination. Accordingly, the judgment in her favor was reversed. Id. at 1347.
II.
Plaintiff Anthony Zimmitti claims that defendant Aetna Life Insurance Company, his longtime employer, terminated his employment in connection with a reorganization and reduction in force because of his age in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. At the trial, plaintiff's last supervisor at Aetna, Walter Cieslak, testified that the termination decision was "basically" his in that his recommendation that the plaintiff's employment be terminated was approved by the ultimate decisionmaker, Peter McGowan.[1] Cieslak explained to the jury that the plaintiff's employment was terminated because he was not as wellqualified as the employee who was chosen to assume the duties and responsibilities of the plaintiff's former position, Monica Reidy. Asked whether age was a factor in the decision, Ceislak testified, "Absolutely not."[2]
The plaintiff did not deny that Reidy is a "capable individual," JA 231, who was qualified for the position, JA 254, but claimed that he was the best qualified candidate. JA 240. He vehemently disagreed with Cieslak's unfavorable evaluation of his qualifications, describing it as a "mockery." JA 233. The plaintiff testified that if Aetna's guidelines for the reorganization had been followed, he would have kept his job, JA 235, and that he was terminated "because [his] age group didn't fit into the new group." JA 240.
To prove his ADEA claim, the plaintiff relied on various pieces of circumstantial evidence. At the time the reorganization was announced, he was 55 years of age, which made him significantly older than Cieslak, who was 32; McGowan, who was 39; and Reidy, who was 41. Cieslak's assessment of the plaintiff's qualifications conflicted with performance evaluations done by the plaintiff's previous supervisor, who was slightly older than the plaintiff and had supervised him until just before the reorganization was announced. The plaintiff contended that Cieslak had failed to adhere to Aetna's guidelines for the reorganization in that, among other things, he had failed to give him the benefit of an incumbent preference. In addition, the plaintiff relied on a statement Cieslak allegedly made to him not long after his employment was terminated. It is undisputed that about six weeks after Cieslak told the plaintiff his employment was terminated, the plaintiff called Cieslak to get some documents he needed to try to obtain another position with the company. According to the plaintiff, when Cieslak realized what the plaintiff was calling about, he said to him, "But I thought you were retiring." JA 100.[3]
In closing arguments, plaintiff's counsel urged the jury to find that the plaintiff's employment was terminated because he was significantly older than Cieslak, McGowan and Reidy. Aetna's counsel urged the jury to find that the termination had nothing to do with age.
The jury was instructed as follows:
*73 To prevail on his claim of age discrimination, Mr. Zimmitti must prove, by a preponderance of the evidence, that the explanation given by the defendant for the termination of his employment is a pretext or cover-up for what was in truth age discrimination. In other words, he must prove by a preponderance of the evidence that Aetna's contention that he was not the best qualified candidate for the ... position is untrue and that he was not selected for the position because of his age. If the plaintiff proves that the defendant's explanation is a pretext or cover-up for age discrimination, you must find for the plaintiff. If, however, you find that the explanation given by the defendant is true, you must find for the defendant. If after considering all the evidence you find that Aetna's explanation is untrue, that does not necessarily mean that your verdict must be for the plaintiff. If you reject the defendant's explanation as untrue, you must still decide whether the real reason the plaintiff lost his job was age discrimination. If you find that the defendant's explanation is untrue, and you further find that the plaintiff lost his job due to age discrimination, then your verdict must be for the plaintiff.
After deliberating for a period of time, the jury asked for a copy of the charge relating to the ADEA. By agreement of the parties, the instructions just quoted were re-read. In due course, the jury returned a verdict in favor of the plaintiff. Responding to interrogatories, the jury found that the defendant terminated the plaintiff's employment because of his age in violation of the ADEA, that he was entitled to compensation in the amount of $175,000, and that the violation was not willful.
III.
In its motion for judgment as a matter of law, the defendant contends that the jury's verdict must be overturned under Fisher because the evidence fails to establish a nexus between the termination of the plaintiff's employment and his age. The plaintiff responds that the evidence supports the jury's finding of pretext and that the pretext finding together with all the evidence in the record adequately supports the jury's determination that age was a factor in the termination.
The jury's verdict may be overturned only if there is "such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, Norton v. Sam's Club, 145 F.3d 114, 118 (2d Cir.1998) (quoting Stratton v. Department for the Aging, 132 F.3d 869, 878 (2d Cir.1997)), or if there is such an overwhelming amount of evidence in favor of the defendant that fair minded persons could not have arrived at th[e] verdict." Stratton, 132 F.3d at 879. The evidence must be viewed in a light most favorable to the plaintiff and he must be given the benefit of all reasonable inferences the jury could have drawn in his favor. See Norton, 145 F.3d at 118. The court is not entitled to "assess the weight of conflicting evidence, pass on the credibility of witnesses or substitute [its] judgment for that of the jury." Id. (quoting Stratton, 132 F.3d at 878). Judged according to this stringent test, which protects a party's right to trial by jury, the defendant's motion fails.
Facts
The evidence, viewed most favorably to the plaintiff, and with all reasonable inferences drawn in his favor, permitted the jury to find the following facts.
At the time of this termination in 1991, the plaintiff was 55 years of age. He had worked for the defendant for 25 years, compiled a good performance record, been promoted and received merit bonuses. His position at the time he was terminated was administrator of retrospective rating in the service and technology unit of the national commercial accounts department *74 ("the retro ratings unit"). See JA 1441. He had three supervisors reporting to him, each of whom supervised seven or eight employees. The retro ratings unit was responsible for preparing reports that calculated the premiums to be charged to Aetna's largest commercial accounts based on their loss experience.
The plaintiff held the administrator position from December 1986 until his termination in early 1991. During that time he was rated as meeting or exceeding the job's requirements. Before being promoted to the administrator's position, he had been a supervisor in the retro ratings unit. While serving in that capacity, he had received a rating of "significantly exceeds requirements," the highest possible rating at Aetna, which was seldom given to any employee. JA 1520.
The last annual evaluation the plaintiff received covered his performance for 1989. JA 1341. His supervisor at that time, Frank Lusk, was also in his 50's. Lusk gave the plaintiff ratings of "exceeding requirements" and "above average" in two of the three categories for which a rating was given and the plaintiff narrowly missed receiving an overall rating of "exceeding requirements" for the year. Lusk gave the plaintiff the highest possible ratings for production results, thoroughness and accuracy, problem analysis and decisionmaking. In addition, Lusk gave him the highest possible ratings for directing and leading others, managing change, selecting employees, developing and supporting employees and giving them performance feedback. JA 1348-50. The plaintiff had received similarly high ratings from Lusk the year before. JA 1506.
In October 1989, the plaintiff received a written commendation from the senior vice president of national accounts. JA 1528. The memorandum praised the plaintiff and his staff for exceeding previous production levels by 30 percent with 15 percent fewer staff. The memorandum attributed the unit's success to plaintiff's leadership, the support he enjoyed among the people who worked for him, and their teamwork. The following month, Lusk recommended that the plaintiff be given a bonus in recognition of "very favorable overall unit operations during 1989." JA 1530.
In April 1990, Peter McGowan took over as head of service and technology in the national commercial accounts department. He was 39 years of age, 16 years younger than the plaintiff. Shortly thereafter, a report based on a review of approximately 400 calculations done by the retro ratings unit, known as the I-90 Retro Report, presented data showing that the unit was having problems with timeliness and accuracy. JA 1360. A subsequent survey of four field offices showed that during a 30 day period the offices had to return reports prepared by the unit due to processing errors. JA 1357. These problems could be attributed to difficulty the unit had getting timely, accurate information from other departments such as underwriting.
McGowan adopted a "no excuses" policy for the unit, which established strict production standards for speed and accuracy. Under the new policy, 95 percent of the reports required to be done by the unit each month had to be done on time, and no more than 2 percent of them could be inaccurate. The unit adapted. By September 1990, a particularly busy time of the year, the unit got 98 per cent of its reports done on time.
In late August 1990, McGowan relieved Lusk of two of the four areas for which he had been responsible and assigned them to Walter Cieslak, who was 32. As a result, Cieslak replaced Lusk as the plaintiff's supervisor. Instead of reporting to an individual with whom he had worked for a number of years and who was slightly older, plaintiff was now reporting to a person he hardly knew who was 23 years younger.
Cieslak had other responsibilities and he devoted only part of his time to the retro *75 ratings unit. During the first few months of his tenure as the plaintiff's supervisor, he continued to use an office in another department. He visited the retro ratings unit from time to time, but not frequently, and very seldom spoke with the plaintiff by phone. JA 191. In late 1990, he took an office right next to the plaintiff's, but still spent most of his days elsewhere. JA 191-92. On occasion, he and the plaintiff talked about how the unit was meeting its production goals. However, their talks were brief and infrequent. JA 193-94.
In October 1990, Aetna announced the reorganization that would lead to termination of the plaintiff's employment. McGowan was selected to head up service and technology for national commercial accounts following the reorganization. McGowan relied on Cieslak to make recommendations regarding restructuring and staffing. Ultimately, four employees in the retro ratings unit were terminated in the reorganization, including the plaintiff.
Aetna's human resources department published guidelines for the reorganization. JA 1280. The guidelines were intended to foster objectivity and thereby reduce the risk of discrimination. JA 698-99. "Guiding principles" contained in the guidelines directed management to "[p]lace the best qualified people in the right jobs," use a "competency-based selection process," and "guard against adverse impact on protected classes of persons." JA 1284.
Under the guidelines, managers involved in restructuring and selecting staff were expected to follow a "progression of events." JA 1285. After determining the new organizational structure and number of staff needed, managers were supposed to select staff using "competency based position descriptions" and "update[d] employee competency assessments." Id. Staff selections were to be "document[ed]" using "competency comparison worksheets," id., also known as "candidate comparison worksheets," which listed ten different "competencies," or "areas of knowledge, ability and skill." JA 1293-94. To complete the worksheet, it was first necessary to identify the "critical competencies" for the position (i.e. those "needed to be successful") and rate the relative importance of all the competencies. JA 1293. Each candidate then had to be rated with regard to each competency. To properly assess a candidate's "competencies," a manager was supposed to consider the most recent annual performance evaluation prepared by the employee's supervisor, known as a "Part III," id., plus "other appropriate input (e.g., interview results, past appraisals, third-party assessment, evaluation of past work experience)." Id.[4]
The guidelines distinguished between positions in class 78 and above, which were officer level positions, and positions in or below class 34, like the plaintiff's, which was a class 33. To fill positions in or above class 78, managers were supposed to consider individuals on a "companywide basis," JA 1284, the goal being "to fill the positions with the best available candidates regardless of their previous positions and/or locations." JA 1287. On the other hand, when filling positions in or below class 34, "incumbents" were to be given a "preference." JA 1284. An "incumbent" was an employee "currently performing the same or virtually the same job." JA 1287. To qualify for the incumbent preference, *76 employees had to be "meeting the requirements of their jobs." JA 1287.[5] In practical terms, the incumbent preference meant that if a position's functions were to remain essentially the same, the "most likely candidate" for the position in the new organization should be the individual who was already in the position. JA 1431.
It was the custom and practice at Aetna for an employee to provide his supervisor with a draft of an annual performance evaluation. The supervisor would then review the draft with the employee and make appropriate revisions. Any disagreement between the two would be discussed and the employee would have an opportunity to comment on the final draft before the evaluation became a part of his personnel file. Consistent with that custom and practice, the guidelines stated that "update[d] competency assessments" were to be "share[d] with employees" before candidate comparisons were done and selection decisions were made. JA 1285.
At McGowan's request, Ceislak developed a new organizational chart for the service and technology unit. See JA 1439. The chart included a position called "Senior Administrator, Retrospective Rating." This position was the same as the plaintiff's except that it had one "new report" in the form of a "business consultant" with expertise in automation. Cieslak intended to fill the "business consultant" slot by taking an employee from another unit who had frequently provided services to the retro ratings unit with regard to automation. Moving the employee into the unit meant that the administrator position could be upgraded to a class 34. No other changes were made in the unit's management structure.
At some point, McGowan and Cieslak decided that Monica Reidy should be considered for the position of Senior Administrator. Reidy, who was working in another part of the company involved with national accounts, had told McGowan that if he ever had an opening in his organization, she would like to be considered for it.[6] Reidy and McGowan knew each other because she had reported to him eight years earlier when she was a supervisor in the retro ratings unit and he was the unit's administrator. Cieslak did not tell the plaintiff that Reidy was being considered for the position.
Aetna's human resources department required that completed Part III's for 1990 be turned in no later than February 15, 1991. On that date, Cieslak signed and submitted a Part III for the plaintiff without consulting Lusk. JA 601-02, 958. Cieslak's evaluation of the plaintiff's "competencies" included some positive comments but was generally unfavorable, particularly with regard to leadership and teamwork, the two competencies Cieslak had identified as the "critical competencies" for the Senior Administrator position. JA 1270.[7]
*77 Cieslak understood that his written evaluation depicted the plaintiff as not meeting the requirements of his job. See JA 464. However, Cieslak did not discuss the evaluation with the plaintiff. JA 644. Nor did he ever warn the plaintiff verbally or in writing that his performance was unsatisfactory. See JA 239. The plaintiff did not know his job was in jeopardy and assumed he would keep his job after the reorganization.
Shortly after signing plaintiff's Part III, Cieslak completed a candidate comparison worksheet for the Senior Administrator position. He rated six candidates, including the plaintiff and Reidy. JA 1271. Ceislak gave Reidy the highest overall rating. Id. The plaintiff got the lowest. JA 1272.
Using a scale of 1 to 5, with 1 being the lowest, Cieslak gave the plaintiff a rating of 2 with regard to six of the ten competencies, including leadership. These scores were tantamount to a rating of "not meeting requirements." See JA 655. With regard to the other four competencies, including building teamwork, he gave the plaintiff a rating of 3.
Reidy was given six 4's and four 3's. With regard to leadership, Cieslak gave her a rating of 4, which was significantly higher than the plaintiff's 2. The documentation for this rating consisted of the following comment in a draft Part III prepared by Reidy's supervisor: "Welcomes new ideas and solutions to resolve problems in support and procedures. She is committed to personal growth and to establishing environment in which subordinates can achieve personal growth." JA 1274. With regard to building teamwork, Cieslak gave Reidy another 4, which was higher than the plaintiff's 3. The documentation for this rating consisted of the following comment by Reidy's supervisor: "Has developed good working relationships with peers and supervisors." Id.[8]
Aetna's candidate comparison worksheet required Cieslak to compare the candidates with regard to the critical competencies. JA 1271. In that section of the worksheet, Cieslak made the following statements. On the subject of leadership, he stated that Reidy had "strong leadership skills," as well as "demonstrated ability to inspire/motivate subordinates to consistently accomplish results." The plaintiff, in contrast, was said to "need more manager intervention/supervision in order to accomplish objectives." On the subject of building teamwork, Cieslak stated that Reidy had a "proven track record of developing competent staffs/ teams to ensure customer needs are met," whereas the plaintiff "need[ed] to develop stronger relationships with customers." Summing up, Cieslak wrote that Reidy was a "strong match" for the position and that the plaintiff "lack[ed] the necessary leadership skills." JA 1271.
On March 4, 1991, Cieslak told the plaintiff that his position was being eliminated effective immediately. Cieslak handed the plaintiff a memo dated February 22, which began with the following notice: "As a result of changing business needs, job evaluations have begun. Your job is affected by these changes and will be eliminated March 4, 1991. This action is intended to be permanent."
Though the memo stated that the adminstrator's position was being eliminated, the plaintiff had heard a rumor that Reidy was taking over his job. JA 94. He *78 asked Cieslak if the rumor was true and Cieslak said it was. Id.[9]
In mid-April 1991, the plaintiff called Cieslak to get attendance records and other documents he needed in order to try to get another position with the company, Plaintiff began the conversation by asking, "How's my replacement doing?" JA 100. Cieslak replied, "Overwhelmed." Id. When the plaintiff asked about getting a 1990 performance evaluation to assist in his job search, Cieslak said, "But I thought you were retiring." Id. Plaintiff, who could not afford to retire, had never indicated to Cieslak or anyone else at the company that he wanted to retire anytime soon.
Following his conversation with Cieslak, plaintiff filed a complaint of age discrimination.
The Jury Was Entitled To Find That The Defendant's Explanation For Terminating The Plaintiff's Employment Was A Pretext
The issue on this remand is whether the evidence is sufficient to sustain the jury's finding that the plaintiff's employment was terminated because of his age in violation of the ADEA. However, before addressing that issue, it is necessary to consider whether the evidence is sufficient to support a finding of pretext.[10]
The parties disagree about whether the evidence permitted the jurors to find that the explanation the defendant gave them for terminating the plaintiff's employment was a pretext. In its principal memorandum, the defendant contends that the evidence plaintiff relies on constitutes no more than a "weak showing of pretext." Def.'s Mem. at 16. That statement could be interpreted as a concession that the evidence, although weak, is marginally sufficient. However, in its reply memorandum, the defendant states that a reasonable juror could not find its articulated nondiscriminatory reason to be unworthy of belief. Def.'s Reply Mem. at 3 n. 2. The plaintiff, in contrast, contends that he readily discharged his burden of proving that the defendant's explanation was untrue.
The jury's finding that the plaintiff's employment was terminated because of his age makes it clear that the jurors did not credit Cieslak's testimony regarding the termination. The question with regard to the issue of pretext is whether they were entitled to disbelieve him. Viewing the evidence fully and most favorably to the plaintiff, I think they were.
The thrust of Cieslak's testimony was (1) that he gave careful consideration to all the candidates for the Senior Administrator position in compliance with Aetna's guidelines for the reorganization; (2) that he recommended Reidy for the position because she was clearly better qualified than the plaintiff; and (3) that the plaintiff was not qualified for the position, as demonstrated by his performance in 1990, which was not satisfactory.
Taking each of these points in order, Cieslak's testimony that he gave each candidate careful consideration in compliance with the guidelines could reasonably be rejected by the jury.[11] Viewing the evidence most favorably to the plaintiff, *79 the jury could find that although the guidelines required Cieslak to guard against adverse impact on the plaintiff as a member of a protected group, he did not do so.[12] The jury could find that Cieslak failed to give the plaintiff the benefit of an incumbent preference.[13] In addition, the jury could find that Cieslak put the plaintiff at a disadvantage by completing the plaintiff's Part III for 1990 without consulting Lusk concerning the plaintiff's performance during the first eight months of the year.[14] Further, the jury could find that he should have discussed his unfavorable assessment of the plaintiff's competencies with the plaintiff before relying on it to document his decision to terminate the plaintiff's employment.[15]
Turning to Cieslak's testimony that Reidy was clearly better qualified than the plaintiff, the plaintiff acknowledged that Reidy was qualified, and it was not the defendant's burden to prove that she was better qualified. Nevertheless, in assessing the credibility of Cieslak's explanation for the termination of the plaintiff's employment, the jury could reasonably find that Reidy's qualifications for the Senior Administrator position were not clearly superior to the plaintiff's, as Cieslak claimed, and that the plaintiff's qualifications were competitive with hers' or even better.
These findings would be permissible because Cieslak's comments on the candidate comparison worksheet regarding Reidy's competencies are both highly subjective and conclusory, see JA 1271;[16] the draft Part III Cieslak obtained from Reidy's supervisor, JA 1273-74, falls far short of documenting clear superiority with regard to the critical competencies of leadership and building teamwork;[17] and, *80 although the defendant contended that Reidy was better qualified for the Senior Administrator position because of her background with computer systems, Cieslak admitted that he "wasn't really sure of her [computer] background." JA 401. Moreover, the plaintiff had consistently earned the highest ratings for leadership and building teamwork; he had received a letter of commendation and a performance bonus just the year before based on his leadership and the teamwork of his staff; and he had actually performed the functions of the administrator's job for more than four years, whereas Reidy had never held the position. In evaluating Cieslak's testimony, the jury could also consider his statement six weeks after Reidy took over the plaintiff's position that she was "overwhelmed."
Cieslak's testimony concerning his evaluation of the plaintiff's qualifications also presented a credibility issue for the jury to resolve.[18] Viewing the evidence most favorably to the plaintiff, the jury could find that Cieslak's evaluation of the plaintiff's competencies, which depicted the plaintiff as a "poor" performer, JA 464, was so wide of the mark as to be pretextual. The jury could find that in previous years the plaintiff had consistently accomplished production objectives under Lusk; that his production objectives in 1990 were accomplished to Lusk's satisfaction before Cieslak arrived in the unit in late August; that the plaintiff effectively managed the unit's transition to the "no excuses" policy before Cieslak arrived; that Cieslak overstated the degree of "manager intervention/supervision" he brought to bear thereafter; and that the plaintiff had been notably successful at developing teamwork.
These findings would be permissible because the evidence presented to the jury included not just the plaintiff's conclusory testimony concerning his qualifications, which alone would be insufficient.[19] The plaintiff also had the benefit of Lusk's testimony, which was significant. Lusk testified that the plaintiff consistently performed up to the standards and expectations that had been established for him right up until the time Cieslak took over as the plaintiff's supervisor in late August 1990. JA 953-54, 955.[20] Lusk's testimony could be viewed as refuting Cieslak's statement in the plaintiff's Part III for *81 1990 that the plaintiff failed to meet his production objectives until late in the year.[21] In addition, Cieslak admitted that the unit achieved "tremendous" results under the "no excuses" policy as early as September 1990, which was right after he took over for Lusk. The jury could reasonably infer that Cieslak arrived too late to make any difference in the unit's operations in September. Crediting the plaintiff's testimony that his contact with Cieslak was limited and infrequent, the jury also could conclude that the plaintiff was entitled to far more credit for the unit's success in meeting the "no excuses" policy during the rest of the year.[22] In addition, the jury could give significant weight to the letter of commendation the plaintiff received just the year before from McGowan's predecessor praising him for his leadership and the teamwork of his staff.[23]
The jury's pretext finding is also supported by Cieslak's initial explanation to the plaintiff in the termination conference that his position was being eliminated.[24] Viewing the evidence most favorably to the plaintiff, the jury could find that Cieslak's initial explanation was not truthful because, although the defendant characterized the Senior Administrator position as "new" and put it in class 34, rather than class 33, the functions of the position were essentially the same as the functions of the plaintiff's position.[25] The jury could find that the addition of the "new report" with expertise in automation did not constitute a material change in the functions of the administrator's position because the plaintiff testified that he had worked with such a consultant for two years before the reorganization and Lusk testified that he was not aware of any changes in the position after the reorganization. JA 964. Moreover, Cieslak admitted that when the plaintiff asked him in the termination conference whether Reidy was getting the position, he confirmed she was, and when the plaintiff called him six weeks later and asked "How's my replacement doing?" he replied, "Overwhelmed." Viewing the evidence of those two conversations most favorably to the plaintiff, the jury could find that on both occasions Cieslak tacitly admitted *82 that the Senior Administrator position really was not a new position and that the plaintiff had been displaced by Reidy.
The jury's pretext finding is also supported by Cieslak's statement to the plaintiff, "But I thought you were retiring." The jury could reasonably interpret Cieslak's statement as a spontaneous utterance revealing his true state of mind with regard to the plaintiff generally. Interpreting the statement in a manner most favorable to the plaintiff's ADEA claim, the jury could infer that from the inception of the reorganization Cieslak had mistakenly assumed that the plaintiff wanted to retire and that this error had affected his perception and treatment of the plaintiff.
In light of all this, the defendant's argument that a reasonable juror would have to credit its explanation for the termination of the plaintiff's employment is untenable. Reasonable people assessing the credibility of the explanation provided by Cieslak could reach differing conclusions. Accordingly, the jury's pretext finding must be sustained.
The Evidence is Sufficient to Support the Plaintiff's Claim That He was Terminated Because of His Age
As noted at the outset, Fisher makes it clear that a sustainable finding of pretext does not necessarily entitle a plaintiff to prevail. In the context of a Rule 50 motion after a jury verdict in favor of the plaintiff, a sustainable pretext finding means that the defendant's asserted reason for the challenged employment action was not supported by overwhelming evidence. However, the jury's verdict is still vulnerable if there is such a complete absence of evidence of discrimination that the jury's finding of discrimination could only have been the result of surmise and conjecture. See Stratton, 132 F.3d at 878.
Cases decided by the Second Circuit since Fisher show that a jury will not be permitted to infer discrimination "from thin air," see Norton, 145 F.3d at 119, or "on the basis of circumstantial evidence that has no logical tendency to show that discrimination was present." Pollis v. New School for Social Research, 132 F.3d 115, 123 (2d Cir.1997). But if the evidence supports a pretext finding and the record as a whole permits the inference that the plaintiff was treated unfavorably because of discrimination, a jury's verdict will not be disturbed. See Banks v. Travelers, 180 F.3d 358, 1999 WL 298231 (2d Cir. May 12, 1999) (trial court's denial of employer's motion to overturn jury verdict affirmed) see also Stratton (same).
The facts of this case are similar to the facts in Banks and Stratton in numerous significant respects: (1) there is a wide disparity in age the plaintiff is 23 years older than Cieslak, 15 years older than McGowan and 14 years older than Reidy; (2) a significant downturn in the plaintiff's performance evaluations coincided with the arrival of new, substantially younger management in a span of a few months, the plaintiff went from meeting or exceeding the requirements of his job to not meeting requirements; (3) the jury could reasonably find that the plaintiff was as or better qualified than the much younger person who replaced him; (4) the jury could reasonably find that the plaintiff was not given serious consideration for his own position, even though he had discharged the duties of the position to the satisfaction of previous management for a number of years and was entitled to an incumbent preference; (5) the jury could reasonably find that written evaluations were prepared to create the illusion that the plaintiff was given equivalent consideration and to rationalize a decision based in part on age; (6) the challenged decision resulted from a process that allowed bias to seep in here, competency assessments and candidate comparisons that are highly subjective and conclusory in nature; and (7) the decisionmaker made an age-related comment that could be interpreted as an admission regarding his motivation for terminating the plaintiff's employment here, *83 Cieslak's comment, "But I thought you were retiring."[26]
These factors, together with the pretext finding, provide a sufficient basis for sustaining the jury's verdict because they permit the inference that age was a substantial factor in the termination of the plaintiff's employment. Viewing the evidence most favorably to the plaintiff, the jury could find that Cieslak mistakenly believed, based on age-related stereotypes, that the plaintiff was no longer motivated to work and wanted to retire.[27] The jury could find that Cieslak's mistaken view of the plaintiff played a role in his decisionmaking. Ultimately, the jury could conclude that if the plaintiff had been evaluated on the merits without regard to his age, his qualifications and experience together with the incumbent preference would have enabled him to keep his position.[28] Such disparate treatment "captures the essence of what Congress sought to prohibit in the ADEA." Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993).[29]
The defendant contends that none of the pieces of evidence relied on by the plaintiff points to age as a factor in the termination of his employment. However, the wide disparity between the plaintiff's age and the ages of Cieslak, McGowan and Reidy points to age, see Banks, 180 F.3d 358, 366, as does Cieslak's statement "But I thought you were retiring."[30] Moreover, *84 defendant's piecemeal approach to assessing the sufficiency of the evidence has been rejected by the Second Circuit. See Stern, 131 F.3d at 314 ("[T]he dissent considers the record solely in piecemeal fashion, proffering innocent explanations for individual strands of evidence. The jury, however, [is] entitled to view the evidence as a whole in assessing whether there was impermissible discrimination and whether [defendant's] proffered explanation is a pretext for that discrimination."); see also, Danzer v. Norden Systems, Inc., 151 F.3d 50, 56 (2d Cir.1998) (though "stray remarks" and "sudden and unexpected downturns in performance reviews cannot, by themselves, provide the basis for a discrimination action" they may "nonetheless work with other submitted proofs ... to support a jury verdict of discrimination").
The defendant contends that the jury's finding of pretext does not point to age discrimination as the reason for the plaintiff's termination because the record discloses a third motive personal favoritism. Picking up on a statement in plaintiff's brief on appeal, the defendant suggests that Reidy might have been chosen simply because McGowan wanted to be reunited with her in the retro ratings unit. This explanation does not provide a basis for overturning the jury's verdict because it was not advanced by the defendant at trial,[31] and is not supported by the record.[32] Moreover, the jury could reasonably find that the plaintiff's age was a substantial factor in the termination of his employment, even if McGowan was inclined to favor Reidy from the outset for personal reasons.[33] For example, the jury could find that Cieslak accommodated McGowan's personal preference for Reidy, notwithstanding the guidelines' preference for incumbents and the company's concern about adverse impact on employees in protected groups, because he mistakenly believed that the plaintiff was retiring and would not contest the matter. In that scenario, "if we asked [Cieslak] at the moment of the decision what [his] reasons were and if we received a truthful response, one of those reasons would be that [the plaintiff was retiring]." Price Waterhouse v. Hopkins, 490 U.S. 228, 250, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion).[34]
IV.
Accordingly, the defendant's motion for judgment as a matter of law is hereby denied.
NOTES
[1] Cieslak testified: "I mean this was basically my decision on what I thought should happen, and [McGowan] had ... the final say. He could have overruled me on any of this. But I don't recall that happening." JA 442. Cieslak later testified that it would have been awkward for him to attend a retirement party for the plaintiff. Asked to explain why, he testified: "Because I made you know, I made the decision, I terminated his employment. So I didn't I kind of distanced myself from it." JA 469.
[2] McGowan did not testify because he passed away before the trial. However, an affidavit that he signed in connection with a motion for summary judgment was admitted into evidence. The affidavit's explanation for the termination of the plaintiff's employment was generally consistent with Cieslak's.
[3] Cieslak testified that he could not recall making that statement. JA 476.
[4] The guidelines noted that staff selections could be required in any of the following situations: "change in staffing numbers, change in job functions, creation of new jobs, and a need for stronger performers." JA 1287. The guidelines stated that "competency assessments and candidate comparisons" would be required if "an incumbent [was] displaced by a more qualified candidate," a job was "new," or the functions of a job "changed materially," which was defined as "30% or more." JA 1288. In effect, this meant that if an incumbent was being retained in a position with no material change in job functions, competency assessments and candidate comparisons would not be required. Otherwise, they would be.
[5] The guidelines also distinguished between situations involving "restructuring," which involved "creating a new entity through reengineering," and "situations involving staff reduction only where no restructuring/reengineering is occurring." JA 1287. In the first situation, candidates for positions in or below class 34 were to be considered in the following order: incumbents, non-incumbents at the same location who were better-qualified, candidates from other locations and outside hires. In the second situation, selections were to be made from among incumbents and candidates not currently performing the job were not supposed to displace incumbents. Id.
[6] Reidy testified that she approached McGowan shortly after he took over as assistant vice president for service and technology.
[7] With regard to the critical competency of leadership, Cieslak described the plaintiff as follows: "Has not consistently achieved production objectives. With manager intervention and controls, production objectives were achieved late in year. Can motivate staff at times to meet targets, but `laid back' leadership style has often not been effective in completing projects quickly and accurately (e.g. Monthly Delinquency Report)." With regard to building teamwork, Cieslak stated on a positive note: "Communicates well with staff and has promoted a team approach within unit." However, he went on to say: "Needs to develop more effective working relationships with underwriting and field to ensure customer needs and SBU requirements are met. Needs to respond more quickly and accurately to inquiries from these areas." In the same document, Cieslak stated that the plaintiff had "not demonstrated [an] ability to quickly adapt/respond to changes or problems" and that he needed to "facilitate necessary changes in the Rating unit more aggressively to support unit/department mission."
[8] Reidy's supervisor did not sign the Part III until some time after Reidy was notified that she had been selected for the Senior Administrator position. See JA 1399.
[9] Reidy testified that she knew she was being considered for the position 3 to 6 weeks before she got it. JA 745, 797.
[10] "We attach the label `pretext' to a proffered reason that is not credited by the finder of fact." Fisher, 114 F.3d at 1337.
[11] Failure to follow an organization's stated policies or routine procedures can be evidence of pretext. See Stern v. Trustees of Columbia Univ., 131 F.3d 305, 313 (2d Cir. 1997) ("[w]hile we do not second-guess an employer's hiring standards, the reasons for its employment decision, including its alleged reliance on such standards, are subject to scrutiny under Title VII, and `[d]epartures from procedural regularity,' for example, `can raise a question as to the good faith of the process where the departure may reasonably affect the decision'") (quoting Zahorik v. Cornell University, 729 F.2d 85, 93 (2d Cir. 1984)).
[12] Cieslak testified that he was not responsible for guarding against adverse impact on members of protected groups and that the responsibility lay with people at a higher level. JA 636-37. However, the guidelines do not say that. See JA 1284. Moreover, because the obligation to guard against such adverse impact was one of the "guiding principles of restructuring" given to the managers involved in making staff selections, id., the jury could reasonably find that the obligation applied to Cieslak.
[13] It is undisputed that the plaintiff did not get the benefit of an incumbent preference. On cross-examination, Cieslak initially had some difficulty recalling why. See JA 618-20. After reading the pertinent guidelines, he asserted that no preference was given because the plaintiff was not meeting the requirements of his job and the Senior Administrator position was a new position. JA 620-25. The jury could reasonably find that the plaintiff's performance was adequate, that the job functions of the Senior Administrator's position were the same or virtually the same as the job functions of the plaintiff's position and, accordingly, that he should have been given the incumbent preference. Such a finding would provide support for the plaintiff's claim, even if the incumbent preference was not a guarantee of continued employment. See Gallo v. Prudential Residential Services, LP, 22 F.3d 1219, 1227-28 (2d Cir.1994) (failure to consider laid off employee for position like one she previously performed, despite policy manual provision requiring that laid off employees receive priority consideration, supported age discrimination claim).
[14] Cieslak acknowledged that employees were to be evaluated with regard to meeting performance objectives on the basis of their performance over the course of a year, rather than on the basis of a shorter period of time. JA 677.
[15] As mentioned previously, the guidelines contemplated that managers would update competency assessments and discuss them with employees before using them to make staff selections, a procedure that was consistent with Aetna's usual personnel practices with regard to annual performance evaluations.
[16] Subjectivity in an employee evaluation provides an insufficient basis for challenging the evaluation as discriminatory. Walton v. McDonnell Douglas Corp., 167 F.3d 423, 428 (8th Cir.1999). However, "[o]bjective criteria should be used to the maximum extent possible, and a subjective system must be carefully scrutinized for abuse." Nicholas v. Nynex, Inc., 974 F.Supp. 261, 267 (S.D.N.Y.1997).
[17] A "risk assessment checklist" prepared by Aetna in connection with the reorganization recognizes that weaknesses in the documentation for a staff selection are cause for concern. The checklist asks: "Does the documentation present a convincing argument that the selection was competency-based?" JA 1588.
[18] A jury does not sit as a super-personnel committee to second-guess business decisions, and an employee's disagreement with his employer's assessment of his qualifications is insufficient to create a triable issue of pretext. See Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir.1997). However, comparative proof regarding employee qualifications is generally admissible in employment discrimination cases to establish pretext, Gibson v. American Broadcasting Companies, Inc., 892 F.2d 1128, 1133 (2d Cir.1989), and one way of demonstrating that an employer's explanation is pretextual is "to show that the asserted neutral basis was so ridden with error that [the employer] could not honestly have relied upon it." Lieberman v. Gant, 630 F.2d 60, 65 (2d Cir.1980) (Friendly, J.). See also Danzer v. Norden Systems, Inc., 151 F.3d 50 (2d Cir. 1998) (plaintiff's affidavit sufficient to withstand motion for summary judgment based on employer's claim that plaintiff picked for downsizing due to poor performance).
[19] See Chertkova v. Connecticut General Life Ins. Co., 92 F.3d 81, 93 (2d Cir.1996) (plaintiff "presented enough evidence to justify the belief that her performance ... was wholly adequate or even superior ... includ[ing] not only her own affidavit, but also affidavits and deposition testimony of other employees").
[20] Lusk's testimony was consistent with his 1989 evaluation of the plaintiff; the letter of commendation the plaintiff received for his performance in 1989 from the highest ranking officer in the unit; and the performance bonus he received for 1989 in recognition of "very favorable overall unit operations" that year. In addition, the jury was given a chart showing the results of the unit's operations. See JA 1347. The chart shows that in 1989, 98% of the units calculations were "complete on time" and that only 2% of them contained errors "due to rating." See Part I, lines D and K.
[21] Cieslak acknowledged that Lusk was responsible for determining whether the plaintiff met his performance objectives through the first eight months of the year. JA 650. Moreover, the jury could find that Cieslak's criticism of the plaintiff's performance before September 1990 was based on retroactive application of the "no excuses" policy, which was not announced until sometime after April 1990.
[22] Cieslak testified that the "no excuses" policy was met only with his "active involvement." JA 649. However, the jury could find that he was involved with the plaintiff's unit only on a part-time basis and that his involvement consisted of sporadic conversations with the plaintiff.
[23] In assessing the plaintiff with regard to building teamwork, Cieslak acknowledged the plaintiff's success at building teamwork within the unit but faulted him for not developing "more effective working relationships with underwriting and field to ensure customer needs and SBU requirements are met." The jury could find that Cieslak's negative comment was based on retroactive application of the "no excuses" policy, which placed greater emphasis on more effective interaction between the unit and other departments than had been the case before.
[24] Inconsistent explanations for a challenged employment action can be evidence of pretext. See EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir.1994). An employer who tells an employee that his position has been eliminated in a reduction in force risks a pretext finding if the employer later asserts in response to a discrimination claim that the discharge was actually motivated by the employee's performance. See Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 995-96 (5th Cir. 1996) (in banc).
[25] The parties agree that under the guidelines for the reorganization the test for determining whether a job changed is whether the functions of the job changed. The same is true under the law. See Burger v. New York Institute of Technology, 94 F.3d 830, 835 (2d Cir. 1996) ("We have stressed that the similarity of the jobs held by an older and younger employee is the touchstone for determining whether a lay-off of the older may be found to be an ADEA violation by a trier of fact").
[26] Compare, Raskin v. Wyatt Co., 125 F.3d 55, 63 (2d Cir.1997) (decisionmaker's comment while interviewing plaintiff about his possible interest in position that plaintiff might not be interested because of his age did not provide basis for discrimination claim; comment did not show that age was a substantial factor in subsequent selection of another younger manager and decisionmaker did not indicate surprise or disbelief when plaintiff said he was interested in the position).
[27] "[A] mistake that reflects a stereotype is very likely to have derived from that stereotype and so be a telltale sign of discrimination." Rosen and Freiman, Remodeling McDonnell Douglas: Fisher v. Vassar College and the Structure of Employment Discrimination Law, 17 Quinnipiac L.Rev. 725, 769 (1998).
[28] The plaintiff contends that the jury's verdict is also supported by Cieslak's comments on the plaintiff's Part III for 1990 that the plaintiff lacked aggressiveness and was laid back, which the plaintiff views as "stereotypical"; by a reduction in the average age of the employees in the unit as a result of the reorganization; and by evidence that a younger employee, John Arcidiacono, received preferential treatment. The defendant argues with some force that Cieslak's comments do not support an inference of age discrimination; that the size of the unit is too small to permit any reasonable inferences to be drawn from a reduction in the average age of the employees; and that plaintiff's argument with regard to Arcidiacono is foreclosed in whole or substantial part by Judge Covello's ruling granting summary judgment to the defendant on plaintiff's claim that he should have been placed in another position. Resolving the parties' disagreement with regard to these points is unnecessary because other evidence is sufficient to support the jury's verdict.
[29] As the Supreme Court noted in Hazen, the age discrimination that prompted Congress' promulgation of the ADEA "`rarely was based on the sort of animus motivating some other forms of discrimination, it was based in large part on stereotypes unsupported by objective fact ....'" 507 U.S. at 610, 113 S.Ct. 1701 (quoting EEOC v. Wyoming, 460 U.S. 226, 231, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983)). Thus, to prove a violation of the ADEA, the plaintiff did not have to prove that Cieslak terminated his employment because of a desire to not associate with older workers. Nevertheless, the plaintiff's testimony concerning the limited, infrequent nature of his contact with Cieslak suggests that Cieslak did not feel comfortable with the plaintiff and the jury might well have inferred that this was due in part to the wide age difference between them.
[30] The defendant contends that Cieslak's comment is merely a stray remark with no probative value because Cieslak was not the ultimate decisionmaker and the comment was not made as part of the termination process. However, Cieslak testified that he made the decision to terminate the plaintiff's employment, the comment at issue was made just six weeks after the plaintiff was terminated, and Cieslak made the comment in a business call in response to the plaintiff's request for documents he needed to try to get another position at Aetna.
[31] See Stratton, 132 F.3d at 880-81 (defendants never argued at trial that there was a third motive for their actions so there was no basis for the jury to conclude that there was any motivation for the pretext other than discrimination).
[32] There is no evidence that McGowan preselected Reidy for the Senior Administrator position and Cieslak denied that he had his mind made up before he compared the candidates for the position. JA 602.
[33] See Hagelthorn v. Kennecott Corp., 710 F.2d 76, 82-84 (2d Cir.1983) (plaintiff not required to prove that age was the only reason for his termination; evidence of defendant's dissatisfaction with plaintiff's performance not so overwhelming that fair minded jurors could only have concluded that plaintiff would have been fired regardless of his age).
[34] The defendant's belated reliance on the "third motive" of personal favoritism is unpersuasive for another reason as well. In Fisher, the in banc majority observed that an employer may give a false reason for terminating an employee in order to mask a true reason that would be embarrassing although not unlawful. If the true reason for the challenged action in this case was McGowan's personal preference for Reidy, it is difficult to understand why Cieslak would not offer that reason to the jury rather than give a false reason under oath.
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110 Ill. App.3d 331 (1982)
442 N.E.2d 318
DARWIN CO., Plaintiff-Appellant,
v.
MARLA SWEENEY, Defendant-Appellee.
No. 4-82-0115.
Illinois Appellate Court Fourth District.
Opinion filed November 15, 1982.
Alan W. Appelbee, of Jacksonville, for appellant.
William S. Schildman, of Jacksonville, for appellee.
Reversed and remanded.
JUSTICE LONDRIGAN delivered the opinion of the court:
The plaintiff sued defendant to recover the cost of repair work that plaintiff performed on defendant's home. At the close of plaintiff's evidence, defendant moved for a directed verdict on the ground that plaintiff had not established its corporate existence. The motion was granted and plaintiff appeals from this ruling. We reverse and remand.
The plaintiff is a home improvement contractor in Jacksonville. Plaintiff entered into a contract with defendant for repair of the overhang and installation of new gutters on her home. The work was subsequently completed, but according to defendant, it did not solve the problem that was the reason for the work. She therefore refused to *332 pay plaintiff any part of the contract price of $2,114.68.
Plaintiff filed a small claims complaint in the Morgan County circuit court. In the complaint, plaintiff was referred to as "A CORP." At the bench trial, plaintiff's only witnesses were defendant, called under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60), and Gary Steward, who was formerly employed by plaintiff as a general foreman. Both witnesses testified about the circumstances surrounding the execution of the contract and the manner in which the work was completed.
At the conclusion of plaintiff's evidence, defendant moved for a directed verdict on the ground that plaintiff had not established its corporate existence. The case was continued for a hearing on the motion.
Plaintiff moved that defendant's motion be denied, or, in the alternative, that it be allowed to reopen its case to establish its corporate existence. The court later granted defendant's motion and dismissed the case. As the basis for its ruling, the court held that "[d]efendant's plea of nul tiel corporation may be taken as specifically pleaded under Supreme Court Rule 286 [87 Ill.2d R. 286] and * * * Plaintiff offered no evidence of Plaintiff's corporate existence in the presentation of its case to the Court."
Supreme Court Rule 286 provides in pertinent part:
"If the defendant appears, he need not file an answer unless ordered to do so by the court; and when no answer is ordered the allegations of the complaint will be considered denied and any defense may be proved as if it were specifically pleaded." 87 Ill.2d R. 286.
Defendant maintains that her appearance constituted a plea of nul tiel corporation by virtue of Supreme Court Rule 286, which eliminates the need for written pleadings in small claims cases unless such pleadings are specifically ordered by the court. Therefore, since a plea of nul tiel corporation requires a corporate litigant to prove its corporate existence and its corollary right to sue in its corporate name, defendant asserts that plaintiff was obliged to establish its corporate existence in its case in chief. Since plaintiff presented no evidence of its corporate existence prior to defendant's motion to dismiss, the court, in defendant's opinion, acted properly in dismissing the suit.
The plaintiff, on the other hand, contends that dismissal of its suit was improper because a plea of nul tiel corporation should not be implied under Supreme Court Rule 286. Plaintiff contends that such a plea is properly asserted either as an affirmative defense or as a ground for involuntary dismissal of a suit pursuant to section 2-619(a)(2) *333 of the Code of Civil Procedure. Ill. Rev. Stat. 1981, ch. 110, par. 2-619(a)(2).
1 An understanding of the nature and history of the plea of nul tiel corporation is essential to a resolution of the issue presented in this case. The plea of nul tiel corporation denies the existence of an alleged corporation. (Black's Law Dictionary 964 (5th ed. 1979).) When this plea is entered, a corporate plaintiff must prove its corporate existence. (Ramsey v. Peoria Marine & Fire Insurance Co. (1870), 55 Ill. 311.) Obversely, a corporate litigant need not allege or prove its corporate existence in the absence of a plea of nul tiel corporation. Wheatley, Buck & Co. v. Chicago Trust & Savings Bank (1897), 167 Ill. 480, 47 N.E. 711.
In days past, when all corporations owed their existence to special legislative charters, the entry of a plea of nul tiel corporation was used for determining whether a litigant claiming to be a corporation was indeed a legally constituted corporation and whether it thus possessed the power to bring lawsuits in its own name. With the advent of general corporation statutes, which confer certain corporate powers, such as the right to sue and be sued in the corporate name, on all corporations which fulfill certain statutory requirements (see Ill. Rev. Stat. 1981, ch. 32, par. 157.5(b)), the efficacy of the plea of nul tiel corporation as a useful litigation tool has, however, virtually disappeared and it has become an anachronism.
2 The purpose of the small claim rules (87 Ill.2d Rules 281 through 289) is to provide an expeditious, simplified, and inexpensive procedure for the litigation of disputes involving small amounts. (Wroclawski v. Waszczyk (1976), 35 Ill. App.3d 408, 342 N.E.2d 261.) Other practice rules, as well as the provisions of the Code of Civil Procedure, are applicable to small claims proceedings if consistent with the aims of the small claims rules. (Peoria Housing Authority v. Roberson (1979), 74 Ill. App.3d 326, 392 N.E.2d 1107.) In our view, section 2-613(d) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-613(d)) meets the Roberson test and is thus applicable to small claims proceedings of the type involved here. Section 2-613(d) provides in pertinent part: "[A]ny ground or defense, whether affirmative or not, which, if not expressly stated in the pleading, would be likely to take the opposite party by surprise, must be plainly set forth in the answer or reply." The clear purpose of section 2-613(d) is to facilitate the decision of cases on their merits, and to eliminate the harsh consequences which often stemmed from unfair surprise at trial prior to enactment of modern rules of procedure. Since Supreme Court Rule 286 (87 Ill.2d R. 286) eliminates the need for *334 written pleadings in small claims cases, compliance with the letter of section 2-613(d) of the Code of Civil Procedure is obviously impossible in such cases. This does not, however, mean that compliance with the spirit of section 2-613(d) is impossible in small claims cases.
3 In the case at bar, the defendant's assertion of the infrequently used plea of nul tiel corporation obviously took plaintiff by surprise. If we were to hold that the burden was on plaintiff to produce evidence of its corporate existence simply because defendant was not obligated to assert its defense of nul tiel corporation by means of a formal, written plea, we would in effect allow defendant to prevail because she asserted an obscure defense at trial which plaintiff could not reasonably have been expected to anticipate and counter in its case in chief. Such a result would be diametrically contrary to the policy underlying section 2-613(d) of the Code of Civil Procedure. Since such outcomes are contrary to public policy in cases where large monetary amounts are at stake, it follows that they are even more repugnant to the considerations which led to the promulgation of the small claims rules, which were designed to allow pro se litigants to obtain resolution of disputes in a quick, simple, and informal manner, unbridled by the technicalities and legal niceties which normally obtain in court proceedings.
In a situation such as the one present here, where the defense raised by defendant takes plaintiff by surprise and plaintiff has the burden of proof, the trial court should allow plaintiff to reopen his case and present evidence relevant to that question. We remand the cause with directions that the trial continue, and that plaintiff then be afforded an opportunity to establish its corporate existence.
Reversed and remanded with directions.
WEBBER and MILLS, JJ., concur.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-02-00215-CV
Dresser Industries, Inc., Appellant
v.
Dorothy A. Lehmann, et al., Appellees
FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT
NO. 26,342-B, HONORABLE EDWARD P. MAGRE, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Dresser Industries, Inc. has notified this Court that its bankruptcy
proceeding that caused its appeal to be stayed has terminated. Accordingly, we reinstate the appeal.
See Tex. R. App. P. 8.3(a). Appellant has also notified us that the parties have settled the underlying
proceedings and has moved to dismiss its appeal. We grant the motion and dismiss the appeal. See
Tex. R. App. P. 42.1(a).
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Puryear and Pemberton
Dismissed on Appellant’s Motion
Filed: March 3, 2006
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
MICHAEL D.J. EISENBERG, )
)
Plaintiff, )
)
v. ) Civil Action No. 19-3006 (ABJ)
)
WEST VIRGINIA OFFICE )
OF DISCIPLINARY COUNSEL, et al., )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
Plaintiff Michael D.J. Eisenberg, a lawyer, has sued the West Virginia Office of Lawyer
Disciplinary Counsel (“OLDC”); Rachael L. Fletcher Cipoletti, the Chief Disciplinary Counsel of
the OLDC who is named in her personal and official capacity; and Jessica H. Donahue Rhodes, a
lawyer at the OLDC who is also named in her personal and official capacity. Am. Compl. [Dkt.
# 13] ¶¶ 3–6. Eisenberg objects to the defendants’ efforts to investigate a complaint that was
lodged against him by a client, a West Virginia resident who alleged that he violated the West
Virginia Rules of Professional Conduct. See generally Am. Compl. He submits that the
defendants’ actions were arbitrary, capricious, contrary to federal law, and unsupported by
substantial evidence. Am. Compl. ¶¶ 11, 26. In particular, he alleges that defendants have violated
the Supremacy Clause of the Constitution, U.S. Const. art. VI, cl. 2, and that they have intentionally
caused him emotional distress. Am. Compl. at 1. He seeks injunctive relief in the form of a Court
order requiring defendants to dismiss the pending West Virginia matter, as well as declaratory
relief and other forms of relief. Am. Compl. ¶¶ 30–34. Defendants have moved to dismiss the
amended complaint on the grounds that the Court is precluded from entertaining the case under
the Younger abstention doctrine. Defs.’ Mot. to Dismiss the Am. Compl. [Dkt. # 14] (“Defs.’
Mot.”); Defs.’ Mem. in Supp. of Defs.’ Mot. [Dkt. # 14-1] (“Defs.’ Mem.”). The Court agrees
that the doctrine applies, and it will decline to intervene in pending state bar disciplinary
proceedings and dismiss this case. 1
BACKGROUND
Before May 21, 2019, plaintiff, an attorney based in Washington, D.C., was retained by a
West Virginia resident to represent the Resident in a matter before a federal agency. Am. Compl.
¶¶ 3, 7, 9. In the course of the representation, plaintiff appeared before a federal agency that was
located in West Virginia. Am. Compl. ¶ 9.
On or about May 21 and May 23, 2019, defendant Rhodes contacted plaintiff to inform
him that the Resident and her husband had filed a complaint against him with the West Virginia
Office of Lawyer Disciplinary Counsel (“OLDC”), 2 a West Virginia State government agency.
Am. Compl. ¶¶ 4, 11. When plaintiff inquired with Rhodes about the OLDC’s jurisdiction over
an attorney who had never been a member of the West Virginia State Bar, she responded by citing
State Ex. Rel. York v. W.Va. Office of Disc. Counsel, 744 S.E.2d 293 (W. Va. 2013), as a case that
supported what plaintiff describes as “her alleged position.” Am. Compl. ¶¶ 12–14.
After reviewing the case, plaintiff informed Rhodes that in his view, the case did not apply
because: “a) [plaintiff] does not maintain an office in West Virginia; b) [plaintiff] does not
regularly conduct business in West Virginia; c) [plaintiff] does not practice Patent Law[] in West
1 Because the Court will dismiss this case based on the Younger doctrine, it does not need to
take up defendants’ other objections to the complaint.
2 The Court notes that the proper name of the agency is the Office of Disciplinary Counsel
not the Office of Lawyer Disciplinary Counsel. See Office of Disciplinary Counsel,
http://www.wvodc.org/ (last visited June 23, 2020).
2
Virginia, and; . . . d) [plaintiff] does not practice in West Virginia agencies, state or federal courts.”
Am. Compl. ¶ 15. In response, according to the complaint, Rhodes “merely repeated Rule 8.5 of
the West Virginia Rules of Professional Conduct (“Rule 8.5”).” Am. Compl. ¶ 16.
From on or about September 30, 2019, plaintiff communicated with defendant Cipoletti at
the OLDC to “explain the situation” and “discuss the law and the facts.” Am. Compl. ¶ 17.
Plaintiff “reminded . . . Cipoletti that this matter falls under Sperry v. Florida, 373 U.S. 379 []
(1963),” and he transmitted his previous communications with Rhodes. Am. Compl. ¶¶ 18–19.
Cipoletti allegedly responded by repeating Rule 8.5 without commenting on plaintiff’s position.
Am. Compl. ¶ 20. When plaintiff asked for Cipoletti’s response position regarding his filing a
preliminary injunction, Cipoletti purportedly responded, “how could she provide her position when
she had yet received the ‘injunction?’” Am. Compl. ¶¶ 21–22.
Plaintiff filed the original complaint in this matter, along with a motion for a preliminary
injunction, on October 7, 2019. Compl. [Dkt. # 1]; Mot. for Prelim. Injunction [Dkt. # 2].
Defendants moved to dismiss on November 8, 2019. See Def.’s Mot. to Dismiss [Dkt. # 8]. On
December 2, 2019, plaintiff filed the Amended Complaint. He seeks declaratory and injunctive
relief in the form of an order directing the defendants to dismiss the OLDC case, among other
forms of relief. See Am. Compl. ¶¶ 30–34. Defendants moved to dismiss on December 16, 2019,
Defs.’ Mot., and the matter is fully briefed. 3
STANDARD OF REVIEW
In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must
“treat the complaint’s factual allegations as true and must grant plaintiff ‘the benefit of all
3 See Pl.’s Mem. in Opp. to Def.’s Mot. to Dismiss [Dkt. # 20] (“Pl.’s Opp.”); Defs.’ Reply
in Supp. of Defs.’ Mot. to Dismiss [Dkt. # 24] (“Defs.’ Reply”).
3
inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216
F.3d 1111, 1113 (D.C. Cir. 2000) (internal citation omitted), quoting Schuler v. United States, 617
F.2d 605, 608 (D.C. Cir. 1979); see also Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C.
Cir. 2011), quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005) (applying principle to
a Rule 12(b)(1) motion). Nevertheless, the Court need not accept inferences drawn by the plaintiff
if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept
plaintiff’s legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002)
(rule 12(b)(6) case); Food and Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015)
(rule 12(b)(1) case).
I. Subject Matter Jurisdiction
Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a
preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan
v. Sibley Int’l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited
jurisdiction, and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v.
EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin, and end,
with an examination of our jurisdiction.”). “[B]ecause subject-matter jurisdiction is ‘an Art[icle]
III as well as a statutory requirement . . . no action of the parties can confer subject-matter
jurisdiction upon a federal court.’” Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C.
Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702
(1982).
When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a
motion to dismiss under Rule 12(b)(6), the court “is not limited to the allegations of the complaint.”
4
Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482
U.S. 64 (1987). Rather, “a court may consider such materials outside the pleadings as it deems
appropriate to resolve the question [of] whether it has jurisdiction to hear the case.” Scolaro v.
D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat’l
Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharms., Inc. v.
FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
II. Failure to State a Claim
“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
In Iqbal, the Supreme Court reiterated the two principles underlying its decision in Twombly:
“First, the tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions,” and “[s]econd, only a complaint that states a plausible claim for
relief survives a motion to dismiss.” Id. at 678–79, citing Twombly, 550 U.S. at 555–56.
A claim is facially plausible when the pleaded factual content “allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678, citing
Twombly, 550 U.S. at 556. “The plausibility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id., quoting
Twombly, 550 U.S. at 556. A pleading must offer more than “labels and conclusions” or a
“formulaic recitation of the elements of a cause of action,” id., quoting Twombly, 550 U.S. at 555,
and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id., citing Twombly, 550 U.S. at 555.
5
When considering a motion to dismiss under Rule 12(b)(6), the Court is bound to construe
a complaint liberally in the plaintiff’s favor, and it should grant the plaintiff “the benefit of all
inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16
F.3d 1271, 1276 (D.C. Cir. 1994), citing Schuler, 617 F.2d at 608. Where the action is brought by
a pro se plaintiff, a district court has an obligation “to consider his filings as a whole before
dismissing a complaint,” Schnitzler v. United States, 761 F.3d 33, 38 (D.C. Cir. 2014), citing
Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999), because such complaints are held
“to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404
U.S. 519, 520 (1972). Nevertheless, the Court need not accept inferences drawn by the plaintiff if
those inferences are unsupported by facts alleged in the complaint, nor must the Court accept
plaintiff’s legal conclusions. See Kowal, 16 F.3d at 1276; see also Browning, 292 F.3d at 242. In
ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider only
“the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in
the complaint, and matters about which the Court may take judicial notice.” Gustave-Schmidt v.
Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002), citing EEOC v. St. Francis Xavier Parochial
Sch., 117 F.3d 621, 624–25 (D.C. Cir. 1997).
ANALYSIS
I. The Younger Doctrine
The Younger doctrine requires that “except under special circumstances,” a federal court
should not “enjoin pending state court proceedings.” Younger v. Harris, 401 U.S. 37, 41 (1971);
see Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619, 626–27 (1986)
(extending Younger to a pending state administrative proceeding); Huffman v. Pursue, Ltd., 420
U.S. 592, 594 (1975) (extending Younger to pending civil state court proceedings). The doctrine
6
is based upon principles of equity and comity, see Younger, 401 U.S. at 43–44, and it precludes
federal intervention where three criteria are met: 1) there are ongoing state proceedings that are
judicial in nature, 2) the state proceedings implicate important state interests, and 3) the
proceedings afford an adequate opportunity to raise the federal claims. Hoai v. Sun Ref. Mktg.
Co., 866 F.2d 1515, 1518 (D.C. Cir. 1989), citing Middlesex County Ethics Comm. v. Garden State
Bar Assoc., 457 U.S. 423, 432 (1982). Extraordinary circumstances may supply grounds for a
federal court to intervene when the state action was brought in bad faith or where a state statute is
flagrantly unconstitutional JMM Corp. v. Dist. of Columbia, 378 F.3d 1117, 1127 (D.C. Cir. 2004),
citing Younger, 401 U.S. at 41, 53–54.
The Supreme Court has reasoned that the Younger doctrine applies to noncriminal judicial
proceedings, including pending administrative proceedings where important state interests are
involved. See Moore v. Sims, 442 U.S. 415, 423 (1979); Middlesex, 457 U.S. at 434. The Court
has specifically extended this reasoning to cover to state bar disciplinary proceedings. See
Middlesex, 457 U.S. at 434.
In Middlesex, the Court held that state bar disciplinary proceedings underway in New
Jersey against a New Jersey-licensed attorney constituted a “judicial” action because the Supreme
Court of New Jersey, which was vested with “the authority to fix standards, regulate admissions
to the bar, and enforce professional discipline among members of the bar,” recognized the “local
District Ethics Committees . . . as the arm of the court in performing the function of receiving and
investigating complaints and holding hearings.” 457 U.S. at 433. The Court found that the State
had “an extremely important interest in maintaining and assuring the professional conduct of the
attorneys it licenses,” and it recognized that “[s]tates traditionally have exercised extensive control
over the professional conduct of attorneys,” because “[t]he judiciary as well as the public is
7
dependent upon professional ethical conduct of attorneys and thus has a significant interest in
assuring and maintaining high standards of conduct of attorneys engaged in practice.” Id.
at 434–35.
The Court also addressed the respondent’s claim that a federal court should hear the matter
because he had no opportunity to raise federal constitutional claims in the state disciplinary
proceedings. It found that because the respondent had “failed to respond to the complaint filed by
the local Ethics Committee,” and the record did not indicate that the members of the Ethics
Committee would have refused to consider a constitutional claim, it was “difficult to conclude that
there was no adequate opportunity for respondent [] to raise his constitutional claims.”
Middlesex, 457 U.S. at 435–36. The Court reiterated its instruction in Younger that “‘the accused
should first set up and rely upon his defense in the state courts, even though this involves a
challenge of the validity of some statute, unless it plainly appears that this course would not afford
adequate protection.” Id. at 435, quoting Younger, 401 U.S. at 45.
Since Middlesex, the D.C. Circuit has upheld a district court’s invocation of the abstention
doctrine in cases involving an action by the District of Columbia Bar, where an appellant “has not
demonstrated changed or extraordinary circumstances that would warrant federal intervention in
the state court proceedings.” Lawrence v. Carlin, No. 13-7017, 2013 WL 6801204, at *1 (D.C.
Cir. Dec. 11, 2013). And courts in this district have held that boards of professional responsibility
created by state courts, have “inherent power over members of the legal profession.” Ford v.
Tait, 163 F. Supp. 2d 57, 65 (D.D.C. 2001) (internal quotation omitted); see also Lawrence v.
Carlin, 541 F. Supp. 2d 189, 193 (D.D.C. 2008). In a case similar to this one, a court in this district
also abstained from intervening in a state bar proceeding in Florida against an attorney who was
8
based in the District of Columbia. See Richardson v. The Florida Bar, Civ. Action No. 90-0984,
1990 WL 116727, at **1, 4 (D.D.C. May 15, 1990).
II. Application of the Younger Doctrine and its progeny to this case
To determine whether defendants have properly invoked the abstention doctrine as grounds
to dismiss a plaintiff’s claims, a court must undertake the three-part analysis set forth by the
Supreme Court in Middlesex: first it must determine if there are ongoing state proceedings that
are judicial in nature, second it must consider whether the state proceedings implicate important
state interests, and finally, it must be satisfied that the proceedings afford an adequate opportunity
to raise the federal claims. Middlesex, 457 U.S. at 432.
With respect to the first question, the West Virginia OLDC proceeding is judicial in
nature. Like the District Ethics Committees in Middlesex, the Lawyer Disciplinary Board in West
Virginia was established by the Supreme Court of Appeals of West Virginia
to investigate complaints of violations of the Rules of Professional Conduct
promulgated by the Supreme Court of Appeals to govern the professional
conduct of those admitted to the practice of law in West Virginia or any
individual admitted to the practice of law in another jurisdiction who
engages in the practice of law in West Virginia and to take appropriate
action in accordance with the provisions of the Rules of Lawyer
Disciplinary Procedure.
W. Va. R. of Law. Disc. P. 1 (emphasis added). Under Rule 2 of the West Virginia Rules of
Lawyer Disciplinary Procedure, the Investigative Panel of the Lawyer Disciplinary Board is
charged with determining “whether probable cause exists to formally charge a lawyer with a
violation of the Rules of Professional Conduct,” W. Va. R. of Law. Disc. P. 2, and pursuant to
Rule 3, “[t]he Hearing Panel . . . shall conduct hearings and make findings of fact, conclusions of
law, and recommendations of lawyer discipline to the Supreme Court of Appeals on formal charges
filed by the Investigative Panel.” W. Va. R. of Law. Disc. P. 3. In addition, Rule 8.5 of the West
9
Virginia Rules of Professional Conduct specifically provides that “[a] lawyer not admitted in [West
Virginia] is also subject to the disciplinary authority of the jurisdiction if the lawyer provides or
offers to provide any legal services in this jurisdiction.” As was the case in Middlesex, these rules
show that the Supreme Court of West Virginia has conferred on the OLDC the power to carry out
“judicial” actions to ensure that attorneys who practice in West Virginia abide by that state’s
professional rules.
And the case here is certainly ongoing. According to the complaint, the OLDC complaint
was filed on or about May 21, 2019, and the OLDC has issued an order directing plaintiff to
respond. See Am. Compl. ¶¶ 11, 23. The whole point of the lawsuit is to have this Court direct
the defendants to “dismiss their alleged case,” Am. Compl. ¶ 32, so the complaint is premised on
the fact that the case is ongoing. The first prong of the test is, therefore, met.
With respect to the second prong of the test, whether the proceedings implicate important
state interests, Comment One to Rule 8.5 states that “[e]xtension of the disciplinary authority of
the jurisdiction to other lawyers who provide or offer to provide legal services in this jurisdiction
is for the protection of the citizens of this jurisdiction.” And both the Supreme Court in Middlesex
and courts in this district have found that ensuring that practicing attorneys abide by the ethical
rules in the jurisdictions where they practice is a significant state interest. See Middlesex, 457 U.S.
at 434; Lawrence, 541 F. Supp. 2d at 193; Richardson, 1990 WL 116727, at *4. West Virginia
shares that same interest in this case.
So the Court will move on to the final step in the test: assessing whether plaintiff is
afforded an adequate opportunity to raise his federal claims in the pending state proceeding.
Importantly, although the OLDC is charged with investigating complaints of attorney misconduct,
holding hearings, and making findings of fact and conclusions of law, it ultimately does not have
10
the power to make final determinations about formal charges against attorneys. See W. Va. R. of
Law. Disc. P. 3. Instead, that power falls to the Supreme Court of Appeals. See id. (explaining
that the Hearing Panel of the Lawyer Disciplinary board “shall . . . make recommendations of
lawyer discipline to the Supreme Court of Appeals on formal charges filed by the Investigative
Panel.”). Indeed, cases from the Supreme Court of Appeals reinforce that “the exclusive authority
to define, regulate and control the practice of law in West Virginia is vested in the Supreme Court
of Appeals.” State ex rel. York v. W. Va. Office of Disciplinary Counsel, 744 S.E.2d 293, 298
(2013); see also Lawyer Disciplinary Bd. V. Allen, 479 S.E.2d 317, 324 (1996) (holding that
attorneys who solicit clients within West Virginia but are not barred in and do not practice in the
state are subject to discipline by the Court). And Middlesex instructs that “[m]inimal respect for
the state processes, of course, precludes any presumption that the state courts will not safeguard
federal constitutional rights.” 457 U.S. at 431.
Like the claimant in Middlesex, plaintiff has not yet answered, and he has not even tried to
assert a constitutional claim. Nor has he alleged any facts to show that if the OLDC recommended
action against him, he would be precluded from presenting constitutional arguments to the West
Virginia Supreme Court of Appeals. For those reasons, the Court finds based on the information
before it that plaintiff’s right to raise his federal claims in West Virginia is adequately protected.
III. Younger exceptions
In Younger, the Supreme Court advised that there may be “extraordinary circumstances”
in which a plaintiff will suffer irreparable injury by being foreclosed from obtaining injunctive
relief in federal court. 401 U.S. at 53. And the D.C. Circuit has explained that “[s]uch
extraordinary circumstances include situations in which ‘there is a showing of bad faith or
harassment by state officials . . . or where the state law to be applied . . . is flagrantly and patently
11
violative of express constitutional prohibitions.’’” JMM Corp., 378 F.3d at 1122 (D.C. Cir. 2004),
quoting Trainor v. Hernandez, 431 U.S. 434, 443 n.7 (1977).
Plaintiff alleges that defendants should be held liable for “harassing and intimidating [him]
by mailing threatening communications and causing substantial emotional distress.” Am. Compl.
¶ 29. But neither the OLDC officials’ tone nor the fact that plaintiff understandably found the
pendency of this investigation to be stressful is relevant to the availability of the Younger
exception; the Supreme Court has instructed that harassment is found when a court determines that
the state proceeding “is motivated by a desire to harass.” Huffman, 420 U.S. at 611 (1975)
(emphasis added). Here, plaintiff has failed to allege any facts that give rise to a plausible inference
that defendants – who allegedly received the complaint brought by plaintiff’s client and undertook
to process it – were motived by a desire to harass him. In the communications recounted in the
complaint, the defendants are quoted as seeking plaintiff’s response in accordance with OLDC
procedures and responding to plaintiff’s inquiries about the scope of their jurisdiction. So plaintiff
has not identified any basis to invoke any exception to the Younger doctrine.
CONCLUSION
For the foregoing reasons, the Court finds that the Younger doctrine applies to this case
and plaintiff has failed to demonstrate any circumstances that would warrant the Court’s
12
intervention in the state proceedings. For that reason, the Court will abstain for reasons equity and
comity and dismiss the action. 4 A separate Order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: June 30, 2020
4 Based on the Court’s determination that the Younger abstention doctrine applies to this
case, defendant’s Motion for Leave to File a Second Amended Complaint [Dkt. # 22] is denied as
futile. See Atchinson v. District of Columbia, 73 F.3d 418, 425-26 (D.C. Cir. 1995) (“futility of
the amendment” is one of the factors a court must consider in evaluating whether to grant leave to
amend). See also James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996)
(“Courts may deny a motion to amend as futile . . . if the proposed claim would not survive a
motion to dismiss.”).
13
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855 F.2d 859
In re Sanders (Clendell)
NO. 88-8027
United States Court of Appeals,Eighth Circuit.
JUN 15, 1988
1
Appeal From: W.D.Mo.
2
DENIED.
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729 So.2d 796 (1998)
BAY ST. LOUIS COMMUNITY ASSOCIATION, Preserve Diamondhead Quality, Inc., Gulf Islands Conservancy, Inc., and Concerned Citizens to Protect the Isles and Point, Inc.
v.
COMMISSION ON MARINE RESOURCES, Hancock County Port and Harbor Commission and Casino World, Inc.
No. 97-CC-00101-SCT.
Supreme Court of Mississippi.
July 23, 1998.
Rehearing Denied October 15, 1998.
Reilly Morse, Gulfport, Attorney for Appellants.
Ben H. Stone, Terese T. Wyly, Eaton & Cottrell, Gulfport, Attorneys for Appellees.
Before SULLIVAN, P.J., and McRAE and MILLS, JJ.
McRAE, Justice, for the Court:
¶ 1. Before this Court is a question of the exhaustion of administrative remedies. The Chancery Court of Hancock County dismissed the appeal of an order of the Commission on Marine Resources (CMR) granting a permit to Casino World, Inc. and Hancock County Port and Harbor Commission (appellees) on the basis that it was not timely filed pursuant to Miss.Code Ann. § 49-27-39 (1972). The chancellor below ruled that the Bay St. Louis Community Association, Preserve Diamondhead Quality, Inc., Gulf Islands Conservancy, Inc., and Concerned Citizens to Protect the Isles and Point, Inc. (appellants) should have filed their appeal to the chancery court within thirty days after the permit was mailed to the appellees. Finding that the chancellor below erred in dismissing the appeal in the chancery court as untimely, we reverse and remand.
*797 FACTS
¶ 2. Casino World and Hancock County Port and Harbor Commission applied to the CMR to amend the use plan at a site on the north shore of St. Louis Bay from "general" to "industrial" and to issue a permit for a casino resort. Four community groups, objected to the application. On July 16, 1996, CMR granted the requested plan change and permit. Between July 20 and July 30, 1996, several individuals and groups, including the appellants, filed requests for reconsideration of CMR's decision as authorized by the Coastal Program. CMR notified the appellants that the petitions for reconsideration would be brought before the Commission at its next meeting on August 20, 1996.
¶ 3. On August 13, 1996, pursuant to Miss. Code Ann. § 49-27-37, the Department of Marine Resources (DMR) mailed the permit to Casino World and Hancock County Port and Harbor Commission. DMR notified the recipients of the permit, "As you are aware, the Commission action approving this project is the subject of a Commission reconsideration scheduled for August 20, 1996." DMR did not mail a copy of the permit to the appellants.
¶ 4. On August 20, 1996, CMR voted to deny reconsideration of its decision. At the same meeting, CMR adopted a written statement entitled "Findings of Fact and Conclusions of Law with Respect to Approval of the Application of Hancock County Port and Harbor Commission and Casino World Permit Application for an Adjustment to the Coastal Wetlands Use Plan and Wetlands Permit." The statement read, "It is therefore ordered that the wetlands permit be granted and the conditional "I" designation of the permit site shall become effective upon execution of these findings."
¶ 5. On September 18, 1996, appellants filed their notice of appeal, thirty-six days after the Department of Marine Resources mailed the permit to the Hancock County Port and Harbor Commission, Casino World, Inc., Cathy Mallette, Ronald Krizman of the COE, and Jim Morris of the DEQ. Casino World and Hancock County Port and Harbor Commission filed a motion to dismiss the appeal as untimely. CMR did not join the motion. On December 30, 1996, the chancellor granted the motion to dismiss, holding that the appeal time commenced with the issuance of the permit, rather than with the final decision of CMR to deny reconsideration. The appeal to this Court was timely perfected. The appellants frame their assignments of error as follows:
1. The lower court erred in holding that the time for appeal commenced before CMR's order became final.
2. Appellants properly and justifiably followed CMR's regulations for reconsideration and appeal, and therefore the appeal was timely filed.
3. The lower court erred in disregarding Appellants' duty to exhaust their administrative remedies before appealing the CMR's decision.
4. Section 49-27-39 begins the time for appeal from the mailing of the CMR order of issuance of the permit, and CMR failed to mail the permit to Appellants.
Issues 1, 2, and 3 are inextricably intertwined. The basis of these assignments is that the chancellor below erred in dismissing appellants' appeal as untimely, because 1) the appellants had not yet exhausted their administrative remedies before filing and 2) the appellants followed CMR's regulations for reconsideration and appeal. Accordingly, we address the first three assignments of error together.
DISCUSSION
1. The lower court erred in holding that the time for appeal commenced before CMR's order became final.
2. Appellants properly and justifiably followed CMR's regulations for reconsideration and appeal, and therefore the appeal was timely filed.
3. The lower court erred in disregarding Appellants' duty to exhaust their administrative remedies before appealing the CMR's decision.
¶ 6. The activities of the Mississippi Commission on Marine Resources are governed by the Coastal Wetlands Protection Act, Miss.Code Ann. § 49-21-1, et seq. Regarding issuance of permits,
*798 [t]he commission shall send a copy of any order in issuance, denial, revocation or suspension of a permit to the parties stated in section 49-27-17, and such orders must be sent within ninety (90) days from the receipt of the application in the case of granting or denying or thirty (30) days from the date of the hearing in the case of suspension or revocation.
Miss.Code Ann. § 49-27-37 (Supp.1997). Further, Miss.Code Ann. § 49-27-39(a) (1990) reads:
An appeal may be taken by the applicant, or any person or corporation, municipal corporation, county or interested community group who has been aggrieved by such order, from the denial, suspension or revocation of a permit or the issuance of a permit or conditional permit and who has filed written protest or objection as specified in sections 49-27-9 to 49-27-21, within thirty (30) days after the mailing to the parties of the order of issuance, denial, suspension or revocation of any such permit, to the chancery court of any county having jurisdiction over the property which may be affected by any such proposed activity to be authorized by such permit.
The crux of the dispute here is the effect of the mailing of the permit. The appellees contend that when the actual permit was mailed to Casino World on August 13, 1996, the thirty-day appeals clock began to run against the appellants. The appellees were aware that the Commission action approving this project and issuing a permit was the subject of a Commission reconsideration scheduled for August 20, 1996. The appellants contend that since the CMR did not vote against reconsideration of its original decision until August 20, 1996, the thirty-day appeals clock did not start running until that date. Appellants argue that the permit decision was not final and appealable because no final order granting the permit existed until the Commission completed the reconsideration of the permit issuance on August 20, 1996.
¶ 7. The Commission on Marine Resources is a state administrative agency. Appeals from state administrative agency hearings are controlled by statute and will only be allowed after entry of a final order. Wilson v. Mississippi Employment Sec. Comm'n, 643 So.2d 538, 540 (Miss.1994). For the chancellor's dismissal of the appellants' claim to be valid, then, this Court first must conclude that the letter to Casino World (dated August 13, 1996) containing the permit issued by the CMR on July 16, 1996, constituted an "order of issuance ... of any such permit" such that the appeals clock in 49-27-39 would start running on August 13, 1996.
¶ 8. Initially, it must be noted that the letter containing the permit did not contain anything styled as an "order" from the Commission. Further, it also must be noted that on reconsideration of the action approving the permit and project, the Commission issued what was styled as "Findings of Fact and Conclusions of law with Respect to Approval of the Application of Hancock County Port and Harbor Commission and Casino World Permit Application for an Adjustment to the Coastal Wetlands Use Plan and Wetlands Permit." Nonetheless, even though the word "order" was not used in the letter and the Commission on Marine Resources did not issue a standard "Order Issuing Permit," the permit accompanying the letter would have been valid if no request for reconsideration had been made. We find that the letter submitted to Casino World by the DMR constituted an "order of issuance of permit." The question remains, however, whether such order was final and appealable.
¶ 9. Though the letter effectively would have granted a permit to Casino World had no objection been made, it defies logic that the letter from the DMR, on behalf of the CMR, to Casino World constituted a final order from which an appeal could be made to the chancery court, when such letter specifically recognized that the Commission was entertaining the idea of disapproving the project upon reconsideration. It is axiomatic that administrative remedies must be exhausted before judicial review can be sought. Mississippi Dep't of Pub. Safety v. McKnight, 623 So.2d 249, 252 (Miss.1993). Moreover, "`[a]n order is interlocutory when `the substantial rights of the parties involved in the action remain undetermined and when *799 the cause is retained for further action.''" Blankenship v. Delta Pride Catfish, Inc., 676 So.2d 914, 916 (Miss.1996) (quoting Freeman Truck Line, Inc. v. Merchants Truck Line, Inc., 604 So.2d 223, 224 (Miss.1992)). If, as Casino World/CMR claims, the letter from the DMR was an order, then nothing in that "order" finalized the questions raised by the appellants' petition for reconsideration. See Blankenship, 676 So.2d at 918 (finding that since order from Workers' Compensation Commission established "that all matters among the parties currently before the Commission were determined by the order and further, that nothing had been retained by the Full Commission or remanded to the Administrative Law Judge for further consideration," order was final and appealable). In fact, the letter from the DMR, on behalf of the CMR, explicitly stated that the permit was the subject matter of a petition for reconsideration that was pending before the Commission. If the order was being reconsidered, it could not have been final. Ergo, the order was interlocutory, and no appeal could be taken from it until its final disposition on August 20, 1996.
¶ 10. Accordingly, we find that the chancellor erred in dismissing the appellants' appeal as untimely. The appeals time frame mentioned in Miss.Code Ann. § 49-27-39 refers to the mailing of a final order of issuance of a permit. Because the order by the Commission that was mailed on August 13, 1996 was up for reconsideration, it was not final and therefore interlocutory. The final order was issued on August 20, 1996.[1] The appellants filed their appeal to the chancellor within thirty days of August 20, 1996, thus satisfying the limitations period.
4. Section 49-27-39 begins the time for appeal from the mailing of the CMR order of issuance of the permit, and CMR failed to mail the permit to Appellants.
¶ 11. Appellants also claim that CMR breached its duty to mail notice of the issuance of the order granting the permit to them, pursuant to Miss.Code Ann. § 49-27-39. It is not clear that the statute was referring to entities objecting to a grant of a permit. Section 49-27-37 identifies the parties entitled to orders in issuance of a permit as those listed in Miss.Code Ann. § 49-27-17, which includes two groups: those parties entitled to receive a copy of such application under Miss.Code Ann. § 49-27-13, and the owners of record of adjacent land and all known claimants to water or riparian rights in or adjacent to the coastal wetlands affected. The appellants have not shown that they are members of either group. Even so, § 49-27-17 explicitly states that failure to notify those two groups of parties of a hearing by the commission would not invalidate any permit granted thereafter. This assignment of error is without merit.
CONCLUSION
¶ 12. We find that because the motion to reconsider was pending before the Department or the Commission, the administrative remedy of the appellants had not been exhausted until that motion had been considered and ruled upon. The chancellor erred in ruling that the appellants' appeal to the chancery court was untimely. Therefore, we reverse the chancellor's ruling and remand this matter to the Chancery Court of Hancock County for proceedings consistent with this opinion.
¶ 13. REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.
PRATHER, C.J., SULLIVAN and PITTMAN, P.JJ., and JAMES L. ROBERTS, Jr., SMITH, MILLS and WALLER, JJ., concur.
BANKS, J., concurs in result only.
NOTES
[1] The heart of the error lies with the Commission, for the permit in this case should not have been issued until reconsideration was complete.
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752 F.2d 1476
118 L.R.R.M. (BNA) 2600, 102 Lab.Cas. P 11,348
HOTEL & RESTAURANT EMPLOYEES, AND BARTENDERS UNION, LOCAL703, Petitioner-Appellee,v.Merrill M. WILLIAMS; Boy's Restaurant, Inc.; Girl'sRestaurant, Inc.; Jumbo's, Inc. dba Farm BoyRestaurant; and Farm Boy RestaurantsNos. 2 & 3, Respondents-Appellants.
No. 84-5633.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Sept. 6, 1984.Decided Feb. 6, 1985.
1
Herbert M. Ansell, Levy, Ansell & Goldman, Los Angeles, Cal., for petitioner-appellee.
2
Wilson Clark, Marina Del Rey, Cal., for respondents-appellants.
3
Appeal from the United States District Court for the Central District of California.
4
Before CHAMBERS and NORRIS, Circuit Judges, and SOLOMON,* District Judge.
SOLOMON, District Judge:
Introduction
5
Appellee, Hotel & Restaurant Employees and Bartenders Union, Local 703 (Union), filed this action against appellant, a group of five businesses under common ownership (Employers). The Union sought to compel arbitration under section 301(a) of the Labor Management Relations Act, 29 U.S.C. Sec. 185. The district court held that the parties were compelled to arbitrate the wage and fringe benefit issues on which they had reached an impasse in their negotiations. The Employers appealed.
Facts
6
The Employers entered into a collective bargaining agreement with the Union for the period April 1, 1975 to March 30, 1980. Article XI of this collective bargaining agreement contains an arbitration clause which provides:
7
In the event that the parties are unable to reach agreement on a new or revised schedule of wages and/or fringe benefits, there shall be no strike by the union or lockout by the employer. Any deadlock in negotiations over new or revised wages and/or fringe benefit contributions shall be resolved by arbitration in accordance with this article.
8
Before the March 31, 1980 expiration date, the parties began to negotiate a new agreement. A dispute arose between the parties, and the Union filed charges with the National Labor Relations Board (NLRB). The Union alleged that the Employers refused to bargain collectively under sections 8(a)(1) and (5) of the Labor Management Relations Act, 29 U.S.C. Sec. 158(a)(1) and (5). In June, 1982, an Administrative Law Judge (ALJ) ordered the Employers to bargain in good faith. The NLRB affirmed the ALJ's decision and applied to this court for the enforcement of its order. The NLRB has since decided to reconsider its decision.
9
The parties resumed negotiations in late 1982. The Employers tendered their last offer on January 25, 1983, which the Union rejected. In May, 1983, the Employers informed the Union that an impasse had been reached and that the Employers would unilaterally adopt the contract terms in their last offer.
10
The Union demanded arbitration under Article XI on (1) a revised wage schedule, and (2) contributions to the health and welfare plan. The Employers refused to arbitrate, and the Union filed an action to compel arbitration in the district court under section 301(a) of the Labor Management Relations Act, 29 U.S.C. Sec. 185(a).
11
The district court held that the arbitration clause was enforceable. The court based its holding on the national policy favoring arbitration that is expressed in Nolde Brothers, Inc. v. Local No. 358, Bakery & Confectionery Workers Union, 430 U.S. 243, 97 S.Ct. 1067, 51 L.Ed.2d 300 (1977). It also concluded that this action was timely brought. The Employers appeal.
12
On appeal, the Employers argue that (1) the district court did not have jurisdiction to compel arbitration; and (2) even if the court had jurisdiction, the contract had expired and the arbitration clause is no longer enforceable.
Discussion
I. Jurisdiction
13
Section 301(a) of the Labor Management Relations Act (Act), 29 U.S.C. Sec. 185, grants a district court jurisdiction to compel arbitration under a collective bargaining agreement. The court must determine if the parties agreed to arbitrate the issue in dispute. Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960).
14
The Employers contend that the district court lacked jurisdiction because the NLRB has exclusive jurisdiction under section 8(a) of the Act, 29 U.S.C. Sec. 158(a). Section 8(a) gives the NLRB jurisdiction to require that an employer maintain the status quo ante while bargaining for a new contract. The Union is not seeking to compel the Employers to maintain the status quo ante or to agree to a new interest arbitration clause.1 It is merely requesting that the court order the Employers to comply with the specific terms of Article XI.
15
The district court had jurisdiction to determine if Article XI remained in effect after March 31, 1980 and, if it did, to compel arbitration. See Sheet Metal Workers' International Association, Local No. 252 v. Standard Sheet Metal, Inc., 699 F.2d 481, 483 (9th Cir.1983). (Sheet Metal )
16
The Employers also contend that the district court lacks jurisdiction because an unfair labor practice may have been committed. This is an incorrect statement of the law. When a labor dispute involves both a breach of contract and an unfair labor practice charge, the NLRB and the courts have concurrent jurisdiction. Sheet Metal, 699 F.2d at 483.
17
We hold that the district court had jurisdiction to determine the enforceability of this interest arbitration clause.
II. Interest Arbitration Clause
18
In Nolde Brothers, Inc. v. Local No. 358, Bakery & Confectionery Workers Union, 430 U.S. 243, 97 S.Ct. 1067, 51 L.Ed.2d 300 (1977), the Supreme Court held that a dispute over severance pay under an expired collective bargaining agreement was arbitrable even though both the dispute and the request for arbitration arose after the contract had been terminated. The Court reasoned that the parties had agreed to arbitrate all disputes which arose out of the contractual relationship, and that enforcement of the clause would promote the strong national policy favoring arbitration of labor disputes. Furthermore, the Court held that "the presumptions favoring arbitrability must be negated expressly or by clear implication." Nolde, 430 U.S. at 255, 97 S.Ct. at 1074.
19
Although the arbitration clause in Nolde was a rights or grievance arbitration clause, the Court's rationale applies with equal force to interest arbitration clauses. For us to rule otherwise would severely limit the usefulness of an interest arbitration clause because negotiations for a new contract often become deadlocked after the expiration date of the contract has passed. To hold that all rights under Article XI terminated at the contract's expiration date would effectively invalidate the entire provision and would be inconsistent with the clear and unambiguous language of that article.
20
The Employers contend that the post-contract enforcement of the interest arbitration provision will bind them to successive contracts containing the same provision. This contention has no merit. Article XI provides for arbitration on only two issues: wages and fringe benefits. Even if Article XI had provided otherwise, the provision would be invalid because arbitration can only be required for mandatory bargaining subjects, and an interest arbitration clause is a non-mandatory subject. In addition, a Union's insistence on the inclusion of a mandatory arbitration clause in a successor contract without the consent of the employer would constitute a refusal to bargain in good faith. Sheet Metal Workers' International Association, Local 14 v. Aldrich Air Conditioning, Inc., 717 F.2d 456, 458-59 (8th Cir.1983). An arbitration panel cannot make Article XI self-perpetuating by including an interest arbitration clause in the new contract.
21
There is no merit in the contention that the Union unreasonably delayed its request for arbitration. The agreement provides that arbitration is available only when there is a deadlock over wages and fringe benefit contributions. Although more than three years elapsed between the expiration date of the contract and the date upon which the Union filed its action to compel arbitration, the Union filed the action less than three months after the employer asserted that the negotiations were deadlocked. In addition, the parties began to negotiate before the contract expired and continued to negotiate until the impasse was reached. The Union did not unreasonably delay its demand for arbitration.
22
Article XI specifically provides for the type of arbitration ordered by the district court. We therefore hold the interest arbitration clause survived the expiration of the contract, and the Union's demand for arbitration was timely.
23
The district court's order compelling arbitration is AFFIRMED.
24
CHAMBERS, Circuit Judge, concurring in part and dissenting in part:
25
I reluctantly concur in the result reached by the majority. I do this not because I think that Nolde answers the question put to us, but because of precedent from this circuit which I feel compelled to follow, Sheet Metal Workers Int'l Ass'n, Local 253 v. Standard Sheet Metal, Inc., 699 F.2d 481 (9th Cir.1983), enforcing an interest arbitration clause despite many of the self-perpetuation arguments that we have heard here.
26
I dissent from the majority's speculation that there is no danger from the interest arbitration clause becoming self-perpetuating, and from its reliance on Sheet Metal Workers Int'l Ass'n etc. v. Aldrich Air Conditioning, Inc., 717 F.2d 456, 459 (8th Cir.1983), which came to its optimistic conclusion in this regard only by finding "not persuasive" this circuit's precedent in Standard Sheet Metal, Inc. The employer's concerns about the clause strike me as far more substantial than the majority is willing to admit.
*
The Honorable Gus J. Solomon, Senior United States District Judge for the District of Oregon, sitting by designation
1
An interest arbitration clause provides for arbitration of a new collective bargaining agreement. A grievance or rights arbitration clause provides for arbitration of disputes arising from an existing collective bargaining agreement. Article XI is an interest arbitration clause
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318 S.W.3d 770 (2010)
STATE of Missouri, Respondent,
v.
Bobby G. ROSS, Appellant.
No. WD 70676.
Missouri Court of Appeals, Western District.
August 31, 2010.
Nancy A. McKerrow, Esq., Columbia, MO, for appellant.
Shaun J. Mackelprang, Esq., and Mary H. Moore, Esq., Jefferson City, MO, for respondent.
Before Division Two: MARK D. PFEIFFER, P.J., and VICTOR C. HOWARD and ALOK AHUJA, JJ.
ORDER
PER CURIAM:
Bobby Ross appeals from his conviction after a jury trial of statutory sodomy in the first degree. § 566.062, RSMo. In his sole Point Relied On, Ross claims the trial court abused its discretion in overruling his objections to the testimony of two witnesses concerning out-of-court statements made by his minor victim, because the testimony was duplicative and improperly bolstered the victim's testimony. We affirm. Because a published opinion would have no precedential value, a memorandum setting forth the reasons for this order has been provided to the parties. Rule 30.25(b).
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490 So.2d 1252 (1986)
John Martin HIGDON, Petitioner,
v.
STATE of Florida, Respondent.
No. 66753.
Supreme Court of Florida.
May 15, 1986.
Rehearing Denied August 1, 1986.
Craig Stephen Boda, Daytona Beach, for petitioner.
Jim Smith, Atty. Gen. and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for respondent.
EHRLICH, Justice.
This case is before us to answer a question certified by the district court to be of great public importance, to wit:
IS THE SCHEDULE OF LESSER INCLUDED OFFENSES PROMULGATED BY THE FLORIDA SUPREME COURT IN 1981 IN ERROR IN CLASSIFYING VEHICULAR HOMICIDE (§ 782.071) AS A NECESSARILY LESSER INCLUDED OFFENSE OF D.W.I. MANSLAUGHTER (§ 860.01)?
Higdon v. State, 465 So.2d 1309, 1311 (Fla. 5th DCA 1985). We have jurisdiction. Art. V, § 3(b)(5), Fla. Const.
We answer the certified question in the affirmative. Houser v. State, 474 So.2d 1193 (Fla. 1985).[1] We adopt the reasoning of the dissent of Judge Dauksch to the decision below. 465 So.2d at 1311. See, e.g., Ray v. State, 231 So.2d 813 (Fla. 1969). We quash the decision of the district court and remand for action in accord with this opinion.
It is so ordered.
BOYD, C.J., and ADKINS, OVERTON, SHAW and BARKETT, JJ., concur.
McDONALD, J., concurs in result only.
NOTES
[1] Defendant was charged by information with two counts (2 victims) of manslaughter by driving while intoxicated pursuant to section 860.01, Florida Statutes (1981). If he had also been charged with vehicular homicide pursuant to section 782.071, Florida Statutes (1981), the present problem would not have arisen.
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917 F.2d 797
UNITED STATES of America, Plaintiff-Appellee,v.Relious Essix GLASCO, Defendant-Appellant.
No. 89-5197.
United States Court of Appeals,Fourth Circuit.
Argued July 17, 1990.Decided Oct. 25, 1990.
R. Thomas Czarnik, Princeton, W. Va., for defendant-appellant.
Dwane L. Tinsley, Asst. U.S. Atty., argued (Michael W. Carey, U.S. Atty., Amy M. Lecocq, Asst. U.S. Atty., on brief), Charleston, W. Va., for plaintiff-appellee.
Before RUSSELL, WIDENER, and HALL, Circuit Judges.
WIDENER, Circuit Judge:
1
Relious Glasco appeals his conviction and sentence for three counts of distributing cocaine base in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. We affirm.
2
On February 1, 1989, a federal grand jury in Charleston, West Virginia, charged Relious Essix Glasco with three counts of distributing cocaine base, also known as crack, at or near Beckley, Raleigh County, West Virginia. Glasco engaged in discovery, and on April 27, 1989, filed a motion to suppress certain tape recordings obtained by members of the Beckley Police Department who had recorded Glasco's conversations by placing a body recorder on a consenting informant. The district court on May 31, 1989, denied Glasco's motion to suppress, and on June 7, 1989, a jury found Glasco guilty of all three counts charged in the indictment. The district court then sentenced Glasco to 25 months in prison.1 On appeal, Glasco challenges the district court's refusal to suppress the tape recordings of his conversations, as well as the district court's refusal to reduce his offense level under the Sentencing Guidelines based upon his role in the offense.
3
With respect to his first assignment of error, Glasco argues that, because the officers failed to comply with various provisions of West Virginia law governing electronic surveillance, see W.Va.Code Secs. 62-1D-1 et seq., the tape recordings should have been suppressed. While recognizing that federal law ordinarily governs the admissibility of evidence in a federal criminal trial, Glasco contends that federal courts apply state standards, even if those standards are more restrictive, if electronic surveillance is conducted solely by state officers without federal involvement. The government argues that the district court properly applied federal law because the Beckley police officers were acting as agents of an FBI task force in a joint investigation conducted by both state and federal authorities.2 We believe that whether state or federal authorities conducted the investigation is irrelevant, and that the district court properly denied Glasco's motion to suppress.3
4
It is well-settled that "[i]n a federal criminal prosecution, federal standards govern the admissibility of evidence." United States v. Mealy, 851 F.2d 890, 907 (7th Cir.1988); see also United States v. Pforzheimer, 826 F.2d 200, 204 (2d Cir.1987) (citing cases and concluding that "all other circuits that have been presented with this issue have concluded that 'evidence admissible under federal law cannot be excluded because it would be inadmissible under state law' "). Further, the fact that state officers obtained evidence with no federal involvement does not alter the general rule. See United States v. One Parcel of Real Property, 873 F.2d 7, 8 (1st Cir.), cert. denied sub nom. Latraverse v. United States, --- U.S. ----, 110 S.Ct. 236, 107 L.Ed.2d 187 (1989); Mealy, 851 F.2d at 907; Pforzheimer, 826 F.2d at 204; United States v. Chavez-Vernaza, 844 F.2d 1368, 1374 (9th Cir.1987); United States v. Rickus, 737 F.2d 360, 363-64 (3d Cir.1984).
5
Glasco relies upon a line of wiretapping cases which stand for the proposition that "the Government, in allowing a joint investigation to proceed through the use of a state warrant, subjects itself to the risk that state courts may impose on such warrants and the evidence obtained under those warrants a higher standard than would a federal court dealing with interpretation of the federal wiretap statutes." United States v. Manfredi, 488 F.2d 588, 598 n. 7 (2d Cir.1973), cert. denied, 417 U.S. 936, 94 S.Ct. 2651, 41 L.Ed.2d 240 (1974); see also United States v. McNulty, 729 F.2d 1243 (10th Cir.1984) (en banc). Far from establishing the general applicability of state law to wiretapping cases, however, Manfredi and similar cases apply to exclude evidence in a federal court only if the investigating officers obtained judicial authorization for a wiretap from a state court. Moreover, it is federal law, the text of the federal wiretapping statute itself, 18 U.S.C. Sec. 2516(2), that requires the application of state law under such circumstances. McNulty, 729 F.2d at 1264. As other circuits have recognized, state law is simply irrelevant in a federal prosecution if the investigating officers, even state officers acting alone, are not acting under the authorization of a state court.
6
For example, in United States v. Nelligan, 573 F.2d 251 (5th Cir.1978), a case on facts so close to those here as to be indistinguishable, a detective with the Hialeah, Florida Police Department recorded a telephone call he placed to the defendant. In addressing the defendant's claim that Manfredi and its progeny mandated the application of state law to the state agent's investigation, and that the detective's conduct violated Florida's wiretapping statutes, the Fifth Circuit stated that:
7
[T]hose cases are inapposite, as they applied state law in determining the validity of state warrants for the interception of conversations. The federal wiretap statute ... provides for state court authorizations of interceptions in conformity with the applicable state statute. Thus, the Second Circuit's conclusion that state law governs the validity of warrants issued by state courts is in no way inconsistent with the general rule that federal law governs the admissibility of wiretap evidence in federal criminal cases....
8
Nelligan, 573 F.2d at 254 (footnote omitted). Therefore, the Fifth Circuit concluded that, because the interception was valid under federal law, the recording properly was admitted at Nelligan's trial.
9
More recently, in United States v. D'Antoni, 874 F.2d 1214 (7th Cir.1989), another case on point, an informant of the state officers recorded several telephone conversations between himself and the targets of a state investigation. The defendants in D'Antoni argued, as Glasco does here, that federal courts should apply state law to evidence gathered by state officials in violation of state law. To do otherwise, asserted the defendants, would encourage state officials to violate state law. The Seventh Circuit reiterated the general rule that in federal court a search and seizure should be evaluated as if federal officers conducted the search and seizure, however, and concluded that "[A]s long as the tape-recorded conversations are admissible under federal law, which they are here, they are admissible in federal court, even though they might not have been admissible in state court." D'Antoni, 874 F.2d at 1218.
10
In the case before us, as in Nelligan and D'Antoni, an agent or informant recorded conversations with Glasco, albeit with a body wire rather than over the telephone. Because no state court authorization was sought, Manfredi and the other cases upon which Glasco relies are not implicated. In addition, we know of no reported case in which a federal court has adopted Glasco's position and excluded evidence, tape recordings or otherwise, on the basis that state officers, not acting under state court authorization, violated state law in obtaining the material. Although we do not condone the violation of state law by state officers, if indeed such a violation occurred here, as the Seventh Circuit recognized, "[O]ther sanctions already exist to control the conduct of state officers." D'Antoni, 874 F.2d at 1219. Because Glasco has alleged no violation of federal law, the district court properly denied Glasco's motion to suppress the tape recordings.4
11
Finally, Glasco also appeals his sentence. Under the Sentencing Guidelines, the amount of crack Glasco sold translated to a base offense level of 16. Combining level 16 with a criminal history category of I produced a Guidelines range of 21-27 months, and the district court sentenced Glasco to 25 months. Glasco contends, however, that the district court erred in not reducing his base offense level due to his role in the offense. Our review of this issue is governed by the clearly erroneous standard. United States v. Gordon, 895 F.2d 932, 934 (4th Cir.1990).
12
The Sentencing Guidelines provide for a reduction in a defendant's offense level based on his role in the offense under the following circumstances:
13
(a) If the defendant was a minimal participant in any criminal activity, decrease by 4 levels.
14
(b) If the defendant was a minor participant in any criminal activity, decrease by 2 levels.
15
In cases falling between (a) and (b), decrease by 3 levels.
16
U.S.S.G. Sec. 3B1.2. (Sentencing Guidelines references are to the Manual effective November 1, 1987.) The commentary to Sec. 3B1.2 indicates that the section applies to the least culpable members of a group of persons engaged in concerted criminal activity, such as a participant without knowledge of the scope of the enterprise or an offloader or courier of a single shipment of drugs in an otherwise large smuggling operation. Glasco claims that each time he sold crack to the informant he had to locate and purchase the drug from someone else, and that he resold the drug to the informant at no profit to himself, but merely as a favor. Therefore, Glasco contends that he is less culpable than even an offloader or a courier, and that he was entitled to a reduction as a minimal or minor participant.
17
Glasco plainly confuses a minor participant in a major operation, which is the subject of Sec. 3B1.2, with his own status as a major participant in a minor operation, as to which Sec. 3B1.2 should not apply. Indeed, as the actual seller of drugs, and even if he was merely a go-between as he contends, Glasco did not engage in the kind of conduct contemplated by Sec. 3B1.2. Gordon, 895 F.2d at 935. The district court's finding that Glasco was not entitled to the benefits of Sec. 3B1.2 and a lowering of his base offense level was not clearly erroneous.
18
Accordingly, the judgment of the district court is
19
AFFIRMED.
1
The district court also fined Glasco $2,400, imposed a $150 special assessment, and ordered that Glasco be placed on supervised release for four years following his release from prison
2
The government apparently concedes that it presented little direct evidence of the joint character of the investigation, and that four consent forms in which the government informant authorized FBI special agents to place a body recorder on his person represent the only evidence (as opposed to statements of the government's attorney) in the record to support such a finding
3
Because we conclude that it makes no difference whether the officers were functioning as state officers or federal officers, and because Glasco's only assignment of error with respect to his conviction is predicated upon that distinction, a detailed description of the underlying investigation is unnecessary
4
As the court noted in Nelligan, 18 U.S.C. Sec. 2511(2)(c) explicitly does not exclude from evidence intercepted wire or oral conversations when one of the parties has consented to the intercept and is acting under color of law, as was patent here
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 95-IA-00607-SCT
LEONARD BAILEY a/k/a LEONARD BAILEY, JR.
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 05/24/95
TRIAL JUDGE: HON. JOHN H. WHITFIELD
COURT FROM WHICH APPEALED: STONE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: MARK B. STRICKLAND
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: DEWITT ALLRED, III
DISTRICT ATTORNEY: CONO CARANNA
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRM DENIAL OF MOTION TO DISMISS
AND REMAND FOR FURTHER PROCEEDINGS
- 11/26/97
MOTION FOR REHEARING FILED: 12/5/97
MANDATE ISSUED: 2/24/98
BEFORE PRATHER, P.J., ROBERTS AND MILLS, JJ.
PRATHER, PRESIDING JUSTICE, FOR THE COURT:
I. INTRODUCTION
¶1. This interlocutory appeal arises from the indictment, under our State's implied consent statute, of
Leonard Bailey for driving under the influence (DUI) as a felony third-time offender. See Miss. Code
Ann. § 63-11-30 (Supp. 1996). The issue presented is the use of prior DUI convictions based on
nolo contendere pleas for purposes of sentence enhancement on subsequent DUI charges.
Specifically, the question is whether Bailey (who has previously entered pleas of nolo contendere to
DUI-first offense and DUI-second offense) can be charged as a felony recidivist on his third charge of
DUI.
¶2. This Court holds that the prior DUI convictions based on the nolo contendere pleas were valid
and can be used for purposes of enhancing the sentence under Mississippi's implied consent law.
Therefore, the trial court's denial of Bailey's motion to dismiss the felony charge is affirmed, and this
case is remanded for further proceedings.
II. STATEMENT OF THE CASE
¶3. On November 4, 1991, Bailey entered a plea of nolo contendere to the charge of DUI- first
offense. The Stone County Justice Court found Bailey guilty and fined him $350, plus court costs.
On January 27, 1992, Bailey entered a plea of nolo contendere to the charge of DUI-second offense.
The same court found Bailey guilty and fined him $950, plus court costs.
¶4. On August 24, 1994, Bailey was indicted in the Stone County Circuit Court for felony DUI as a
third-time offender. He moved to dismiss the felony charge, and argued that his first two DUI
convictions could not be used against him, because he had pled nolo contendere to the charges in
both of the prior cases. The trial judge denied the motion to dismiss, but granted Bailey leave to file
an interlocutory appeal. This Court granted Bailey's petition for interlocutory appeal on the following
issues.
A. WHETHER PRIOR MISDEMEANOR CONVICTIONS BASED UPON PLEAS OF NOLO
CONTENDERE OF APPELLANT MAY BE USED AGAINST THE APPELLANT IN
SUBSEQUENT CRIMINAL PROCEEDINGS PURSUANT TO WELL ESTABLISHED AND
LONG STANDING CASELAW IN MISSISSIPPI?
B. WHETHER PRIOR MISDEMEANOR CONVICTIONS BASED UPON PLEAS OF NOLO
CONTENDERE OF APPELLANT MAY BE USED AGAINST THE APPELLANT IN THE
PRESENT CRIMINAL PROCEEDINGS PURSUANT TO EX POST FACTO
PROHIBITIONS AND OTHER CONSTITUTIONAL GUARANTEES?
III. LEGAL ANALYSIS
A. WHETHER PRIOR MISDEMEANOR CONVICTIONS BASED UPON PLEAS OF NOLO
CONTENDERE OF APPELLANT MAY BE USED AGAINST THE APPELLANT IN
SUBSEQUENT CRIMINAL PROCEEDINGS PURSUANT TO WELL ESTABLISHED AND
LONG STANDING CASELAW IN MISSISSIPPI?
¶5. The abstracts from Bailey's DUI-first offense and DUI-second offense cases indicate that the
"DEFENDANT ENTERED A PLEA OF: NOLO CONTENDERE" and that the "JUDGEMENT OF
THE COURT" was "GUILTY". The question is, whether the judgments of the trial court in these
previous cases were "convictions" for purposes of Mississippi's implied consent statute -- which
provides that a third DUI "conviction" in a five-year period is a felony:
(1) It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a)
is under the influence of intoxicating liquor
***
(c) For any third or subsequent conviction of any person violating subsection (1) of this
section, the offenses being committed within a period of five (5) years, such person shall be
guilty of a felony and fined not less than Two Thousand Dollars ($2,000.00) nor more than Five
Thousand Dollars ($5,000.00) and shall be imprisoned not less than one (1) year nor more than
five (5) years in the State Penitentiary.
Miss. Code Ann. § 63-11-30 (Supp. 1996) (emphasis added).
¶6. Although a general review of the law on nolo contendere is helpful, there is no Mississippi law on
the question of whether judgments of guilty following nolo contendere pleas to DUI charges may be
used to enhance punishment on a subsequent DUI charge.
¶7. Black's Law Dictionary defines the term "nolo contendere" as "the Latin phrase meaning 'I will
not contest it' . . . ." Black's Law Dictionary 1048 (6th Ed. 1990). American Jurisprudence
discusses the term "nolo contendere" as follows: "it is difficult to define the exact nature of a plea of
nolo contendere, but regardless of the label attached, it seems that for practical purposes a plea of
nolo contendere is a plea of guilty or the equivalent thereof." 21 American Jurisprudence 2d
Criminal Law § 492 (footnotes omitted) (emphasis added).
¶8. Bailey argues that the use of his prior nolo contendere pleas to enhance his punishment in this
case would violate established Mississippi caselaw. Clearly, Mississippi law prohibits the admission of
a plea of nolo contendere in a related civil action or for purposes of impeachment. Keyes v. State,
312 So. 2d 7 (Miss. 1975); Bruno v. Cook, 224 So. 2d 567 (Miss. 1969); Williams v. State, 94 So.
882 (Miss. 1922); Chester v. State, 65 So. 510 (Miss. 1914). Furthermore, M.R.E. 410 prohibits the
admission of a plea of nolo contendere in any subsequent criminal or civil action. However, these
cases and this evidentiary rule do not address the use of a conviction based upon a plea of nolo
contendere for purposes of sentence enhancement.
¶9. Furthermore, this Court discussed the ramifications of a conviction based upon a plea of nolo
contendere in City of Corinth v. Cox, 565 So. 2d 1142 (Miss. 1990). In Corinth, the question was:
whether a firefighter who pled nolo contendere and was convicted on charges of selling drugs had
committed misconduct such that he was disqualified from receiving unemployment benefits. This
Court ultimately answered that question affirmatively, and discussed the implications of a nolo
contendere plea, as follows:
According to Black's Law Dictionary 945 (5th ed. 1979) "nolo contendere" is defined as
follows:
[A] plea in a criminal case which has a similar legal effect as pleading guilty. Hudson v. U.S.,
272 U.S. 451, 455, 47 S.Ct. 127, 129, 71 L.Ed. 347 [1926]. Type of plea which may be entered
with leave of court to a criminal complaint or indictment by which the defendant does not admit
or deny the charges, though a fine or sentence may be imposed pursuant to it. The principal
difference between a plea of guilty and a plea of nolo contendere is that the latter may not be
used against the defendant in a civil action based upon the same acts. [Emphasis added]
In Fidelity-Phenix Fire Ins. Co. of New York v. Murphy, 166 So. 604 (Ala.1936), the
Supreme Court of Alabama stated:
[The plea of nolo contendere] is allowable only upon leave and acceptance of the court, and
when accepted becomes an implied confession of guilt for the purpose of that case. [Emphasis
added]
Id. at 609.
Corinth, 565 So. 2d at 1143-44.
¶10. Thus, Mississippi caselaw prohibits the admission of nolo contendere plea in some contexts, and
allows the consideration of the nolo contendere plea in at least one context. In addition, it is
noteworthy that the Mississippi statutes for many professions provide for disciplinary action based on
pleas nolo contendere -- just as if the professional had pled guilty or been found guilty by a jury. See,
e.g., Miss. Code Ann. §§ 37-3-2 (public school teachers); 73-15-29 (nurses); 73-19-23
(optometrists); 73-38-27 (speech pathologists and audiologists); 83-57-39 (insurance salespersons).
See also Miss. Code Ann. § 17-17-505 (applicants for solid waste permits may be rejected for pleas
of nolo contendere to certain crimes). This rule also applies to attorney discipline cases, such that an
attorney may be automatically disbarred for pleading guilty or pleading nolo contendere to certain
crimes. Rules of Discipline for the Mississippi State Bar, Rule 6.
¶11. Furthermore, Mississippi statutes on municipal court powers provide that (upon the entry of a
plea of nolo contendere) municipal judges "shall convict" a defendant "of the offense charged and
shall proceed to sentence the defendant according to law." The conviction may be appealed "as in
other cases." Miss. Code Ann. § 21-23-7 (8). No corresponding statute appears to be in place for
Justice Courts (such as the one in which Bailey originally pled nolo contendere). Thus, defendants
who plead nolo contendere in municipal court would be convicted by statute. A different result by
operation of caselaw in justice court would raise serious Equal Protection issues.
¶12. Moreover, this Court has applied the enhanced DUI sentencing structure fairly stringently,
regardless of the circumstances of the underlying convictions. For example, an accused's previous
DUI convictions made without the benefit of counsel and not resulting in a prison sentence can be
used to enhance the penalty in later DUI cases. Ghoston v. State, 645 So. 2d 936, 938-39 (Miss.
1994); Sheffield v. City of Pass Christian, 556 So. 2d 1052, 1053 (Miss. 1990). The reason being
that the prior convictions were "constitutionally valid in and of themselves" and would still be valid
for the purpose of enhancing punishment under the DUI statutes. Sheffield, 556 So. 2d at 1053.
Furthermore, this Court has referred to the judgment following the acceptance of the nolo
contendere plea as a conviction. See Sanchez v. City of Picayune, 656 So. 2d 92 (Miss. 1995).
¶13. In addition, other jurisdictions considering this question have determined that a nolo contendere
plea may be used to enhance punishment on a subsequent plea. See Snyder v. State, 879 P. 2d 1025,
1031 (App. Ct. Alaska 1994) ("the only forbidden consequence of a nolo plea is its use as an
admission in a civil action . . . all other uses of the conviction are permissible as if the plea were of
guilty. . . . In sentencing [the defendant] as a fourth DWI offender the court did not purport to find
that he had admitted previous incidents of DWI; rather, it relied on the fact that he had previously
been convicted of the offense.") (overruled on other grounds in Snyder v. State, 930 P. 2d 1274
(Alaska 1996)); In re: Lewis, 209 N.W. 2d 203, 209 (Mich. 1973); State v. Staples, 124 A. 2d 187,
189 (N.H. 1956). See also United States v. One Lot of Eighteen Firearms, 325 F. Supp. 1326,
1328 (D. N.H. 1971) (possession of firearms by felon case where conviction of underlying felony was
satisfied by nolo contendere plea). Furthermore, in the context of determining habitual offender
status, the majority view is that a judgment based on a nolo contendere plea is a conviction. State v.
Goodwin, 593 P. 2d 326, 328-9 (Colo. 1979).
¶14. There are, however, two distinct views among other jurisdictions that have considered similar
cases:
The majority position differentiates between allowing the collateral use of a nolo contendere
plea as an admission of misconduct and allowing the collateral use of the fact of a conviction.
This position preserves the benefits of the nolo contendere plea to a defendant who fears
subsequent civil liability based upon an admission of guilt to a criminal charge. At the same
time, however, the majority position looks to the conviction and sentence imposed by the court
after the plea and finds the conviction as conclusive as a conviction entered after a plea of guilty
or entered after a trial and a plea of not guilty.
In contrast, the minority position reasons that a plea of nolo contendere and any conviction
entered on the plea has no effect beyond the instant criminal proceedings. 'If the plea itself could
not be used in any collateral matter, it follows that anything growing out of that plea * * *
could not be used as a conviction if the plea itself is deprived of that classification.' To use a
conviction collaterally would be tantamount in the minority view to an admission of guilt,
precisely that result which the plea of nolo contendere is intended to avoid.
***
There is no compelling reason to differentiate between a conviction entered after a nolo
contendere plea and a conviction entered after any other plea.
Lewis, 209 N.W. 2d at 209 (citations omitted).
¶15. This Court finds the majority view to be persuasive. Therefore, Bailey's prior convictions for
DUI-first offense and DUI-second offense (even though based upon pleas of nolo contendere) are
convictions for purposes of sentence enhancement in this subsequent DUI case, prosecuted under
Mississippi's implied consent statute.
B. WHETHER PRIOR MISDEMEANOR CONVICTIONS BASED UPON PLEAS OF NOLO
CONTENDERE OF APPELLANT MAY BE USED AGAINST THE APPELLANT IN THE
PRESENT CRIMINAL PROCEEDINGS PURSUANT TO EX POST FACTO
PROHIBITIONS AND OTHER CONSTITUTIONAL GUARANTEES?
¶16. Bailey next contends that the use of the nolo contendere pleas to enhance punishment in this
case would violate the ex post facto clause of the federal and State constitutions.
Article I, § 9, Clause 3 of the United States Constitution states "No Bill of Attainder or ex post
facto Law shall be passed." Article I, § 10, Clause 1 of the United States Constitution prohibits
a state from passing ex post facto laws, stating "No State shall ... pass any ... ex post facto
Law...." The State of Mississippi adopted this prohibition in its Constitution in Article 3, § 16
stating, "Ex post facto laws ... shall not be passed."
The United States Supreme Court has interpreted Article I, § 10 of the United States
Constitution to forbid the enactment of any statute which punishes as a crime an act previously
committed, which was innocent when done; which makes more burdensome the punishment for
a crime, after its commission, or which deprives one charged with crime of any defense
available according to law at the time the act was committed.
In accordance with this original understanding, we have held that the Clause is aimed at laws
that retroactively alter the definition of crimes or increase the punishment for criminal acts. The
United States Constitution forbids the application of any new punitive measure to a crime
already consummated.
The Supreme Court has held that the purpose of the Ex post facto Clause is to assure that
legislative acts give fair warning of their effect and permit individuals to rely on their meaning
until explicitly changed and to restrict governmental power by restraining arbitrary and
potentially vindictive legislation. A statute may violate the Ex post facto Clause even if it alters
punitive conditions outside the sentence or where it substantially alters the consequences
attached to a crime already completed, and therefore changes the quantum of punishment.
Puckett v. Abels, 684 So. 2d 671, 673 (Miss. 1996) (citations omitted) (internal quotation marks and
other punctuation omitted).
¶17. The statute regarding third-offense DUI charges has not been changed such that Bailey would
be receiving a stronger punishment than that enumerated in the statute at the time Bailey committed
his third DUI. That is not the issue here; and, therefore, the ex post facto analysis is inapplicable.
¶18. Furthermore, in a similar context, this Court held that crimes committed before the habitual
offender statutes were enacted could be used to enhance penalties for crimes committed after the
statute was enacted, without violating the ex post facto constitutional provisions.
The sentence as a fourth offender or habitual criminal is not to be viewed as either a new
jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime,
which is considered to be an aggravated offense because a repetitive one.
Smith v. State, 465 So. 2d 999, 1003 (Miss. 1985). Therefore, Bailey's argument on this point is
without merit.
IV. CONCLUSION
¶19. This Court holds that a judgment based on a plea of nolo contendere is a conviction for
purposes of interpreting the implied consent statute. Furthermore, Bailey's contention that an ex post
facto violation has occurred is without merit. Therefore, the judgment of the trial court denying
Bailey's motion to dismiss the felony portion of the indictment is affirmed. The indictment stands, and
this case is remanded for further proceedings thereunder.
¶20. DENIAL OF MOTION TO DISMISS AFFIRMED AND REMANDED FOR FURTHER
PROCEEDINGS.
PITTMAN, BANKS, ROBERTS, SMITH AND MILLS, JJ., CONCUR. SULLIVAN, P.J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY LEE, C.J., AND McRAE,
J. McRAE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
SULLIVAN, P.J.
SULLIVAN, PRESIDING JUSTICE, DISSENTING:
¶21. This Court, by citing to two other Mississippi cases, stated, "the plea of nolo contendere is
available in a petty or light misdemeanor case, ... that it has no effect beyond the particular case."
Bruno v. Cook, 224 So. 2d 567, 569 (Miss. 1969) (citing Williams v. State, 130 Miss. 827, 94 So.
882 (1922) and Chester v. State, 107 Miss. 459, 65 So. 510 (1914)).
¶22. The case law in this state, is that "evidence of a previous conviction, based on a plea of nolo
contendere, is not admissible in another case." Keyes v. State, 312 So. 2d 7, 10 (Miss. 1975). The
Court in Keyes held that a final judgment based upon a plea of nolo contendere does not constitute a
conviction under Miss. Code Ann. § 13-1-13 (1972). Id. at 10. This same conclusion is equally
relevant to Miss. Code Ann. § 63-11-30 (1996). Under existing law, a conviction, based on a plea of
nolo contendere, can not be used to enhance punishment under Miss. Code Ann. § 63-11-30 (1996),
and therefore I respectfully dissent.
LEE, C.J., AND McRAE, J., JOIN THIS OPINION.
McRAE, JUSTICE, DISSENTING:
¶23. A nolo contendere plea does not admit guilt; rather, it merely communicates to the court that the
criminal defendant does not wish to contest the State's accusations and will acquiesce in the
imposition of punishment. To the extent a nolo contendere plea is an implicit admission of guilt, it is
such an admission only for the purposes of the criminal proceeding in which the plea is entered.
"Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal
proceeding, admissible against the defendant who made the plea or was a participant in the plea
discussions: . . .(2) a plea of nolo contendere." Miss. R. Evid. 410. Miss. R. Evid. 803 (22) states that
evidence of a final judgment, entered after a trial or upon a plea of guilty, may be used to prove a fact
essential to sustain the judgment and is not excluded by the hearsay rule. Nonetheless, Miss. R. Evid.
803(22) explicitly states that evidence of a plea of nolo contendere is excluded by the hearsay rule.
As a result, a conviction based on a nolo contendere plea cannot form the basis of enhancement for
recidivist purposes, since it can have neither an estoppel effect nor be used as substantive evidence in
a subsequent criminal proceeding.
¶24. Further recognizing that the issue in this case is much like the one presented and resolved in
Keyes v. State, 312 So. 2d 7, 10 (Miss. 1975), I join Justice Sullivan's dissenting opinion.
SULLIVAN, P.J., JOINS THIS OPINON.
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STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re: A.G. FILED
November 14, 2016
No. 16-0476 (Taylor County 13-JA-26) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father M.L., by counsel Roger D. Curry, appeals the Circuit Court of Taylor
County’s April 25, 2016, order terminating his parental rights to six-year-old A.G.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda,
filed its response in support of the circuit court’s order. The guardian ad litem, Mary S. Nelson,
filed a response on behalf of the child also in support of the circuit court’s order.2 On appeal,
petitioner alleges that the circuit court failed to continue the abuse and neglect proceeding in
order to protect his Fifth Amendment rights. Petitioner also alleges that the circuit court erred in
denying him the opportunity to cross-examine the child’s mother and denying his motion for
reconsideration.3
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
2
The guardian’s response to this Court, which was filed as a summary response pursuant
to Rules 10(e) and 11(h) of the Rules of Appellate Procedure, fails to include a section regarding
the status of the child. This information is of the utmost importance to this Court. We refer the
guardian to Rule 11(j) of the Rules of Appellate Procedure, which requires briefs in abuse and
neglect appeals to contain a section on the current status of the children, permanent placement
goals, and the current status of the parental rights of all of the children’s parents. We decline to
employ its use in this matter, but we caution the guardian that Rule 10(j) provides for the
imposition of sanctions where a party’s brief does not comport with the Rules.
3
We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective on May 20, 2015. In this memorandum decision, we apply the statutes as they
existed during the pendency of the proceedings below. It is important to note, however, that the
abuse and neglect statutes underwent minor stylistic revisions and the applicable changes have
no impact on the Court’s decision herein.
1
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
In December of 2013, the DHHR filed a petition for abuse and neglect against petitioner
alleging that aggravated circumstances existed in that petitioner’s violent behavior caused the
death of A.G.’s sibling. The DHHR also alleged that petitioner committed acts of domestic
violence against A.G.’s mother and that A.G.’s mother abused and neglected A.G. because she
was aware of petitioner’s violent behavior yet failed to protect her children.4
In July of 2015, the circuit court held an adjudicatory hearing during which it heard
testimony from the doctor who performed the autopsy on A.G.’s sibling. The doctor opined that
the cause of “death was homicide as a result of either shaking or accelerating, slamming into
some type of soft surface.” During this hearing, A.G.’s mother also stipulated to the allegations
of abuse and neglect in the petition and set forth the factual allegations in support of her
stipulation on the record. Petitioner elected not to testify on his own behalf, call any witnesses, or
present any evidence. After considering the DHHR’s evidence, the circuit court adjudicated
petitioner as an abusing parent. Thereafter, the circuit court held a dispositional hearing during
which it took judicial notice of its prior findings. The circuit court found that aggravated
circumstances existed because petitioner caused the death of A.G.’s sibling and that there was no
reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in
the near future. By order entered on April 25, 2016, the circuit court terminated petitioner’s
parental rights. This appeal followed.
The Court has previously established the following standard of review:
“Although conclusions of law reached by a circuit court are subject to de
novo review, when an action, such as an abuse and neglect case, is tried upon the
facts without a jury, the circuit court shall make a determination based upon the
evidence and shall make findings of fact and conclusions of law as to whether
such child is abused or neglected. These findings shall not be set aside by a
reviewing court unless clearly erroneous. A finding is clearly erroneous when,
although there is evidence to support the finding, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been
committed. However, a reviewing court may not overturn a finding simply
because it would have decided the case differently, and it must affirm a finding if
the circuit court’s account of the evidence is plausible in light of the record
4
In 2014, the Taylor County grand jury indicted petitioner on one count each of murder
and death of a child by a parent, guardian, or custodian by child abuse in connection with the
death of A.G.’s sibling. It appears from the record that petitioner’s murder trial was continued
from August 29, 2016, to an undetermined date.
2
viewed in its entirety.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223,
470 S.E.2d 177 (1996).
Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Upon our review, the Court finds
no error in the proceedings below.
First, petitioner argues that the circuit court erred in failing to continue the abuse and
neglect proceedings pending the outcome of his criminal matter. We disagree. Circuit courts are
specifically directed to proceed with abuse and neglect proceedings regardless of any related
proceedings. Rule 5 of the Rules of Procedure for Child and Abuse and Neglect Proceedings
clearly states that “[u]nder no circumstances shall a civil protection proceeding be delayed
pending the initiation, investigation, prosecution, or resolution of any other proceeding,
including, but not limited to, criminal proceedings.” We have also held that “[c]hild abuse and
neglect cases must be recognized as being among the highest priority for the courts’ attention.
Unjustified procedural delays wreak havoc on a child’s development, stability and security.” Syl.
Pt. 1, in part, In the Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991). Therefore, the
Court finds no error in the circuit court’s order denying petitioner’s motion to stay the abuse and
neglect proceedings.
Next, petitioner contends that the circuit court erred when it denied petitioner the
opportunity to cross-examine A.G.’s mother at the adjudicatory hearing. We disagree. This Court
has previously held that
“The West Virginia Rules of Evidence . . . allocate significant discretion
to the trial court in making evidentiary and procedural rulings. Thus, rulings on
the admissibility of evidence . . . are committed to the discretion of the trial
court. Absent a few exceptions, this Court will review evidentiary and procedural
rulings of the circuit court under an abuse of discretion standard.”
Syl. Pt. 1, in part, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995).The record
clearly shows that the circuit court relied upon other factors in adjudicating petitioner, rather than
A.G.’s mother’s testimony. A.G.’s testimony during the adjudicatory hearing was only offered to
support her stipulation to the allegations of abuse and neglect against her and had no bearing on
petitioner’s adjudication. Accordingly, we find no error in the circuit court’s decision to deny
petitioner the opportunity to cross-examine A.G.’s mother because her testimony related only to
her stipulated adjudication. As to the specific allegations against petitioner, the circuit court
heard testimony from a doctor indicating that the cause of death was “either shaking or
accelerating, slamming into some type of soft surface.” Furthermore, it is undisputed that
petitioner failed to testify regarding the injuries that resulted in the death of A.G.’s sibling.
Finally, petitioner argues that the circuit court erred in denying his motion for
reconsideration. In essence, petitioner’s motion sought a modification of the circuit court’s
dispositional order which terminated his parental rights to A.G. Rule 46 of the West Virginia
Rules of Procedure for Child Abuse and Neglect Proceedings lists the parties that may move for
modification of a dispositional order. That list specifically excludes parents whose parental rights
to the children at issue have been terminated. Further, this Court has previously held that
3
[a] person whose parental rights have been terminated by a final order, as
the result of either an involuntary termination or a voluntary relinquishment of
parental rights, does not have standing as a “parent,” pursuant to W. Va.Code §
49–6–6 (1977) (Repl.Vol.2004), to move for a modification of disposition of the
child with respect to whom his/her parental rights have been terminated.
Syl. Pt. 6, In re Cesar L., 221 W.Va. 249, 654 S.E.2d 373 (2007). Because petitioner’s parental
rights were terminated, he lacked standing to file the motion for modification of disposition.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
April 25, 2016, order is hereby affirmed.
Affirmed.
ISSUED: November 14, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
4
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83 F.3d 433
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
UNITED STATES of America, Plaintiff-Appellee,v.Sandra K. ABRAM, Defendant-Appellant.
No. 94-3434.
United States Court of Appeals, Tenth Circuit.
May 2, 1996.
Before PORFILIO and HOLLOWAY, Circuit Judges, and HOLMES,** District Judge.
ORDER AND JUDGMENT*
HOLLOWAY, Circuit Judge.
1
After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
2
This appeal arises out of a series of insurance fraud schemes by Defendant-Appellant Sandra K. Abram, her husband Wiley Keith Abram, George W. Turley, James A. Gravatt (Turley's nephew), Ginger E. Tyler (Turley's daughter, a.k.a. Ginger Karleskint), and Kenneth Callahan. Ms. Abram and the others were charged in a 69-count superseding indictment with various crimes arising out of the alleged schemes: mail fraud and aiding and abetting, 18 U.S.C. §§ 1341 and 2; conspiracy, 18 U.S.C. § 371; money laundering, 18 U.S.C. § 1956(a)(1)(A)(I); engaging in a monetary transaction in property derived from specified unlawful activity, 18 U.S.C. § 1957; failure to file an income tax return, 26 U.S.C. § 7203; and making false statements on Internal Revenue Service forms and aiding and abetting, 26 U.S.C. § 7206(1) and 18 U.S.C. § 2.
3
Sandra Abram pleaded guilty to one count of mail fraud and one count of making a false statement on a tax return. She was sentenced to 10 months' imprisonment and 3 years' supervised release, and ordered to pay restitution of $945 and a $100 special assessment.1 Ms. Abram was sentenced under the 1990 version of the sentencing guidelines, apparently because that version would be more favorable to her than the 1994 guidelines. Her offense level was determined to be 11 and her criminal history category I, which put her sentencing range at 8-14 months. As noted, the trial judge sentenced her to 10 months' imprisonment. She appeals, asserting two claims of error in her sentencing.2
4
* Abram first claims that she was not given a third point in reduction of offense level for acceptance of responsibility as was agreed in her plea agreement. Under the 1990 version of the guidelines, no third point was available, the maximum reduction available being only two offense levels. U.S.S.G. § 3E1.1(a) (1990). In the November 1992 amendments to the sentencing guidelines, a new § 3E1.1(b) was added which allowed for a one level decrease in addition to the two-level reduction for acceptance of responsibility available under § 3E1.1(a).
The new § 3E1.1(b) provides:
5
If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and the defendant has assisted authorities in the investigation or prosecution of his own misconduct by taking one or more of the following steps:
6
(1) timely providing complete information to the government concerning his own involvement in the offense; or
7
(2) timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for the trial and permitting the court to allocate its resources efficiently,
8
decrease the offense level by 1 additional level.
9
Ms. Abram asserts that she was entitled to the additional level reduction so that her total offense level would have been 10 rather than 11 and her guideline range would therefore have been 6-12 months rather than 8-14. We disagree.
10
The additional one level reduction provided for in new § 3E1.1(b) was not available to Ms. Abram because the additional reduction was unavailable under the 1990 version of the sentencing guidelines--the version under which Ms. Abrams was sentenced. Defendants cannot mix-and-match provisions from the various versions of the sentencing guidelines. In this circuit we adhere to the "one book" rule which "requires that a single Guidelines Manual govern a defendant's sentencing calculation in its entirety." United States v. Nelson, 36 F.3d 1001, 1004 (10th Cir.1994). Under the one book rule, Ms. Abram cannot claim the benefit of the amended § 3E1.1(b). Thus, there was no error in giving Ms. Abram only a two-level reduction for acceptance of responsibility.3
II
11
Ms. Abram next argues that the district court erred in refusing to give a split sentence--that is, a sentence of both imprisonment and community confinement or home detention. Section 5C1.1(d) of the 1990 guidelines provided:
12
If the minimum term of imprisonment in the applicable guideline range in the Sentencing Table is more than six months but not more than ten months, the minimum term may be satisfied by (1) a sentence of imprisonment; or (2) a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement or home detention according to the schedule in § 5C1.1(e), provided that at least one-half of the minimum term is satisfied by imprisonment.
13
Because the minimum term of imprisonment in the guideline range applicable to Ms. Abram was 8 months, the district judge could have imposed a split sentence or a straight sentence of imprisonment. He chose straight imprisonment.
14
Under 18 U.S.C. § 3742(a) we can review a defendant's appeal of her sentence under four circumstances, none of which is applicable to Ms. Abram's split sentence issue.4 Therefore we cannot review the district judge's decision not to impose a split sentence.
III
15
Accordingly, we DISMISS defendant-appellant's second claim of error for lack of appellate jurisdiction. We otherwise AFFIRM the sentence imposed for Ms. Abram and GRANT her counsel's request under Anders to withdraw.
**
The Honorable Sven Erik Holmes, United States District Judge for the Northern District of Oklahoma, sitting by designation
*
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
1
Ginger Tyler pled guilty to one count of mail fraud and aiding and abetting, and one count of false statements on tax returns. Kenneth Callahan pleaded guilty to one count of conspiracy. Neither Ms. Tyler nor Mr. Callahan is a party to this appeal
George Turley, Wiley Keith Abram, and James Gravatt were tried jointly. Turley was convicted of 2 counts of mail fraud, 17 counts of mail fraud and aiding and abetting, 1 count of conspiracy, 2 counts of money laundering, 4 counts of making false statements on tax returns, and 1 count of engaging in a monetary transaction in criminally derived property. Wiley Keith Abram was convicted of 8 counts of mail fraud and aiding and abetting, 2 counts of mail fraud, one count of conspiracy, 5 counts of money laundering, and three counts of making false statements on tax returns and aiding and abetting. James Gravatt was convicted of 3 counts of mail fraud and aiding and abetting, 4 counts of mail fraud, 7 counts of money laundering, 2 counts of making false statements on tax returns, and 1 count of failure to file an income tax return. The appeals of Turley (No. 94-3369), Wiley Keith Abram (No. 94-3370), and Gravatt (No. 94-3368) are being decided by a separate opinion of this court.
2
Abram's counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 744 (1967), stating his opinion that no meritorious issue can be raised on appeal and asking leave to withdraw
3
We note that even had Ms. Abram been eligible for the additional one level reduction provided for in § 3E1.1(b), she would not have qualified for it. The additional reduction is available only if "the offense level determined prior to the operation of
[ § 3E1.1(a) ] is level 16 or greater...." Ms. Abram's offense level before the operation of § 3E1.1(a) was only 13, and thus in any event she did not qualify for the additional one-level reduction.
4
Those four circumstances are (1) if the sentence was imposed in violation of law; (2) if the sentence was imposed as a result of an incorrect application of the sentencing guidelines; (3) if the sentence is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the maximum established in the guideline range; or (4) if the sentence was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable. See also United States v. Garcia, 919 F.2d 1478, 1479 (10th Cir.1990) ("a sentence within the Guidelines may not be appealed unless imposed in violation of law, or as a result of an incorrect application of the Guidelines.")
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703 N.W.2d 812 (2005)
PEOPLE v. LAWS.
No. 127949.
Supreme Court of Michigan.
September 28, 2005.
Application for Leave to Appeal.
SC: 127949, COA: 245454.
On order of the Court, the application for leave to appeal the December 14, 2004 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this court.
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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0859-18T1
HSBC BANK U.S., N.A., AS
INDENTURE TRUSTEE FOR
THE REGISTERED NOTEHOLDERS
OF RENAISSANCE HOME EQUITY
LOAN TRUST 2006-2,
Plaintiff-Respondent,
v.
LOVEY FRANCES C. DEVANEY,
Defendant-Appellant,
and
MR. DEVANEY, husband of LOVEY
FRANCES C. DEVANEY, CITY OF
ATLANTIC CITY, and STATE OF
NEW JERSEY,
Defendants,
and
WILLIAM G. BOLAND,
Defendant/Intervenor-Respondent.
__________________________________
Argued February 24, 2020 – Decided March 16, 2020
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey,
Chancery Division, Atlantic County, Docket No. F-
012161-16.
Daniel J. Gallagher argued the cause for appellant.
Kathleen McClure Massimo argued the cause for
respondent (Houser LLP, attorneys; Kathleen McClure
Massimo, on the brief).
Scott E. Becker argued the cause for intervenor-
respondent (Scott E. Becker, attorney; joins in the brief
of respondent HSBC Bank USA, N.A.).
PER CURIAM
In this mortgage foreclosure action, defendant Lovey Frances C. Devaney
appeals from a September 18, 2018 order denying her motion for reconsideration
of an August 10, 2018 order denying her motion to vacate default, the final
judgment, and the sheriff's sale. Having considered the record in light of the
applicable law, we are convinced the court did not abuse its discretion by
denying defendant's reconsideration motion, and we affirm.
I
In 2006, defendant executed a note in the principal amount of $100,000,
and secured payment of the note by executing a mortgage on residential property
A-0859-18T1
2
located in Atlantic City. The mortgage and note were subsequently assigned to
plaintiff, HSBC Bank, U.S., NA. In December 2013, the mortgage and note
were modified by a mortgage modification agreement between defendant and
plaintiff's loan servicer, Ocwen Loan Servicing, LLC (Ocwen).
Following defendant's default on the mortgage and note, plaintiff filed a
foreclosure complaint in April 2016. Defendant did not answer or otherwise
respond to the complaint, and default was entered on October 4, 2016. Plaintiff
moved for final judgment, which the court entered on June 14, 2017.
A scheduled sheriff's sale of the property was postponed to allow
plaintiff's and defendant's review of alternatives to foreclosure. In September
2017, Ocwen advised defendant her application for a loan modification trial plan
was approved. The plan required that defendant make monthly mortgage
payments in October, November, and December 2017.
In a December 18, 2017 letter, Ocwen advised defendant she was
approved for a loan modification. The letter further advised that, to accept the
loan modification agreement, defendant must make a monthly mortgage
payment and return a signed copy of the agreement by January 1, 2018. The
letter informed defendant "time is of the essence."
A-0859-18T1
3
Defendant forwarded the mortgage payment, which Ocwen received on
January 4, 2018, but Ocwen did not receive the signed loan modification
agreement by the January 1, 2018 deadline. By February 2, 2018, Ocwen still
had not received the signed loan agreement, and, on that date, it notified
defendant by letter that the loan modification was no longer available due to her
failure to provide the signed loan agreement by January 1, 2018.
On March 6, 2018, plaintiff sent defendant notices of sale of the property;
plaintiff sent them to the property address and an alternative address as well. 1
On March 22, 2018, William Boland purchased the property.2 He subsequently
recorded the deed with the Atlantic County Clerk's Office.
Defendant filed a motion to vacate default and the final judgment, but the
court denied the motion without prejudice because defendant failed to provide
notice to Mr. Boland. Defendant later refiled the motion with notice to Mr.
Boland.
1
Plaintiff obtained an alternative address for defendant through the Atlantic
County Tax Assessor, and served the pleadings, notices, and correspondence
throughout the foreclosure proceedings and loan modification process to the
property address and alternative address. Service of the complaint was also
effectuated through publication.
2
The Chancery Division later granted Mr. Boland's motion to intervene in the
foreclosure case.
A-0859-18T1
4
Defendant's Motion to Vacate Default and the Final Judgment
Defendant moved to vacate the October 4, 2016 default and the June 14,
2017 final judgment. The appellate record shows the motion was supported by
her counsel's certification, which refers to two annexed documents: a loan
modification agreement signed by defendant and dated January 24, 2018, and a
photocopy of a document purportedly showing "[d]efendant has been making
payments" on the mortgage. Although counsel's certification makes no
reference to any other documents, it also includes as an exhibit the February 2,
2018 letter from Ocwen to defendant entitled "DECISION ON YOUR
REQUEST FOR MORTGAGE ASSISTANCE."
In the appendix submitted in support of her appeal, defendant does not
include any other certifications supporting the motion to vacate, and her brief in
support of the motion makes no specific reference to any other certifications
supporting the motion. Plaintiff's brief in opposition to the motion to vacate,
however, referred to a certification of defendant that was apparently submitted
in support of the motion, but neither party included in the record on appeal. 3 We
3
As noted, the only certification supporting defendant's motion to vacate
included in the record on appeal is defendant's counsel's certification.
Defendant's counsel's certification did not establish any facts supporting the
motion because it merely identified documents annexed as exhibits about which
A-0859-18T1
5
therefore cannot consider it. See W.H. Indus., Inc. v. Fundicao Balancins, Ltda.,
397 N.J. Super. 455, 460 (App. Div. 2008) (noting a failure to include in the
appellate record a document submitted in opposition to a motion before the trial
court leaves "no basis" on which to review the trial court's ruling on the motion).
In any event, for reasons we address in our discussion of defendant's legal
arguments, the failure to include the certification in the record does not prevent
disposition of the issues raised on appeal.
Defendant's brief in support of the motion to vacate offered three
arguments. First, defendant argued plaintiff failed to properly serve her with
notice of entry of default in accordance with Rule 4:43-1 and mailed notice of
termination of the loan modification agreement to the wrong address. Second,
she argued the final judgment should be vacated because she established
excusable neglect and a meritorious defense as required by Rule 4:50-1. Her
excusable neglect and meritorious defense claims were based on assertions that
plaintiff relied on documents dated prior to December 2017; plaintiff's agent
defendant's counsel clearly did not have personal knowledge. See R. 1:6-6
(requiring that affidavits supporting a motion must be "made on personal
knowledge" and "set[] forth only facts which are admissible in evidence"). The
only certification based on defendant's personal knowledge in the appellate
record is defendant's August 28, 2018 certification, but that certification was
submitted in support of her motion for reconsideration of the court's August 10,
2018 order denying her motion to vacate.
A-0859-18T1
6
negotiated a loan modification agreement that "was effective December 1, 2017"
and accepted payments in accordance with the agreement; and plaintiff sent
notice "that the modification was rejected in February of 2018 to a vacant
building" when it knew she lived elsewhere.
Defendant's third argument in support of her motion to vacate the default
judgement was that Ocwen was liable for fraudulent concealment because it
allegedly failed to disclose the loan modification agreement would be void if
defendant failed to sign and return the contract by a certain date. Defendant did
not, however, include with her motion the December 18, 2017 letter from Ocwen
enclosing the loan modification agreement; explaining "time is of the essence
and to accept the modification"; and requiring that she sign and return the loan
medication agreement by January 1, 2018, and make the first payment by that
date.
Plaintiff supported its opposition to the motion with certifications from its
counsel and from an Ocwen senior loan analyst. In pertinent part, the
certifications generally described: (1) defendant's default on the mortgage and
note; (2) the means of service of the foreclosure complaint, the pleadings
submitted in support of the requests for entry of default and final judgment, and
the documents related to the mortgage loan modification trial period and
A-0859-18T1
7
agreement; (3) approval of defendant's participation in the mortgage
modification trial plan; (4) the conditions imposed for defendant's entry into the
loan modification agreement; (5) defendant's failure to comply with the
conditions precedent to entry into the loan modification, including her failure to
sign and return the loan modification agreement by the January 1, 2018 deadline;
and (6) the notification of defendant of her ineligibility for the loan modification
agreement due to her failure to return the agreement within the required
timeframe. The factual assertions in the certifications were supported by
references to documents annexed as exhibits.
After hearing argument, the court rendered a detailed written decision,
finding plaintiff's evidence established defendant was properly served with the
complaint and all other required pleadings and notices prior to entry of default,
the final judgment, and the sheriff's sale, and defendant presented no competent
evidence establishing excusable neglect for her failure to respond to the
complaint prior to entry of final judgment. The court also found defendant failed
to present any evidence of a meritorious defense to the foreclosure complaint.
The court rejected defendant's claim plaintiff accepted the loan
modification agreement by receiving the payment on January 4, 2018, because
Ocwen's December 18, 2017 letter stated time was of the essence and it would
A-0859-18T1
8
accept the loan modification only if defendant signed and returned the agreement
by January 1, 2018. The court found the evidence established defendant did not
return the agreement by January 1, 2018, and, therefore, plaintiff properly
"exercised [its] right to withdraw the [l]oan [m]odification [a]greement on
February 2, 2018." 4 The court entered an August 10, 2018 order denying
defendant's motion to vacate default, the final judgment, and the sheriff's sale.
Defendant's Reconsideration Motion
Defendant filed a motion for reconsideration of the court's August 10,
2018 order. In support of the motion, defendant submitted a certification replete
with factual assertions related to the destruction of the home on the property in
Superstorm Sandy; her employment history; the loan modification trial period;
and her execution of the loan modification agreement. Defendant also asserted
she did not receive notices and pleadings in the foreclosure proceeding and
correspondence related to the loan modification.
4
The court also determined defendant presented no evidence supporting the
vacation of the sheriff's sale, see First Trust NA v. Merola, 319 N.J. Super. 44,
49 (App. Div. 1999) (explaining standard for vacating a sheriff's sale), and it
found defendant received all required notices pertaining to the sale. Defendant
does not make any argument challenging the court's denial of her request to
vacate the sheriff's sale beyond her claim the court erred by denying her motion
to vacate default and the final judgment.
A-0859-18T1
9
In her brief supporting the motion, defendant reprised the arguments made
in support of her motion to vacate default and the final judgment. She claimed
the motion to vacate default should have been granted because plaintiff did not
properly serve her in accordance with Rule 4:43-1. Defendant again asserted
plaintiff was bound by the loan modification agreement because it accepted a
mortgage payment after January 1, 2018, and the facts presented in her
certification established excusable neglect and a meritorious defense permitting
vacation of the final judgment under Rule 4:50-1(a) and (f). She further argued,
for the first time, that plaintiff was bound by the loan modification agreement
under the doctrine of promissory estoppel.
In a detailed and thorough written decision, the court determined
defendant's reconsideration motion was founded on facts, documents, and
arguments that were available, but not presented, in support of the motion to
vacate default and the final judgment. The court observed that the documents
annexed to defendant's certification were inconsistent and unsupported by any
reliable evidence explaining their meaning or import, and that defendant
asserted a legal argument—plaintiff was bound by the loan modification
agreement under the doctrine of promissory estoppel—not asserted in support
of her motion to vacate. The court also determined defendant failed to satisfy
A-0859-18T1
10
her burden of establishing that its prior rejection of her claim she was not
properly served with the pleadings and notices during the foreclosure proceedin g
was palpably incorrect or based on an irrational basis. See D'Atria v. D'Atria,
242 N.J. Super. 392, 400 (Ch. Div. 1990). The court concluded defendant failed
to demonstrate an entitlement to reconsideration under Rule 4:49-2 and entered
a September 18, 2018 order denying defendant's motion. This appeal followed.
II
"Reconsideration is a matter within the sound discretion of the [c]ourt, to
be exercised in the interest of justice." D'Atria, 242 N.J. Super. at 401; Dover-
Chester Assocs. v. Randolph Twp., 419 N.J. Super. 184, 195-96 (App. Div.
2011). We review the denial of a motion for reconsideration under the abuse of
discretion standard. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div.
1996) (citing CNF Constructors, Inc. v. Donohoe Constr. Co., 57 F.3d 395, 401
(4th Cir. 1995)). An abuse of discretion occurs "when a decision is 'made
without a rational explanation, inexplicably departed from established policies,
or rested on an impermissible basis.'" U.S. Bank Nat'l Ass'n v. Guillaume, 209
N.J. 449, 467-68 (2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88,
123 (2007)).
A-0859-18T1
11
The basis for the motion for reconsideration focuses on "what was before
the court in the first instance." Lahue v. Pio Costa, 263 N.J. Super. 575, 598
(App. Div. 1993). Indeed, a motion for "[r]econsideration cannot be used to
expand the record and reargue a motion." Capital Fin. Co. of Del. Valley, Inc.
v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008). It "is designed to seek
review of an order based on the evidence before the court on the initial motion
. . . not to serve as a vehicle to introduce new evidence in order to cure an
inadequacy in the motion record." Ibid.; see also Palombi v. Palombi, 414 N.J.
Super. 274, 288 (App. Div. 2010) (finding a motion for reconsideration "is not
appropriate merely because a litigant is dissatisfied with a decision of the court
or wishes to reargue a motion . . ."). A court may "in the interest of justice,"
consider new evidence on a motion for reconsideration only when the evidence
was not available prior to the decision by the court on the order which is the
subject of the reconsideration motion. D'Atria, 242 N.J. Super. at 401; Fusco v.
Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div. 2002).
"Reconsideration should be used only for those cases which fall into that
narrow corridor in which either (1) the [c]ourt has expressed its decision based
upon a palpably incorrect or irrational basis, or (2) it is obvious that the [c]ourt
either did not consider, or failed to appreciate the significance of probative,
A-0859-18T1
12
competent evidence." Fusco, 349 N.J. Super. at 462 (quoting D'Atria, 242 N.J.
Super. at 401). The proper object of a motion for reconsideration is to correct a
court's error or oversight, and not to "re-argue [a] motion that has already been
heard for the purpose of taking the proverbial second bite of the apple." State
v. Fitzsimmons, 286 N.J. Super. 141, 147 (App. Div. 1995), certif. granted,
remanded on other grounds, 143 N.J. 482 (1996).
Our review of the record before the court on the motion to vacate is
hindered by defendant's failure to include in the record on appeal what appears
to be her certification supporting the motion to vacate. See Johnson v.
Schragger, Lavine, Nagy & Krasny, 340 N.J. Super. 84, 87 n.3 (App. Div. 2001)
("[T]he failure to supply pleadings that are essential to the proper consideration
of the issues hinders our appellate review."). Although we are not "oblig ed to
attempt review of an issue when the relevant portions of the record are not
included," Cmty. Hosp. Grp., Inc. v. Blume Goldfaden Berkowitz Donnelly
Fried & Forte, PC, 381 N.J. Super. 119, 127 (App. Div. 2005); see also R. 2:6-
1(a)(1) (stating the appendix "shall contain . . . such other parts of the
record . . . as are essential to the proper consideration of the issues"), based on
the record presented, we are able to determine the court correctly denied the
reconsideration motion without regard to whether the facts and documents
A-0859-18T1
13
supporting the reconsideration motion were first presented to the court on the
motion to vacate default and the final judgment.
Defendant does not argue the court erred by denying her motion for
reconsideration, at least in part, based on its finding the motion was based on
factual allegations and documents that were available, but not presented, in
support of the motion to vacate. See, e.g., Palombi, 414 N.J. Super. at 289
(explaining facts known to, but not presented by, a party do not support a request
for reconsideration of the order entered on the underlying motion). An argument
not briefed on appeal is deemed waived. See Drinker Biddle & Reath LLP v.
N.J. Dep't of Law & Pub. Safety, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011).
Thus, even though defendant fails to include in the record on appeal her
certification in support of the motion to vacate and, thus, effectively precludes
our consideration of all of the facts and evidence presented in support of that
motion, we affirm the court's determination defendant's reconsideration motion
should be denied because it was, at least in part, based on facts and documents
available, but not presented, when the court decided the motion to vacate. See
Palombi, 414 N.J. Super. at 289.
On appeal, defendant argues the court abused its discretion by denying the
reconsideration motion without considering evidence she provided in support of
A-0859-18T1
14
the motion. More particularly, defendant claims the court did not consider that
plaintiff's acceptance of a mortgage payment in January 2018 rendered the loan
modification agreement binding. Defendant also asserts the court failed to
consider that she did not receive Ocwen's February 2, 2018 letter because it was
sent to an address where defendant asserts plaintiff knew she had not lived since
November of 2012.
Defendant's arguments are undermined by the record. The court directly
addressed, and rejected, defendant's claim plaintiff's acceptance of the January
2018 payment created a binding loan modification agreement. The court
explained Ocwen's December 18, 2017 letter conditioned plaintiff's acceptance
of the loan modification on defendant's compliance with two conditions: (1)
making a mortgage payment by January 1, 2018; and (2) properly signing and
returning the agreement by January 1, 2018. The court determined that even if
defendant made a mortgage payment by January 1, 2018, there was no competent
evidence presented in either the motion to vacate or reconsideration motion
establishing defendant complied with the second prerequisite for her entry into
a binding loan modification agreement, and the competent evidence presented
by plaintiff established she did not.
A-0859-18T1
15
Defendant's counsel's certification supporting the motion to vacate
annexed a loan modification agreement dated January 24, 2018, that was
purportedly signed by defendant. However, that agreement could not have been
delivered to plaintiff prior to January 1, 2018, and therefore it actually supports
both plaintiff's position defendant failed to timely return the agreement and the
court's finding defendant did not satisfy an essential condition for her entry into
a binding loan modification agreement.
Moreover, defendant's certification in support of the motion for
reconsideration includes conflicting copies of the signed loan agreement. Both
copies bear her purported signature, but one is dated January 24, 2018, and the
other is dated December 28, 2017. In her certification, defendant asserts she
signed the loan agreement on December 28, 2017, but she does not state she
returned the loan agreement to plaintiff prior to January 1, 2018, as required by
Ocwen's December 18, 2017 letter. In other words, and as the court found, the
record on the motion for reconsideration was devoid of evidence defendant did
anything to deliver the signed agreement to plaintiff in accordance with the
"time is of the essence" January 1, 2018 deadline.
Similarly, defendant's claim the February 2, 2018 loan modification
agreement rejection letter was improperly sent to an address at which she had
A-0859-18T1
16
not lived since November 2012 ignores the record. The February 2, 2018 letter
was sent to the identical address as the December 18, 2017 letter enclosing the
loan modification agreement, and it is undisputed defendant received the
December 18, 2017 letter.
In sum, the record shows the court carefully considered defendant's
arguments and evidence supporting her reconsideration motion, and it made
appropriate findings and conclusions of law. R. 1:7-4. We reject defendant's
assertions to the contrary. The record further establishes defendant made no
showing that the court's order denying the motion to vacate rested on a palpably
incorrect or irrational basis, or that the court failed to consider or appreciate
probative, competent evidence. See Fusco, 349 N.J. Super. at 462. We therefore
discern no basis to conclude the court abused its discretion by denying the
reconsideration motion. See D'Atria, 242 N.J. Super. at 401.
Defendant also argues the court erred by rejecting her argument she was
entitled to vacate default and the final judgment by application of the doctrine
of promissory estoppel. It is undisputed defendant did not make that argument
in support of her motion to vacate. Therefore, the court properly rejected the
argument because it was first asserted by defendant on her motion for
reconsideration. See Medina v. Pitta, 442 N.J. Super. 1, 18 (App. Div. 2015)
A-0859-18T1
17
(rejecting, as support for a motion for reconsideration, a party's reliance on a
legal argument that was available, but not presented, in the underlying motion).
We also reject defendant's claim the court erred by denying the
reconsideration motion because she presented evidence on the motion to vacate
establishing excusable neglect and a meritorious defense under Rule 4:50-1.
The court expressly rejected this claim in its decision on the motion to vacate,
determining the competent evidence presented established defendant was
properly served with the complaint; she failed to provide any evidence
demonstrating excusable neglect for never responding to the complaint; and her
claimed meritorious defense—that plaintiff was bound by the loan modification
agreement—ignored that she did not comply with the conditions precedent to
her entry into a binding agreement with plaintiff.
Defendant failed to sustain her burden of demonstrating that the court's
rejection of her request for relief under Rule 4:50-1 on the motion to vacate was
palpably incorrect or irrational, or that the court failed to consider the pertinent
evidence. See Fusco, 349 N.J. Super. at 462. Thus, the court did not abuse its
discretion by rejecting the argument when it was presented on defendant's
reconsideration motion.
Affirmed.
A-0859-18T1
18
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411 F.Supp. 1036 (1976)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
T. MARZETTI COMPANY et al., Defendants.
Civ. A. No. 75-499.
United States District Court, S. D. Ohio, E. D.
January 16, 1976.
*1037 Marianne R. Smigelskis, Joseph H. Mitchell, Chicago, Ill., for plaintiff.
Michael P. Mahoney, Columbus, Ohio, Bruce E. Pence, Dayton, Ohio, for defendants.
MEMORANDUM AND ORDER
DUNCAN, District Judge.
Defendant T. Marzetti Company's motion to dismiss, the briefs and documents of counsel, and evidence adduced at hearing have given rise to the three concerns that the Court addresses hereinafter.
I
Notice of the Filing of the Charge
Earnest Moncrief filed a charge of racial discrimination against the T. Marzetti Company with plaintiff. The Company insists that it was not noticed of the filing of the charge as called for by Section 706(b) of Title VII [42 U.S.C. § 2000e-5(b)] which states:
Whenever a charge is filed by . . a person claiming to be aggrieved . . . the Commission shall serve a notice of the charge . . . on such employer within ten days . .
The Moncrief charge was received by the Cleveland Office of EEOC on December 23, 1970. The 1972 amendment, effective March 24, 1972, permitting the EEOC to sue, was made applicable to charges then pending. Pub.L. No. 92-261 § 14, 86 Stat. 103 (Mar. 24, 1972). The 10-day time period set forth in Section 2000e-5(b) therefore began to run on March 24, 1972. The Commission claims, and affidavits on file tend to substantiate, that a notice of Moncrief's charge was mailed to the defendant company. On March 29 the notice was mailed to 3838 Indiana Avenue, Columbus, Ohio, rather than to 3838 Indianola Avenue, Columbus, Ohio, the correct address of Marzetti. The Commission claims its records reveal that the letter of notice was mailed in an envelope with its return address, and further that the records do not indicate the letter was returned to the sender.
Marzetti claims that it has no knowledge of the receipt of the notice, that the person who would have received the letter in the then normal operation of the company is now deceased, and that if he had received the letter and if normal business procedure were followed other persons at the company would have been advised of the charge by the now deceased employee.
The Commission presented the testimony of Homer Burke, director of mail processing for the Columbus Post Office. He described the procedure used when a letter is incorrectly addressed.[1] If the postman is unable to deliver such a letter because he is unaware of the correct location of the addressee, then the letter is returned to the post office and given to persons known as reviewers. A reviewer, by using his training and experience, is often able to locate the proper address. If so, then the letter is delivered; if not, the letter is returned to its sender. The success of a reviewer in causing a proper delivery is dependent on his expertise and the difficulty of the problem presented. Burke, of course, had no personal knowledge of the fate of the letter here in question.
As the Court understands plaintiff's contentions, it claims that either through an inference from the facts or through the availability of a presumption there is proof that notice was received by Marzetti. Assuming the plaintiff's facts to be true, an inference of delivery would be unreasonable. Reaching such a result would require an improper stacking of inferences. I am unaware of any authority for a presumption arising to bridge the evidentiary gap present here. The fact that there is no record of an incorrectly addressed letter, bearing a return address, ever being returned to the sender, raises no presumption, *1038 in my opinion, that the letter was in fact delivered to the proper address.
Concluding, as I do, that the notice requirement of 42 U.S.C. § 2000e-5(b) has not been specifically complied with, does this defeat the Court's jurisdiction?
As amended in 1972, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., permits a civil action by the plaintiff Commission properly based on or growing out of a charge filed with the Commission by an individual.
When before the 1972 amendments individuals brought suit after having filed charges with the Commission, it was generally held that the Commission's failure to notify an employer of the filing of the charge as called for by Section 2000e-5(b) was not a jurisdictional prerequisite. See Johnson v. ITT-Thompson Industries, Inc., 323 F.Supp. 1258 (N.D.Miss.1971); Brown v. Twin County Electric Power Assn., 3 EPD ¶ 8163 (N.D.Miss.1970). These cases reflect two theories supporting a holding that compliance with the notice requirement is not jurisdictional. First, it could not have been legislatively contemplated that an individual's right to court access could be defeated by a Commission omission, and secondly, it is relatively clear that Congress did not intend that the Commission's conciliation efforts be a jurisdictional prerequisite of a Title VII suit. See Beverly v. Lone Star Lead Construction Co., 437 F.2d 1136 (5th Cir. 1971); Miller v. International Paper Co., 408 F.2d 283 (5th Cir. 1969). Presently, however, the Commission itself may sue, and conciliation efforts are necessary pre-suit endeavors.
In EEOC v. Kimberly-Clark Corp., 511 F.2d 1352 (6th Cir. 1975) the controversy was over a failure to receive a notice of the failure of conciliation as required under EEOC regulations, 29 C.F.R. §§ 1601.23, 1601.25. Defendant Kimberly-Clark in a lawsuit filed by EEOC was confronted with original charges filed with EEOC by three groups: the "Meek group", the "Dunavan group", and the "Williams group". Judge Celebrezze stated at page 1360 as follows:
The EEOC should, of course, follow its own procedures as it conciliates charges, in the hopes of avoiding suit. Notice that conciliation has failed gives an employer `one last chance to alter its position with regard to the issues being discussed during conciliation with the knowledge that the statutory scheme provides for litigation as the next step.' EEOC v. Louisville & N. R. R., 368 F.Supp. 633, 638 (N.D. Ala.1974), rev'd., 505 F.2d 610 (5th Cir. 1974).
The lack of notice that conciliation had failed on the `Williams group' charges, however, did not prejudice Appellee. The record shows that Appellee was given a proposed conciliation agreement on these charges but rejected it. Thereafter, conciliation continued on the Dunavan and `Meek group' charges, but was similarly unproductive. On December 4, 1972, notice was sent that conciliation had failed on the Dunavan and `Meek group' charges. Thus, Appellee was apprised of the imminence of suit concerning sex discrimination charges prior to Appellant's suit. It suffered no significant prejudice by not being notified of the failure of conciliation on the `Williams group' of charges as well, since these charges concerned substantially identical issues of company practices.
When an agency neglects to follow a procedural rule but its failure inflicts no significant injury on the party entitled to observance of the rule, the error does not prevent further administrative or judicial action. Instead, the error should be considered harmless. (Citations omitted.)
Obviously, the Kimberly-Clark facts are distinguishable from the facts of the case at bar. What is significant, however, is that the Court in Kimberly-Clark interpreted Congressional intent in amending Title VII in 1972 to require and encourage conciliation prior to an EEOC suit. EEOC v. Kimberly-Clark *1039 Corp., supra at 1357. The Court, after emphasizing the importance of conciliation in the new statutory scheme, nevertheless refused to hold that a failure to notice a defendant of conciliation impasse was a jurisdictional defect if sufficient harm did not result from the Commission's noncompliance with the regulation.
Notice of a failure of conciliation is of paramount importance. If a defendant is unaware that the EEOC claims a conciliation failure and a suit is filed, then there appears to be no way to avoid suit by conciliation, assuming that there in fact had been no effort to conciliate by EEOC. When noticed, a defendant, if no conciliation effort has been made, may insist on such an effort, or, if an effort has been made, and it failed, a person against whom the charge has been made may choose to make further adjustments rather than be sued. Therefore, this notice is extremely important; yet the Sixth Circuit instructs that a test for prejudice should be utilized.
In evaluating the importance of the notice of the filing of an individual's original charge, it does not logically follow that the notice of the filing of the charge is of more importance to the orderly achievement of the legislative purpose than the notice of failure to conciliate. It would be incongruous to hold that failure of the letter notice should be tested for prejudice while failure of the Section 2000e-5(b) notice should be held to be a jurisdictional necessity.
Marzetti maintains its first notice of the Moncrief charge was April 30, 1973. Plaintiff has submitted the affidavit of William C. Betcher, Southeast Regional Director of the Ohio Civil Rights Commission (OCRC). He states that the Moncrief charge was deferred to OCRC by the EEOC, and that on December 30, 1970, he sent a copy of the charge affidavit to the company. The affidavit further recites that he met with Mr. Lager and other company officials concerning Moncrief's claims of racial discrimination on February 19, 1971.
Moncrief charged that after being injured while employed by Marzetti he was medically released for light work, but was refused a light duty job because of his race. After investigation the EEOC determined that there was not reasonable cause to believe Moncrief was the victim of racial discrimination. However, by its determination dated October 16, 1973, plaintiff found sex discrimination which it claims to be like or related to Moncrief's charge.
Looking at this new aspect of Moncrief's original charge and considering all other matters presented, the Court is unable to perceive the nature of the harm to Marzetti. For the purpose of determining jurisdiction and whether the complaint sets forth facts forming a basis for relief, the Court finds no prejudice which requires that the motion to dismiss be sustained.
II
Defendant Marzetti claims that on January 24, 1974, Davis, an EEOC conciliator, called and demanded that Moncrief be given a position and insisted this was necessary, offering no alternative. Lazar, Marzetti's general counsel, testified that long before this conversation with Davis, Moncrief had returned to work for a period of time and then departed for unknown reasons and never returned. Lazar concluded that under these circumstances, Davis' insistence that Moncrief be returned to work as an absolute first requirement to further discussion in effect amounted to an EEOC failure to attempt conciliation. Davis, on the other hand, stated he made a good faith effort to attempt conciliation, but Lazar was opposed to any conciliatory action.
The Court believes that at this point in this proceeding there is sufficient evidence from which a reasonable fact finder could determine that a sufficient conciliation effort has been made by plaintiff. The Court finds in this instance that the conflict over whether or not there was a conciliation effort remains a fact question, but not such that it undermines *1040 this Court's jurisdiction to allow plaintiff to attempt to prove its case.
III
EEOC may sue on a charge filed with it by an individual, or on a charge like or reasonably related to and growing out of the original charge. See King v. Georgia Power Company, 295 F.Supp. 943 (N.D.Ga.1968). In Sanchez v. Standard Brands, 431 F.2d 455, 466 (5th Cir. 1970) the Court stated:
[T]he `scope' of the judicial complaint is limited to the `scope' of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.
Plaintiff should have the opportunity to prove that its sex discrimination contention is properly related to Moncrief's original charge. Nothing the Court has heard or read convinces it that no set of facts can be presented from which one could reasonably find the requisite likeness or relatedness. Plaintiff's allegations together with other matters presented sufficiently warrant that this issue survive defendant's motion.
The parties should be mindful that the Court today rules on a motion to dismiss. The issues herein discussed are significant threshold questions with some jurisdictional overtones. Lawsuits brought by the EEOC will often present some of the issues that now concern us. Caution and common sense require that factual conflicts must be resolved utilizing weight and credibility tools. Indeed, it would be judicially awkward to try such issues plenarily before trial.
The motion is denied as to all branches.
Is is so ORDERED.
NOTES
[1] The error in the address is readily discernible since there are no street numbers as high as 3838 on Indiana Avenue in Columbus, Ohio.
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
DILIO ANTONIO ESCARRIA-MONTANO, )
)
Plaintiff, )
)
v. ) Civil Action No. 10-1389 (RWR)
)
UNITED STATES OF AMERICA, )
)
)
Defendant. )
__________________________________________)
MEMORANDUM OPINION
Plaintiff, proceeding pro se, is a federal prisoner at the Federal Correctional Institution in
Big Spring, Texas. He sues under the Torture Victim Protection Act of 1991 (“TVPA”), Pub. L.
No. 102-256, 106 Stat. 73 (codified at 28 U.S.C. § 1350, note1), and Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for injunctive relief and
monetary damages.2 By Order of August 18, 2010, the Bivens claim was dismissed pursuant to
the screening provisions of 28 U.S.C. § 1915A for failure to state a claim, but the TVPA claim
was allowed to proceed against the United States. See Mem. Op. and Order [Dkt. # 4]. The
United States now moves to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of
1
See Historical and Statutory Notes, Sec. 1. Short Title.
2
Plaintiff also invokes 18 U.S.C. § 2340(2)(A), but that provision is part of a federal
criminal statute that states that “[n]othing in this chapter shall be construed as . . . creating any
substantive or procedural right enforceable by law by any party in any civil proceeding.” 18
U.S.C. § 2340B.
subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim upon which relief can be
granted. Because plaintiff has not shown that he exhausted his administrative remedies under
either the TVPA or the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680,
the motion to dismiss under Rule12(b)(1) will be granted.
BACKGROUND
Plaintiff is a Columbian national who pled guilty under a plea agreement to conspiracy to
possess with intent to distribute cocaine while on board a vessel and is serving a sentence of 168
months. U.S. v. Escarria-Montano, No. 8:06-cr-499-T-23TGW, 2010 WL 3927677, at *1 (M.D.
Fla. Oct. 4, 2010). The instant complaint arises from plaintiff’s alleged injuries sustained during
an encounter on November 29, 2006, between a Panamanian fishing vessel that he was on and a
United States vessel, which resulted in his arrest. The facts as recounted by the court presiding
over plaintiff’s collateral proceeding under 28 U.S.C. § 2255 are as follows:
On or about November 29, 2006, the defendant along with seven other
coconspirator crew members, all Colombian nationals, were traveling in the Eastern
Pacific on the fishing vessel the Mary Valencia. The crew of the Mary Valencia had
departed the coast of Colombia carrying a cargo of 108 bales of cocaine. They were
spotted approximately 240 nautical miles from the nearest land mass, the Malpelo
Island, in international waters. The Mary Valencia was flying under a Panamanian
flag and had markings of registration on it. The Panamanian Government was
contacted to verify registration. The Panamanian Government confirmed Panamanian
registration of the vessel and granted authority to board and search the Mary
Valencia. The Colombian Government was also contacted when the crew asserted
Colombian citizenship. The Colombian Government authorized jurisdiction over the
prosecution of 6 out of the 8 crew members, to include the defendant.
On November 29, 2006, a Helo team launched from the USS Thatch spotted
the Mary Valencia during a routine patrol of the Eastern Pacific. The Mary Valencia
changed it's [sic] course in an effort to elude the Helo team's efforts to hail her. The
USS Thatch then proceeded to intercept the Mary Valencia.
As the USS Thatch approached the Mary Valencia it went dead in the water
and the crew members were observed attempting to scuttle the vessel by setting it on
fire. As a result there was a violent explosion that resulted in the severe injuries of
several of the crew members. The crew members jumped into the water and were
2
rescued by a USS Coast Guard Boarding Team dispatched from the USS Thatch for
the purpose of rendering assistance to the crew members in the water. Once they
accounted for all of the crew members in the water, the Coast Guard Boarding Team
boarded the Mary Valencia to search for other crew members who may have been
injured and still on the boat and to assess the damage.
A search of the vessel revealed that the crew had attempted to set the boat on
fire by stuffing the fuel tank with fuel soaked rags and pouring gasoline on the deck
of the boat. A further search revealed a hidden compartment on the Mary Valencia
in which was found 108 bales of a substance that tested positive for cocaine.
The Defendant's presence on the vessel was part of an unlawful agreement
with others to possess with intent to distribute five (5) or more kilograms of cocaine.
The Mary Valencia was seized with approximately 2700 kilos of cocaine on board
and the Defendant and 5 co-conspirators were taken into custody by the Coast Guard
with the Middle District of Florida being the place at which the defendant and
co-defendants entered the United States. The other two crew men most severely
injured in the explosion were returned to Colombia for treatment and prosecution.
Escarria-Montano, 2010 WL 3927677, at *1. In this action, plaintiff alleges that he suffered
first, second and third degree burns on various parts of his body from the explosion, Compl. ¶ 14,
and that he was unconscious for three days and hospitalized for 15 days. Id. at ¶¶ 18-19. He
advances the following causes of action: “Misuse of Force,” id. at 7-8; “Denial of Due Process,”
id. at 9-10; and “Denial of Medical Care,” id. at 12.3 In addition to declaratory and injunctive
relief, plaintiff seeks $1.9 million in compensatory damages and more than $1.2 million in
punitive damages. Id. at 19.
DISCUSSION
Defendant argues that plaintiff’s claim is barred by sovereign immunity. The United
States, as sovereign, is immune from suit absent its explicit consent to be sued. Lehman v.
Nakshian, 453 U.S. 156, 160 (1981); Kugel v. United States, 947 F.2d 1504, 1506 (D.C. Cir.
3
The 21-page complaint and its various attachments are far from clear. To add to the
confusion, the complaint contains two sets of page numbers. Where necessary, plaintiff’s page
numbers appearing at the top right-hand corner of the 21-page complaint are cited.
3
1991). A waiver of “sovereign immunity must be unequivocally expressed in statutory text” and
will be “strictly construed, in terms of its scope, in favor of the sovereign.” El-Shifa Pharm.
Indus. Co. v. United States, 402 F. Supp. 2d 267, 270 (D.D.C. 2005) (quoting Lane v. Pena, 518
U.S. 187, 192 (1996)).
Section 1350 of Title 28 of the United States Code (“Alien’s action for tort”) vests in the
district court “original jurisdiction of any civil action by an alien for a tort only, committed in
violation of the law of nations or a treaty of the United States.” However, that statute, commonly
referred to as the Alien Tort Claims Act (“ATCA”) or the Alien Tort Statute (“ATS”), has been
interpreted as “strictly jurisdictional [in] nature”; it does not itself “create a statutory cause of
action.” Sosa v. Alvarez-Machain, 542 U.S. 692, 713 (2004). Section 1350 is “intended as
jurisdictional in the sense of addressing the power of the courts to entertain cases concerned with
a certain subject.” Id., 542 U.S. at 714; see id. at 720 (explaining “that Congress intended [§
1350] to furnish jurisdiction for a relatively modest set of actions alleging violations of the law of
nations.”); Arias v. Dyncorp, 517 F. Supp. 2d 221, 227 (D.D.C. 2007) (“It is clear that the ATCA
may be used against corporations acting under ‘color of [state] law,’ or for a handful of private
acts, such as piracy and slave trading.”) (citations omitted).
Torture is a subject the courts are authorized to address under § 1350, inasmuch as the
TVPA creates a cause of action against an individual who subjects another to torture or
“extrajudicial killing” while acting “under actual or apparent authority, or color of law, of any
foreign nation[.]” 28 U.S.C. § 1350, note § 2(a); see Ali Shafi v. Palestinian Auth’y, 686 F.
Supp. 2d 23, 26 (D.D.C. 2010), aff’d, No. 10-7024, 2011 WL 2315028 (D.C. Cir. June 14, 2011)
(“Torture is one of the rare situations in which courts have recognized a common law cause of
4
action under the ATS.”) (citation omitted). Unlike the FTCA, under which the United States has
consented to be sued for certain offenses but not others, neither the TVPA nor the ATCA
contains language authorizing a lawsuit against the United States. See Al-Zahrani v. Rumsfield,
684 F. Supp. 2d 103, 113 (D.D.C. 2010) (agreeing with government’s certification under Westfall
Act (28 U.S.C. § 2679(d)) that “plaintiffs cannot sue any of the individual[] [federal employees]
under the ATCA and that plaintiffs' sole remedy lies against the government under the FTCA”);
Bieregu v. Ashcroft, 259 F. Supp. 2d 342, 354 (D.N.J. 2003) (“[W]ith respect to Plaintiff's claims
against Defendants in their official capacities, all courts that have addressed the issue agree that
the ATCA does not itself waive the sovereign immunity of the United States.”) (citing cases); see
also Ali Shafi, 686 F. Supp. 2d at 28 (“Defendants correctly assert that Ali may not plead a cause
of action against non-natural persons under the TVPA.”). But even if this lawsuit is maintainable
under the TVPA, see Arias, 517 F. Supp. 2d at 226-27 (resolving merits of TVPA claim in favor
of U.S. contractor), the TVPA, like the FTCA, requires the exhaustion of administrative remedies
prior to judicial review. See 28 U.S.C. § 1350, note § 2(b) (“A court shall decline to hear a claim
under this section if the claimant has not exhausted adequate and available remedies in the place
in which the conduct giving rise to the claim occurred.”).
Plaintiff has not shown that he has exhausted his administrative remedies, and the
exhaustion requirement is jurisdictional. See Mohammed v. Rumsfield, No. 07-5178, 2011 WL
2462851, at *7 (D.C. Cir. June 21, 2011) (concluding that “[t]he district court [] properly
dismissed the [unexhausted] ATS claims under FRCP 12(b)(1) for lack of subject matter
5
jurisdiction.”).4 Therefore, in the absence of subject matter jurisdiction, defendant’s motion to
dismiss under Rule 12(b)(1) will be granted.
CONCLUSION
Because subject matter jurisdiction over this action is lacking, the complaint will be
dismissed. A separate Order accompanies this Memorandum Opinion.
_________/s/_____________
RICHARD W. ROBERTS
DATE: July 12, 2011 United States District Judge
4
Even if exhaustion has occurred, dismissal would be appropriate under Rule 12(b)(6)
because the facts do not support a finding of torture as defined by 28 U.S.C. § 1350, note, § 3(b);
see Arias v. Dyncorp, 517 F. Supp. 2d 221, 226 (D.D.C. 2007) (discussing definition). Plaintiff’s
alleged injuries resulted from the explosion set by his fellow crew members. U.S. v. Escarria-
Montano, 2010 WL 3927677, at *1. “An act of torture would not include ‘the unforeseen or
unavoidable incident of some legitimate end[,]’ ” Arias, 517 F. Supp. 2d at 226 (citation
omitted), and the facts do not establish that plaintiff was “in defendant[’]s custody or physical
control” when he was injured. Id. Furthermore, among the attachments to plaintiff’s complaint
is an Order of United States Magistrate Judge Philip R. Lane of the Northern District of Texas,
dismissing plaintiff’s case -- including a claim under § 1350 arising from the same set of facts
presented here -- as frivolous. Compl. Attach. D. Therefore, the current claim, having been
previously adjudicated on the merits, is also subject to dismissal as procedurally barred under
either the doctrine of res judicata or that of collateral estoppel.
6
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241 F.3d 652 (9th Cir. 2001)
JAMES S. SCOTT, Director of the Thirty-Second Region of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellant,v.STEPHEN DUNN & ASSOCIATES, Respondent-Appellee.
No. 00-15416
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted October 3, 2000Filed February 2, 2001
[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
Aaron N. Karsh and Ellen A. Farrell, National Labor Relations Board, Washington, D.C., for the petitioner-appellant.
Harry Lewis, Richard J. Curiale, Carmen Plaza de Jennings, and Sarah L. Harpham, Curiale, Dellaverson, Hirshchfeld, Kelly & Kramer, LLP, San Francisco, California, for the respondent-appellee.
Arthur Krantz, Leonard, Carder, Nathan, Zuckerman, Ross, Chin & Remar, LLP, Oakland, California, for Amicus Curiae International Longshore and Warehouse Union Local 6.
Appeal from the United States District Court for the Northern District of California Maxine M. Chesney, District Judge, Presiding. D.C. No.C99-4547
Before: Mary M. Schroeder, Chief Judge, Joseph T. Sneed and Richard A. Paez, Circuit Judges.
Opinion by Judge Paez; Dissent by Judge Sneed
PAEZ, Circuit Judge:
1
The Regional Director of the National Labor Relations Board appeals the district court's refusal to enter an interim bargaining order pursuant to section 10(j) of the National Labor Relations Act, 29 U.S.C. S 160(j) ("NLRA"). The Regional Director contends that the district court abused its discretion in finding that (1) the Union did not have the support of a majority of the employees of Stephen Dunn & Associates ("SD&A") prior to the employer's commission of numerous unfair labor practices; (2) the full Board is not likely to issue a bargaining order upon conclusion of the underlying administrative proceeding; and (3) the balance of hardships does not favor issuing the requested equitable relief.
2
In considering this appeal, we are mindful that the purpose of a section 10(j) injunction is to preserve the authority of the National Labor Relations Board ("Board") pending final administrative adjudication.
3
If an employer faced with a union demand for recognition based on a card majority may engage in an extensive campaign of serious and pervasive unfair labor practices, resulting in the union's losing an election, and is then merely enjoined from repeating those already successful violations until final Board action is taken, the Board's adjudicatory machinery may well be rendered totally ineffective.
4
Seeler v. Trading Port, Inc., 517 F.2d 33, 37-38 (2d Cir. 1975). Additionally, we have explained that "the public interest is an important factor in the exercise of equitable discretion. . . . In S 10(j) cases, the public interest is to ensure that an unfair labor practice will not succeed because the Board takes too long to investigate and adjudicate the charge." Miller v. California Pacific Med. Ctr., 19 F.3d 449, 460 (9th Cir. 1994) (en banc). Guided by these principles, we find that the district court applied the wrong legal standard under our decision in Miller and that the balance of the hardships tips in favor of the Regional Director. Therefore, we reverse and direct the district court to enter an interim bargaining order.
5
* SD&A is a California corporation engaged in telemarketing and telefundraising activities. It operates a facility located in Berkeley, California. Most of the 97 non-managerial employees at the Berkeley location work as callers who solicit donations from people they contact by telephone on behalf of SD&A's client organizations. Other employees work as verifiers who confirm the donations solicited by the callers or monitors who listen in on fundraising calls in order to rate the caller's performance. SD&A also employs four data processors.
6
Harlan Cross, an employee of SD&A, was dissatisfied with the pay and benefits offered by the company. Cross had heard that the employees of one of SD&A's competitors were represented by a union. In January 1999, after discussing with "about 15 or 20 of his coworkers" his concerns about working conditions and unionization, Cross contacted Jerome Martin, an organizer for the International Longshore and Warehouse Union, Local 6 ("ILWU" or "Union").
7
The employees of SD&A held their first union organizing meeting on January 28, 1999. Shortly thereafter, the employees formed an "organizing committee" that ranged from six to fourteen SD&A workers. This committee had the primary responsibility for soliciting union authorization cards from their coworkers.
8
Throughout the organizing campaign, SD&A vigorously contested the Union's efforts to represent its employees. In fact, the company's antiunion campaign began within a week of the Union's first organizing meeting. In an effort to dissuade employees from joining the Union, SD&A held weekly "captive audience" meetings from early February 1999, through the date of the election.1 The presentations made at these meetings were the basis for many of the unfair labor practices alleged by the Regional Director. The uncontradicted record establishes, and the district court found, that at these meetings, SD&A management
9
(1) "threaten[ed] employees with more onerous working conditions if the [U]nion became their representative;"
10
(2) "impliedly promise[d] to remedy employee work complaints if they voted against representation;"
11
(3) and "impliedly promise[d] to increase benefits if the employees voted against Union representation."
12
In addition to these weekly meetings, the company also engaged in more serious antiunion behavior. First, SD&A attempted to "pack" the bargaining unit and dilute the strength of the pro-union majority by rapidly hiring additional unneeded employees, including 24 in the month before the cutoff date for voting eligibility.2 Second, SD&A unilaterally granted an across the board wage increase for the first time in two and a half years to discourage unionization. Finally, on the day of the election, SD&A provided new ergonomic chairs to all employees.3
13
The company also engaged in the other isolated unfair labor practices detailed in the district court's order. The seincluded instances of interrogation of employees regarding their union sympathies, refusal to allow the distribution of union literature, enforcing dormant work rules in order to discourage employees from supporting the Union, and at least one instance of surveillance of Union activities.
14
By March 24, 1999, the Union nevertheless had secured majority support. The Union presented 56 signed authorization cards from a bargaining unit of 97 employees. SD&A contends that eight of these cards are invalid because six of the cards were secured through misrepresentation, two of the cards were revoked (including that of one employee who also alleged improper solicitation) and one of the cards was signed by a supervisor. SD&A supported these contentions with affidavits of the card signers. If the company were to succeed on all of its challenges (i.e., if all eight of the disputed cards were held invalid), the Union would be one card short of a majority. On the other hand, then, the Regional Director need only show that one of the disputed cards is arguably valid to establish a majority.
15
Upon asserting majority status, the Union proposed a procedure whereby a neutral, third party would verify the validity of the authorization cards and, upon verification, SD&A would recognize the Union. The company declined. In April 1999, the Union demanded that SD&A recognize the Union and begin the process of collective bargaining. Again, the company refused. A representation election was held on June 3, 1999. Although 56 employees had signed authorization cards, only 31 voted in favor of union representation. Fiftythree employees voted against.
16
On June 10, 1999, the Union filed charges with the Board alleging that SD&A's antiunion campaign violated sections 8(a)(1), (3), and (5) of the NLRA.4 On July 30, 1999, the Regional Director issued an unfair labor practice complaint. On October 30, the Regional Director filed this action, seeking interim injunctive relief under section 10(j) pending completion of the Board administrative proceedings. The Regional Director also sought an interim bargaining order. The district court ordered SD&A to cease and desist from engaging in unfair labor practices, to post copies of the order at SD&A's facility, file an affidavit with the court certifying that SD&A is in compliance with the order, and grant the Regional Director reasonable access to the company's facility in order to monitor compliance with the posting requirement. The court, however, denied the request for an interim bargaining order. The Regional Director appeals.
II
17
We will reverse a denial of a section 10(j) injunction where the district court "abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact." Miller, 19 F.3d at 455.
III
18
At the outset, SD&A argues that a district court, exercising jurisdiction pursuant to section 10(j), has no authority to impose an interim bargaining order where a union has yet to be certified as the collective bargaining agent of the employees. SD&A contends that the purposes of section 10(j) are best served when a court preserves an employer's nonunion status pending ultimate resolution of the underlying unfair labor practices by the Board. Both the language and legislative history of section 10(j), however, indicate that a district court should order the relief necessary to prevent those persons who have violated the act from "accomplishing their unlawful objectives before being placed under any legal restraint." S.Rep. No. 105, 80th Cong., 1st Sess. 8, 27 (1947). In certain cases, that relief will include the issuance of an interim bargaining order. "Almost from the inception of the Act . . . , it was recognized that a union did not have to be certified as the winner of a Board election to invoke a bargaining obligation; it could establish majority status by other means under the unfair labor practice provision of S 8(a)(5)." National Labor Relations Board v. Gissel Packing Co. , 395 U.S. 575, 596-97 (1969).
19
Section 10(j) provides that in response to a petition from the Regional Director for injunctive relief, the district court "shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper." 29 U.S.C. S160(j). We have previously held that a district court adjudicating a section 10(j) request should rely on traditional equitable principles to determine whether interim relief is appropriate. Miller v. California Pacific Med. Ctr., 19 F.3d 449 (9th Cir. 1994) (en banc). Under Miller, a district court acting pursuant to section 10(j) operates as a traditional court of equity while "bearing in mind that the underlying purposes of section 10(j) are to protect the integrity of the collective bargaining process and to preserve the [Board]'s remedial power while the Board resolves the unfair labor practice charge." Id. at 452.
20
The traditional section 10(j) relief -a cease and desist order -will not always effectively protect the Board's remedial power. See, e.g., National Labor Relations Board v. Electro-Voice, Inc., 83 F.3d 1559, 1575 (7th Cir. 1996) ("Ordering an employer to cease his illegal activity, without more, will in some cases preserve the fallout of the illegal activity without preserving the Board's remedy."); Seeler, 517 F.2d at 37-38. To permit illegal employer conduct to go unaddressed while the Board's corrective machinery grinds toward resolution would subvert the underlying purposes of section 10(j) and allow those who commit unfair labor practices to reap the benefits of that conduct. Interim bargaining orders are therefore sometimes necessary "to preserve the status quo pending litigation" before the Board. S.Rep. No. 105, supra; Seeler, 517 F.2d at 38.
21
In arguing that section 10(j) does not authorize interim bargaining orders prior to certification, SD&A asks us to follow the rule articulated by the Fifth Circuit in Boire v. Pilot Freight Carriers, Inc., 515 F.2d 1185 (5th Cir. 1975). In Boire, the court affirmed a district court's refusal to issue an interim bargaining order, reasoning that an interim bargaining order "would create by judicial fiat a relationship that has never existed." Boire, 515 F.2d at 1194.
22
While recognizing that injunctive relief under section 10(j) is intended to preserve the status quo pending final action by the Board, the Boire court erroneously identified the status quo to be preserved as that period before any union organizing activity took place: "The signing of union cards precipitated the entire controversy; hence the status quo ante was that period prior to any union activity when [employees] were unrepresented." Id. In contrast, as noted above, this Circuit has held that section 10(j) serves a dual purpose: the protection of the collective bargaining process and the preservation of the Board's remedial power. Miller, 19 F.3d at 452. The signing of union cards by employees is a preliminary and necessary step towards any collective bargaining relationship. The Boire holding -by nullifying the legal actions that advance collective bargaining along with the illegal actions that subvert it -actually hinders rather than protects the collective bargaining process.
23
An approach more consistent with the legislative purpose behind section 10(j) has been adopted by the majority of the circuits to address this issue. Rather than return employees to their status before they contacted the union and began the process of organizing, a district court should "restore the status quo as it existed before the onset of unfair labor practices." Seeler, 517 F.2d at 38; Electro-Voice, 83 F.3d 1559 (affirming an interim bargaining order prior to certification where employer fired one-third of the workforce in response to union organizing effort); Asseo v. Pan American Grain Co., 805 F.2d 23, 28 (1st Cir. 1986) (citing Seeler and affirming the grant of an interim bargaining order as "a just and proper means of restoring the pre-unfair labor practices status quo"); Levine v. C & W Mining Co., 610 F.2d 432 (6th Cir. 1979) (rejecting Boire and holding that the rule as articulated in Seeler is "more in accord with the purposes of the Act").
24
In sum, the language of section 10(j), the legislative purpose behind the measure, and the weight of legal authority all compel the conclusion that a district court has the authority to issue an interim bargaining order prior to certification of the union. Therefore, we next consider whether an interim bargaining order should have been entered in this case.
IV
25
The Regional Director is ultimately seeking a permanent bargaining order after full administrative proceedings before the Board. To obtain a bargaining order, the Regional Director must show that the Union achieved majority status and that the impact of the unfair labor practices would make holding a new election fruitless. See, e.g. , Pay'n Save Corp. v. National Labor Relations Board, 641 F.2d 697, 702 (9th Cir. 1981).
26
Here, the Regional Director asks for an interim bargaining order to take effect while final Board action is pending. In Miller v. California Pacific Med. Ctr., 19 F.3d 449 (9th Cir. 1994) (en banc), this Circuit established clear standards to guide courts in fashioning interim relief appropriate to assure the effectiveness of bargaining orders later issued by the Board.
27
We conclude that the Regional Director has made the showing required by Miller.
28
* To secure relief under section 10(j), the Regional Director must show "either (1) a combination of probable success on the merits and the possibility of irreparable harm or (2) the existence of serious questions going to the merits, the balance of hardships tipping sharply in its favor, and at least a fair chance of success on the merits." Id. at 456 (quoting Senate of Cal. v. Mosbacher, 968 F.2d 974, 977 (9th Cir. 1992)). This formulation reflects the traditional "sliding scale" of equity jurisprudence where "the required degree of irreparable harm increases as the probability of success decreases." United States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 174 (9th Cir. 1987); United States v. Nutri-cology, Inc., 982 F.2d 394, 398 (9th Cir. 1992) ("where the government can make only a colorable evidentiary showing of a violation, the court must consider the possibility of irreparable injury").
29
In Miller, we modified this traditional formulation in one respect. In the context of a section 10(j) petition, the court must evaluate the traditional equitable criteria "through the prism of the underlying purpose of section 10(j), which is to protect the integrity of the collective bargaining process and to preserve the Board's remedial power." Miller, 19 F.3d at 459-60. The Board's ability to meaningfully adjudicate disputes arising within its jurisdiction must be balanced against the respondent's showing of hardship. Id. at 460.
B
30
In Gissel, the Supreme Court held that the Board may order an employer to recognize and bargain with a union even when employees have not chosen union representation through the normal election procedure. These "bargaining orders" are appropriate in two limited circumstances. First, when an employer has engaged in such "outrageous" and "pervasive" unfair labor practices "that a fair and reliable election can't be held," the Board may order bargaining even absent a showing of majority support for the Union. 395 U.S. at 613-14. Second, the Board may order bargaining when the Union shows that it once had a majority and that its support was "undermined" by unfair practices that "impede[d ] the election process." Id. at 614.
31
The Regional Director argues that SD&A's conduct falls into the latter category. Consequently, he must show both that the Union secured the support of a majority of SD&A's employees and that SD&A subsequently engaged in unfair labor practices that undermined the Union's majority and impeded the election process. In the context of a section 10(j) petition, the Regional Director need not prove these contentions by a preponderance of the evidence (as he would have to do in an administrative proceeding). Rather, to satisfy the "likelihood of success" prong of the traditional equitable test, he need only show "a better than negligible chance of success." Electro-Voice, 83 F.3d at 1568 (citing Kinney v. Int'l Union of Operating Engineers, Local 150, AFL-CIO,994 F.2d 1271, 1279 (7th Cir. 1993)); Miller, 19 F.3d at 460 ("as an irreducible minimum, the moving party must demonstrate a fair chance of success on the merits") (citation and alteration omitted). If the Regional Director satisfies this minimal requirement, Miller instructs the district court to balance the hardships resulting from the Director's requested relief. 19 F.3d at 460.
1. Likelihood of success on the merits
32
a. Majority status
33
Whether the Regional Director provided sufficient evidence of majority status turns on the validity of the eight disputed union authorization cards. If SD&A shows the cards are invalid, the Regional Director would fail the first prong of the Gissel test for issuance of a bargaining order. But the Regional Director need only show that one card is valid to satisfy the likelihood of success prong under Miller. Faced with conflicting evidence concerning the validity of the cards, the district court found that the Regional Director had not made a sufficient showing of majority support. The court, however, applied an erroneous legal standard and based its decision on clearly erroneous findings of fact. Bogovich v. Sandoval, 189 F.3d 999, 1001 (9th Cir. 1999) ("A district court may abuse its discretion if it does not apply the correct law or if it rests its decision on a clearly erroneous finding of material fact").
34
A conflict in the evidence does not preclude the Regional Director from making the requisite showing for a section 10(j) injunction. Levine, 610 F.2d at 435 (regional director met his burden of proof despite existence of conflict in the evidence); Asseo, 805 F.2d at 25 (affirming interim bargaining order issued even though company affidavits contradicted Board's evidence). To hold, as the district court did here, that the existence of disputed facts prevents the issuance of section 10(j) relief is to apply a standard equivalent to (or even more demanding than) the preponderance of the evidence standard.5 Under Miller , the Regional Director "can make a threshold showing of likelihood of success " simply by presenting "some evidence" in support of his contention "together with an arguable legal theory." Miller , 19 F.3d at 460.
35
The evidence supporting the Regional Director's contention of majority support easily surpasses this minimal showing. The cards themselves are unambiguous. Each card states simply that the card signer "authorized the above named Union to represent me in collective bargaining with my Employer." In Gissel, the Supreme Court held thatemployees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature. There is nothing inconsistent in handing an employee a card that says the signer authorized the union to represent him and then telling him that the card will probably be used to get an election.
36
Gissel, 395 U.S. at 606-07; accord Pay'n Save Corp., 641 F.2d at 703. To refute the validity of a card on the basis of misrepresentation, therefore, SD&A must show that the card signer was told "that his card will be used for no purpose other than to help get an election." Gissel , 395 U.S. at 609 n.27 (citing Levi Strauss & Co., 172 NLRB No. 57, 68 L.R.R.M. 1338, 1341-42 & n.7 (1968)).
37
Six SD&A employees assert through affidavits that this is what they were told. But one of those employees, Wushena Edwards, also testified to the following when deposed:
38
Q: How is it that you came to sign that card?
39
A: Because I was told that signing this will give us the right to vote in the election.
40
. . .
41
Q: Did he say that the card was going to be first used to ask the employer to recognize the union?
42
A: Can't recall.
43
Q: Did he say that if the employer didn't recognize the union, there would be an election?
44
A: Can't recall.
45
The employee who solicited Ms. Edwards' card testified that he solicited each card with a "standard kind of approach . . . let people know that we had to move for direct recognition here, don't think it's going to work, we have a fallback of an election if that doesn't work. . . ." He further testified that his conversation with Ms. Edwards about the union authorization card did not differ from this standard approach.6
46
We faced indistinguishable facts in National Labor Relations Board v. Anchorage Times, 637 F.2d 1359 (9th Cir. 1981), where we upheld a bargaining order issued by the Board. The company opposed enforcement on the grounds that the union had never secured majority status."The Company's primary argument [was] that some fourteen of the authorization cards were invalid because the employees who signed them believed that the cards only requested an election and did not authorize the Union to represent them in collective bargaining." 637 F.2d at 1368. In support of this contention, the Company presented seven employees who "recall being told that the cards would be used to obtain an election but fail to recall if they were told that it was the only purpose of the card." Id. at 1369. The court held that the Board had presented sufficient evidence to support its decision that the seven cards were valid. Id.
47
Like the employees in Anchorage Times, Ms. Edwards alleges that she was told the card would be used for the purpose of an election, but cannot recall if she had been told anything else about the cards. Based on Gissel and Anchorage Times, there is sufficient evidence in the record for a finding that Ms. Edwards' card is valid. Consequently, there is little doubt that the evidence surpasses the minimal standard applicable in section 10(j) proceedings that the Regional Director "demonstrate a fair chance of success on the merits." Miller, 19 F.3d at 460.
48
Since the Regional Director needs only one card to establish the Union's majority, Ms. Edwards' card is sufficient to find in his favor on this issue. The straight-forward language of the other five cards contested on the ground of misrepresentation and the affidavits of the solicitors that they made no such misrepresentations further persuade us that the Regional Director has established a sufficient likelihood of success on the issue of majority status.7 Therefore, we now turn to the question of whether the unfair labor practices compel the granting of an interim bargaining order.
49
b. Severity of the unfair labor practices
50
The district court also held that the Regional Director had not satisfied his burden of showing that the unfair labor practices so undermined the Union's majority strength as to eliminate the possibility of a fair election in the future and compel an interim bargaining order.8 Again, the district court imposed on the Regional Director an inappropriately high level of proof -a level inconsistent with the Miller standard. Consequently, the district court abused its discretion when it concluded that the Regional Director had not sufficiently shown a likelihood of success on the merits to justify an interim bargaining order. We again note that the likelihood of success test under Miller is minimal and that the "Board can make a threshold showing of likelihood of success by producing some evidence to support the unfair labor practice charge together with an arguable legal theory." Miller, 19 F.3d at 460. The Regional Director satisfied the Miller standard by demonstrating a "fair chance" that the Board is likely to issue a bargaining order subsequent to full adjudication of the merits.
51
We recognize that a bargaining order is an extraordinary and disfavored remedy for violations of the NLRA. Gissel 395 U.S. at 602 ("[S]ecret elections are generally the most satisfactory -indeed the preferred -method of ascertaining whether a union has majority support."); National Labor Relations Board v. Chatfield-Anderson Co., 606 F.2d 266, 268 (9th Cir. 1979) ("A bargaining order based on authorization cards is less desirable than the free expression of employees in a fair election."). Because a bargaining order is both an extreme and unusual exercise of the Board's authority, the Board must support the implementation of this remedy with " `specific findings as to the immediate and residual impact of the unfair labor practices on the election process. . . .' " National Labor Relations Board v. Pacific Southwest Airlines, 550 F.2d 1148, 1152 (9th Cir. 1977) (quoting Peerless of America, Inc. v. National Labor Relations Board, 484 F.2d 1108, 1118 (7th Cir. 1973)). Thus, whether the Board will issue a bargaining order in the underlying administrative proceeding turns on the effect of the alleged unfair labor practices on a subsequent representation election. This inquiry is not mechanistic, but rather requires consideration of the specific facts of each case. In other words, in the wake of SD&A's illegal activity, is it possible for employees to make a free and informed choice regarding union representation?
52
In arguing that the present controversy will not ultimately result in a bargaining order, SD&A highlights three aspects of the present controversy that counsel in favor of the lesser remedy of a new election. First, SD&A correctly contends that bargaining orders are more likely to issue when unfair labor practices have been visited upon small units of employees. National Labor Relations Board v. Bighorn Beverage , 614 F.2d 1238, 1243 (9th Cir. 1980) ("The probable impact of unfair labor practices is increased" and therefore a bargaining order more appropriate "when a small bargaining unit . . . is involved.").
53
Bargaining orders are not limited to small units. In Anchorage Times, we enforced a bargaining order on an employer with a 181-person bargaining unit. 637 F.2d at 1362. And we will not apply the principle in these circumstances. In Philips Industries, Inc., 295 NLRB 717, 719 (1989), the Board refused to issue a bargaining order because the affect of the unfair labor practices "can more easily be dissipated" in a unit of 90 employees where only 10 percent of the employees had been affected by the employer's unlawful campaign. But in this case, the most serious alleged violation is the grant of benefits to the entire bargaining unit. These benefits included an across-the-board wage increase and the provision of new, improved equipment. Because these violations affected the entire 97-person bargaining unit, there is no basis to contend that this violation will not continue to impact the deliberations of all of the eligible voters. The size of the bargaining unit did not lessen the impact of the unfair labor practices here.
54
SD&A next contends that a high rate of turnover in the industry will mitigate the damage caused by the unfair labor practices and permit a fair future election. Because many of those employees subjected to the unlawful behavior no longer work at the company, the lingering effect of the unfair labor practices will be minimal. Cf. National Labor Relations Board v. Western Drug, 600 F.2d 1324, 1326-27 (9th Cir. 1979) (reversing bargaining order because Board failed to consider effect of employee turnover on fairness of a subsequent election). Even assuming that high turnover counsels in favor of a new election rather than a bargaining order,9 SD&A has presented no evidence that would allow us to assess the level of turnover at the company. Without some evidence in the record that SD&A employees who experienced the antiunion campaign are no longer employed with the company, the factor of high turnover is of no relevance to the present question. Cf. Cell Agricultural Manufacturing Co., 311 NLRB 1228, 1229 (1993) (burden on the employer to demonstrate why employee turnover should preclude the imposition of a bargaining order).
55
Finally, SD&A contends that the alleged unfair labor practices are simply not sufficiently egregious to warrant the imposition of a bargaining order. The Supreme Court in Gissel identified a "category of minor or less extensive unfair labor practices, which, because of their minimal impact on the election machinery, will not sustain a bargaining order." Gissel, 395 U.S. at 615. SD&A argues that the alleged violations fall into this category of de minimis infractions that neither impacted the outcome of the election nor prevent a free and fair second election from being held. In support of this theory, SD&A emphasizes those actions that it did not take. For example, SD&A notes that it did not discharge, demote, suspend, or lay off suspected union supporters. Nor did it threaten a business closure if the Union were to organize successfully.
56
However, a wage increase (or grant of a benefit) designed to impact the outcome of a representation election is a "hallmark" violation of the NLRA and is as "highly coercive" in its effect as discharges or threats of business failure. National Labor Relations Board v. Jamaica Towing Inc., 632 F.2d 208, 213 (2d Cir. 1980). And, indeed, the Regional Director can point to several cases where grants of benefits formed the basis of a Gissel bargaining order. See National Labor Relations Board v. WKRG-TV, Inc., 470 F.2d 1302 (5th Cir. 1973); Skaggs Drug Stores, Inc. v. National Labor Relations Board, No. 72-2309, 1973 WL 3163 (9th Cir. Aug. 23, 1973) (per curiam). The Regional Director further argues that the specific benefits granted by SD&A were calculated to maximize their coercive effect. For example, the ergonomic chairs -long sought after by members of the bargaining unit -were provided on the day of the election. In previously upholding a Board bargaining order, we have noted that
57
the wage increases, which were granted immediately prior to the election, are the most significant among the many unfair labor practices cited by the Board. It is unlikely that those who received such benefits, or who heard of them, will forget that it is the Com pany that has the final word on wage increases and decreases.
58
Anchorage Times, 637 F.2d at 1370; see also National Labor Relations Board v. Exchange Parts Co., 375 U.S. 405, 409 (1964) (noting effectiveness of a "fist inside the velvet glove": "[e]mployees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged"). We conclude, then, that the unfair labor practices in this case were severe enough to justify an interim bargaining order.
59
Therefore, despite the disfavored nature of bargaining orders, the Regional Director has made a stronger case than SD&A that it will prevail after final proceedings before the Board. Further, the standard to be applied in a request for section 10(j) relief is distinct from that applied by the Board. The district court in a section 10(j) proceeding is not asked to make an independent determination as to whether a bargaining order is appropriate. Rather, in order for the Regional Director to satisfy the "likelihood of success " test under Miller, he need only present a "fair chance of succeeding on the merits." The existence of at least one "hallmark" violation of the NLRA (i.e., the wage increase) is sufficient to satisfy this minimal test and allow a consideration of the balance of hardships resulting from an interim bargaining order. The district court abused its discretion by not applying the less demanding Miller test and instead definitively concluding that the violations were not sufficient to justify an interim bargaining order.
2. Balance of the hardships
60
Because the district court held that the Board had not shown a likelihood of success under Gissel, it did not assess whether the failure to issue an injunction would cause irreparable harm to the Board's remedial authority. Nor did it undertake to balance the hardships of an injunction on the litigants. We are persuaded, however, that the Regional Director sufficiently showed a "fair chance of succeeding on the merits," the propriety of the interim bargaining order depends on properly balancing the hardships between the litigants.
61
Under Miller, the court will presume irreparable injury once the Board has established a likelihood of success on the merits. 19 F.3d at 460. If, however, the Regional Director has "only a fair chance" of success before the Board, then the court must balance the hardships resulting from the issuance of the requested relief. "Where the Board and the respondent each make a showing of hardship, the district court must exercise its sound discretion to determine whether the balance tips in the Board's favor." Id.
62
Although the Regional Director has made a stronger showing than SD&A that he will prevail before the full Board, we are not prepared to say that the showing is so strong as to justify a presumption of irreparable harm. For example, as noted above, we are presented with no evidence as to employee turnover in the bargaining unit and the possible impact that it would have on a new election. Additionally, we do not know whether the Union has been able to make any recovery from the unfair labor practices since the imposition of the cease and desist order. So having concluded that the Regional Director has "a fair chance" of success, we move to the balance of the hardships inquiry. We continue to keep in mind that under Miller, the "traditional equitable criteria [are to be] considered in the context of . . . the underlying purposes of section 10(j), to protect the integrity of the collective bargaining process and to preserve the Board's remedial powers." 19 F.3d at 461.
63
The Regional Director argues that the balance of hardships tips in his favor for two reasons. First, the employees who showed a desire to organize by signing union cards are being deprived of the benefits of a union contract while the litigation proceeds. Second, a final Gissel remedy will be ineffective without an interim bargaining order because sup-port for the Union will continue to wane in the absence of temporary relief. Therefore, according to the Regional Director, the fundamental purpose of section 10(j) -to preserve the Board's remedial power -requires an interim bargaining order in the present case.
64
The hardships identified by the Regional Director are significant enough to justify an interim bargaining order. "The value of the right to enjoy the benefits of union representation is immeasurable in dollar terms once it is delayed or lost. If the Court does not issue a bargaining order, the Company will have succeeded for now in its efforts to resist the union organizing effort. . . ." Levine v. C & W Mining Co., 465 F.Supp. 690, 694 (N.D. Ohio), aff'd 610 F.2d 432 (6th Cir. 1979). An interim bargaining order based on the Union's achievement of majority status also serves the policy concerns of the NLRA, which we must consider. "Fixing the status quo at any subsequent time [when union support has waned] would reward the company for violating the law, while fixing the status quo at any previous time [prior to majority status] would unfairly penalize the Union. . . ." Id. at 693. The risk to SD&A from a bargaining order, in contrast, is minimal. The company is not compelled to do anything except bargain in good faith. 29 U.S.C. S 158(d); National Labor Relations Board v. Western Wirebound Box Co., 356 F.2d 88 (9th Cir. 1966).
65
The Regional Director also argues that absent an interim bargaining order, support for the Union will continue to wane. When the Board finally does grant relief, "the [U]nion may find that it represents only a small fraction of the employees." Int'l Union of Electrical, Radio & Machine Workers, AFLCIO v. National Labor Relations Board, 426 F.2d 1243, 1249 (D.C. Cir. 1970). With only limited support, moreover, the Union will be unable to bargain effectively regardless of the ultimate relief granted by the Board. Consequently, the Regional Director fears that the Board's remedial authority will be undermined without the protection of an interim bargaining order. This possibility is properly considered when balancing the hardships of interim relief under section 10(j). Miller, 19 F.3d at 460 ("[I]n considering the balance of hardships, the district court must take into account the probability that declining to issue the injunction will permit the allegedly unfair labor practices to reach fruition and thereby render meaningless the Board's remedial authority."); Asseo, 805 F.2d at 27 (holding that "evidence was such that the district court could properly believe that, without an interim bargaining order, the Union would suffer irreparable harm").
66
We must consider seriously the possibility that the Union cannot recover from SD&A's unfair labor practices without court intervention. While there is no evidence of ongoing antiunion activity in this case, the Sixth Circuit has rejected
67
the contention that it [is] error to grant an injunction because there was no showing that the unfair labor practices were continuing. The short answer to this argument is that the antiunion campaign was so effective that the movement was quickly stifled. . .. [T]he continuation of unfair labor practices [is] not a prerequisite for temporary relief.
68
Levine, 610 F.2d at 436 (affirming district court imposition of temporary bargaining order to an uncertified union). We agree with the reasoning of the Sixth Circuit. We will not require the Union to engage in a new round of organizing to rebuild its support among SD&A employees. This conclusion is in accord with decisions in other circuits that the union should not bear the burden of recovering from the company's illegal activities. The company should not "profit[ ] through the delay that [administrative] review entails: all during this litigation it has not had to bargain collectively over wages or other financial aspects of employment." Int'l Union, 426 F.2d at 1250. Instead, as the Second Circuit concluded in Seeler, an interim bargaining order is appropriate if a company undermined a union's achievement of majority status before an election.
69
A final Board decision ordering a new election will leave the union disadvantaged by the same unfair labor practices which caused it to lose the first election. Even if the Board finally orders bargaining . . . , the union's position in the plant may have deterio rated to such a degree that effective representation is no longer possible.
70
Seeler, 517 F.2d at 37-38; see also Int'l Union, 426 F.2d at 1249 ("Employee interest in a union can wane quickly as working conditions remain apparently unaffected by the union or collective bargaining. When the company is finally ordered to bargain with the union some years later, the union may find it represents only a small fraction of employees.").
71
In this case, the Union had obtained as many as 56 valid authorization cards, but received only 31 votes in the election. Once the election was scheduled, SD&A used illegal practices to weaken union support. On the day of the union election, SD&A provided new ergonomic equipment that had previously been requested by employees. The company even promised that more benefits would follow, if they voted against the Union. A number of employees admitted that the company's tactics had made them afraid to join the Union. Just as it is illegal to fire employees or otherwise sanction them because they are union supporters, it is also illegal for SD&A to offer incentives to employees in exchange for their rejection of the Union. 29 U.S.C. S 157. The nature of SD&A's labor practices, as well as the record, supports the conclusion that such practices played a major part in this drop of support. To refuse to issue an interim bargaining order inthese circumstances would allow SD&A to take advantage of the declining support for the Union and result in significant harm to the Board's remedial authority.10
72
A bargaining order merely requires the employer to bargain collectively and in good faith with a union. 29 U.S.C. 158(d); National Labor Relations Board v. Western Wire bound Box Co., 356 F.2d 88 (9th Cir. 1966). The only hardship described by SD&A is the cost of time and money involved in bargaining with the Union, which might not ultimately be certified. This alleged hardship alone cannot defeat an interim bargaining order. First, this is a burden that falls on both parties. Bargaining is costly to both sides, and the cost to SD&A should not be presumed to be more significant than the cost to the Union. Rather, "[t]he most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created." Int'l Union, 426 F.2d at 1251. Second, there is always a risk -even if the company were to bargain with a certified union -that bargaining will ultimately be unsuccessful. There is no more uncertainty now than if the administrative proceedings result in a bargaining order. Lastly, the Supreme Court has endorsed the practice of looking to authorization cards to gauge employee support for a union. "[T]he cards, though admittedly inferior to the election process, can adequately reflect employee sentiment when [the election ] process has been impeded. . . ." Gissel, 395 U.S. at 603. At one time, before the Union felt the effects of SD&A's campaign, there was considerable employee support for unionization. Because there were as many as 56 signed authorization cards, we will not assume that bargaining with the uncertified Union will be fruitless. See, e.g., id. at 610 (observing that the Board has authority to enter a bargaining order "even where it is clear that the union, which once had possession of cards from a majority of the employees, represents only a minority when the bargaining order is entered"). Successful bargaining could restore the employees' interest in the Union. See, e.g., id. at 612 ("a bargaining order is designed as much to remedy past election damage as it is to deter future misconduct"). The cost of potentially unsuccessful bargaining does not tip the balance in favor of SD&A.
73
We therefore reject the proposition in Scott v. Expresso Limousine Serv., Inc., No. 92-20334 SW, 1993 WL 181474, at *8 (N.D. Cal. May 28, 1993), that "[t]he potential for wasted resources engendered by a bargaining order outweighs any hardship the union might suffer by having to wait for a decision from the [Board]." This blanket assertion would lead logically to the conclusion that an interim bargaining order is never appropriate. Every company in SD&A's position would rely on the potential for wasted resources. If that concern is sufficient to defeat an interim bargaining order, then employers will always succeed.
74
Such an outcome directly contradicts our Miller decision, which counsels that "in considering the balance of hardships, the district court must take into account the probability that declining to issue the injunction will permit the allegedly unfair labor practices to reach fruition and thereby render meaningless the Board's remedial authority." 19 F.3d at 460; see also S.Rep. No. 105, 80th Cong., 1st Sess. 8, 27 (1949) (quoted in Miller, 19 F.3d at 455 n.3).
75
If the potential for wasted resources always defeats an interim bargaining order, employers will have an incentive to campaign against union organization. A subsequent order from the Board to bargain will have little to no impact if support for the union has already been destroyed. As the district court concluded in Levine, in contrast to the court in Expresso, "[A]ny harm to the Company from the bargaining order is offset by the value of lending relief to the Union and the employees now, rather than limiting the extent of possible future relief to inadequate make-whole compensation.. . ." 465 F.Supp. at 694; compare Scott v. Expresso Limousine Serv., Inc., No. 92-20334 SW, 1993 WL 181474 (N.D. Cal. May 28, 1993). The Levine decision better reflects the policies served by section 10(j) injunctions.
76
Therefore, as SD&A fails to present any other evidence of hardship beyond that faced by any company ordered to bargain with a union, we find that the balance of hardships tips in favor of the Regional Director. We reverse and direct the district court to enter an interim bargaining order.
77
REVERSED and REMANDED.
Notes:
1
These meetings are termed "captive audience" meetings because they are held during work time and employees are required to attend.
2
SD&A had also hired an additional 38 new employees in February and March despite a January 27 decision to lay off about 15 callers because of a post-Christmas lull and the company's poor financial outlook.
The company contends that it did not actually attempt to "pack" the bargaining unit and points out that its 1999 hiring was not out of line with its 1998 hiring. We are unpersuaded. There is no evidence that the 1998 hiring followed an explicit decision to lay off a number of employees. Second, the district court explicitly enjoined packing the bargaining unit, suggesting it found the evidence of packing persuasive. Furthermore, a finding of packing is not necessary to support the granting of an interim bargaining order because of the total number and severity of unfair labor practices in this case.
3
One of the primary complaints of SD&A employees was management's failure to provide comfortable and safe equipment. The provision of new chairs addressed one of the key issues that prompted employees to organize. SD&A also had provided new ergonomic headsets about 10 days earlier.
4
Under these sections, "[i]t [is] an unfair labor practice for an employer -(1) to interfere with, restrain, or coerce employees in the exercise of the rights [to join labor unions and bargain collectively]; . . . (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization[;] . . . [and] (5) to refuse to bargain collectively with the representatives of his employees . . . ." 29 U.S.C. SS 158(a)(1), (3), (5).
5
In holding that the Regional Director had not satisfied his burden for a showing of majority support, the district court stated:
There are these lingering questions raised by these other authorizations or the ones that had been brought to the Court's attention. . . . I think that's the problem that I have here in trying to look at their testimony, their declarations, and what you end up with is just what the person has pointed out, it's a credible question of credibility. I am not prepared to make on the showing that has been made thus far, however, the further finding that the petitioner has shown a majority in this case.
6
The same employee solicited Robin Weaver. As we conclude that there is insufficient evidence of misrepresentation to Ms. Edwards, we believe that Robin Weaver's card is likely valid as well.
7
The Regional Director has also demonstrated a fair chance of success with regard to the two cards that were allegedly revoked. Because "the [Board] may properly disregard attacks on authorization cards made after employer unfair labor practices" have begun, Pay'n Save Corp., 641 F.2d at 704, we will not regard those two cards as revoked. The company's first antiunion activity took place on January 28, 1999. The alleged revocations took place after that date.
8
Although the district court refused to issue an interim bargaining order, it did find that the Regional Director had shown a likelihood of success on the underlying unfair labor practice charges. The court consequently enjoined those illegal practices. This order has not been challenged on appeal. The remaining issue, therefore, is not whether the Regional Director presented sufficient evidence that SD&A engaged in unfair labor practices, but only whether the Board will find that the unfair labor practices were sufficiently pervasive to justify an interim bargaining order.
9
There is some disagreement in this Circuit over whether the Board should consider events subsequent to the actual unfair labor practices in determining the propriety of a bargaining order. Compare Western Drug, 600 F.2d at 1326-27 with National Labor Relations Board v. Bakers of Paris, Inc., 929 F.2d 1427 (9th Cir. 1991). Since SD&A presented no evidence of relevant subsequent events, there is no need to address this issue in the present case.
10
Our previous decision in National Labor Relations Board v. Peninsula Ass'n for Retarded Children and Adults, 627 F.2d 202, 204-05 (9th Cir. 1980), is distinguishable. There, we held that a bargaining order was not warranted because the unfair labor practices in the case had ceased four months before the election date. The impact of such dated violations was of questionable severity. Here, however, the unfair labor practices continued right up until the day of the election. The fact that a company's tactics have not continued since the election, as explained above, does not counsel against awarding the interim bargaining order. Rather, the lack of a union presence in the workplace as a result of an election can only serve to further undermine support for that union.
SNEED, Circuit Judge, dissenting:
78
The principles of labor law that guide the disposition of this case are clear and, for the most part, accurately stated by the majority. When faced with an effort by employees to unionize, the employer must abide by certain principles of neutrality. It may not "interfere with, restrain, or coerce employees in the exercise of" their rights "to form, join or assist labor organizations." 29 U.S.C. SS 157, 158(a). Granting benefits to employees, threatening the termination of current benefits, and treating union supporters differently than other employees all contravene this fundamental principle. See NLRB v. Exchange Parts Co., 375 U.S. 405 (1964); P.R. Mallory & Co. v. NLRB, 389 F.2d 704 (7th Cir. 1967).
79
Furthermore, under Miller v. Cal. Pac. Med. Ctr. , 19 F.3d 449 (9th Cir. 1994) (en banc), the Regional Director need satisfy only a minimal burden to justify the grant of interim relief pending final adjudication of alleged unfair labor practices. The issue this case presents is whether the illegal actions of the employer justify the extreme remedy of a bargaining order.
80
This case involves a relatively small employer whose violations of the Act were relatively minor. A court-ordered demand to bargain, under the facts of this case, imposes a significant hardship on both employees and employers. When that hardship is measured against the threat to the Board's remedial authority in this case, the balance does not tip decidedly in favor of the Board. On these grounds, the district court's judgment should be affirmed, a bargaining order denied, and a lesser sanction imposed.
I. Bargaining Orders
81
The bargaining order is the most severe sanction available to remedy employer unfair labor practices. "A bargaining order is not a snake-oil cure for whatever ails the workplace; it is an extreme remedy that must be applied with commensurate care." Avecor, Inc. v. NLRB, 931 F.2d 924, 938 (D.C. Cir. 1991) (internal citation omitted). The preferred remedy for employer unfair labor practices that affect the outcome of a representation election is to order a new election. NLRB v. Gissel Packing Co., 385 U.S. 575, 602 (1969); accord L'Eggs Products, Inc. v. NLRB, 619 F.2d 1337 (9th Cir. 1980). This case does not meet the test required for issuing a bargaining order. "Only where there is a substantial danger that employees will be inhibited by the employer's conduct from adhering to the union should a bargaining order issue." J.J. Newberry Co. v. NLRB, 645 F.2d 148, 154 (2nd Cir. 1981) (emphasis added).
82
In short, the "extraordinary and drastic remedy of forced bargaining . . . is reserved for only the most unusual cases." Be-Lo Stores v. NLRB, 126 F.3d 268 (4th Cir. 1997) (internal citations omitted). The NLRB must support its request for such extraordinary relief with "specific findings as to the immediate and residual impact of the unfair labor practices on the election process." NLRB v. Pacific Southwest Airlines, 550 F.2d 1148, 1152 (9th Cir. 1976) (quoting Peerless of America, Inc. v. NLRB, 484 F.2d 1108 (7th Cir. 1973)).
83
The Regional Director has failed to present sufficient evidence to support the "extreme" remedy of forced bargaining. SD&A very likely committed several unfair labor practices, most of which were de minimus in nature and would not justify imposition of a bargaining order. Gissel , 385 U.S. at 615. Only its unilateral grant of benefits could possibly justify a bargaining order. NLRB v. Anchorage Times Publishing Co., 637 F.2d 1359, 1370 (9th Cir. 1981); But see Skyline Distributors v. NLRB, 99 F.3d 403, 411 (D.C. Cir. 1996) (unilateral grant of economic benefits will almost never be sufficient to justify a bargaining order). Any perceived need for a bargaining order is outweighed by the hardship such an order would impose on employees of SD&A and on the company itself.
A. Hardship on Employees
84
The majority ignores the hardship that a bargaining order will impose on the employees of SD&A. The core principles underlying the National Labor Relations Act (NLRA) are "freedom of choice and majority rule in employee selection of representatives." Conair Corporation v. NLRB , 721 F.2d 1355, 1381 (D.C. Cir. 1983); 29 U.S.C. S 159(a) (union representation must be based on majority rule); 29 U.S.C.S 157 (granting employees the right to engage in or refrain from engaging in union activity). A bargaining order, by its nature, infringes these fundamental statutory rights.
85
It is true that in this case credible evidence exists that a majority of the employees of SD&A signed authorization cards indicating support for the union. Nonetheless, a substantial majority of those same employees subsequently voted against union representation. The majority attributes this turnabout to a series of unfair labor practices committed by the employer. However, it must be remembered that SD&A ran a vigorous campaign against the union. This campaign consisted, for the most part, of perfectly lawful attempts to dissuade its employees from joining the ILWU. I see no justification for the majority's holding that the full margin of victory for the company -some twenty-two votes -is attributable to the company's unfair labor practices. Neither the evidence of waning employee support for the union nor the nature of the employer's conduct supports such a finding.
86
In fact, a fair reading of the record indicates that the employer succeeded in convincing employees that union representation was inadvisable. Many employees came to see the collective bargaining process as a risky or even futile endeavor. Others grew tired of the conflict and strain of the union campaign and feared that such conflict would continue if the union won the election. Still others, for a variety of reasons, believed that a union workplace would not be in their own best interest. There is little doubt that the employer encouraged these concerns during weekly meetings and individual discussions with employees. Such conduct, however, is not illegal. It is part of the full and wide open discussion of "all of the arguments for, as well as against, unionization." Excelsior Underwear, 156 NLRB 1236, 1241 (1966).
87
In addition to its lawful attempts at persuasion, SD&A engaged in unfair labor practices. That fact alone is not sufficient to justify a bargaining order. It is the nature and effect of the unfair labor practices that is important. Gissel, 395 U.S. at 600 (violations must be "likely to destroy the union's majority and seriously impede the election" to justify a bargaining order). The actual unfair labor practices at issue in this case are not the type that normally justify a bargaining order.
88
There were, after all, no firings of union supporters nor threats of business closure were the union to win the election. The employer violated the Act when it gave employees the benefits they sought. The most serious allegation against SD&A is that it provided new equipment and higher salaries for its employees. It also promised that other benefits would follow if the union lost the election. If the union won the election, alternatively, SD&A managers allegedly told employees that they would have to start punching a time clock, they wouldn't be permitted to receive their paychecks early, and they would lose the "benefit" of lengthy cigarette breaks. The alleged discrimination against union supporters consisted of a single verbal reprimand of a union supporter and a single instance where the company prohibited the distribution of union literature to employees while they were at their work stations. I do not dispute that several of these actions, if proven, violated the NLRA. I question, however, whether the company's substantial margin of victory can be attributed to these acts, and, consequently, whether a bargaining order is appropriate.
89
In short, it is not possible to say why employees voted against union representation. Thus, a new election should be the preferred mechanism to resolve the discrepancy between the preference expressed on signed authorization cards and that expressed at the ballot box. Only a new election permits employees to fully realize their "inviolate right under the NLRA" to choose their own representative. Skyline Distributors, 99 F.3d at 411. A bargaining order, alternatively, substitutes the agency's "big (even good) brother judgment for a majority of employees' express choice of a bargaining representative." Conair, 721 F.2d at 1379.
90
This withdrawal of employees' core statutory rights constitutes a hardship that should weigh heavily in determining the appropriateness of S 10(j) relief. It is true that Miller v. California Pacific Medical Center provides a lenient standard for the Regional Director to establish "likelihood of success" on the merits. However, we should be mindful that applying this same lenient standard to the "balance of hardships" prong creates the risk of depriving employees of their statutory right to choose (or not choose) union representation. On the limited record before us, the imposition of such a hardship is unwarranted.
B. Hardship on Employers
91
The majority also understates the extent to which a bargaining order imposes a hardship on SD&A. The majority contends that recognition by this court that forced bargaining is a hardship "would lead logically to the conclusion that an interim bargaining order is never appropriate." Maj. Op. at 1420. This is not so. Under Miller, when the Regional Direc-tor "demonstrates that it is likely to prevail on the merits, we presume irreparable injury." Miller, 19 F.3d at 460. Consequently, in those cases involving truly egregious unfair labor practices and obvious majority support for the union, an interim bargaining order would be appropriate.1 In cases such as this one, Miller commands the district court to "exercise sound discretion" in balancing the hardships on the parties. Id. at 461. The exercise of sound discretion requires consideration of all the hardships on both sides of the scale.
92
Contrary to the majority's assertion, forced bargaining weighs more heavily on the employer than the union. The posture of the litigants in this case is persuasive evidence of that fact. The union, supported by the Regional Director, seeks a bargaining order. The company opposes one. The union, for good reason, would not consider such an order a hardship. A primary purpose of a labor union is to negotiate contracts on behalf of its members. The successful culmination of this process presumably yields benefits to the employees (in the form of higher wages and improved conditions of work) and for the union (in the form of additional dues paying members). Generally, a union must first convince employees that they would benefit from such negotiations before it may bargain on their behalf. In the present case, the union wishes to forego this preliminary step and have this court order the employer to recognize and bargain with the union. Such an order, far from being a hardship, relieves the union of its obligation to secure the support of the employees. Its lawyers will have accomplished what its organizers could not. From the union's perspective, the remaining uncertainty as to whether a final contract will be signed is preferable to the dual uncertainty of whether the employees will desire the union's assistance and whether the employer will ultimately sign a contract.
93
The employer's perspective of a bargaining order is quite different. SD&A's primary purpose is not to negotiate with a union, it is to solicit donations on behalf of its clients. The diversion of resources from that purpose to collective bargaining is an unwelcome, albeit a sometimes necessary, hardship. A bargaining order would require the employer to bargain collectively and in good faith with the union. This obligation, in turn, requires the employer to invest time and resources, including the hiring of counsel, the preparation of materials necessary for meaningful discussions of terms and conditions of employment, and the presence and participation in negotiations of high level employees.
94
Congress has determined that the benefits of collective bargaining justify imposing these obligations on an employer when employees have freely chosen to be represented by a union. 29 U.S.C. S141. The duty to negotiate with a union that may or may not ultimately be certified, however, must be considered a burden on the employer in the context of a 10(j) petition. Scott v. Expresso Limousine Service, Inc., 1993 WL 181474 at 8 (N.D. Cal 1993) ("The potential for wasted resources engendered by a bargaining order outweighs any hardship the union might suffer by having to wait for a decision from the NLRB.") Where the alleged ULPs were relatively minor (as is the case here) and there is no evidence of continuing violations, this hardship is not justified. Wilson v. Hart Ski Mfg. Co., 472 F. Supp. 484, 486 (D.Minn 1979) (where there is no evidence of continuing anti-union activity, the "Board's final order will therefore be as effective as an interlocutory order of this court"); Hoffman v. Laser Tool, Inc., 151 L.R.R.M. (BNA) 2465 (D.Conn 1995) (discontinuation of illegal activity a "significant factor " influencing court to conclude that bargaining order unwarranted).
95
In conclusion, the Regional Director's request for a bargaining order is based on the allegation of an improper grant of benefits to employees and several minimal violations of the Act. "[T]he strength of the government's showing on the likelihood of prevailing on the merits will affect the degree to which it must prove irreparable injury." Miller at 459 (citing United States v. Nutricology, Inc., 982 F.2d 394 (9th Cir. 1992)). Given the minimal nature of the alleged violations, the lack of evidence of continuing violations, a bargaining order's inherent interference with the core statutory rights of employees, and the additional burden a bargaining order imposes on the employer, I conclude that the balance of hardships does not tip in favor of the board. The majority's alternative conclusion simply ratifies the Board's long-held "view that bargaining orders should be liberally granted as remediesdespite evidence that a new election would suffice. " J. J. Newberry Co., 645 F.2d at 154.
Notes:
1
Both Levine v. C&W Mining Co., 610 F.2d 432 (6th Cir. 1979) and Seeler v. Trading Port, Inc., 517 F.2d 33 (2nd Cir. 1975), relied on by the majority, involved far more egregious behavior than that alleged against SD&A. In Seeler, twenty union supporters were permanently laid off. In Levine, the district court found the "apparent discharge of employees who were leaders in the organization of the union" and "threats of business closure." See also, NLRB v. Electro-Voice, Inc., 83 F.3d 1559, 1565 (7th Cir. 1996) (nine union supporters fired after union presented a letter demanding recognition).
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833 F.2d 1008
Holemanv.Fed. Emergency Mgmt. Agcy*
NO. 87-1358
United States Court of Appeals,Fifth Circuit.
OCT 30, 1987
1
Appeal From: N.D.Tex.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
| {
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Filed 5/15/19 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
SSL LANDLORD, LLC, et al., A151318
Plaintiffs and Appellants, (San Mateo County
v. Super. Ct. No. CIV532369)
COUNTY OF SAN MATEO, ORDER MODIFYING OPINION
Defendant and Respondent. AND DENYING REHEARING
NO CHANGE IN JUDGMENT
ORDER DENYING REQUEST
TO DEPUBLISH OPINION
THE COURT:
It is ordered that the opinion filed on April 23, 2019, be modified as follows:
(1) At page five, in the first full paragraph, commencing with “Revenue and
Taxation Code section 1611.6,” delete the last sentence of that paragraph that reads:
The referenced Government Code Section 800 reads: “(a) In any civil action
to appeal or review of the award, finding, or other determination of any
administrative proceeding under this code or any other provision of state law . . .,
if it is shown that the award, finding, or other determination of the proceeding was
the result of arbitrary or capricious action or conduct by a public entity or any
officer thereof in his or her official capacity, the complainant if he or she prevails
in the civil action may collect from the public entity reasonable attorney’s fees
. . . .”
(2) At pages six and seven, delete the paragraph (last three lines on page six and
first six lines on page seven) that reads:
1
Additionally, as we have held, an “ ‘ “award of attorney’s fees under
Government Code section 800 is allowed only if the actions of a public entity or
official were wholly arbitrary or capricious. The phrase ‘arbitrary or capricious’
encompasses conduct not supported by a fair or substantial reason, a stubborn
insistence on following unauthorized conduct, or bad faith legal dispute.”
[Citations.] Attorney’s fees may not be awarded simply because the
administrative entity or official’s action was erroneous, even if it was “clearly
erroneous.” ’ ” (American President Lines, Ltd. v. Zolin (1995) 38 Cal.App.4th
910, 934, quoting Stirling v. Agricultural Labor Relations Bd. (1987) 189
Cal.App.3d 1305, 1312.)
(3) At page eight, delete first full paragraph, that reads:
Because the Board’s resolution of Silverado’s assessment appeals was
neither arbitrary nor capricious, nor caused by a legal position taken in bad faith,
no award of attorney fees is warranted under section 1611.6.
and substitute the following paragraph:
Because the Board’s resolution of Silverado’s assessment appeals was
neither arbitrary nor capricious, no award of attorney fees is warranted under
section 1611.6.
The petition for rehearing is denied. There is no change in the judgment.
The request to depublish the opinion is denied.
Dated: ___May 15, 2019____ ___SIGGINS, J.______ P.J.
A151318 SSL Landlord, LLC v. County of San Mateo
2
Filed 4/23/19 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
SSL LANDLORD, LLC, et al.,
Plaintiffs and Appellants,
A151318
v.
COUNTY OF SAN MATEO, (San Mateo County
Super. Ct. No. CIV532369)
Defendant and Respondent.
Plaintiffs SSL Landlord, LLC, SSL Tenant, LLC, and Health Care Reit, Inc.
(hereinafter collectively referred to as “Silverado”) appeal from a post judgment order
denying a motion for attorney fees under Revenue and Taxation Code sections 1611.6
and 5152.1 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The order denying Silverado’s request for attorney fees relates to its tax refund
lawsuit which is the subject of an appeal resolved in a separate opinion. (See SSL
Landlord, LLC v. County of San Mateo (April 23, 2019, A150878) [nonpub. opn.].) We
set forth only those facts that are necessary to resolve this appeal.
Silverado purchased an assisted living and memory care facility, known as the
Silverado Senior Living Belmont Hills (property). The San Mateo County Assessor
(Assessor) assessed the property’s fair market value for property tax purposes at $26.4
million for the October 14, 2011 base year value assessment and the 2012/2013 regular
assessment.
1
All further unspecified statutory references are to the Revenue and Taxation Code.
1
Silverado filed administrative appeals, seeking a refund of paid property taxes
based on a challenge to the Assessor’s valuation. Following a three-day hearing, the San
Mateo County Assessment Appeals Board (Board) issued a 22-page decision in which it
concluded the assessment value of $26.4 million was indicative of the fair market value
of the subject property “based on the record in this matter.” The Board specifically found
that the income approach analysis was the appropriate method for determining the fair
market value of the subject property. “Using the income approach, an appraiser estimates
‘the future income stream a prospective purchaser could expect to receive from the
enterprise and then discounts that amount to a present value by use of a capitalization
rate.’ [Citations.] In other words, the fair market value of an income producing property
is estimated as the present value of the property’s expected future income stream.” (Elk
Hills Power, LLC v. Board of Equalization (2013) 57 Cal.4th 593, 604–605 (Elk Hills
Power).)
The Assessor testified before the Board regarding his application of the income
approach to determine the fair market value of the subject property. He explained that he
calculated a stabilized income stream for the facility on the property and deducted from
that amount fixed charges, reserves, and a base management fee of five percent. The
Assessor then applied a capitalization rate of 7.75% and deducted an amount for the
potential loss of income, arriving at the rounded market value of $26.4 million. The
Assessor “assum[ed] the presence of intangible assets . . . necessary to put the taxable
property to beneficial or productive use” (§ 110, subd. (e)) and accounted for the
presence of intangible assets subsumed in the facility’s projected income stream by the
deduction of the base management fee of five percent. Silverado took the position that
the Assessor’s deductions were not sufficient and he should have made additional
deductions to the projected income stream to account for the values of the intangible
assets. In response to Silverado’s contention, and after in camera receipt of Silverado’s
tax documents during the administrative hearings, the Assessor prepared for the Board a
revised income approach analysis (in the form of a spreadsheet exhibit) in which he made
additional deductions for the values of those intangible assets that Silverado claimed had
2
been impermissibly subsumed in the assessment value. However, Silverado objected to
the admission of the Assessor’s revised analysis because Silverado was not presenting
“an intangibles case” and therefore, it would not be producing evidence of quantified
values of the intangible assets. At Silverado’s request, the Board did not consider the
Assessor’s revised analysis, which supported a downward adjustment to the assessment
value, and instead considered only the Assessor’s original analysis underpinning the
$26.4 million valuation and Silverado’s challenge to that analysis.
Based on consideration of the evidence and testimony admitted at the
administrative hearings, the Board found that the Assessor’s methodology had
appropriately accounted for the values of all intangible assets to be deducted from the
facility’s projected income stream prior to taxation. In so concluding, the Board
emphasized that the Assessor had attempted to remove any value attributable to the
intangible assets by deducting a base management fee and that Silverado had set forth no
credible evidence of quantified values of any intangible assets that it alleged were
subsumed in the Assessor’s income approach analysis. Therefore, in the absence of any
evidence of the quantified values of any identified intangible assets, the Board found the
Assessor’s methodology had appropriately accounted for the value of the business
enterprise.
A bench trial was held on Silverado’s complaint, after which the trial court issued
a 17-page statement of decision finding in favor of both Silverado and the County of San
Mateo (County). The court found, in pertinent part, that the Board appropriately used an
income approach analysis to determine the fair market value of the subject property as
proposed by the Assessor. However, the court agreed with Silverado that the income
approach analysis used by the Assessor did not adequately make “all necessary
deductions” to remove the value of intangible assets that Silverado claimed had been
impermissibly subsumed in the assessment value. In ordering the Board to issue a new
decision, the court indicated the remand hearing was for the “narrow purpose” of
allowing the Board to clarify its valuation using an income approach analysis and based
on the evidence that had been admitted at the administrative hearings. The court also
3
noted that the Board could allow the parties to submit additional evidence limited to
assisting the Board in making its new determination of the valuation using an income
approach analysis, and, if necessary, determinations of quantified values of those
intangible assets that Silverado claimed had been impermissibly subsumed in the
assessment value.
Following the issuance of the trial court’s decision on the merits, Silverado filed a
motion for an award of attorney fees under sections 1611.6 and 5152, which the County
opposed. The court ruled that none of the statutory bases for the award of attorney fees
applied in this case. In its written order, the court stated section 5152 was not applicable
(without further comment) and section 1611.6 did not apply because “the Board’s
findings ‘include[d] all legally relevant sub-conclusions supportive of its ultimate
decision’ such that [the court] is ‘able to trace and adequately examine the Board’s mode
of analysis.’ [(] Farr v. County of Nevada (2010) 187 Cal.App.4th 669, 686.[)]”
Silverado’s timely appeal ensued.
DISCUSSION
Silverado challenges the trial court’s denial of its request for attorney fees on
various grounds, all of which are unavailing.
I. Standard of Review
Our standard of review is well settled. “ ‘A request for an award of attorney fees
is entrusted to the trial court’s discretion and will not be overturned in the absence of a
manifest abuse of discretion, a prejudicial error of law, or necessary findings not
supported by substantial evidence.’ [Citations.] Because the primary issue before us
concerns legal entitlement to fees based upon statutory interpretation, our review is de
novo. [Citation.] The court’s factual findings, however, are subject to the substantial
evidence standard of review. [Citation.]” (Land Partners, LLC v. County of Orange
(2018) 19 Cal.App.5th 741, 745 (Land Partners).)
II. Attorney Fees Under Section 1611.6
Silverado argues the trial court erred in denying its request for attorney fees under
section 1611.6 because the Board did not make compliant findings under section 1611.5
4
and the Board’s findings were so deficient as to require remand to secure compliance
with section 1611.5. We disagree.
Revenue and Taxation Code section 1611.6 provides, in relevant part: “If the
county board fails to make findings upon request, or if findings made are found by a
reviewing court to be so deficient that a remand to the county board is ordered to secure
reasonable compliance with the elements of findings required by Section 1611.5, the
action of the county board shall be deemed to be arbitrary and capricious within the
meaning of Section 800 of the Government Code, so as to support an allowance of
reasonable attorney’s fees against the county for the services necessary to obtain proper
findings.” The referenced Revenue and Taxation Code section 1611.5 provides, in
pertinent part, that the Board’s “written findings of fact shall fairly disclose the board’s
determination of all material points raised by the party in his or her petition and at the
hearing, including a statement of the method or methods of valuation used in appraising
the property.” The referenced Government Code Section 800 reads: “(a) In any civil
action to appeal or review of the award, finding, or other determination of any
administrative proceeding under this code or any other provision of state law . . ., if it is
shown that the award, finding, or other determination of the proceeding was the result of
arbitrary or capricious action or conduct by a public entity or an officer thereof in his or
her official capacity, the complainant if he or she prevails in the civil action may collect
from the public entity reasonable attorney’s fees . . . .”
Silverado contends the trial court’s remand order reflects that the Board did not
address “the material points raised based on the evidence presented by [Silverado]” and
did not include “all of the legally relevant sub-conclusions supportive of its ultimate
decision.” On that basis, Silverado argues the Board’s findings “were so deficient as to
require remand to secure compliance with Section 1611.5.” In its reply brief, Silverado
further argues that (1) the trial court erred by not ruling that the Board’s findings were
deficient, but this court can make that finding; (2) the trial court’s use of the word
“ ‘narrow’ ” to describe the purpose of the remand did not make the Board’s findings
“ ‘sufficient’ ”; (3) substantive deficiencies in the Board’s findings were not cured simply
5
because the findings were understandable; (4) the trial court was not required to explicitly
find the Board’s findings were “ ‘arbitrary and capricious’ ” to support a fee award
because the statute establishes the requisite standard; and (5) the deficiencies in the
Board’s findings were not caused by Silverado’s “ ‘invited error.’ ” Silverado’s
contentions are unavailing.
In addressing the Board’s compliance with the fact-finding requirements of section
1611.5, it is self-evident that the Board fully met the statute’s requirements that it “fairly
disclose” its decisions of all “material points” raised by Silverado in the petition and at
the administrative hearings, “including a statement of the method or methods of valuation
used in appraising the property.” (§ 1611.5.) The Board issued a 22-page decision in
which it set forth the applicable law and the parties’ burdens of proof, found the record
supported the use of an income approach analysis in determining fair market value, and
gave detailed reasons for accepting the Assessor’s valuation evidence and rejecting
Silverado’s valuation evidence and challenges to the Assessor’s valuation evidence.
Additionally, the Board’s written findings of fact were in harmony with case law
interpreting section 1611.5. As explained in Farr v. County of Nevada, supra, 187
Cal.App.4th at p. 686, the Board’s findings of fact under section 1611.5 “should include
all legally relevant subconclusions supportive of its ultimate decision so that a reviewing
court is able to trace and adequately examine the Board’s mode of analysis,” and “shall
address specifically its reasoning for accepting or rejecting each issue raised by the
parties.” Thus, even if the Board’s decision in this case did not “cover every evidentiary
matter,” the Board’s findings did “ ‘enable the reviewing court to trace and examine the
agency’s mode of analysis.’ ” (Midstate Theatres, Inc. v. County of Stanislaus (1976) 55
Cal.App.3d 864, 888 [appellate court found tax board’s findings complied with section
1611.5 even though findings did not cover every evidentiary matter pressed by
applicant].)
Additionally, as we have held, an “ ‘ “award of attorney’s fees under Government
Code section 800 is allowed only if the actions of a public entity or official were wholly
arbitrary or capricious. The phrase ‘arbitrary or capricious’ encompasses conduct not
6
supported by a fair or substantial reason, a stubborn insistence on following unauthorized
conduct, or a bad faith legal dispute.” [Citations.] Attorney’s fees may not be awarded
simply because the administrative entity or official’s action was erroneous, even if it was
“clearly erroneous.” ’ ” (American President Lines, Ltd. v. Zolin (1995) 38 Cal.App.4th
910, 934, quoting Stirling v. Agricultural Labor Relations Bd. (1987) 189 Cal.App.3d
1305, 1312.)
In resolving Silverado’s complaint for a tax refund based on an excessive
assessment value, the trial court found the Board had the option of valuing the property
by applying an income approach that used either the actual operating income of the
facility on the subject property (the Assessor’s method) or comparable rents of other
properties (the method used by Silverado’s expert appraiser). According to Silverado, the
use of comparable rents of other properties “assures that no intangible value is included
in the assessment” value. However, because Silverado’s expert appraiser’s “comparable”
rental properties were not actually comparable, the court found the Board had
appropriately relied on the actual operating income of the facility on the subject property.
Nonetheless, the trial court agreed with Silverado that the Board’s use of the actual
operating income of the facility on the subject property did not make “all necessary
deductions” to remove the value of intangible assets that Silverado claimed had been
impermissibly subsumed in the assessment value. In ordering a remand for a new
determination, the court allowed Silverado a second opportunity to present additional
data of comparable rents of other properties in support of the income approach used by its
expert appraiser. If the Board were again to decide to apply an income approach using
the actual operating income from the facility on the subject property, then the Board was
directed to quantitively value any intangible assets, and, if appropriate, deduct the values
of the intangible assets from the projected income stream prior to taxation. While the
trial court remanded for a new determination, we concur with its explicit finding that the
Board’s failure to make all necessary valuations and deductions for intangible assets was
an “invited error” caused, in significant part, by Silverado’s objection that prohibited the
admission of the Assessor’s evidence of quantified values of the intangible assets that
7
Silverado claimed had been impermissibly subsumed in the assessment value.
Because the Board’s resolution of Silverado’s assessment appeals was neither
arbitrary nor capricious, nor caused by a legal position taken in bad faith, no award of
attorney fees is warranted under section 1611.6.
III. Attorney Fees Under Section 5152
Silverado also contends attorney fees should be awarded under section 5152
because the Assessor intentionally ignored or rejected governing case law without first
seeking declaratory relief under section 538. We again disagree.
Section 5152 reads as follows: “In an action in which the recovery of taxes is
allowed by the court, if the court finds that the void assessment or void portion of the
assessment was made in violation of a specific provision of the Constitution of the State
of California, of this division, or of a rule or regulation of the board, and the assessor
should have followed the procedures set forth in Section 538 in lieu of making the
assessment, the plaintiff shall be entitled to reasonable attorney’s fees as costs in addition
to the other allowable costs. This section is ancillary only, and shall not be construed to
create a new cause of action nor to be in lieu of any other provision of law.” The
referenced Section 538 reads, in pertinent part: “(a) If the assessor believes that a specific
provision of the Constitution of the State of California, of this division, or of a rule or
regulation of the board is unconstitutional or invalid, and as a result thereof concludes
that property should be assessed in a manner contrary to such provision, or the assessor
proposes to adopt general interpretation of a specific provision of the Constitution of the
State of California, of this division, or of a rule or regulation of the board, that would
result in a denial to five or more assesses in that county of an exemption, in whole or in
part, of their property from property taxation, the assessor shall, in lieu of making such an
assessment, bring an action for declaratory relief against the board under Section 1060 of
the Code of Civil Procedure [declaratory relief]. . . .”
“[T]here are three prerequisites to obtaining attorney fees under section 5152 in a
taxpayer refund action. First, the court must have allowed recovery of taxes. (§ 5152.)
Second, the court must have found the void assessment, or portion thereof, was made in
8
violation of a specific provision of the state constitution, the property tax statutes, or a
Board of Equalization rule or regulation. (Ibid.) Third, the court must find the assessor
subjectively believed a specific provision of the state constitution, the property tax
statutes, or a Board of Equalization rule or regulation was unconstitutional or invalid, and
assessed property contrary thereto, but the assessor failed to bring the requisite
declaratory relief action. [Citation.] ‘By its own terms, section 5152 only applies where
the assessor should have utilized the procedures set forth under section 538.’ [¶] As for
the last of these three elements, the subjective belief of the assessor may be demonstrated
through statements made by the assessor or objective facts which evidence the assessor’s
subjective state of mind. Care must be taken to distinguish between a situation in which
an assessor believes a provision to be unconstitutional or invalid, and a situation in which
an assessor misinterprets or misapplies a provision. The former would implicate section
5152, whereas the latter would not.” (Land Partners, supra, 19 Cal.App.5th at p. 746;
see Ocean Avenue LLC v. County of Los Angeles (2014) 227 Cal.App.4th 344, 354
[section 5152 requires trial court to make factual finding that a flawed assessment was
based on the Assessor’s belief that a tax law was unconstitutional, rather than a
misunderstanding of the law]; Phillips Petroleum Co. v. County of Lake (1993) 15
Cal.App.4th 180, 197–198 [“[s]ections 5152 and 538 require a cognitive decision on the
part of the assessor that a particular provision, rule or regulation is unconstitutional or
invalid either on its face or as applied to the circumstances of the case”].)
We initially note that neither party addresses whether or not the first prerequisite
to an award of attorney fees under 5152 has been met. As noted, an award of attorney
fees is only authorized in an action in which the court “must have allowed the recovery of
taxes.” (§ 5152.) Here, the court has not as yet allowed the recovery of taxes. It has
remanded the matter to the Board for further proceedings to clarify its findings on the
existing administrative record, and, if appropriate, to allow the parties to present
additional evidence on the valuation of the property using an income approach analysis.
Moreover, we see nothing in the record that supports Silverado’s position that the
Assessor “disregarded and sought to circumvent positive law and the judicial decisions
9
construing that law” regarding the valuation of intangible assets. The Assessor did not
challenge any law or rule governing the valuation of intangible assets. Nor did the
Assessor ever claim that the quantified values of nontaxable intangible assets should not
be excluded from the assessment value, and he did not refuse to deduct any quantified
values of intangible assets that were impermissibly subsumed in the assessment value.
Instead, the Assessor took the appropriate position that an income approach analysis
required him to consider and remove any quantifiable values of identified intangible
assets from the projected income stream prior to taxation, and he had attempted to
remove those values in performing his original analysis. To the extent Silverado claims
the Assessor’s income approach analysis fails to remove all quantified values for
identified intangible assets, the Assessor properly took the position that his original
analysis was based on the information given to him by Silverado, and that it was
Silverado’s burden to produce credible evidence that the fair market value of any
intangible assets had been impermissibly subsumed in the valuation. (Elk Hills Power,
supra, 57 Cal.4th at p. 615.) Thus, when Silverado produced its income tax returns, the
Assessor prepared a revised income approach analysis, recalculated quantified values of
identified intangible assets, and removed those amounts from the facility’s projected
income stream, which resulted in a downward adjustment to the assessment value.
However, Silverado objected to the Board’s consideration of the Assessor’s proffered
evidence supporting his revised analysis and, consequently, the Board properly found that
Silverado had failed to meet its burden of producing credible evidence of the quantified
values of identified intangible assets that were impermissibly subsumed in the assessment
value.
In conclusion, the trial court made no finding, and we see no basis to make a
finding, that the Assessor’s position was based on a belief that a tax law or regulation was
unconstitutional or invalid either on its face or as applied in this case. Unlike the factual
circumstance in Ocean Avenue LLC v. County of Los Angeles, supra, 227 Cal.App.4th
344, we are not here concerned with an assessor who “ ‘advanced the Constitution’ ” and
10
urged both the Board and the trial court not to apply a statutory law “ ‘because the
scenario [the law] protects . . . is “too good to be true.” ’ ” (Id. at p. 349.)
Accordingly, Silverado is not entitled to an award of attorneys under section 5152.
IV. Conclusion
For the reasons we have stated, we uphold the trial court’s order. Silverado has
failed to demonstrate the court either made a prejudicial error of law, or abused its
discretion, in denying the request for attorney fees under sections 1611.6 and 5152.
DISPOSITION
The order, filed May 9, 2017, is affirmed. Defendant County of San Mateo is
awarded costs on appeal.
11
_________________________
Petrou, J.
WE CONCUR:
_________________________
Siggins, P.J.
_________________________
Wiseman, J.*
SSL Landlord, LLC v. County of San Mateo/151318
Trial Court: San Mateo County Superior Court
*
Retired Associate Judge of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
12
Trial Judge: Barbara J. Mallach
Counsel: Greenberg Traurig, C. Stephen Davis and Andrew W. Bodeau, for Plaintiffs
and Appellants.
Rebecca M. Archer and Kristina M. Paszek, Deputy County Counsel, for
Defendant and Respondent.
13
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421 F.Supp. 450 (1976)
Harrell ALEXANDER, Sr., Plaintiff,
v.
CONSOLIDATED FREIGHTWAYS, CO., Defendant.
Civ. A. No. 76-F-710.
United States District Court, D. Colorado.
October 13, 1976.
*451 Michael S. Burg, Denver, Colo., for plaintiff.
James E. Hautzinger, Mark L. Fulford, Denver, Colo., for defendant.
ORDER GRANTING MOTION TO STRIKE
FINESILVER, District Judge.
THIS MATTER comes before the Court on Defendant's Motion to Strike Plaintiff's prayers for punitive and compensatory damages for mental distress. The Complaint alleges discriminatory employment practices in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. We Grant Defendant's Motion to Strike.
42 U.S.C. § 2000e-5(g) restricts the remedy a court may award for violation thereof to injunctive relief, "affirmative action" such as "reinstatement or hiring of employees, with or without back pay . . or any other equitable relief as the court deems appropriate." Despite authority to the contrary, see, e. g., Claiborne v. Illinois Central Railroad, 401 F.Supp. 1022 (E.D.La. 1975), this Court has held that compensatory or punitive damages, except back pay, are unavailable under Title VII. Carreathers v. Alexander, Civ. Action No. C-5082 (D.Colo., Dec. 11, 1974). The great weight of authority, as well as the language of § 2000e-5(g), supports this position. EEOC v. Detroit Edison Co., 515 F.2d 301 (6th Cir. 1975), app. pending on other grounds, 44 U.S.L.W. 3214; Whitney v. Greater N.Y. Corp. of Seventh-Day Adv., 401 F.Supp. 1363 (S.D.N.Y.1975); Loo v. Gerarge, 374 F.Supp. 1338 (D.Haw.1974); Howard v. Lockheed-Georgia Co., 372 F.Supp. 854 (N.D.Ga.1974); Van Hoomissen v. Xerox Corp., 368 F.Supp. 829 (N.D.Cal.1973); see Brito v. Zia Co., 478 F.2d 1200 (10th Cir. 1973).
The Court may award compensatory damages in the form of back pay for a maximum period of two years prior to the filing of the charge of employment discrimination with the E.E.O.C. 42 U.S.C. § 2000e-5(g); Carreathers, supra. However, the statutory language of § 2000e-5(g) does not permit an award of general compensatory damages, such as damages for alleged mental distress. A case cited by Plaintiff for the proposition that punitive damages may be awarded under Title VII struck a claim for general compensatory damages on the ground that the language and legislative history of § 2000e do not support such a claim. Tooles v. Kellogg Co., 336 F.Supp. 14, 18 (D.Neb.1972).
There is no right to a jury trial in Title VII actions. Johnson v. Georgia Highway Exp., Inc., 417 F.2d 1122 (5th Cir. *452 1969); Carreathers, supra; E.E.O.C. v. Bro. of Painters, Decorators, and Paperhangers of America, Local 857, 384 F.Supp. 1264 (D.S.D.1974); Loo v. Gerarge, supra. The absence of a right to a jury trial is another reason why punitive damages cannot be awarded in actions brought exclusively under Title VII. See E.E.O.C. v. Detroit Edison Co., supra. Claiborne, supra, at 1026, argues that punitive damages may be awarded by a judge under his powers of equitable relief. The Court cited three cases, Pan American World Airways, Inc. v. Ramos, 357 F.2d 341 (1st Cir. 1966); Kennedy v. Lakso Co., 414 F.2d 1249 (3d Cir. 1969), and Swofford v. B & W, Inc., 336 F.2d 406 (5th Cir. 1964), for the proposition that a judge may award punitive damages. Kennedy v. Lakso at 1254 and Swofford v. B & W, Inc. at 411-414 held that there is no right to a jury trial on a claim for treble damages and attorney fees under the law of patent infringement. Pan American World Airways, Inc. v. Ramos at 342 held that the Seventh Amendment did not bar a judge from awarding attorney fees for "obstinacy" in the conduct of a law suit under a special local statute of Puerto Rico. In all these situations, however, the statutory language specifically provided for an award of exemplary or punitive damages or attorney fees in certain situations. "Thus absent statute, exemplary damages are awarded only in an action at law." Swofford at 412. Even if there were no Constitutional bar to an award of punitive damages, it would be stretching the language of § 2000e-5(g) beyond its plain meaning to permit a court to award punitive damages under its power to grant "other equitable relief."
The few employment discrimination cases which have awarded punitive or exemplary damages have done so on the basis of a finding of malice or ill will on the part of the employer. Claiborne, supra at 1027. However, the Supreme Court has made clear that "Title VII is not concerned with the employer's `good intent or absence of discriminatory intent' for `Congress directed the thrust of the Act to the consequences of employment practice, not simply the motivation.'" Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). Because an award of punitive damages requires a finding of bad intention on the part of the employer, punitive damages are inconsistent with the restitutionary or "make whole" purpose of Title VII.
An Order striking Plaintiff's claims for punitive and compensatory damages based on mental distress is appropriate at this juncture of the case. No fact-finding is necessary for such a decision. The scope of discovery and the issues of the case will thereby be considerably narrowed, minimizing the cost of litigation and promoting judicial economy. Finally, the potential for settlement is improved if both parties know the size of the maximum award in advance of trial. It is the policy of § 2000e-5(g) to encourage settlements. Patterson v. Newspaper and Mail Deliverers' Union of N.Y. and Vicinity, 514 F.2d 767 (2d Cir. 1975).
ACCORDINGLY, IT IS HEREBY ORDERED that Plaintiff's claims for compensatory damages in the amount of $150,000 for mental distress, and for punitive damages in the amount of $250,000, be stricken.
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943 F.2d 50
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,Olakunlev.Lanre ARIGBEDE, a/k/a The Doctor, a/k/a Kunle, Defendant-Appellant.
No. 91-6578.
United States Court of Appeals, Fourth Circuit.
Submitted Aug. 26, 1991.Decided Sept. 9, 1991.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Joseph H. Young, Senior District Judge. (CR-87-68-Y; CA-89-1688-Y)
Olakunle Lanre Arigbede, appellant pro se.
Gregory Welsh, Assistant United States Attorney, John Vincent Geise, Office of the United States Attorney, Baltimore, Md., for appellee.
D.Md.
AFFIRMED.
Before WILKINSON and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.
OPINION
PER CURIAM:
1
Olakunle Lanre Arigbede appeals from the district court's order refusing relief under 28 U.S.C. § 2255. Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court. United States v. Arigbede, CR-87-68-Y; CA-89-1688-Y (D.Md. Apr. 11, 1991). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.
2
AFFIRMED.
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Affirmed and Opinion filed April 12, 2016.
In The
Fourteenth Court of Appeals
NO. 14-15-00259-CR
JORDAN DWAYNE NICHOLS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 4
Brazoria County, Texas
Trial Court Cause No. 194143
OPINION
As part of a plea agreement, appellant Jordan Dwayne Nichols pleaded
guilty to the misdemeanor offense of possession of drug paraphernalia. More than
two years later, appellant filed a post-conviction writ of habeas corpus contending
that his guilty plea was involuntary because trial counsel rendered ineffective
assistance. Appellant’s post-conviction writ was denied, and appellant appealed.
We affirm.
BACKGROUND
A Pearland police officer stopped appellant after appellant failed to signal
when exiting a grocery store parking lot on May 7, 2012. The officer approached
appellant’s vehicle and detected a strong odor of marijuana. When the officer
asked appellant if there was any marijuana in the vehicle, appellant responded that
there was marijuana in the center console.
Appellant was charged with the Class B misdemeanor offense of possession
of marijuana. See Tex. Health & Safety Code Ann. § 481.121(b)(1) (Vernon
2010). The State offered to reduce the offense to a Class C misdemeanor charge
for possession of drug paraphernalia if appellant pleaded guilty. See id. §
481.125(d) (Vernon 2010). Appellant accepted the State’s offer and pleaded guilty
on August 23, 2012; punishment was assessed at a fine of $500. Appellant also
completed a drug awareness class before punishment was assessed.
Appellant filed a post-conviction writ of habeas corpus on September 16,
2014. See Tex. Code Crim. Proc. Ann. art. 11.09 (Vernon 2015). Appellant
alleged that his plea was involuntary based on the incomplete or inadequate advice
of counsel. After a hearing, the trial court denied appellant’s writ on February 27,
2015. The trial court signed findings of fact and conclusions of law on June 23,
2015. Appellant timely appealed.
ANALYSIS
In two issues, appellant contends that his guilty plea was involuntary
because it resulted from trial counsel’s erroneous advice and failure to perform an
adequate legal investigation. Specifically, appellant contends that trial counsel
failed to recognize a key legal issue concerning the legality of the traffic stop; as a
2
result, appellant contends, counsel erroneously failed to advise him not to pursue a
motion to suppress evidence obtained from the search of appellant’s car.
A guilty plea resulting from ineffective assistance of counsel is not knowing
and voluntary. Ex parte Niswanger, 335 S.W.3d 611, 614-15 (Tex. Crim. App.
2011), abrogated in part on other grounds by Cornwell v. State, 471 S.W.3d 458
(Tex. Crim. App. 2015). Competent advice requires that an attorney conduct
independent legal and factual investigations sufficient to provide a firm command
of the case and the relationship between the facts and each element of the charged
offense. Id. at 615. To prevail on a claim of ineffective assistance of counsel, an
appellant must show that (1) counsel’s performance was deficient because it fell
below an objective standard of reasonableness; and (2) the deficient performance
prejudiced the defense. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App.
2011) (citing Strickland v. Washington, 466 U.S. 668, 689 (1984)).
To satisfy the first prong, appellant must prove by a preponderance of the
evidence that trial counsel’s performance fell below an objective standard of
reasonableness under the prevailing professional norms. Id. A defendant must
overcome the presumption that trial counsel’s actions fell within the wide range of
reasonable and professional assistance. See Garza v. State, 213 S.W.3d 338, 348
(Tex. Crim. App. 2007). If counsel’s reasons for his conduct do not appear in the
record and there is at least the possibility that the conduct could have been
grounded in legitimate trial strategy, we will defer to counsel’s decisions and deny
relief on an ineffective-assistance claim. Id.
To satisfy the second prong, appellant must show that there is a reasonable
probability — or a probability sufficient to undermine confidence in the outcome
— that the result of the proceeding would have been different but for counsel’s
unprofessional errors. Lopez, 343 S.W.3d at 142. For claims related to the
3
entering of a plea, the appellant shows prejudice by demonstrating a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial. Niswanger, 335 S.W.3d at 615. And, where
counsel’s alleged ineffectiveness is premised on counsel’s failure to pursue a
motion to suppress, the appellant must prove that the motion to suppress would
have been granted. See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App.
1998).
We consider the totality of the circumstances in determining whether
counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999). Failure to satisfy either prong of the Strickland test defeats an ineffective-
assistance claim. Strickland v. Washington, 466 U.S. 668, 697 (1984).
The only potential reason identified in the police officer’s report for
appellant’s traffic stop was that the officer observed appellant “exit the [grocery
store] parking lot southbound onto Reid Road without signaling.”
The Texas Transportation Code requires an operator to use a turn signal to
indicate an intention to turn, change lanes, or start from a parked position when a
vehicle is being operated on a highway.1 See Tex. Transp. Code Ann. § 545.104
(Vernon 2011). In State v. Ballman, 157 S.W.3d 65 (Tex. App.—Fort Worth 2004,
pet. ref’d), the court of appeals analyzed whether section 545.104 applied to a turn
made from a private driveway onto a public highway. The court of appeals
concluded that section 545.104’s signaling requirement does not apply to vehicles
turning from a private parking lot onto a highway. Id. at 70. Because the court of
appeals concluded that the appellant in Ballman was not required under section
1
A highway is defined as “the width between the boundary lines of a publicly maintained
way any part of which is open to the public for vehicular travel.” Tex. Transp. Code Ann. §
541.302(5) (Vernon 2011). Appellant does not dispute that the road he turned onto from the
grocery store parking lot was a highway under the statute.
4
545.104 to signal before turning onto the highway from the private parking lot, the
court further concluded that the police officer who stopped the appellant for failing
to signal “did not observe a traffic violation under section 545.104 of the
transportation code and therefore had no probable cause to stop or arrest
appellant.” Id.
Appellant contends, based on Texas Transportation Code section 545.104
and Ballman, that the police officer who stopped appellant did not have probable
cause or reasonable suspicion for the traffic stop. Appellant argues that, had his
trial counsel conducted an appropriate pre-trial legal investigation, his trial counsel
would have advised him to pursue a motion to suppress the evidence and not plead
guilty to the lesser offense.
The State called appellant’s trial counsel as a witness during the hearing on
appellant’s writ of habeas corpus. Appellant’s trial counsel testified that during his
investigation of appellant’s case he reviewed the relevant Texas Transportation
Code section. He also testified that he “came across [case law] that indicated that
it’s not a requirement per the Texas Transportation Code to signal your intent to
turn after exiting a private drive or a parking lot.” However, appellant’s trial
counsel testified that he also discovered a potentially relevant section of the City of
Pearland municipal code:
Sec. 29-189. – When turn signals required.
No person shall turn any vehicle without first giving an
appropriate signal in the event any other traffic may be affected by
such movement. Such signal of intention to turn right or left, when
required, shall be given continuously during not less than the last one
hundred (100) feet traveled by the driver of such vehicle before
turning.
See Code of Ordinances, City of Pearland, Texas, § 29-189 (2004),
https://www.municode.com/library/tx/pearland/codes/code_of_ordinances.
5
Appellant’s trial counsel testified that, based on the Pearland municipal
ordinance, he believed there to be some uncertainty whether a motion to suppress
would be granted. Moreover, the State informed appellant’s trial counsel that the
plea offer would be rescinded if appellant pursued a motion to suppress, and that
no further plea offers would be made. Accordingly, appellant’s trial counsel
testified that, based on his research and his interpretation of the statutes, he advised
appellant that he believed it to be in appellant’s best interest to accept the State’s
plea bargain of the reduced Class C misdemeanor offense.
Appellant contends that trial counsel’s advice was objectively deficient
because counsel’s reliance on the Pearland municipal code was misplaced. Texas
Transportation Code section 542.201 provides that “[a] local authority may not
enact or enforce an ordinance or rule that conflicts with [Title 7, Subtitle C of the
Transportation Code] unless expressly authorized by this subtitle. However, a
local authority may regulate traffic in a manner that does not conflict with this
subtitle.” See Tex. Transp. Code Ann. § 542.201 (Vernon 2011). Relying on
section 542.201 and State v. Patterson, 291 S.W.3d 121 (Tex. App.—Amarillo
2009, no pet.), appellant contends that the Pearland municipal ordinance
impermissibly conflicts with the Texas Transportation Code.
In Patterson, the appellant was stopped for violating an Amarillo municipal
ordinance prohibiting an individual from walking along a highway with his back to
traffic. 291 S.W.3d at 122. The Amarillo municipal code additionally defined
“highway” as a roadway divided into two roadways “by leaving an intervening
space, or by a physical barrier, or by a clearly indicated dividing section between
the two (2) roadways.” Id. Finding that the roadway where the appellant was
stopped was not divided by an intervening space, physical barrier, or clearly
indicated divider, the trial court concluded that the traffic law relied on by the
6
officer was inapplicable and the officer therefore had no legitimate basis for
stopping the appellant. Id.
The Amarillo Court of Appeals reversed, concluding that “Amarillo’s
definition of ‘highway’ can be read as conflicting with the definition of the same
term mentioned in § 541.302(5) of the Transportation Code.” Id. at 124. The court
noted that, while the Texas Transportation Code prohibits walking with one’s back
to traffic along a highway, the Amarillo municipal code does not so long as there is
no intervening space, physical barrier, or clearly marked divider on the roadway.
Id. Accordingly, the court of appeals concluded that, to the extent the municipal
ordinance allowed an action prohibited by the Texas Transportation Code, the
municipal ordinance impermissibly conflicted with the Texas Transportation Code.
See id.
Patterson is distinguishable from the situation before us. The Pearland
ordinance at issue requires drivers to signal at least 100 feet before turning; appears
to apply to all roadways; and makes no distinction between drivers already on a
roadway and those entering a roadway.2 See Code of Ordinances, City of Pearland,
Texas, § 29-189 (2004), https://www.municode.com/library/tx/pearland/codes/
code_of_ordinances. Unlike the Amarillo ordinance at issue in Patterson, the
Pearland municipal ordinance is more restrictive than the Texas Transportation
Code — not more lenient. The Pearland ordinance does not attempt to make legal
2
Appellant contends in a post-submission brief that the Pearland ordinance requires
drivers to signal only if other traffic may be affected by such movement, and that “traffic,” as
defined by the statute, includes only vehicles using a publicly maintained street. Appellant’s
inference appears to be that a vehicle on private property cannot affect traffic on a publicly
maintained street. We disagree. A vehicle turning from private property onto a publicly
maintained street can affect traffic on that street. The Pearland ordinance requires only that the
vehicle’s turn may affect traffic on the publicly maintained street — not that the turning vehicle
itself be on the publicly maintained street. See Code of Ordinances, City of Pearland, Texas, §
29-189 (2004), https://www.municode.com/library/tx/pearland/codes/code_of_ordinances.
7
something the Texas legislature has explicitly restricted by statute. Accordingly,
we conclude the Pearland ordinance does not conflict with Texas Transportation
Code section 545.104, but instead constitutes a permissible further regulation of
traffic as allowed by section 542.201.
Having concluded that the Pearland municipal ordinance does not conflict
with the Transportation Code, we must determine whether trial counsel’s advice
that appellant accept the State’s plea bargain was deficient because it fell below an
objective standard of reasonableness. Considering the uncertainty surrounding the
applicable law and the potential negative consequences of appellant going forward
with a speculative outcome on a motion to suppress, we conclude that appellant
has not satisfied Strickland’s first prong.
The State informed appellant’s trial counsel that its plea bargain would be
rescinded if appellant pursued a motion to suppress. Accordingly, appellant’s trial
counsel had to make a judgment call regarding the relative risks of foregoing a
take-it-or-leave-it plea bargain versus moving forward with a motion to suppress,
the outcome of which was uncertain.
Even assuming for the sake of argument that the Pearland ordinance
impermissibly conflicted with the Texas Transportation Code, the success of
appellant’s proposed motion to suppress would have turned on a determination that
the only basis for the police officer’s traffic stop of appellant was appellant’s
failure to signal when turning from the parking lot. As noted above, the police
officer’s report indicates that appellant’s traffic stop was premised on appellant
leaving the grocery store parking lot without signaling. However, it is possible that
at a hearing on the motion to suppress the police officer would have testified to
additional, valid reasons for the traffic stop not identified in the officer’s report,
8
thereby negating appellant’s argument that the motion would succeed under the
Texas Transportation Code and Ballman.
As we have discussed above, however, there is an argument to be made that
appellant’s unsignaled turn onto the highway itself provided reasonable suspicion
for appellant’s traffic stop. Unlike in Ballman where the court of appeals
concluded that Texas Transportation Code section 545.104 does not apply to
vehicles turning from private parking lots onto highways, the State here contended
that, even if a signal was not required under the Texas Transportation Code, it was
nevertheless required under the Pearland’s Code of Ordinances. See Ballman, 157
S.W.3d at 70, 70 n.2 (specifically noting no contention was made that the
unsignaled turn constituted a violation of the Fort Worth Code). Appellant’s trial
counsel testified at the writ hearing that he was unaware of any case law
interpreting or applying the Pearland ordinance. We have not found any, nor has
appellant directed us to any such case law. Appellant’s trial counsel could not
have known how the trial court would interpret the Pearland municipal ordinance,
and therefore could not have known with any reasonable degree of certainty how
the trial court would have ruled on a motion to suppress. The trial court made a
finding that “[trial counsel] recognized that the Court’s interpretation of the
Pearland Municipal Code could lead to a denial of the motion to suppress.”
Based on the record before us, we cannot say that trial counsel’s legal
investigation was inadequate. Appellant’s trial counsel testified that he considered
the relevant sections of the Texas Transportation Code, the relevant case law, and
the Pearland municipal ordinance in advising appellant to accept the State’s plea
bargain. The trial court found trial counsel’s testimony to be credible.
Nor can we conclude that trial counsel’s advice to accept the plea bargain
was unreasonable considering the unsettled state of the law regarding the interplay
9
between the Texas Transportation Code and the Pearland’s Code of Ordinances;
the uncertainty of the applicability of the Pearland municipal ordinance to the case
at hand; and that appellant’s pursuit of a motion to suppress would have resulted in
the State’s withdrawal of its favorable plea bargain. See, e.g., Ex parte Smith, 296
S.W.3d 78, 81 (Tex. Crim. App. 2009) (where law was unclear regarding whether
appellant’s deferred adjudication constituted conviction under unlawful possession
of firearm statute and appellant was offered generous plea bargain, court concluded
that counsel’s advice to plead guilty was not ineffective assistance).
Finally, we reject appellant’s argument that his plea was involuntary based
on trial counsel’s alleged statements to appellant and appellant’s mother that no
conviction would appear on appellant’s record if appellant accepted the State’s
plea bargain.3 Contrary to appellant’s assertion, trial counsel testified that he
informed appellant there would be a conviction — just not a conviction for the
originally charged offense of possession of marijuana:
[TRIAL COUNSEL:] Well, I told him that it would go on his record
in terms of it being a Class C, that it never goes away but that that
would prevent the original charge of Class B from being a conviction.
The arrest was still there. Nothing we could do about that. But in
terms of the conviction itself, it would not result in a Class B
misdemeanor being on his record with all the attendant other collateral
consequences, driver’s license suspensions and whatnot.
The trial court sits as the sole judge of credibility and demeanor of witnesses in a
habeas proceeding brought under article 11.09 of the Texas Code of Criminal
Procedure, and we may not disturb its rulings absent a clear abuse of discretion.
3
To the extent appellant’s brief can be read to include an argument that his guilty plea
was involuntary because he was not informed of the option of deferred adjudication, we reject
that argument as well. Trial counsel testified, and the trial court made a finding, that trial
counsel discussed deferred adjudication with appellant. No evidence was presented that deferred
adjudication had been offered by the State.
10
Ex parte Martinez, 451 S.W.3d 852, 856 (Tex. App.—Houston [14th Dist.] 2014,
pet. ref’d). We defer to the trial court’s findings of fact that are supported by the
record. Id. In its findings of fact, the trial court found that “[trial counsel] did not
tell [appellant] that the Class C conviction would come off his record.” The trial
court further found trial counsel’s testimony to be credible, and found the
testimony of appellant and appellant’s mother was not credible. We defer to the
trial court’s findings, and do not conclude that the trial court abused its discretion.
Accordingly, we will not disturb its ruling. See id.
Based on the foregoing, we find no merit in appellant’s ineffective-
assistance-of-counsel claim, and that appellant’s guilty plea was therefore
knowingly and voluntarily made. Accordingly, we overrule appellant’s issues.
CONCLUSION
Having overruled appellant’s issues, we affirm the trial court’s denial of
appellant’s post-conviction writ of habeas corpus.
/s/ William J. Boyce
Justice
Panel consists of Chief Justice Frost and Justices Boyce and Wise.
Publish — Tex. R. App. P. 47.2(b).
11
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616 So.2d 73 (1993)
STATE of Florida, Petitioner,
v.
William LOZANO, Respondent.
No. 93-684.
District Court of Appeal of Florida, First District.
March 10, 1993.
Robert A. Butterworth, Atty. Gen., Janet Reno, State Atty. for Eleventh Judicial Circuit, and Richard L. Shiffrin, Sp. Asst. Atty. Gen., for petitioner.
Roy Black, Black & Furci, Miami, for respondent.
PER CURIAM.
This case serves to remind us that under our constitution, we are governed by rules that ensure a fair trial. The State of Florida petitions this court for a writ of certiorari *74 to review a non-final order of the Circuit Court for Leon County which denied the defendant's motion for change of venue, a motion in which the State had joined. We grant the petition.
William Lozano is Hispanic and of Colombian descent. While on duty as a City of Miami police officer, he shot and killed the Black driver of a motorcycle who was attempting to avoid a stop for a traffic infraction. A passenger on the motorcycle, also a Black male, died from injuries from the resulting crash of the motorcycle. Serious civil disturbances immediately followed in Dade County.
Subsequently, Lozano was tried and convicted of two counts of manslaughter. On appeal, the District Court of Appeal for the Third District found that the trial court had committed reversible error when it denied the defendant's motion for change of venue. The defense had sought the change on the theory that jurors would be reluctant to vote for acquittal for fear of causing further violence in the community. The court reversed and remanded for a new trial in another venue. Lozano v. State, 584 So.2d 19 (Fla. 3d DCA 1991), review denied, 595 So.2d 558 (Fla. 1992).
After a hearing, Lozano's trial was moved to Orlando in the Ninth Judicial Circuit by Judge W. Thomas Spencer. Later, however, by order dated May 6, 1992, Judge Spencer moved the trial to Tallahassee, Leon County, in the Second Judicial Circuit, on his own motion without notice and without a hearing. A copy of the May 6, 1992 order (omitting footnotes) is included in this opinion as Appendix "A." Chief Judge William Gary of the Second Circuit entered an order which returned the case to Orlando, but the State's challenge to Judge Gary's order on jurisdictional grounds was upheld and the trial remained scheduled for Tallahassee. State v. Gary, 609 So.2d 1291 (Fla. 1992).
Lozano then moved the trial court for another change of venue, arguing that his rights of equal protection and to a fair trial would be violated by trial in Leon County, which has a very small Hispanic population. He also argued that an impartial verdict was impossible in Tallahassee, as in Dade County, because of fear of racial violence. Movant made additional arguments for venue change based on pre-trial publicity and the alleged procedural deficiencies involved in the issuance of the order which moved the trial from Orlando to Tallahassee. The only issue raised by the State and properly before this court for determination concerns the validity of the reasons stated by the trial court in determining that the trial should be moved from Orlando to Tallahassee.
After the trial court took evidence and heard argument on the motion for change of venue, the State joined in the motion insofar as the defendant contended Leon County was not a proper venue because of its small Hispanic population and because Tallahassee was selected as the site for the trial solely upon racially-based reasons.[3] Despite this joinder, Judge Spencer denied the motion. The State petitioned for writ of certiorari and moved for a stay. We granted the stay and, after considering the pleadings and arguments of the parties, we grant certiorari.
In civil proceedings, non-final orders which concern venue are appealable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(A). No corresponding right of interlocutory appeal exists in criminal cases, but the State may seek review by petition for writ of certiorari. State v. Pettis, 520 So.2d 250 (Fla. 1988). In order to obtain relief, petitioner must demonstrate that the order to be reviewed departs from the essential requirements of law and causes material injury to the petitioner throughout the proceedings below, leaving no adequate remedy on appeal from final order. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla. 1987). Additionally, a petition for writ of certiorari *75 must be filed within 30 days of rendition of the order to be reviewed, and that time limit is jurisdictional. See Fla.R.App.P. 9.100(c)(1); Hofer v. Gil De Rubio, 409 So.2d 527 (Fla. 5th DCA 1982).
Initially, we were concerned that our jurisdiction had not been timely invoked, as petitioner, in effect, challenges the May, 1992, order which moved the trial from Orlando to Tallahassee. While the respondent did file objections challenging the trial court's order in the summer of 1992, the State's challenge to the order was not presented to the trial court until March 5, 1993, and the petition for writ of certiorari was filed the same day that challenge was rejected. It may be argued that the State's challenge was untimely; we decline, however, to adopt a rule which would preclude the State from asserting at any time that continued prosecution under the circumstances would constitute a violation of the constitutional rights of a criminal defendant. We therefore conclude that the petition for writ of certiorari was timely filed.
We next address the question of whether the petitioner can show an injury which cannot be remedied on appeal from a final order. Ordinarily, the time, trouble, and expense of an unnecessary trial are not considered "irreparable injury" for these purposes, Continental Equities, Inc. v. Jacksonville Transportation Authority, 558 So.2d 154 (Fla. 1st DCA 1990). The "irreparable injury" test must be satisfied in a certiorari proceeding that arises from a criminal case, as well. See Tart v. State, 96 Fla. 77, 117 So. 698 (1928); Mingle v. State, 429 So.2d 850 (Fla. 4th DCA 1983); Smith v. State, 187 So.2d 61 (Fla. 2d DCA 1966). The Third District's reversal of Lozano's Dade County convictions shows that denial of a motion for change of venue, if erroneous, can be corrected on plenary appeal and a new trial ordered. We must determine whether the unique circumstances of this case create an exception to the rules above which would ordinarily preclude our review of Judge Spencer's order at this point in the proceedings. Petitioner argues that the irreparable harm test is met by the unnecessary expenditure of resources and the difficulties borne by the defendant, the witnesses, and other interested persons in the conduct of a second trial where reversal for a third trial is almost certain if the defendant is convicted. If this case existed in a vacuum, we would be inclined to find this argument unpersuasive, see Continental Equities. We are well aware, however, of the substantial resources of law enforcement and the judiciary which have been and no doubt will continue to be expended with regard to the State's prosecution of Lozano. We also are cognizant that both the State and the defense believe that to proceed with the trial in Leon County would be violative of the defendant's constitutional guarantees of a fair trial and equal protection and that, should a conviction result, an appeal would very likely result in a reversal with directions that a third trial be conducted.[4] In light of the intense media coverage of this case, the problems with providing Lozano a fair trial increase with each trial. Further, we are persuaded by the State's argument that it should not be required to prosecute an individual in circumstances which it believes are violative of the defendant's constitutional rights.[5] We agree that public *76 confidence in our criminal justice system cannot be maintained under such circumstances, and that either a conviction or an acquittal resulting from such a trial would be inherently suspect. We therefore conclude petitioner has satisfied the "irreparable injury" requisite to obtain certiorari relief.
We also find that petitioner has shown that Judge Spencer's order is a departure from the essential requirements of law. The May, 1992, order of transfer from Orlando to Tallahassee is clear in grounding the ruling on the basis of race, particularly the race of the victims. No consideration was given to the race of the defendant. We agree, as the parties here assert, that the trial court deliberately acted so as to increase the number of Black jurors. In doing this, the trial court virtually guaranteed the absence of Hispanic jurors. "[P]urposeful racial discrimination in selection of the venire violates a defendant's right to equal protection because it denies him the protection that a trial by jury is intended to secure." Batson v. Kentucky, 476 U.S. 79, 86, 106 S.Ct. 1712, 1717, 90 L.Ed.2d 69 (1986). The precise question presented here is apparently a novel one, see Epps v. State, 901 F.2d 1481 (8th Cir.1990); see also Mallett v. Missouri, 494 U.S. 1009, 110 S.Ct. 1308, 108 L.Ed.2d 484 (1990) (Marshall and Brennan, JJ., dissenting with written opinion from denial of certiorari). Nevertheless, the State of Florida, as prosecuting authority, announced its determination after a full evidentiary hearing that it agreed with the defendant's claim that his constitutional rights would be violated if he stood trial in Leon County. Denial of the defendant's motion, as joined by the State at that time, was a departure from the essential requirements of law.
We grant certiorari and quash the trial court's order of March 5, 1993, which denied the motion for change of venue. We find that the effect of this disposition is to void the order of May 6, 1992, which moved the trial from Orlando to Tallahassee, and to reinstate the April 2, 1992, order which set the trial in Orlando.
PETITION GRANTED.
JOANOS, C.J., and SMITH and WOLF, JJ., concur.
APPENDIX A
In the Circuit Court of the
Eleventh Judicial Circuit in
and for Dade County, Florida
Criminal Division
Case No. 89-02972
State of Florida, Plaintiff,
vs.
William Lozano, Defendant.
SUPPLEMENTAL ORDER ON VENUE
This court cannot ignore the national tragedy of the urban riots occurring after the Rodney King verdict on April 29, 1992. That so many of our fellow Americans feel shut out from our judicial system demands our attention.
Orlando, Florida, is no longer the proper location for the LOZANO trial.
WILLIAM LOZANO was convicted of manslaughter in December 1989. The appellate court ordered a new trial ruling that since the jury was "obviously" and "justifiably" concerned that riots might take place if they acquitted the defendant, the trial should have been moved to another locality.
This court was ordered to hold hearings on the sole question of whether a new jury would likewise be concerned with the possibility of riots if they returned a verdict of acquittal. Whether a riot would, in fact, actually have taken place is not the issue. The only question which the appellate court permits us to answer is whether a new jury would think, in the back of their minds, that a verdict of acquittal might result in riots. This court heard five days of testimony *77 in March 1992. Not only did the evidence show that the same prejudicial factors which existed prior to the first trial in 1989 continue to exist; but, since that time we have the additional influence of the gavel to gavel television coverage of the trial itself including the sentencing and the extensive security precautions. On top of all of this we now have the terrible aftermath of the Rodney King verdict. As a new trial were to approach it would be expected that the media would review the details of this case, Miami's past civil disturbances and, now, the recent King riots.
The overwhelming evidence proved that a new jury would, correctly or incorrectly, feel the same improper outside pressures. It is unrealistic to think that any potential juror from this area would not be completely saturated with the facts of the LOZANO case and of the community's concern about civil disturbances. What greater violation of constitutional rights could there be than to require a defendant to pick his jury from a community where it is common knowledge that he was found guilty by a previous jury.
Every defendant is entitled to a neutral and dispassionate jury that can base its decision solely upon the evidence presented in the courtroom. Venue was changed to Orlando, Florida by this court's order of April 2, 1992. But this court is convinced that, rightly or wrongly, Orlando is now perceived as not providing the necessary framework for an impartial trial. Such a perception of justice is as important as its reality. The judicial system is the branch of government that must be the most sensitive to its image of impartiality.
The selection of the alternative venue location involves the weighing of multiple factors in an effort to duplicate the demographics, heterogeneity, urban consciousness and ethnicity of the home county. Dade County has no twin in this state. In our case, the victims are Black but the defendant is Hispanic. No other county comes any place near Dade's 19.8% Black voters and its 49.2% Hispanic population. Hillsborough is not appropriate because of the memories of the 1980 McDuffie trial being moved to Hillsborough and the subsequent riots that followed the acquittal by an all white jury. The next most similar county is Orange County (Orlando) with 10.1% Black voters and 9.6% Hispanic population. The 50% fewer Black voters is far outweighed by the 80% fewer Hispanics.
It makes no difference in which appellate district the trial is held. The law of manslaughter is the same in Orlando as it is in Miami. To say that the law applicable to this case changes as one moves from one county to another and passes through Florida's five appellate districts is absurd. Florida's criminal law is uniform throughout the state.
Many of the witnesses who testified before this court spoke of two other issues which America should hear. They described (1) the general feeling of alienation between the black community and the judicial system a feeling that they are not an equal participant; and (2) a perception that the shootings of blacks by non-black policemen are handled differently than other shootings. Both concerns have been increased by the Rodney King verdict. Neither concern should exist in a free society.
This court can respond to these concerns and at the same time guarantee to the defendant his constitutional right to a fair trial before an impartial jury.
The location to which a trial is moved is a matter for the court's discretion.
There are only two large counties in the state with the percentage of Black voters equal or greater than Dade's. Duval County has 23.3% Black voters and Leon County has 20.6% Black voters. Venue for this trial will therefore be changed to our state capital, Tallahassee, Florida, in Leon County.
This court will insure [sic] that blacks will be on the jury that tries this case to the extent the law permits. State v. Slappy, 522 So.2d 18 (Fla. 1988). Peremptory challenges will be examined closely to make sure that they are not being used on a racially discriminatory basis. The court will consider granting additional challenges *78 as permitted by Fla.R.Crim.P. 3.350, to guarantee the seating of a fair jury.
The relatives of the shooting victims have rights in connection with this case. Our Florida Constitution [Art. I, Section 16(b), Fla. Const.] provides:
"Victims of crime or their lawful representatives. . . are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused."
The relatives of the victims, Clement Lloyd and Allan Blanchard are entitled to have an attorney participate in this case. The court will appoint a Black attorney for this purpose.
Justice is an elusive quality demanding constant pursuit. Its pursuit, in this case, now demands some changes in this court's order of April 2, 1992.
It is therefore Ordered and Adjudged:
1. This court's Order Changing Venue dated April 2, 1992 remains in effect other than as changed herein.
2. Venue for the trial of this case will be transferred to the Second Judicial Circuit sitting in Tallahassee, Leon County, Florida. Counsel may file written objections to this location within ten (10) days of this order.
3. The trial is hereby ordered to commence at 10:00 A.M. on Tuesday, October 6, 1992.
4. Challenges to potential jurors must be exercised on a racially neutral basis.
5. The court will entertain requests for additional peremptory challenges as permitted by law.
6. The court will appoint an attorney to represent the victims in this proceeding.
This trial presents a challenge to the precept "Justice for all." We can meet that challenge.
DONE AND ORDERED in Miami, Dade County, Florida this 6th day of May 1992.
W. Thomas Spencer
Circuit Judge
NOTES
[3] The State's petition and the defendant's response reveal that Leon County has an Hispanic population of 2.4% with .7% Hispanic registered voters, while Dade County has an Hispanic population of 49.22%. The trial court's May 6, 1992 order took into account only the Black population of Leon County.
[4] Presumably, the State, in an appeal by Lozano from a Leon County conviction, would be bound by its position in the trial court that the motion for change of venue should have been granted. Cf. Arnold v. Taco Properties, Inc., 427 So.2d 216, 220 (Fla. 1st DCA), review denied, 434 So.2d 886 (Fla. 1983) (party could not argue that granting motion for change of venue was reversible error where the same party specifically stated at trial that there was no objection to the change). While this court would not be bound by what would be, in effect, a confession of error, L.S. v. State, 547 So.2d 1032 (Fla. 3d DCA 1989), the likelihood of reversal is great indeed.
[5] The American Bar Association Standards of Criminal Justice Relating to the Prosecution Function (adopted by Rule 4-3.8, Florida Rules of Professional Conduct) Standard 3-1.1(b) provides, inter alia, that the prosecutor is an administrator of justice. As such, according to the Commentary, the prosecutor has an obligation "to guard the rights of the accused as well as to enforce the rights of the public." The prosecutor acts as a servant of the law. Goddard v. State, 143 Fla. 28, 196 So. 596, 600 (1940), quoting from Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). See also Frazier v. State, 294 So.2d 691, 692 (Fla. 1st DCA 1974).
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IN THE SUPREME COURT OF TEXAS
IN THE SUPREME COURT OF TEXAS
════════════
No. 03-0913
════════════
Kroger Texas Limited
Partnership
and Robert Moody,
Petitioners,
v.
Theresa Suberu,
Respondent
════════════════════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fifth District of
Texas
════════════════════════════════════════════════════
Argued November 9,
2004
Chief Justice Jefferson delivered the
opinion of the Court, in which Justice
Hecht, Justice O’Neill, Justice Wainwright, Justice Brister, Justice
Green, and Justice Willett
joined.
Justice Johnson filed a dissenting
opinion, in which Justice Medina
joined.
Theresa
Suberu sued Kroger Texas Limited Partnership and assistant store manager Robert
Moody (collectively, Kroger) for malicious prosecution and intentional
infliction of emotional distress after she was acquitted on misdemeanor theft
charges arising from an alleged shoplifting incident. The jury returned a
verdict in Suberu’s favor on both claims, and the trial court signed a judgment
in conformity with the verdict. The court of appeals affirmed. Kroger argues
that the evidence is legally insufficient to support liability under each claim,
and we agree. Accordingly, we reverse the court of appeals’ judgment and render
judgment for Kroger.
I
Background
On the
evening of March 1, 1999, Theresa Suberu went to a Kroger grocery store in
Garland to purchase medication. Karrah Parkey, Kroger’s pharmacy technician,
recognized Suberu as a prior customer, assumed she had come to pick up medicine
for her husband, Michael, and placed his medicine on the counter. Suberu uses
cash for all transactions and did not have enough in her purse to pay for both
her medicine and Michael’s. Therefore, she told Parkey she would retrieve money
from her vehicle and would return momentarily.
Suberu was
leaving the store when Kellie Wier, the front-end manager, yelled “Stop!”
According to Wier, Suberu was pushing a grocery cart full of unsacked goods.
Suberu, however, testified that she has never used a cart to shop for groceries
and did not have one that evening. Wier reached Suberu in the foyer, where the
two had a brief quarrel. Suberu testified that Wier said, “Those two people who
just left, you are with them,” and “You are going to jail for a long time.”
Wier, however, denied making those statements. She claims Suberu became hostile
when Wier asked to see a receipt, and that Suberu kept shouting, “You’re crazy!”
Suberu testified that she was annoyed because Wier would not listen to her
explanation for leaving the store.
Major Belton,
another Kroger employee, was bagging groceries when Wier yelled for Suberu to
stop. Belton testified that he looked up and saw Suberu pushing a cart. He
watched as Wier questioned Suberu in the foyer, and, when Wier called him over
to take the cart, he noticed that it contained mostly unsacked groceries. Robert
Moody, the assistant manager, arrived and discussed the occurrence with Suberu
and Wier. Moody asked Suberu if she had a receipt, and she replied “No.” Belton
then wheeled the cart to register three, where Matt Helwig was working as a
checker. Helwig testified that he, too, saw Suberu pushing the cart out of the
store. Moody and Wier escorted Suberu to an office, where Moody directed Wier to
call the police.
Police
officers arrived ten minutes after receiving Wier’s call. Moody explained the
events and filled out a shoplifting incident report. Meanwhile, Wier took the
cart from Helwig’s register and scanned the unsacked groceries. Moody stapled to
his report a printed list of the scanned items, which totaled $261. While
sitting in the office, Suberu explained that she had been at the pharmacy and
was going outside to get cash from her vehicle. Despite these pleas, neither the
officers nor any Kroger employee checked with the pharmacy.[1] The officers arrested Suberu and
walked her out in handcuffs.
Suberu
testified that she felt humiliated and has been traumatized as a result of the
ordeal. Her husband, Michael, said she was “in a state of shock” when he picked
her up at the jail four hours after her arrest. Suberu could not sleep that
night, and was unable to cook, do laundry, and shop for groceries for several
months. At trial, Michael said he and Suberu were “still working through
it.”
After a jury
acquitted her on misdemeanor theft charges, Suberu filed the present suit,
alleging malicious prosecution and intentional infliction of emotional distress.
The trial court rendered judgment on the jury’s verdict, which found in Suberu’s
favor on both claims and awarded $500 in actual damages for expenses in
defending the prosecution, $28,000 for past and future mental anguish, and
$50,500 in exemplary damages based on the malicious prosecution claim. The jury
awarded no exemplary damages for intentional infliction of emotional distress.
The court of appeals affirmed. 113 S.W.3d 588. We granted Kroger’s petition for
review. 47 Tex. Sup. Ct. J. 1197 (Sept. 13, 2004).
II
Malicious
Prosecution
This Court
has long recognized a cause of action for those subjected unjustifiably to
criminal proceedings, but has also made clear that the cause of action must
sometimes yield to society’s greater interest in encouraging citizens to report
crimes, real or perceived.[2] The elements necessary to prevail on a
malicious prosecution claim reflect this balance.[3] Thus, the plaintiff must prove not
only that the defendant commenced criminal proceedings against her and she is
innocent of the crime charged, but also that the defendant lacked probable cause
and harbored malice toward her. These latter elements guard against a jury’s
natural inclination to punish those who, through error but not malevolence,
commence criminal proceedings against a person who is ultimately exonerated.[4] The probable cause element “asks
whether a reasonable person would believe that a crime had been committed given
the facts as the complainant honestly and reasonably believed them to be before
the criminal proceedings were instituted.” Richey v. Brookshire Grocery
Co., 952 S.W.2d 515, 517 (Tex. 1997) (citing Akin v. Dahl, 661 S.W.2d
917, 920 (Tex. 1983), cert. denied, 466 U.S. 938 (1984)). Courts must
presume that the defendant acted reasonably and had probable cause to initiate
criminal proceedings. Id. To rebut this presumption, the plaintiff must
produce evidence that the motives, grounds, beliefs, or other information upon
which the defendant acted did not constitute probable cause. Id. at
518.
In the court
of appeals, Kroger challenged the legal sufficiency of the evidence to support
the second, fourth, fifth, and sixth elements of Suberu’s claim,[5] and her award for mental anguish and
exemplary damages. 113 S.W.3d 588, 596-601. The court resolved all issues
against Kroger. Id. at 605. In upholding the jury’s finding on probable
cause, the court cited Suberu’s testimony that she was in the store for a few
minutes to obtain a prescription, left to get money from her car, and never had
a cart. Id. at 598. The court reasoned that it was the province of the
jury to assess credibility, and the jury apparently found that Wier never saw
Suberu with a cart. Id. at 598-99. For the reasons considered below, the
evidence favorable to Suberu is legally insufficient to rebut the presumption
that Kroger acted reasonably and with probable cause. As this conclusion is
dispositive, we do not reach Kroger’s remaining challenges to malicious
prosecution liability and exemplary damages.
A
Standard of
Review
In reviewing
a verdict for legal sufficiency, we credit evidence that supports the verdict if
reasonable jurors could, and disregard contrary evidence unless reasonable
jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.
2005). A challenge to the legal sufficiency of evidence will be sustained when,
among other things, the evidence offered to establish a vital fact does not
exceed a scintilla. Id. at 810 (citing Robert W. Calvert, “No
Evidence” & “Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960)).
Evidence does not exceed a scintilla if it is “‘so weak as to do no more than
create a mere surmise or suspicion’“ that the fact exists. Ford Motor Co. v.
Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Kindred v. Con/Chem,
Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
B
Application
Suberu points
to the following evidence as supporting a finding that Kroger lacked probable
cause:
1. Kroger’s
failure to check Suberu’s explanation with the pharmacy technician before
initiating criminal proceedings;
2.
Inconsistencies in Karrah Parkey’s testimony regarding whether she saw Suberu
with a cart; and
3. Suberu’s
testimony that she did not have a cart.
Starting with
the first item, it is well settled that a private citizen has no duty to
investigate a suspect’s alibi or explanation before reporting a crime.
Richey, 952 S.W.2d at 518 (citing Marathon Oil Co. v. Salazar, 682
S.W.2d 624, 627 (Tex. App.–Houston [1st Dist.] 1984, writ ref’d n.r.e.)). If the
acts or omissions necessary to constitute a crime reasonably appear to have been
completed, a complainant’s failure to investigate does not negate probable
cause. Id. Thus, the fact that no one investigated Suberu’s explanation
is not evidence that probable cause was lacking.
The second
item is irrelevant to whether Kroger had probable cause, because none of the
Kroger employees spoke to Karrah Parkey before Moody initiated criminal
proceedings. Parkey’s credibility does not affect whether Kroger, at the time it
called the police, reasonably believed Suberu was guilty of shoplifting.
Accordingly, this evidence must be disregarded.
Suberu relies
primarily on the third item—her testimony that she did not have a cart. In
contrast to the criminal case, however, here the question is not whether Suberu
had a cart, but whether Kroger reasonably believed she did. See Richey,
952 S.W.2d at 517; Akin, 661 S.W.2d at 920-21. Wier, Belton, and Helwig
each testified that they observed Suberu leaving the store with a cart
containing items she had not purchased. The law presumes that Kroger honestly
and reasonably acted on the basis of these observations in reporting Suberu to
police. See Richey, 952 S.W.2d at 517; see also City of Keller,
168 S.W.3d at 817 (discussing legal sufficiency where the fact finding examined
concerns what a party knew or why it took a certain course). Kroger contends
that Suberu’s evidence is legally insufficient to rebut this presumption. We
agree.
To rebut the
probable cause presumption, Suberu had to produce evidence that the motives,
grounds, beliefs, or other information upon which Kroger acted demonstrate that
it did not reasonably believe Suberu was guilty of shoplifting. See
Richey, 952 S.W.2d at 518; Akin, 661 S.W.2d at 920. While Suberu’s
evidence supports the jury’s determination—consistent with her acquittal—that
she did not steal groceries, it does not establish the absence of probable
cause.
The criminal
law presumes Suberu’s innocence and presents the State with a heavy burden of
proof for a conviction, because it is more important that the guilty
occasionally go free than for the innocent to be jailed. In re Winship,
397 U.S. 358, 372 (1970) (Harlan, J., concurring). The civil law presumes
Kroger’s good faith and requires Suberu to rebut this presumption, because it is
more important that a private citizen report an apparent subversion of our laws
than for the wrongly accused to attain monetary redress from the accuser.[6] These presumptions provide benchmarks
with which to evaluate this case.
Suberu’s
acquittal does not prove that Kroger lacked probable cause, just as her arrest
does not prove her guilt. Her acquittal is not evidence, then, that she was
unjustifiably subjected to criminal proceedings; it shows only that the
government did not prove her guilt beyond a reasonable doubt. United
States v. Watts, 519 U.S. 148, 155 (1997). Because probable cause is
presumed, Suberu was required to produce evidence that Kroger initiated her
prosecution on the basis of information or motives that do not support a
reasonable belief that she was guilty of shoplifting. See Richey, 952
S.W.2d at 518; Akin, 661 S.W.2d at 920. If there was no such evidence,
Kroger is entitled to judgment as a matter of law.
Suberu was
Kroger’s regular customer, yet she introduced no evidence of, for example, prior
bad relations, preexisting debt, racial animus, or any private motivation to
harm her. There is no evidence that, on the night in question, Wier, Belton, and
Helwig caucused prior to Suberu’s detention; nor is there evidence that there
was time for them to confer before recounting their similar observations to
Moody. Further, there is no evidence that Kroger withheld exculpatory
information from the police or capriciously enforced its shoplifting policy
against customers. Although the critical question in this case was Kroger’s
state of mind, Suberu produced no evidence that Kroger initiated her prosecution
on the basis of something other than a reasonable belief that she was guilty.
See City of Keller, 168 S.W.3d at 829-30.
Suberu’s
testimony does no more than create a surmise or suspicion that Kroger did not
believe she was guilty of shoplifting, because it merely invites speculation
that Kroger framed her and lied to the police. This conclusion, however, is no
more probable than the proposition that Kroger’s employees, each independent of
the others, mistakenly believed they observed the commission of a crime. We have
cautioned that, “[e]vidence that is so slight as to make any inference a guess
is in legal effect no evidence.” Ridgway, 135 S.W.3d at 601 (citing
Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001)). Unless there is
evidence rebutting the presumption of probable cause, a prosecution resulting
from eyewitness identifications that turn out to be incorrect or, at least,
insufficient to warrant a conviction, does not satisfy the exacting requirements
for a plaintiff to prevail in a malicious prosecution case.[7]
In sum, the
jury could reasonably conclude, based on her acquittal and her testimony, that
Suberu did not, in fact, steal groceries. Without more, however, Suberu’s
innocence is insufficient to support a finding that Kroger lacked probable
cause. Courts must be especially careful in malicious prosecution cases to
ensure that sufficient evidence supports each element of liability. Otherwise,
the fourth element (innocence) automatically swallows the fifth (lack of
probable cause) and sixth (malice) elements of this claim.
III
Intentional
Infliction of Emotional Distress
Kroger also
challenges the legal sufficiency of the evidence to support its liability for
intentional infliction of emotional distress.[8] To prevail on this claim, Suberu had
to prove by a preponderance of the evidence that: (1) Kroger acted intentionally
or recklessly; (2) its conduct was extreme and outrageous; (3) its actions
caused her emotional distress; and (4) the emotional distress was severe.
Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004);
Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 740 (Tex. 2003). A
defendant’s conduct satisfies the second element only if it is “‘so outrageous
in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.’“ Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993) (quoting
Restatement (Second) of Torts §
46 cmt. d (1965)). Conduct that is merely insensitive or rude is not extreme and
outrageous, nor are “mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities.” GTE Sw., Inc. v. Bruce, 998 S.W.2d
605, 612 (Tex. 1999).
Meritorious
claims for intentional infliction of emotional distress are relatively rare
precisely because most human conduct, even that which causes injury to others,
cannot be fairly characterized as extreme and outrageous. See Creditwatch,
Inc. v. Jackson, 157 S.W.3d 814, 815 n.1 (Tex. 2005) (citing cases in which
conduct was not extreme and outrageous). But despite the danger of fictitious
claims, the difficulty of measuring damages, and the indeterminacy of its
proscriptions, intentional infliction of emotional distress can be an effective
“cause of action for egregious conduct that might otherwise go unremedied.”
Hoffmann-La Roche, 144 S.W.3d at 447 (quoting Standard Fruit and
Vegetable Co. v. Johnson, 985 S.W.2d 62, 68 (Tex. 1998)); see, e.g.,
Morgan v. Anthony, 27 S.W.3d 928, 930 (Tex. 2000) (man who stopped to
assist motorist having car trouble on a rural highway repeatedly blocked her
escape and harassed her); GTE Sw., 998 S.W.2d at 613-14 (supervisor
physically and verbally threatened employees over a two-year period). Applying
the standard of review outlined in Part II A, we turn to the evidence in this
case.
Kroger
contends that the evidence is legally insufficient to support a finding that its
conduct was extreme and outrageous. Suberu, however, argues that knowingly
providing false information to police so that an innocent person is prosecuted
for shoplifting is extreme and outrageous. While we are inclined to agree that
Suberu’s premise is sound, her argument is hypothetical in light of the record
before us. The only evidence that conceivably suggests Kroger and its employees
knew Suberu was innocent is her testimony that she did not have a cart. In the
preceding analysis, however, we concluded that her claimed innocence, by itself,
is insufficient to find that Kroger did not honestly and reasonably believe
Suberu was guilty. Further, Suberu produced no evidence of prior bad relations,
racial animus, or other ulterior motives, nor does she allege that Kroger
subjected her to outrageous or abusive treatment while she was detained on its
premises. We do not doubt that the incident caused Suberu embarrassment and
emotional distress, but there is no evidence that Kroger intentionally subjected
her to such distress knowing she was innocent. Consequently, Suberu’s testimony
does not exceed a scintilla of evidence and is legally insufficient to support a
finding that Kroger’s conduct was extreme and outrageous.
IV
Conclusion
The evidence
is legally insufficient to support a finding that Kroger lacked probable cause
to initiate criminal proceedings against Suberu for shoplifting, and legally
insufficient to support a finding that Kroger’s conduct was extreme and
outrageous. Accordingly, we reverse the court of appeals’ judgment and render
judgment that Suberu take nothing. See Tex. R. App. P. 60.2(c).
____________________________________
Wallace B.
Jefferson
Chief
Justice
OPINION DELIVERED: May 5,
2006
[1] Karrah Parkey testified that, although she does not
remember seeing a cart, she heard Suberu “maneuver” a cart over a bump that
joins carpet around the pharmacy with Kroger’s tile floor. Suberu’s cross
examination revealed inconsistencies in Parkey’s testimony but, as explained
below, Parkey’s testimony is immaterial to our disposition.
[2] See, e.g., Sebastian v. Cheney, 25 S.W. 691, 694
(Tex. 1894) (“It is important that every citizen should be protected against
malicious prosecutions, and it is equally important that crimes should be
punished, in order that the law-abiding citizen may be secure in life, liberty,
and property. To make the citizen liable to be mulcted in damages for an
honest discharge of duty is to give immunity to crime, and to weaken the
restraining power of the criminal law, thereby endangering the security of
law-abiding people.”).
[3] In its entirety, the claim for malicious criminal
prosecution required Suberu to prove by a preponderance of the evidence that:
(1) a criminal prosecution was commenced against her; (2) Kroger initiated or
procured that prosecution; (3) the prosecution terminated in her favor; (4) she
was innocent of the charges; (5) Kroger lacked probable cause to initiate the
prosecution; (6) Kroger acted with malice; and (7) she suffered damages.
Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex.
1997).
[4] See Restatement (Second) of Torts ch. 29,
intro. cmt. (1977) (discussing competing social interests and stating that
“private persons who aid in the enforcement of the law should be given an
effective protection against the prejudice that is likely to arise from the
termination of the prosecution in favor of the accused.”).
[5] See supra note 3.
[6] See supra notes 2, 4.
[7] See, e.g., Burrows v. Neiman-Marcus Group,
Inc., 976 S.W.2d 784, 788 (Tex. App.CHouston [1st Dist.] 1998, no pet.) (no evidence that the
defendant lacked probable cause where two employees accused the plaintiff of
using a customer’s lost credit card to make purchases at nearby stores);
Diamond Shamrock Corp. v. Ortiz, 753 S.W.2d 238, 242 (Tex.
App.CCorpus Christi 1988, writ denied) (no evidence that the
defendant lacked probable cause where its employees gave written statements
alleging the plaintiff was stealing merchandise); Stringer v. Cross, 564
S.W.2d 121, 122 (Tex. Civ. App.CBeaumont 1978, no writ) (no evidence of malice where a
man injured in a riot identified the plaintiff as a participant); Deaton v.
Montgomery Ward & Co., 159 S.W.2d 969, 972 (Tex. Civ. App.CBeaumont 1942, writ ref’d w.o.m.) (probable cause was
established as a matter of law where the defendant’s employees identified the
plaintiff as the person who cashed a forged check).
[8] The parties briefed this issue in the court of appeals,
but the court did not address it. 113 S.W.3d at 600; Tex. R. App. P. 47.1. Because
Kroger raised the issue to this Court in a supplemental brief, we have authority
to consider it. Tex. R. App.
P. 53.4; Little v. Texas Dep’t of Criminal Justice, 148 S.W.3d
374, 384 (Tex. 2004); N. Nat. Gas Co. v. Conoco, Inc., 986 S.W.2d 603,
609 (Tex. 1998). | {
"pile_set_name": "FreeLaw"
} |
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: [email protected] or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be
made before this opinion goes to press.
2016 VT 14
No. 2014-296
In re Estate of Dezotell Supreme Court
On Appeal from
Superior Court, Orleans Unit,
Civil Division
April Term, 2015
Howard E. Van Benthuysen, J.
Jennifer DeForge, Renee Dezotelle, Beverly Sanborn, Sammie-Jo Lackie, Nicole Sevigny and
Melissan Dezotelle, Pro Ses, Montpelier, Appellants.
Andrew D. Manitsky of Gravel & Shea PC, Burlington, for Appellee.
Maria Dezotell, Pro Se, Keeseville, New York, Appellee.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. REIBER, C.J. The questions presented are whether, in distributing the proceeds
of a wrongful-death settlement to the decedent’s spouse and children, the trial court was bound
by the provisions of an earlier settlement distribution, and, if not, whether the court erred in
curtailing an evidentiary hearing to divide the settlement in proportion to the pecuniary injuries
suffered. We hold that that the trial court correctly concluded that it was not bound by the prior
order, but erred in limiting the evidentiary hearing. Accordingly, we reverse and remand.
¶ 2. The undisputed facts and procedural history may be summarized as follows.
Decedent Lyman Dezotell was killed in an automobile accident in November 2001. At the time
of his death, decedent had been married for about eight months to Maria Dezotell. Decedent had
met Maria online, traveled to Romania where she lived, spent about a month there, and
ultimately married her in March 2001. Maria was pregnant with the couple’s first child when
decedent was killed. The child, Roger Dezotell, was born in June 2002.1
¶ 3. Decedent had six daughters at the time of his death. Four were from an earlier
marriage to Linda Bedard that ended in divorce: Renee, who was twenty years old; Beverly, who
was nineteen, Sammie-Jo, then sixteen, and Nicole, who was fifteen. One daughter, Jennifer,
then almost twenty-three, had been adopted. The sixth daughter, Melissan, then eight years old,
was from a three-year relationship with Melissan’s mother that ended in 1994, when Melissan
was one. Melissan later lived with her mother. Decedent enjoyed regular visits with Melissan
on weekends, but provided little financial support. Based on decedent’s income from a fulltime
job at IBM acquired about two years before his death, the trial court determined that decedent’s
child support obligation for Melissan would have been $590 per month.
¶ 4. Maria was appointed to serve as the administrator of the estate, and subsequently
petitioned the superior court, pursuant to the provisions of 14 V.S.A. § 1492(c),2 to distribute a
combination of insurance proceeds that totaled about $135,000. Following an evidentiary
hearing, the court issued a written ruling in November 2004.
¶ 5. The trial court noted that, under settled law, the “pecuniary injuries suffered” by
the parties under 14 V.S.A. § 1492, were not limited to purely economic losses, but could also
1
We refer to the parties by their first names solely for ease of identification.
2
This section provides, in pertinent part, that in a wrongful death action “[t]he amount
recovered” shall be for the benefit of the decedent’s spouse and next of kin, that it shall be
distributed by the deceased’s personal representative, and that “[s]uch distribution, whether of
the proceeds of a settlement or of an action, shall be in proportion to the pecuniary injuries
suffered, the proportions to be determined . . . in such manner as the superior court . . . shall
deem proper and after a hearing at such at such time as the court or judge may direct, upon
application made by such personal representative or by the wife, husband or any next of kin.” 14
V.S.A. § 1492(c).
2
include “loss of companionship . . . as well as compensation for [the] lost intellectual, moral and
physical training or the loss of care, nurture and protection” provided by a parent. Mears v.
Colvin, 171 Vt. 655, 657, 768 A.2d 1264, 1267 (2000) (mem.) (quotations omitted). These
considerations extend to the loss suffered by an adult child, as well as a minor. See id. at 656,
768 A.2d at 1266 (plaintiffs claimed that father’s loss “had deprived his next of kin—including
his wife . . ., four adult daughters, and one minor child—of a close and loving relationship”). In
distributing the settlement, therefore, the trial court was authorized to “consider the physical,
emotional, and psychological relationship of the parties, as well as their living arrangements . . .
the harmony of family relations, and the commonality of interests and activities.” Id. at 657-58,
768 A.2d at 1267 (quotations omitted).
¶ 6. In this respect, the trial court noted that decedent had been awarded sole parental
rights and responsibilities for the children after his divorce; that he had performed most of the
household work with some assistance from his daughters as they got older; and that through a
combination of “part-time and odd jobs” he had been able to provide the “bare essentials” for
himself and the children. While his means were limited, the court nevertheless found that
decedent had loved each of his daughters “in his own way” and that they had returned the
affection; that his daughters had “continued to seek [decedent’s] advice and counsel after they
left the household;” and that decedent had offered them whatever wisdom he could, urging, for
example, that they complete their schooling and vocational training even if he could not assist
them financially.
¶ 7. As to his new family, the court found that, before moving to the United States
from Romania in 2001, Maria had obtained the equivalent of a B.A. in chemistry, was a
relatively accomplished and well-known journalist, and was fluent in English. She had worked
as a para-educator in the North Country school district before decedent’s death, and since then
3
had become a fulltime math and science teach at Craftsbury Academy by waiver, and was taking
the necessary coursework to obtain her teacher’s license.
¶ 8. Based on these findings, the court concluded that a “lump sum distribution of
$2500 is fair and appropriate to each of [decedent’s] adult daughters.”3 Although still minors
when decedent was killed, the court included Sammi-Jo and Nicole in this distribution because
Sammi-Jo was “effectively emancipated” and living without her father’s support, and Nicole had
departed to live with her mother. The court explained that, while none of the daughters could
have realistically expected any significant financial assistance from decedent, each had a “special
relationship with” decedent and had suffered “some loss of companionship and parental
direction.”
¶ 9. As to Melissan, who was still a minor, the court noted that decedent had a
“statutory obligation to support [the] child” which he had largely ignored, while nevertheless
maintaining some “meaningful parent-child contact.” The court thus concluded that “the sum of
$25,000 seems fair and just for Melissan.” The court directed that the money be held in trust for
Melissan’s benefit by her mother, and that it be used only for “extraordinary expenses,” with the
“primary goal of conserving as much as possible of this asset for Melissan’s college or other
educational expenses.”
¶ 10. The court awarded the balance of the settlement, almost $100,000, to “Maria
Dezotell, [decedent’s] surviving wife, and Roger Dezotell, the son he hoped for, but never saw.”
In support of this award, the court found that decedent had intended to provide them “the sort of
stable household and family life he had never been able to secure before his regular employment
with IBM”; that he “would have been a committed and loving father for Roger”; and that the
3
The court excluded Renee from this distribution because she was the sole beneficiary
of a $40,000 life insurance policy on decedent. The court also added $1000 to Beverly’s award
to reimburse her for a loan she had made to decedent, and $2350 to Jennifer’s award to
reimburse her for funeral expenses she had paid on behalf of the estate.
4
“the sum of close to $100,000” was a recognition of Maria’s “resiliency” and an “investment in
the future for Maria and Roger.” On November 18, 2004, the court issued a final judgment order
incorporating the monetary awards set forth in its findings. The judgment order concluded that
the action was thereby “terminated.”
¶ 11. Five years later, in June 2008, decedent’s estate again petitioned the court for a
distribution of wrongful death proceeds, this time resulting from the settlement of a lawsuit by
the estate against the University of Vermont and others. The suit had alleged that the driver of
the vehicle which struck and killed decedent had been participating in a UVM-sponsored
experimental drug study, and that UVM was negligent in allowing him to drive. The amount
available for distribution from the settlement was about $205,000.4
¶ 12. The petition stated that the estate beneficiaries had agreed to use the prior order as
a basis for distribution, and thus receive the same proportion of the new settlement that they had
received under the first. The $2500 awarded to the four daughters (Jennifer, Beverly, Sammi-
Jo, and Nicole) constituted 1.88% of the previous distribution; the $25,000 awarded to Melissan
was 18.79%; and the balance of nearly $100,000 granted to Maria and Roger represented
73.69%. Applying these percentages to the current settlement resulted in a distribution to each
of the four daughters of $3,852; to Melissan the sum of $38,504; and to Maria on behalf of Roger
a total of $151,007. On August 10, 2009, the trial court issued an order approving the stipulated
distribution.
¶ 13. About a year later, in August 2010, the estate’s attorney in the UVM wrongful-
death action filed a complaint against the estate for attorney’s fees allegedly due and owing, and
the estate, in response, filed a counterclaim alleging professional malpractice. The estate alleged
that its attorney’s negligent and unethical handling of the lawsuit had improperly influenced its
4
The total settlement was for $325,000, but $100,000 was withheld pending a claim for
attorney’s fees by the estate’s attorney and an additional $20,000 was credited against other
claims on the estate.
5
decision to accept the settlement. The malpractice claim settled in September 2013, resulting in
an additional $204,000 available to the estate for distribution.5
¶ 14. In January 2014, the estate filed a third petition for distribution of the additional
settlement funds. The estate proposed to distribute the money using the same percentage
formula as the second distribution, with one exception. The estate asserted that Melissan’s
earlier distributions were predicated on her status as a minor, to compensate her for the loss of
child support, and that having reached the age of majority her percentage should be decreased to
that of the other daughters who had received a distribution, or 1.88%, leaving about 90% to be
distributed to Maria and Roger. Melissan opposed the change, asserting that the distribution
formula employed in the earlier orders was res judicata.
¶ 15. In April 2014, the court ruled that it was not bound by the prior distributions in
the current proceeding. The court concluded that “whatever amounts make a fair and equitable
distribution are not fixed” when the wrongful death action accrued, but rather “may deviate from
previous distributions as the circumstances warrant.” Thus, the court ruled that “a fresh look into
what would constitute a fair and equitable distribution in 2014 [was] warranted,” and set the
matter for “a new hearing . . . under 14 V.S.A. § 1492(c) in order to determine the division of the
proceeds from the settlement.”
¶ 16. On May 14, 2014, the court held an evidentiary hearing in which one of the
daughters, Jennifer, testified. Jennifer described her close relationship with decedent, his tireless
efforts to support the family “the best that he could,” and the values of hard work and honesty
that he imparted to his children which they continued to apply today. The court interjected
during cross-examination of the witness that the focus should be on “things that have happened
since 2004,” but indicated that it would allow Jennifer to complete her testimony and “find . . .
5
The gross settlement was for $382,500. Deducting attorney’s fees and expenses
resulted in a net to the estate of approximately $204,000.
6
another whole day as soon as possible—possibly giving up a trial day actually—to enable you
folks to finish this case.” Jennifer then testified that she hoped for a larger share of the new
settlement to help support her child, who was not born at the time of the earlier proceeding, that
she and her sisters were “in different chapters” of their lives, and that she still hoped to “make
dad proud.” When the testimony concluded, the court indicated that it needed to adjourn the
hearing to address other matters but would direct court staff “to find you forthwith a day to
finish.”
¶ 17. Despite its statement on the record, the court issued a short order following the
hearing stating that the only issue before the court was whether to alter Melissan’s share, and that
if “the [p]arties desire further hearing regarding altering the distribution of anyone besides
Melissan, he or she must show . . . why further evidence is appropriate and . . . make an offer as
to what evidence is relevant to the issues.” Counsel for the daughters, including Melissan, filed a
responsive memorandum arguing that Melissan’s age was not the only circumstance that had
changed over time or was relevant to the distribution of the new settlement. Counsel noted that
Maria and Roger had already been awarded approximately $250,000 from the prior settlements
while Jennifer, Sammi-Jo, Nicole and Beverly had each received less than $10,000. Counsel
proposed to show that Maria did not now require the same level of support, having used the prior
distributions to secure a teaching certificate and a fulltime teaching position with the Missisquoi
Union High School, and had entered into a new domestic relationship. In addition to changes in
Maria’s life, counsel argued that evidence of the other daughters’ current circumstances was also
relevant, as well as simply the “amount of distributions to date.” As a possible guide, counsel
suggested the intestacy statute, which would result in a distribution of one-half of the new
settlement to Maria, and the remainder evenly divided among the children.
¶ 18. The court issued a written ruling in July 2014. The court explained that it had
concluded that further evidence was unnecessary; the original distribution order determined that
7
none of the older daughters could have “reasonably expected any financial assistance from their
father” and the court found “no basis for revisiting that determination” either from Jennifer’s
testimony or from anything that the other daughters might add. As to Melissan, however, the
court concluded that it was appropriate to reduce her share “to that of the other [d]aughters at
1.88% . . . based on the logic of the 2004 order,” inasmuch as she was also now “an independent
adult.” Accordingly, the court awarded 1.88% of the settlement funds, or approximately $3,835,
to each of decedent’s daughters, and the balance of 88.72%, or about $181,000, to Maria on
behalf of herself and Roger.6 Combined with the earlier awards, this resulted in a total
distribution of $432,000 to Maria and Roger; $67,339 to Melissan; about $10,000 each to
Jennifer, Beverly, Nicole, and Sammi-Jo; and $3,835 to Renee. This pro se appeal by decedent’s
daughters followed.
¶ 19. Daughters contend the trial court was either collaterally estopped from reducing
Melissan’s share of the third settlement by the earlier distributions or, alternatively, that if the
court was not estopped then it improperly excluded evidence relevant to the distribution “in
proportion to the pecuniary injuries suffered.” 14 V.S.A. § 1492(c). The collateral estoppel
argument is unpersuasive. The doctrine bars the relitigation of an issue that was actually decided
in a prior case. Trickett v. Ochs, 2003 VT 91, ¶ 10, 176 Vt. 89, 838 A.2d 66. It applies, in
limited circumstances, when preclusion is asserted against a party to the prior action; the same
issue was raised in the prior action; the issue was resolved by a final judgment on the merits;
there was a full and fair opportunity to litigate the issue; and applying preclusion is fair. Id.
¶ 20. Each of the three distribution petitions filed by the estate at roughly five-year
intervals presented, by definition, a separate issue for the court to determine a fair and equitable
distribution of each settlement in light of the circumstances then presented. See Estate of Tilton
6
Renee also received a share, although she had not received any funds from the earlier
distributions.
8
v. Lamoille Super. Ct., 148 Vt. 213, 216, 531 A.2d 919, 921 (1987) (observing that 14 V.S.A.
§ 1493(c) “is directed toward fair distribution of a wrongful death award among competing
claimants”). The decision in each instance is necessarily contextual and forward looking. As
we have explained, in determining a beneficiary’s “pecuniary loss” the court must examine the
“losses which the circumstances of the particular case establish with reasonable certainty will be
suffered by the beneficiary . . . in the future.” Mobbs v. Central Vt. Ry., 150 Vt. 311, 316, 553
A.2d 1092, 1096 (1988) (quotation omitted); see also D’Angelo v. Rutland Ry., Light & Power
Co., 100 Vt. 135, 135 A. 598 (1927) (approving rule that next of kin may recover for wrongful
death the “loss of her reasonable expectation of pecuniary advantage from the continuance of the
life of the deceased”); see generally S. Speiser et al., Recovery for Wrongful Death § 6:10 (4th
ed. 2015) (“[T]he loss of support for which damages are to be recovered is necessarily a loss in
the future, and therefore the verdict can be nothing other than a prediction as to the reasonable
probabilities.”).
¶ 21. Successive distributions—even in the same case—may reflect entirely different
“equities” and “expectations” depending upon the ages of the beneficiaries at the time, their
economic circumstances and needs, previous awards received, and the amount available for
distribution. See, e.g., In re Estate of Figley, No. 12 00 15, 2013 WL 500775, at **3-4 (Ohio Ct.
App. 2013) (rejecting claim that court erred in finding that it was “fair and equitable to distribute
the proceeds of the Second Settlement equally among the [decedent’s] three sisters” despite their
waiver of any interest in the first settlement, considering their loss of companionship and the
total of the two settlements considered “as a whole”); In re Estate of Cochran, No. A2000-05-
030, 2001 WL 273644, at **2-3 (Ohio Ct. App. 2001) (rejecting claim that “trial court abused its
discretion by deviating from the percentage distributions it made of . . . prior settlement
proceeds” and noting that the court in each case must be guided by “the evidence before it and
apportion the settlement accordingly”). The trial court here was correct, therefore, in concluding
9
that a fair apportionment of the third settlement should be measured, in part, by the parties’
current circumstances. This was reflected in its decision to reduce Melissan’s percentage based
on the fact that she was no longer a minor.
¶ 22. Nevertheless, we conclude that the trial court erred in failing to apply this
principle consistently to the other beneficiaries or the proceeding as a whole. While initially
stating its intention to schedule an additional hearing day, the court subsequently reconsidered
the matter and ultimately ruled that further evidence of the daughters’ circumstances was
unnecessary. In so ruling, the court explained that it would not “revisit[]” the 2004 finding that
the daughters could not have reasonably expected much financial assistance from their father,
and that further evidence would not add anything of substance.
¶ 23. The court’s ruling overlooks the fact that this original finding was made in the
specific context of a specific settlement ten years earlier. At the time, the court was attempting
to divide a limited fund of approximately $135,000 among eight beneficiaries, including two
children who were three and eleven years old. Since then, the estate had received an additional
$200,000—the bulk of which had been awarded to Maria and Roger—the three year old had
become a teenager, and the eleven-year-old was now a young adult seeking, like her older
sisters, some additional measure of financial security. All of these additional circumstances,
and possibly others—including evidence that Maria and Roger had already received $250,000,
that Maria was now financially secure, that Roger was substantially closer to the age of
majority, and that the daughters themselves may have new families and obligations and
aspirations—were potentially relevant to the fair and equitable distribution of the additional
$204,000 settlement. Although the finding that decedent—while he was alive—had never
been able to provide a great deal for his daughters in material terms certainly remained true, it
did not compel the conclusion that 1.88% of the third settlement was all they could ever
reasonably expect, or all that decedent would ever want them to have, upon his death.
10
¶ 24. With respect, the dissenting opinion is incorrect in asserting that we “ignore[]
the plain language of the statute” in concluding that the trial court was not bound by the initial
distribution from 2004 in reaching a fair and equitable division of the malpractice settlement
ten years later. Post, ¶ 35. Although the dissent declares that the ratios from the initial
distribution are binding in the distribution of all subsequent settlement proceeds, it cites no
statutory language or case law dictating this result. Furthermore, while the dissent is correct in
noting that the wrongful-death statute does not expressly instruct the court to make a “fair and
equitable” distribution of the wrongful death proceeds, this Court has observed that the statute
contemplates a “fair distribution of a wrongful death award among competing claimants,”
Estate of Tilton, 148 Vt. at 216, 531 A.2d at 921, and the dissent has identified no case law or
other authority contradicting the common-sense conclusion that fairness may dictate a different
distribution a decade after the initial settlement.
¶ 25. We conclude, accordingly, that the trial court erred in restricting the daughters’
introduction of additional evidence relevant to the distribution of the third settlement in
proportion to the injuries from their loss, and therefore remand the matter for further
proceedings.
Reversed and remanded for further proceedings consistent with the views expressed
herein.
FOR THE COURT:
Chief Justice
¶ 26. ROBINSON, J., dissenting. Under Vermont’s statute governing wrongful death
actions, damages are determined “with reference to the pecuniary injuries” of the surviving
spouse and next of kin, and are distributed among them in proportion to their respective injuries.
11
14 V.S.A. § 1492(b). The determination of the wrongful-death-act beneficiaries’ pecuniary
injuries is ultimately one of fact. For that reason, when a court adjudicates the amount of the
damages awardable to the personal representative of the beneficiaries on account of a wrongful
death, or the relative proportion of those damages to be allocated to each of the respective
statutory beneficiaries, that determination is an adjudicated fact that has preclusive effect in
subsequent actions when the criteria for collateral estoppel are satisfied. In this case, those
criteria are satisfied, and the 2004 order adjudicating the relative proportion of the statutory
beneficiaries’ pecuniary damages has preclusive effect in subsequent proceedings in which the
relative proportion of the statutory beneficiaries’ pecuniary damages is at issue. In asserting that
the wrongful death statute requires a “fair and equitable distribution,” ante ¶ 20, of each
wrongful death settlement in light of the circumstances then presented, the majority adopts a
framework that is at odds with the wrongful death statute and our cases, and embraces a holding
that creates significant practical problems. For these reasons, I dissent. The plain language of
the wrongful death statute, and our case law applying that statute, make it clear that the damages
that can be awarded in a wrongful death case are determined with reference to the pecuniary
injuries of the surviving spouse and next of kin, that the proceeds of a wrongful death action are
distributed among statutory beneficiaries in proportion to their respective injuries, and that the
factors driving the calculation of wrongful death damages and the distribution of wrongful death
proceeds are one and the same.
¶ 27. The wrongful death statute provides that the court or jury before whom a
wrongful death case is tried “may give such damages as are just, with reference to the pecuniary
injuries resulting from such death, to the [spouse] and next of kin.” 14 V.S.A. § 1492(b). The
personal representative is required to distribute the proceeds “in proportion to the pecuniary
injuries suffered, the proportions to be determined upon notice to all interested persons in such
manner as the superior court . . . shall deem proper and after a hearing.” Id. § 1492(c); see
12
Bassett v. Vt. Tax Dep’t, 135 Vt. 257, 259, 376 A.2d 731, 733 (1977) (“Clearly, under the
statute, distribution is to be in direct proportion to pecuniary injuries suffered from the wrongful
death, a factor not considered in distribution of ordinary estate assets.”). The statute is not
ambiguous on this point and should be construed consistent with its plain meaning. See In re
Willey, 2010 VT 93, ¶¶ 11-12, 189 Vt. 536, 14 A.3d 954 (denying trial court power under 14
V.S.A. § 1492(c) to control how wrongful death proceeds were invested because the “plain
meaning” of the statute allowed trial court to determine only how the proceeds were distributed);
Mier v. Boyer, 124 Vt. 12, 13, 196 A.2d 501, 502 (1963) (“[W]here the meaning of a statute is
plain, the courts must enforce it according to its terms.” (citation omitted)).
¶ 28. Nearly a century ago, this Court explained that in determining wrongful death
damages, the factfinder should determine “what amount is a just compensation for the financial
loss which the evidence shows will probably be directly or proximately caused by the death of
the victim.” D’Angelo v. Rutland Ry. Light & Power Co., 100 Vt. 135, 138, 135 A. 598, 599
(1927) (quoting Bond v. United R.Rs., 113 P. 366, 369 (Cal. 1911)). Although the statute speaks
of “pecuniary,” or financial loss, this Court has long held that such loss encompasses intangibles
such as the “loss of intellectual and moral training and proper nurture by a child, and loss of her
husband’s care and protection by a widow.” Lazelle v. Town of Newfane, 70 Vt. 440, 445, 41
A.511, 512 (1898) (quotation omitted). We reiterated this understanding of the wrongful death
statute more recently, explaining, “[t]he term ‘pecuniary injuries’ does not limit recovery to
purely economic losses. In cases where it has been construed by this Court, the term has been
held to contemplate compensation for lost intellectual, moral and physical training, or the loss of
care, nurture and protection.” Mobbs v. Cent. Vt. Ry., 150 Vt. 311, 316, 553 A.2d 1092, 1095
(1988); see also Clymer v. Webster, 156 Vt. 614, 629-30, 596 A.2d 905, 914 (1991) (concluding
that damages under the wrongful death act can include damages suffered by parents of an adult
child resulting from the loss “of the society of that child”). Accordingly, in calculating wrongful
13
death damages, the factfinder “may consider the physical, emotional, and psychological
relationship of the parties, as well as their living arrangements, . . . the harmony of family
relations, and the commonality of interests and activities.” Mears v. Colvin, 171 Vt. 655, 657-
58, 768 A.2d 1264, 1267 (2000) (mem.) (citing Clymer, 156 Vt. at 630, 596 A.2d at 914)
(quotations omitted).
¶ 29. The connection between the determination of wrongful death damages in the first
instance and the distribution among statutory beneficiaries of sums recovered in a wrongful
death case is critical to the analysis in this case. See In re Estate of Cote, 2004 VT 17, ¶10, 176
Vt. 293, 848 A.2d 264 (“All relevant parts of the applicable statutory scheme are to be construed
together to create, if possible, a harmonious whole.” (citation omitted)). At common law, all
actions for personal injuries died with the person injured, so that a surviving spouse or next of
kin had no recourse for losses they suffered when a spouse, parent, or child died as the result of
another’s wrongful act. Lazelle, 70 Vt. at 443-44, 41 A. at 511-12. Wrongful death damages are
recoverable by a surviving spouse or next of kin solely by force of statute, and are both driven
and limited by the individual and cumulative pecuniary losses sustained by these statutory
beneficiaries. Id. No other factor beyond the pecuniary damages suffered by the beneficiaries
can support an award of wrongful death damages; the total damages that can be awarded to the
personal representative of the beneficiaries is the sum of the individual beneficiaries’ own
respective pecuniary damages. The proceeds that are actually recovered in a wrongful death
action—whether they are equal to or are less than the sum of the beneficiaries’ respective
pecuniary damage—are likewise divided among those beneficiaries in proportion to their
respective shares of the cumulative damages. In short, the assessment that drives the availability
and limit of damages in a wrongful death case also drives the distribution of wrongful death
proceeds among those beneficiaries.
14
¶ 30. Accordingly, a court’s determination of the relative proportions of the statutory
beneficiaries’ losses is as much an adjudicated fact as the court’s determination of the total
damages to be awarded in the first place. Nobody would suggest that the personal representative
in a wrongful death case could return to court years after the court’s initial damage determination
in order to seek more damages, even if intervening events had unfolded in ways that were not
contemplated by the court at the time of its original damage award such that the actual losses
suffered by the statutory beneficiaries were greater than anticipated at the time of the judgment.
See, e.g., Faulkner v. Caledonia Cty. Fair Ass’n, 2004 VT 123, 178 Vt. 51, 869 A.2d 103
(concluding that plaintiff’s personal injury claim for damages from epilepsy resulting from head
injury at fair was precluded where plaintiff had previously recovered a $5,000 verdict for head
injury, before epilepsy manifested). The Restatement (Second) of Judgments explains:
Typically, even when the injury caused by an actionable wrong
extends into the future and will be felt beyond the date of
judgment, the damages awarded by the judgment are nevertheless
supposed to embody the money equivalent of the entire injury.
Accordingly, if a plaintiff who has recovered a judgment against a
defendant in a certain amount becomes dissatisfied with [the]
recovery and commences a second action to obtain increased
damages, the court will hold [the plaintiff] precluded . . . It is
immaterial that in trying the first action he was not in possession of
enough information about the damages, past or prospective, or that
the damages turned out in fact to be unexpectedly large and in
excess of the judgment.
Id. § 25, cmt. c.
¶ 31. Nor could one of the beneficiaries of a wrongful death award seek to reopen the
distribution of that award among the beneficiaries on the ground that, in light of subsequent
events, the court’s initial assessment of the relative past and prospective pecuniary injuries of the
respective beneficiaries proved to be inaccurate. We have recognized that “damages, in their
very nature, are not susceptible of exact computation.” Mobbs, 150 Vt. at 316, 553 A.2d at 1096
(quoting Johnson v. Hoisington, 134 Vt. 544, 547, 367 A.2d 680, 682 (1976)) (internal alteration
15
omitted). Once the beneficiaries’ respective losses—whether their collective total, the
proportion among them, or both––is adjudicated by a court, that determination has the status of
an adjudicated fact.
¶ 32. Whether the court’s factual determination of the relative pecuniary injuries of the
beneficiaries in the context of the wrongful death action implicating various automobile
insurance policies has preclusive effect with respect to the determination of the beneficiaries’
proportionate injuries in connection with a distinct action against a different defendant but
arising from the same wrongful death turns on ordinary principles of claim preclusion.7 In
particular, the final judgment in previous litigation bars subsequent litigation “if the parties,
subject matter, and causes of action in both matters are the same or substantially identical.”
Faulkner, 2004 VT 123, ¶ 8 (internal alteration omitted).
¶ 33. In this case, the statutory beneficiaries with respect to the distribution of the
wrongful death proceeds resulting from the malpractice settlement are the same as with respect
to the 2004 court order distributing the automobile insurance proceeds. The subject matter and
cause of action in the two matters is the same: determination of the beneficiaries’ relative
pecuniary injuries as a result of decedent’s death for the purposes of distributing proceeds from a
wrongful death action pursuant to 14 V.S.A. § 1492(c). It’s hard to imagine a closer identity of
parties, subject matter and causes of action between the adjudicated distribution of the proceeds
of a wrongful death settlement with various automobile insurance carriers and the distribution of
wrongful death proceeds at issue here. Although in this case, on account of multiple settlements
with different tortfeasors, funds were recovered in several installments to apply toward the
7
The claim at issue in this appeal was against the estate’s attorney. But the damages in
that malpractice case were calculated based on the damages that should have been collected from
the University of Vermont and others in connection with the wrongful death claim against the
University of Vermont (UVM) and others. For the purposes of this analysis, I accordingly treat
the proceeds as proceeds from the wrongful death claim against UVM and others even though
the third claim was actually a malpractice claim.
16
beneficiaries’ respective and collective pecuniary injuries, the relative proportions of those
injuries were established in the first proceeding. Issue preclusion applies, and the parties are
bound by the court’s 2004 determination of the beneficiaries’ relative pecuniary injuries.8
¶ 34. In reaching a different conclusion, the majority adopts a framework that is at odds
with the plain language and structure of the wrongful death statute, as well as our prior case law.
Its framework would invite relitigation of wrongful death distributions and inconsistent rulings,
undermining the finality of judgments in wrongful death cases.
¶ 35. The majority’s assertion that each of the distribution petitions filed by the estate
in this case presented “a separate issue for the court to determine a fair and equitable distribution
of each settlement in light of the circumstances then presented,” ante ¶ 20, completely ignores
the plain language of the statute. The relevant subsection of the wrongful death statute does not
instruct the court to make a “fair and equitable distribution” of wrongful death proceeds; neither
term even appears in the statute. See McAllister v. AVEMCO Ins. Co., 148 Vt. 110, 112, 528
A.2d 758, 759 (1987) (explaining that Court will expand plain meaning of statute by implication
only when necessary to make the statute effective). Rather, the wrongful death statute requires
the court to distribute the proceeds “in proportion to the pecuniary injuries suffered” by the
respective beneficiaries. 14 V.S.A. § 1492(c); see Mier, 124 Vt. at 13, 196 A.2d at 502; accord
JW, LLC v. Ayer, 2014 VT 71, 197 Vt. 118, 101 A.3d 396 (“[W]here [statutory] language is
unambiguous” court construes according to “statute’s plain meaning”). As noted above, this is a
factual determination requiring the court to ascertain each beneficiary’s losses, and then
determine the ratios between them. It is not a free-floating admonition to do what’s fair.
8
Because each of the claims against the respective tortfeasors was resolved by
settlement, the court was never called upon to determine the beneficiaries’ total individual or
collective pecuniary injuries; it only had to determine the relative proportions of the
beneficiaries’ injuries. Whether a court’s determination of the total pecuniary injury suffered by
an individual or the group would have preclusive effect in a subsequent action against a different
tortfeasor would depend upon the application of the principles of collateral estoppel in that
distinct context.
17
¶ 36. In redefining the trial court’s charge as one of simply fairly dividing the proceeds
of the wrongful death settlement, the majority severs the connection between the calculation of
wrongful death damages in the first place—based on the beneficiaries’ respective and cumulative
pecuniary losses—and the distribution of proceeds from the wrongful death claims. It treats the
proceeds of the malpractice settlement as a pool of money available to be distributed fairly,
without recognizing that the parties’ respective losses both drive and limit the available damages
in a wrongful death case. In this case, as in many, the parties did not litigate the actual question
of damages against any of the wrongful death defendants, because the claims against these
defendants were resolved by settlement. But the ratios between the beneficiaries’ respective
pecuniary injuries are no more fluid through time than the total wrongful death damages that
flow from those pecuniary injuries.
¶ 37. Nothing in our case law supports the majority’s recharacterization of the role of
the factfinder in distributing wrongful death proceeds. The majority cites Estate of Tilton v.
Lamoille Superior Court, 148 Vt. 213, 216, 531 A.2d 919, 921 (1987) for the observation that 14
V.S.A. § 1492(c) “is directed toward fair distribution of a wrongful death award among
competing claimants.” In making the leap from this observation concerning the goal of the
wrongful death statute to its assertion that the statute empowers the court to make distinct
equitable allocations of wrongful death proceeds each time a new infusion becomes available,
the majority conflates the underlying purpose of the statute with the standard the Legislature has
adopted to promote that goal: the relative proportion of each beneficiary’s pecuniary injury.
¶ 38. Because Vermont’s statute predicates the distribution of wrongful death proceeds
on a specific factual finding that has preclusive effect, the majority’s reliance on two cases from
Ohio is misplaced. Ante, ¶ 21. The Ohio statute governing distribution of wrongful death
proceeds in the cases relied upon by the majority authorizes the court to distribute proceeds “in a
manner that is equitable, having due regard for the injury and loss to each beneficiary resulting
18
from the death and for the age and condition of the beneficiaries.” Ohio Rev. Code
§ 2125.03(A)(1). Although the beneficiaries’ respective losses are a recognized factor in the
calculus, they are not the only factor identified in the statute. Moreover, although the statute
identifies factors to which the court must give “due regard,” it ultimately gives the court broad
discretion to divide the proceeds in a way that is equitable. For that reason, the Ohio wrongful
death statute is completely different from Vermont’s with respect to whether a distribution of
wrongful death proceeds is a general equitable determination based on the circumstances before
the court at a given time, without regard to past rulings.
¶ 39. My concern that the majority’s approach is unfaithful to the requirements of
Vermont’s wrongful death statute is not just a technical one; I believe the majority has opened
the door to a host of practical problems. If the majority means what it says, then every time an
individual dies as a result of wrongful acts of multiple tortfeasors, and every time claims against
a single tortfeasor are satisfied through successive judgments or settlements with different
insurers, disputatious beneficiaries will be entitled to their day in court to establish their claims to
a share of this particular infusion of wrongful death proceeds. Although the passage of time
between the court’s initial distribution order in this case and the distribution petition at issue in
this appeal has been significant, there is nothing about the court’s reasoning that limits its
holding to that factual circumstance. Even if the wrongful death settlements were only two years
apart, or six months apart for that matter, any beneficiary—including one dissatisfied with the
last distribution order––would be entitled to insist on a new hearing and a new adjudication of
the most equitable allocation of this settlement. They would be allowed to marshal new and
different evidence each time the personal representative filed a petition to distribute wrongful
death proceeds. And there would be nothing to guard against multiple inconsistent rulings, since
each distribution would rise or fall on its own merits.
19
¶ 40. For all of these reasons, I part ways with the majority’s analysis, and its decision
to remand this case to the trial court. I would treat the proportional distribution reflected in the
2004 order as preclusive, and would distribute the current proceeds in the same proportion.
Associate Justice
20
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Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
2-6-1997
In Re: Edward Cohen v.
Precedential or Non-Precedential:
Docket 96-5155
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997
Recommended Citation
"In Re: Edward Cohen v." (1997). 1997 Decisions. Paper 34.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/34
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 96-5155
_____________
IN RE: EDWARD S. COHEN, Debtor,
EDWARD S. COHEN,
Appellant,
-vs-
HILDA DE LA CRUZ; NELFO C. JIMENEZ;
MARIA MORALES; GLORIA SANDOVAL; HECTOR SANTIAGO;
SANTIA SANTOS; ELBA SARAVIA;
ELVIA SIGUENZIA; ENILDA TIRADO.
____________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Case No. 95-cv-04958)
____________
Submitted Under Third Circuit LAR 34.1(a)
October 10, 1996
Before: MANSMANN and GREENBERG, Circuit Judges,
and HILLMAN, District Judge*
(Filed February 6, 1997)
* Honorable Douglas W. Hillman of the United States District
Court for the Western District of Michigan, sitting by
designation.
1
Edward S. Cohen (pro-se)
6021 Fountain Park Lane
Apt. #10
Woodland Hills, CA 91367
Appellant
GREGORY G. DIEBOLD, Esquire
Hudson County Legal Services Corp.
574 Newark Avenue
Jersey City, New Jersey 07306
Attorneys for Appellees
___________
OPINION OF THE COURT
____________
HILLMAN, District Judge.
Edward S. Cohen appeals from the order of the New
Jersey District Court affirming the bankruptcy judge's
determination that certain debts were nondischargeable in
bankruptcy because they were obtained by fraud, as defined in 11
U.S.C. § 523(a)(2)(A). Because we conclude that section
523(a)(2)(A) excludes punitive as well as compensatory damages
from discharge, we will affirm.
I.
In 1985, appellant, Edward Cohen ("Cohen"), and his
father, Nathan Cohen, purchased an 18-unit residential apartment
building at 600 Monroe Street in Hoboken, New Jersey. They held
title to the Monroe Street property until December 1989. The
Cohens also owned several other residential properties: another
2
multi-family apartment building in Hoboken, one in Union City,
two in Paterson, one in Jersey City and one in Newark.
The Hoboken Rent Leveling Act (The Act) is a
comprehensive rent control ordinance which governed the Monroe
Street property. The rents set by the Cohens were approximately
double what they could legally charge under the Act. Most of the
tenants in the Monroe Street units were non-native speakers of
English with little education.
In 1989, the Hoboken Rent Control Administrator
determined that the Cohens had violated the Act. The Cohens were
ordered to refund amounts totaling $31,382.50. The amounts were
not refunded and the Cohens failed to perfect an appeal from the
determination of the Administrator. Thereafter, the Cohens filed
for Chapter 7 bankruptcy, seeking to discharge these as well as
other debts.
On February 14, 1991, the tenants filed an adversary
proceeding against Edward Cohen in the bankruptcy court. They
claimed that the debts owed to them were procured by fraud and
were thus nondischargeable in bankruptcy under 11 U.S.C. §
523(a)(2)(A). Additionally, each tenant sought a judgment for
three times the amount of the refund pursuant to New Jersey's
Consumer Fraud Act, N.J.Stat.Ann. §§ 56:8-1 to 8-9.
At trial, the plaintiffs testified that they had no
knowledge of the legal amount of rent. Most were unaware that
any rent control ordinance governed the property. Cohen admitted
3
that at the time he purchased the property, he was aware that the
rent control ordinance existed. He claimed, however, that he
never inquired about the requirements of the ordinance nor was he
advised of its provisions. He testified that he was aware that
he could not raise rents more than 6% per annum, but claimed to
believe that he could charge new tenants any amount up to fair
market value. In fact, the Act limited the amount of rent the
Cohens could charge existing and new tenants.
After hearing the testimony, the bankruptcy judge
determined that the debts were nondischargeable and that the
Consumer Fraud Act applied. The court found that Cohen, despite
being represented by counsel, recklessly made no effort to
investigate the statute and selectively inquired about its
application. The court further found that Cohen conveniently
understood that the ordinance allowed him to surcharge his
tenants for increases in water bills and taxes and he knew where
he could apply for such relief. Cohen claimed, however, that he
did not think to investigate how much he could charge new
tenants. Based on these facts, the bankruptcy court found that
Cohen had selectively understood and applied the provisions of
the ordinance that were to his benefit, but wilfully failed to
ascertain the less advantageous provisions. On the basis of
Cohen's admittedly selective understanding of the statute, the
bankruptcy court concluded that he had committed fraud within the
meaning of the bankruptcy code. The court also held that Cohen's
4
conduct violated the New Jersey Consumer Fraud Act, N.J. Stat.
Ann. 56:8-1, and that Cohen was statutorily liable for treble
damages. The bankruptcy court held that the treble damage award
also was nondischargeable in bankruptcy, and it entered a total
judgment for $94,147.50. The district court affirmed. In re
Cohen, 191 B.R. 599 (D.N.J. 1996).1
In his appeal, Cohen contends that the district court
erred in affirming the order of the bankruptcy court. First, he
asserts that, in finding that appellant's conduct amounted to
nondischargeable fraud under 11 U.S.C. § 523(a)(2)(A), the
bankruptcy court and the district court applied incorrect
principles of law and made clearly erroneous factual findings.
Second, he argues that, even if his conduct amounted to fraud
under the bankruptcy code, it did not constitute a violation of
1
The district court had jurisdiction to hear this case
pursuant to 28 U.S.C. § 158(a). Because the bankruptcy court
first heard this case, Bankruptcy Rule 8013 governed the district
court's standard of review:
On an appeal the district court or bankruptcy appellate panel may
affirm, modify, or reverse a bankruptcy judge's
judgment, order or decree or remand with instructions
for further proceedings. Findings of fact, whether
based on oral or documentary evidence, shall not be set
aside unless clearly erroneous, and due regard shall be
given to the opportunity of the bankruptcy court to
judge the credibility of witnesses.
Our jurisdiction rests on 28 U.S.C. § 1291 and 28 U.S.C. §
158(d). 8013. We exercise plenary review over the district
court's order, because a district court sits as an appellate
court in bankruptcy court. In re Cohn, 54 F.3d 1108, 1113 (3d
Cir. 1995). We review the bankruptcy court's findings of fact
for clear error. Id. We exercise plenary review over questions
of law. Id.
5
the New Jersey Consumer Fraud Act, N.J. Stat. Ann. § 56:8-1.
Third, he contends that the treble damage provision of the New
Jersey Consumer Fraud Act is a punitive damage award. As such,
Cohen contends that the treble damage portion of the debt is
dischargeable under 11 U.S.C. § 523(a)(2)(A).
We have carefully considered both the facts and the law
and we find no error in the district court's conclusion that
Cohen committed fraud within the meaning of 11 U.S.C.
§ 523(a)(2)(A) and N.J. Stat. Ann § 56:8-1. Both the bankruptcy
court and the district court applied the correct principles of
law, and the factual findings of the bankruptcy court were not
clearly erroneous. Because Cohen's objections to the bankruptcy
court's findings of fraud raise no substantial questions not
fully addressed by the courts below, we affirm without discussion
the district court's order affirming the bankruptcy judge's
findings of fraud under both the bankruptcy code and the New
Jersey Consumer Fraud Act.
However, because the question of whether punitive
damages2 are dischargeable under 11 U.S.C. § 523(a)(2)(A) is the
subject of a split in the circuits, we will address that issue in
full.
II.
2
We assume without deciding for purposes of this opinion that the treble damages
provision of N.J. Stat. Ann. § 56:8-9 is purely punitive and does not serve a compensatory
function. But see Cox v. Sears Roebuck & Co., 138 N.J. 2, 24, 647 A.2d 454, 465 (N.J. 1994)
(suggesting that purpose of treble damage and attorney fee awards was partly compensatory).
6
Section 523(a) of the federal bankruptcy statute
provides limited exceptions to the general dischargeability of
debts of eligible claimants under the statute. Specifically,
section 523(a) sets forth sixteen types of debts that are
nondischargeable under the code. The subsection at issue here --
523(a)(2)(A) -- originally excepted from discharge any debt "for
obtaining money, property [or] services . .. by . . . actual
fraud. . . ." Federal courts interpreted this provision to
include punitive as well as compensatory damages within the
exception to discharge. See, e.g., In re Maxwell, 51 F.R. 244,
246 (Bankr. S.D. Ind. 1983); In re Carpenter, 17 B.R. 563, 564
(Bankr. E.D. Tenn. 1982). Cf. Birmingham Trust Nat. Bank v.
Case, 755 F.2d 1474, 1477 (10th Cir. 1985).
Congress amended this provision in 1984, thereby giving
rise to the issue we now address. See Bankruptcy Amendments and
Federal Judgeship Act of 1984, Pub.L.No. 98-353, 1984
U.S.C.C.A.N. (98 Stat.) 333, 376. We must determine whether
punitive damages are nondischargeable under the second of these
exceptions, which provides in relevant part:
(a) A discharge under . . . this title does not
discharge an individual debtor from
any debt --
. . .
(2) for money, property, services, or an
extension, renewal or refinancing
of credit, to the extent obtained
by --
7
(A) false pretenses, a false
representation, or actual
fraud . . . .
11 U.S.C. § 523(a)(2)(A) (emphasis added).
A number of courts, including two courts of appeals,
have interpreted this provision and have come to conflicting
conclusions about its meaning. Several courts, including the
Court of Appeals, for the Ninth Circuit, have held that, by
including the phrase "to the extent obtained by" in the
exception, Congress intended to limit the exception strictly to
compensatory damages for the actual amount caused by the fraud.
Consequently, those courts have held that punitive damages for
fraud are dischargeable, notwithstanding § 523(a)(2)(A). See,
e.g., In re Levy, 951 F.2d 196 (9th Cir. 1991), (the language of
the statute suggests that the subsection limits
nondischargeability to the amount of benefit to the debtor or
loss to the creditor the act of fraud itself created); In re
Auricchio, 196 B.R. 279, 289-90 (Bankr. D.N.J. 1996); In re
Bozzano, 173 B.R. 990, 998 (Bankr. M.D.N.C. 1994); In re Suter,
59 B.R. 944, 947 (Bankr. N.D. Ill. 1986).
Other courts, however, including the Eleventh Circuit,
have concluded that the language of the statute is ambiguous and
that, because Congress' intent in adding the language is not
clear, all damages resulting from fraud, whether punitive or
compensatory, are nondischargeable under § 523(a)(2)(A). See,
e.g., In re St. Laurent, 991 F.2d 672, 677-81 (11th Cir. 1993);
8
In re Roberti, 201 B.R. 614, 622-23 (Bankr. D. Conn. 1996); In re
Winters, 159 B.R. 789, 790 (Bankr. E.D. Ky. 1993); In re Manley,
135 B.R. 137, 144-45 (Bankr. N.D. Okla. 1992). See also 3
Collier on Bankruptcy, ¶ 523.08 at 523-52 n.27 (15th ed. 1996)
("The phrase `to the extent obtained by . . . actual fraud,'
which was added to section 523 in 1984, should not be read to
limit a finding of nondischargeability only to the compensatory
aspects of a fraud judgment."). Cf. In re Gerlach, 897 F.2d
1048, 1051 n.2 (10th Cir. 1990) (holding that, with respect to a
fraudulently obtained extension of credit, the language "to the
extent obtained by" had not altered the amount of debt made
nondischargeable under § 523(a)(2)(A)). See also 3 Collier on
Bankruptcy. ¶ 523.08 at 523-52 n.27 (15th ed. 1996) (The phrase
"to the extent obtained by . . . actual fraud," which was added
to section 523 in 1984, should not be read to limit a finding of
nondischargeability only to the compensatory aspect of a fraud
judgment.).
We find the careful analysis of the Eleventh Circuit to
be more persuasive than that of the Ninth Circuit. We conclude
that the language "to the extent obtained by" was not intended by
Congress to limit the amount of debt considered nondischargeable
under § 523(a)(2)(A). We therefore hold that debts caused by
fraud under § 523(a)(2)(A) are nondischargeable in their
entirety.
9
A. The Plain Meaning of the Statute
Liability under state law for damages caused by fraud,
whether punitive or compensatory, clearly represents a debt
within the meaning of the bankruptcy code. In re Bugna, 33 F.3d
1054, 1058 (9th Cir. 1994); In re St. Laurent, 991 F.2d at 678.
Under the Code, a "debt" is defined as "liability on a claim."
11 U.S.C. § 101(12). A "claim" is further defined as a "right to
payment, whether or not such right is reduced to judgment . . .
." 11 U.S.C. § 101(5)(A). See In re St. Laurent, 991 F.2d at
678. "A `right to payment' is `nothing more nor less than an
enforceable obligation, regardless of the objectives . . . to
[be] serve[d] in imposing the obligation.'" Id. (quoting
Pennsylvania Dep't of Pub. Welfare v. Davenport, 495 U.S. 552,
559 (1990)).
Despite the broad sweep of this definition of "debt,"
courts have held that punitive damages resulting from fraud as
defined by § 523(a)(2)(A) are nevertheless dischargeable because,
by including in § 523(a)(2)(A) the language "to the extent
obtained by," Congress intended "to limit the nondischargeable
debt to the amount `obtained by actual fraud.'" In re Levy, 951
F.2d at 198 (quoting In re Ellwanger, 105 B.R. 551, 555 (B.A.P.
9th Cir. 1989)). In In re Levy, the Ninth Circuit reasoned
that, because punitive damages "do not represent losses to the
victim of fraud or increases in the wealth of the debtor who
engages in fraud," they "`are not a debt for fraud.'" Id.
10
(quoting In re McDonald, 73 B.R. 877, 882 (Bankr. N.D. Tex.
1987)).
At the heart of the Ninth Circuit's analysis is an
assumption that the words "to the extent obtained by" modify the
word "debt." We disagree with such a reading of the statute.
First, the word "debt" appears in the general section
preceding all sixteen specific exceptions to dischargeability.
In contrast, the words "to the extent obtained by" follow most
directly after a listing of other nouns: "money, property,
services, or an extension, renewal, or refinance of credit." It
is most sensible and most in accord with general linguistic
analysis to apply a modifying phrase to the nearest objects, in
this case "money, property, services, or an extension, renewal,
or refinance of credit."
In addition, it strains the structure of the statute as
a whole to conclude that the definition of the word "debt," which
applies to all sixteen exceptions to dischargeability and
elsewhere in the bankruptcy code, is altered by language
contained in the second of these exceptions, and that the meaning
of the word "debt" is different only with respect to that single
exception. Indeed, one of the basic canons of statutory
construction is "that identical terms within an Act bear the same
meaning. “Thus, Congress' expansive definition of `debt' applies
to each subsection of § 523(a), absent clear intent to the
11
contrary." In re St. Laurent, 991 F.2d at 680 (citations
omitted).
We conclude that Congress intended the language "to the
extent obtained by" to modify not "debt," but "money, property,
services, and extension . . . of credit." This conclusion is
reinforced when one analyzes the provision with specific
attention to the items in the list other than "money" -- i.e.,
"property," "services" or "extension of credit." It may at first
blush appear plausible that Congress intended to limit some
damage portion of the nondischargeable debt when one asks whether
the debt in issue is a "debt . . . for money, . . . to the extent
obtained by the fraud." However, when one asks whether the debt
is a "debt . . . for refinancing of credit, . . . to the extent
obtained by the fraud," it is apparent that the meaning of "to
the extent obtained by the fraud" is to distinguish between
fraudulently and legally refinanced credit, not to limit the
objectives being "serve[d] in imposing the obligation."
Davenport, 495 U.S. at 559. See In re Manley, 135 B.R. at 145.
So understood, the language appears not to distinguish actual
from punitive damages, but "contractual debts tainted with fraud
from debts for mere breach of contract or `failure to pay.'" In
re Manley, 135 B.R. at 145.
In the instant case, Cohen obtained substantial sums in
rent from plaintiffs, only $31,382.50 of which was obtained by
fraud. As a result, the amount of Cohen's debt for this
12
fraudulently-obtained sum is nondischargeable. The dissent
agrees with our analysis that "to the extent obtained by"
modifies "money" not "debt." It suggests, however, that the
amount in excess of $31,382.50 awarded as treble damages was not
obtained by fraud and therefore is not within the exception.
However, the statutory language specifically states that the
"debt for . . . money . . . to the extent obtained by . . .
fraud" is not dischargeable. One's debt for fraudulently
obtained monies may and frequently does exceed the actual sum of
the fraud. For example, the debt normally includes interest,
costs of recovery and attorney fees, as well as compensatory and
punitive damages. Under New Jersey law, one's debt for such
fraudulently obtained monies includes three times the amount of
the fraudulently obtained sum. Nothing in the language "to the
extent obtained by" requires distinguishing between the theories
of recovery under which the debt is owed.
We therefore conclude that the language on its face
does not clearly limit nondischargeable damages under §
523(a)(2)(A) to compensatory damages only.
B. Legislative History
Where, as here, statutory meaning is at best unclear,
we look to the legislative history to resolve any conflict. See
Patterson v. Shumate, 504 U.S. 753, 761 (1992) (stating that
resort to statutory history is appropriate where language of
statute is ambiguous or confusing). "The normal rule of
13
statutory construction is that if Congress intends for
legislation to change the interpretation of a judicially created
concept, it makes that intent specific." Kelly v. Robinson, 479
U.S. 36, 47 (1986). In particular, the Supreme Court has
observed that a court should "not read the Bankruptcy Code to
erode past bankruptcy practice absent a clear indication that
Congress intended such a departure." Davenport, 495 U.S. at 563.
As the Tenth Circuit previously has observed about the
1984 amendments,
there is no reason to conclude that the 1984
amendments were anything but
technical and cosmetic. We have
found no legislative history
reflecting that Congress intended
to significantly alter the rights
and obligations of creditors and
debtors governed by this section .
. . .
In re Gerlach, 897 F.2d 1048, 1051 n.2 (10th Cir. 1990) (holding
that "to the extent obtained by" was not intended to limit the
amount of nondischargeable credit extensions). See also In re
St. Laurent, 991 F.2d at 680.
Prior to the 1984 bankruptcy amendments, the statute
provided that a debtor was not entitled to a discharge of "any
debt . . . for obtaining money, property, services, or an
extension, renewal, or refinance of credit, by . . . false
pretenses, a false representation, or actual fraud . . . ." The
language change in 1984 merely struck "obtaining" preceding
"money," and added "to the extent obtained" at the end of the
14
list of things which may be obtained by fraud. In this
historical context, the language seems a simple (though arguably
less clear) rewording of the earlier phrasing.
Nothing in the 1978 version of the statute suggests
that punitive damages for fraud should be distinguished from the
compensatory portion of such debt. Instead, under the 1978
phrasing, subsection (2) of section 523(a) should be interpreted
consistently with the other exceptions, which have been broadly
construed to cover both punitive and compensatory portions of
debt for culpable conduct, even by those courts that have
rejected such a broad interpretation of the modified §
523(a)(2)(A). See, e.g., In re Bugna, 33 F.3d 1054, 1058-59 (9th
Cir 1994) (punitive damages nondischargeable under § 523(a)(4));
In re Britton, 950 F.2d 602, 606 (9th Cir. 1991) (punitive
damages nondischargeable under § 523(a)(6)). In fact, prior to
the 1984 amendments, courts had held that punitive damages as
well as compensatory damages for fraud were nondischargeable
under § 523(a)(2). See, e.g., In re Maxwell, 51 B.R. 244, 246
(Bankr. S.D. Ind. 1983) ("Punitive damages awarded pursuant to
state law for actions which would render a debt nondischargeable,
see 11 U.S.C.A. § 523(a)(2), (4), and (6), are nondischargeable
in bankruptcy."); In re Carpenter, 17 B.R. 563, 564 (Bankr. E.D.
Tenn. 1982) (both compensatory and punitive damages
nondischargeable under § 523(a)(2). Cf. Birmingham Trust Nat.
Bank v. Case, 755 F.2d 1474, 1477 (10th Cir. 1985) ("[T]he plain
15
language of the statute suggests that dischargeability is an `all
or nothing' proposition.").
The Supreme Court's dicta in Grogan v. Garner, 498 U.S.
279, 282 n.2 (1991), is not to the contrary. In Grogan, the
Court specifically declined to address the question presently
before us: "whether § 523(a)(2)(A) excepts from discharge that
part of a judgment in excess of the actual value of money or
property received by a debtor by virtue of fraud." Id. While
the Court recognized that such a proposition was "arguable," it
expressly avoided deciding the issue. The Court's mere
acknowledgment of an arguable position not only is dicta, but
also does not suggest any future direction of the Court. As a
practical matter, the Grogan Court actually reinstated a district
court’s decision that a state court judgment for fraud, including
punitive and compensatory damages, was nondischargeable under §
523(a)(2)(A).
We therefore conclude from the legislative history that
Congress intended with § 523(a)(2)(A) to create an exception for
a type of debt caused by limited, culpable conduct. Congress did
not intend, however, that the amount of such debt or claim,
including the theories of recovery for such conduct, was to be
limited by the section.
C. Policy Considerations
Sound policy also supports our decision. First, in the
absence of the fraud that gave rise to the nondischargeable,
16
compensatory portion of the debt, there would be no liability for
punitive damages. "To discharge an ancillary debt which would
not exist but for a nondischargeable debt seems erroneous." In
re Roberti, 201 B.R. at 623 (quoting In re Weinstein, 173 B.R.
258, 273-75 (Bankr. E.D.N.Y. 1994)) (internal quotations
omitted).
Second, our result is consistent with the "fresh start"
policy of the bankruptcy code. As the Supreme Court has stated,
"the opportunity for a completely unencumbered new beginning [is
limited] to the “honest but unfortunate debtor.” Grogan, 498
U.S. at 286-87. Where a debtor has committed fraud under the
code, he is not entitled to the benefit of a policy of liberal
construction against creditors. Id.; Birmingham Trust, 755 F.2d
at 1477. Cf. In re Braen, 900 F.2d 621, 625 (3d Cir. 1990)
("Although it is true that the bankruptcy laws were generally
intended to give troubled debtors a chance, the
nondischargeability exceptions reflect Congress' belief that
debtors do not merit a fresh start to the extent that their debts
fall within § 523."), cert. denied, 498 U.S. 1066 (1991). We
think it unlikely that Congress, in excepting fraud from
dischargeability, "would have favored the interest in giving
perpetrators of fraud a fresh start over the interest in
protecting victims of fraud." Grogan, 498 U.S. at 287.
Furthermore, the amount of actual damages in consumer
fraud cases, although significant to the plaintiffs, is often not
17
large. Without including treble damages in the nondischargeable
debt, victims of fraud will have even greater difficulty
obtaining competent legal representation to pursue adversarial
actions in bankruptcy court and prevent fraudulent debtors from
using the Bankruptcy Code to evade lawful state judgments.
Finally, we observe that our decision is consistent
with the punitive damages at issue in this case. Under New
Jersey law, treble damages are statutorily mandated for every
violation of the Consumer Fraud Act. See Cox v. Sears, Roebuck &
Co., 647 A.2d 454, 465 (N.J. 1994). As a result, the debtor is
fully aware at the time of his commission of a fraud of the full
amount of the "debt" he will owe on a determination that he has
committed such fraud. In this practical, additional sense,
treble damages should be nondischargeable as an indistinguishable
component of the debt owed.
18
III.
For the above reasons, we conclude that punitive
damages are nondischargeable under 11 U.S.C. § 523(a)(2)(A).
Accordingly, the district court’s decision affirming the judgment
of the bankruptcy court will be affirmed.
In re Cohen, No. 96-5155
19
GREENBERG, Circuit Judge, dissenting.
Judge Hillman obviously has written a thoughtful
opinion. Nevertheless, I respectfully dissent insofar as the
majority holds that the damages to the extent trebled are not
dischargeable. In this opinion I will treat the trebled portion
of the damages as punitive damages in accordance with the
majority opinion.
11 U.S.C. § 523(a)(2)(A) provides that a discharge
"does not discharge an individual debtor from any debt for money,
property, services, or an extension, renewal, or refinancing of
credit, to the extent obtained by false pretenses, [or] a false
representation . . . ." The initial issue on this appeal is thus
whether "to the extent obtained" relates to "debt" or to "money,
property, [or] services." The majority holds that "to the extent
obtained" refers to "money, property, [or] services" and I agree.
After all, it would be awkward to think that the debtor
"obtained" a "debt," for what the debtor obtains is something of
value, thus creating a debt.
But at that point I part company with the majority
because treating "to the extent obtained" as referring to "money,
property, [or] services," makes it clear to me that punitive
damages are dischargeable, for the punitive damages do not
reflect money, property, or services the debtor "obtained."
Punitive damages are simply a penalty and are something a debtor
20
pays rather than obtains. Here, Cohen "obtained" only the
overcharges which are reflected in the compensatory damages which
we all agree are not dischargeable.
Furthermore, if Congress intended that punitive damages
under section 523(a)(2)(A) were to be non-dischargeable, as the
majority holds, it seems to me that the statute simply would read
that "A discharge . . . does not discharge an individual debtor
from any debt for false pretenses, [or] a false representation. .
. ." That formulation would be consistent with treating punitive
damages as part of the debtor's "debt." In other words, if
punitive damages are not to be dischargeable, there is no need
for the "money, property, services . . . to the extent obtained"
provision in section 523(a)(2)(A). I believe that we should not
construe a statute so as to render portions of it superfluous.
Congress used the structure that I suggest would
support the majority's result in 11 U.S.C. § 523(a)(4) which
recites that "A discharge . . . does not discharge an individual
debtor from any debt for fraud or defalcation while acting in a
fiduciary capacity, embezzlement, or larceny." Thus, in a
section 523(a)(4) case the exception to the discharge is not
confined by a provision equivalent to the "money, property,
services . . . to the extent obtained" provision in section
523(a)(2). There is a structure similar to section 523(a)(4) in
11 U.S.C. § 523(a)(6) which provides that "A discharge . . . does
not discharge an individual debtor from any debt for willful and
21
malicious injury by the debtor to another entity or to the
property of another entity." It therefore follows that
fiduciaries in the enumerated cases, embezzlers, thieves and
persons who commit willful and malicious torts cannot obtain
discharges of punitive damage awards.
Congress thus carefully distinguished the types of
wrongdoing when it set forth the exceptions to a discharge. I,
like the majority, would honor that distinction by holding that
"to the extent obtained" in section 523(a)(2) relates to "money,
property [or] services" and not to "debt," but would go further
and hold that the punitive damages simply are not "money,
property, [or] services" as those three terms relate to something
the debtor obtained. Thus, punitive damages are dischargeable in
cases coming within section 523(a)(2). I point out that while I
have reached my result through my own analysis, it is hardly
innovative as I merely am taking the position taken by most other
courts. See In re Auricchio, 196 B.R. 279, 290 (Bankr. D.N.J.
1996). ("Most courts have found that punitive damages awards are
dischargeable under § 523(a)(2).") (collecting cases).
There is court of appeals support for my position for,
as the majority points out, the Court of Appeals for the Ninth
Circuit has reached a result opposite to that the majority
reaches today. See In re Levy, 951 F.2d 196 (9th Cir. 1991),
cert. denied, 504 U.S. 985, 112 S.Ct. 2965 (1992); see also In re
22
Bugna, 33 F.3d 1054, 1058-59 (9th Cir. 1994). That court in
Bugna explained the law as follows:
This plain reading of section 523(a)(4) is
consistent with our interpretation of other
subsections within section 523(a). We have
interpreted section 523(a)(6), which contains
language similar to that in section
523(a)(4), as barring discharge of punitive
damages liability. See In re Britton, 950
F.2d 602, 606 (9th Cir. 1991); In re Adams,
761 F.2d 1422, 1427-28 (9th Cir. 1985). And,
though we have said that section 523(a)(2)
does not bar discharge of punitive damages,
In re Levy, 951 F.2d 196, 199 (9th Cir.
1991), that section is clearly
distinguishable: '[U]nlike sections
523(a)(4) and 523(a)(6), [section 523(a)(2)]
does not bar discharge of punitive damages.'
Id. at 198. Congress specifically limited
the application of section 523(a)(2) to 'debt
. . . to the extent obtained by false
pretenses, a false representation, or actual
fraud.' 11 U.S.C. § 523(a)(2)(A) (emphasis
added). Because punitive damages are not
obtained by fraud but rather imposed because
of it, they are not restitutionary as
required under section 523(a)(2). Levy, 951
F.2d at 199. Section 523(a)(4), like section
523(a)(6), conspicuously lacks this limiting
language.
Bugna, 33 F.3d at 1058-59. The majority criticizes the analysis
in Levy because Levy presumes "that the words 'to the extent
obtained by' modify the word 'debt'." Majority typescript at 9.
While I agree that "to the extent obtained by" does not modify
"debt," still it seems clear to me that the Court of the Appeals
for the Ninth Circuit correctly distinguished between section
523(a)(2) on the one hand and sections 523(a)(4) and (a)(6) on
the other.
23
I believe my proposed result is consistent with the
fresh start policy of the Bankruptcy Code. While the majority
expresses concern that a debtor acting fraudulently will escape
the consequences of his or her action, I think it is important to
understand how broadly fraud has come to be defined. See N.J.
Stat. Ann. § 56:8-2 (West 1989) (definition of conduct wrongful
under the Consumer Fraud Act). Consider fraud under RICO. As
every federal judge knows, in RICO civil cases plaintiffs
frequently allege mail fraud as the racketeering activity in
situations in which no United States Attorney would seek a RICO
indictment. See 18 U.S.C. § 1961(1)(B). In RICO cases, just as
under the New Jersey Consumer Fraud Act, treble damages are
recoverable. 18 U.S.C. § 1964(c). This case will come to be
authority that the trebled portion of the damages in a civil RICO
case are not dischargeable, even though the dispute leading to
the judgment is essentially commercial, and the racketeering
activity is mail fraud.
Indeed, in this case, while I have not dissented from
the finding that Cohen committed fraud, his conduct was hardly
shocking. The district court described Cohen's conduct as
follows: "[Cohen] made an implicit representation regarding the
rent he charged -- his silence coupled with the rental amount
fixed constituted a representation that he was charging lawful
rent." In re Cohen, 191 B.R. 599, 605 (D.N.J. 1996).
Furthermore, the finding of fraud was not predicated on Cohen's
24
actual knowledge. Rather, as the district court explained, it
was based on his reckless disregard of the truth.
I recognize that Cohen's situation is not one that can
generate much sympathy. He was, after all, a landlord dealing
with persons whose primary language was Spanish and who had
little education. Id. at 602. Nevertheless, if "an implicit
representation" can give rise to a non-dischargeable punitive
damages judgment, in some cases poor or uneducated people may
feel the thrust of our opinion as such persons may make "implicit
representation[s]" just as Cohen did. The majority's opinion may
come to haunt such people seeking to make a fresh start.
25
26
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-3671
___________________________
Brian Campbell
lllllllllllllllllllll Plaintiff - Appellant
v.
City of Concordia; Concordia Police Department; Aaron Rucker, Police Officer;
Jim Lynn, Police Chief
lllllllllllllllllllll Defendants - Appellees
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: December 6, 2016
Filed: December 21, 2016
[Unpublished]
____________
Before SHEPHERD, BOWMAN, and KELLY, Circuit Judges.
____________
PER CURIAM.
Brian Campbell appeals after the District Court dismissed his pro se 42 U.S.C.
§ 1983 complaint for lack of subject matter jurisdiction. After careful review, we
conclude that Campbell’s claim that he was arrested without probable cause
established a basis for jurisdiction. See 28 U.S.C. § 1331 (“The district courts shall
have original jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States.”); 42 U.S.C. § 1983 (providing that every person acting
under color of state law may be held liable for depriving another of constitutional
rights); Hannah v. City of Overland, 795 F.2d 1385, 1389 (8th Cir. 1986) (“[A]
warrantless arrest without probable cause violates an individual’s constitutional rights
under the Fourth and Fourteenth Amendments.”). Accordingly, we reverse the
dismissal of Campbell’s complaint, and we remand the case to the District Court for
further proceedings. We also grant Campbell’s pending motion for leave to appeal in
forma pauperis.
______________________________
-2-
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} |
66 B.R. 506 (1986)
In re Michael R. EVANS, Debtor.
Bankruptcy No. 85-02638K.
United States Bankruptcy Court, E.D. Pennsylvania.
October 28, 1986.
Arthur P. Liebersohn, Philadelphia, Pa., for debtors.
Frederic J. Baker, Washington, D.C., Virginia Powel, Asst. U.S. Atty., Philadelphia, Pa., for I.R.S.
James J. O'Connell, Philadelphia, Pa., trustee.
OPINION
DAVID A. SCHOLL, Bankruptcy Judge.
The principal issue presented by this case at this juncture whether a Chapter 13 debtor can present a plan consistent with the Bankruptcy Code when he chooses to attempt to "provide" for claims of the Internal Revenue Service ("IRS") by not dealing with these claims at all under the terms of his Plan, i.e., dealing with them "outside" of his Plan is presented to us by the Debtor in an almost bizarre procedural posture. We conclude that, except for that portion of the IRS claim which is accorded priority status pursuant to 11 U.S.C. *507 § 507(a)(7)(A), the Debtor does, as he contends, have the option to deal with the secured portion of the IRS debt "outside" of his Plan. We will therefore grant to the Debtor the relief of determining that only the position of the IRS claim which must be accorded priority status must be paid in his Plan, and hence for which a Proof of Claim must be honored, and further allow him to modify his Plan in a manner consistent with the Conclusions set forth in this Opinion. We also shall deny a subsequent Motion of the IRS to dismiss the case or require its conversion to Chapter 7 of Title 11, U.S.Code.
The Debtor filed this case under Chapter 13 of Title 11 on June 28, 1985. At the time of filing his Petition, he also filed a Statement listing a debt to the IRS, in no specified amount and designated only "TO BE PAID OUTSIDE PLAN." Also filed was a form Plan, contemplating payments of $360.00 monthly for thirty-six (36) months, and not designating any specific disposition of any claims. It did state that "[a]ll claims entitled to priority under 11 U.S.C. § 507 shall be paid in full in deferred cash payments as required by 11 U.S.C. 1322(a)(2)...."
On September 10, 1985, the IRS filed a Proof of Claim setting forth the following amounts due on alleged federal income tax liabilities of the Debtor from 1978 through 1984, totalling $124,413.47:
Tax Penalty to Interest to
Year Tax Due Petition Date Petition Date
1978 $ 4,647.29 $3,762.86 $9,056.76
1979 8,030.42 3,814.45 8,591.38
1980 10,035.03 4,766.64 8,843.21
1981 10,035.03 -- 5,572.67
1982 10,035.03 -- 3,011.98
1983 10,035.03 -- 1,529.63
1984 10,035.03 -- 267.95
Also, $12,343.08 was added for "penalty to date of petition" on
the unsecured (1981 to 1984) claims.
Tax liens for the years 1978, 1979 and 1980 were reported to have been filed against the Debtor, who owns residential real estate, on September 7, 1983.
On February 12, 1986, the Debtor filed a "Motion of Debtor in Objection to Allowance of Claim" of the IRS. The only Objection recited was that "[t]here exists no feasible method for paying the claim of creditor except outside the Chapter 13 plan." Gratuitously, the Debtor indicated, in his Objection, a willingness to stipulate that the IRS could have relief from the automatic stay, presumably to enforce its tax liens against his realty. Shortly thereafter, on February 25, 1986, the Debtor filed a "First Modified Plan," reducing payments to $290.00 monthly and extending the payment period to sixty (60) months.
Before any disposition took place on the Debtor's so-called Objection to the IRS Proof of Claim, this case took a course which this Court can only hope is atypical. On April 21, 1986, the Debtor filed a Second Modified Plan, increasing his monthly payments to $2,600.00 monthly for sixty (60) months. On May 7, 1986, this Court approved a Report of Chapter 13 Standing Trustee recommending confirmation and an Order confirming the Second Modified Plan.[1]
On June 6, 1986, the IRS filed an Amended Proof of Claim, setting forth the same figures relative to the tax liabilities between 1978 and 1980, but substituting the following figures for later tax years, which resulted in reducing the Debtor's total alleged tax liability to $64,359.21:[2]
Interest to
Tax Year Tax Due Petition Date
1981 $830.00 $460.92
1982 343.00 102.16
1983 21.00 3.20
1984 514.00 13.72
(Penalty on unsecured claims reduced to $532.37).
On August 4, 1986, the Debtor then filed an Objection to the new IRS claim, identical in substance to that filed on February 12, *508 1986, described supra. On September 11, 1986, with the case in this posture, the Objection of the Debtor came before the Court, and the IRS appeared to oppose it. Apparently oblivious to 11 U.S.C. § 1325(a)(6), the Debtor's Counsel contended that he had known that his client could not pay the $2,600.00 monthly required under the Second Modified Plan, but had proposed a Plan providing for such payments in order that he could get a Plan confirmed and to begin the flow of payments to other creditors.[3] Admitting that the payments under the Second Modified Plan of $31,200.00 annually were totally beyond his client's financial capability, hardly a surprising assertion in light of the allegation, in the Chapter 13 Statement, that the Debtor's take-home pay was only $142.00 weekly, or $7,384.00 annually, the Debtor's Counsel expressed an intention to not deal with the IRS at all in his Chapter 13 case and take his chances on the well-known munificence of that agency by attempting to make payments or arrangements to pay it "outside" of the Plan.
Counsel for the IRS, not surprisingly, contested the propriety of these procedural maneuvers on behalf of the Debtor. In addition, Counsel for the IRS, apparently refusing the Debtor's offer to provide it relief from the stay and foreclose on its tax lien, made the somewhat surprising determination that the Government's interest could best be served by rejecting the Debtor's offer and opposing any concept that any of the obligation to the IRS could be dealt with "outside" the Plan. It is difficult to explain this position of the IRS except as perhaps a matter of principle, as the best that it could seem to hope for, given the Debtor's low income, was a foreclosure upon his residential real estate by enforcement of its tax liens.
The Court, given this rather confusing display of advocacy on behalf of both parties, advised both Counsel that it would appreciate briefs on the issue of whether 11 U.S.C. § 1325(a)(5) or any other Code provision permitted payments on secured or priority claims to be made "outside" the Plan, and on any other issues which the parties deemed relevant, to be filed simultaneously on or before October 3, 1986, with each party being permitted to file a Reply Brief on or before October 15, 1986. The Trustee or any interested party, particularly opposing counsel in In re Valerie Freeman, Bankruptcy No. 86-00941K (E.D.Pa.), a case which raised the issue of whether a Government-held mortgage could be dealt with "outside" of a Chapter 13 Plan, were invited to file Briefs as well if they wished to do so.[4]
On September 22, 1986, while this matter was pending before this Court, the IRS filed a Motion to Dismiss Debtor from Chapter 13 or in the Alternative to Convert to Chapter 7, which was answered by the Debtor, and was listed before this Court *509 for a hearing on October 30, 1986. This Opinion and accompanying Order dispose of this Motion as well, and therefore this hearing is cancelled.
After considerable research, mostly from authorities not cited in any of the Briefs submitted, the Court has no hesitancy in holding, with the great weight of authority, that 11 U.S.C. § 1325(a)(5) does allow a debtor to choose whether to deal with a secured claim in his Plan at all, i.e., whether to provide for or pay a secured claim "inside" the Plan or "outside" the Plan. See Matter of Bradley, 705 F.2d 1409, 1411 (5th Cir.1983); In re Foster, 670 F.2d 478, 488-90 (5th Cir.1982); In re Glasper, 28 B.R. 6, 8, 9 (9th Cir.Bankr.App.1983); In re Case, 11 B.R. 843, 847 (Bankr.D.Utah 1981) (per MABEY, B.J.); and In re Wittenmeier, 4 B.R. 86, 88 (Bankr.M.D.Tenn.1980). The only contrary decisions appear to be two early cases decided by the same bankruptcy judge. In re Tatum, 1 B.R. 445, 446 (S.D.Ohio 1979); and In re Blevins, 1 B.R. 442, 443-44 (S.D.Ohio 1979).
The Foster decision, which the Government's Counsel may be surprised to learn represented a reversal of the principal contrary authority cited by it for the contrary position in its Brief, In re Foster, 9 B.R. 482 (Bankr.S.D.Tex.1981), provides the most complete analysis of this issue. The Court, in its Opinion, clarifies the ambiguity of the use of the term "outside" of the Plan, which is helpful to note at the outset of the legal discussion here. Some courts have used the term to refer to any situation where the Debtor makes direct disbursement of payments to a creditor, rather than through the medium of the Trustee. See 670 F.2d at 486-88. An example of this usage of the term "outside" the Plan appears in In re Hines, 7 B.R. 415, 420 (Bankr.D.S.D.1980). While the direct disbursement situation raises an interesting issue as to whether the Trustee should receive his statutory fee, per 11 U.S.C. § 1302(e), as to the payments disbursed directly to the creditor by the debtor, it is not a reference to the means of disbursement which is referred to by the use of the term "outside" the Plan here. Rather, in issue here is a situation, unlike that in Foster, where the Debtor proposes not to pay arrearages or any portion of sums due to a secured creditor in his Plan, i.e., where he opts not to deal with a secured creditor at all by the terms of his Plan. See id. at 485-86. It is in this context that the term "outside" the Plan is used here.
Particularly relevant here is the Foster court's conclusion that the use of the phrase "provided for by the plan" in 11 U.S.C. § 1325(a)(5), by implication approves the concept that the obligation to a secured creditor can be accomplished "outside" of the Plan, i.e., not dealt with by the terms of the Plan at all. The Foster Court does, however, hold that "a plan may not provide for the making of current payments on a mortgage claim outside the plan while curing the arrearage on that claim under the plan pursuant to § 1322(b)(5)." 670 F.2d at 489. However, the clear implication is that when a debtor, like the Debtor here, does not attempt to cure payments arrearages on a secured debt, per § 1322(b)(5), the plan may "provide" that the secured creditor may be dealt with "outside" of the Plan.
The Wittenmeier court refers to another Code section in support of the same conclusion. It cites to 11 U.S.C. § 1326(b), which the court states that, by requiring payments "[e]xcept as otherwise provided in the plan" to be paid through the Trustee, impliedly sanctions the conclusion that payments may be made outside the plan.
Moreover, Collier concurs with the conclusion reached by the above cases in the following passage:
A chapter 13 plan may, but need not, modify the rights of most holders of secured claims. Since a plan need not modify allowed secured claims, it is discretionary with the debtor whether to make provision in the chapter 13 plan for allowed secured claims. 5 COLLIER ON BANKRUPTCY, ¶ 1325.06, at 1325-31 (15th ed. 1986) (footnotes omitted).
Therefore, as long as a debtor does not attempt to modify the rights of secured *510 parties per 11 U.S.C. § 1322(b)(2) in his plan, by curing arrearages therein or in any other respect, he clearly has the option of not dealing with the secured claim at all in his plan.
There is practical justification for this result. Exercising the option to treat a secured claim "outside" the Plan will not prejudice the secured creditor, who will retain his security and his unmodified claim despite the bankruptcy filing, or exactly as if there had been no filing. Being dealt with "outside" the Plan may make it quite easy for the secured claimant to obtain relief from the automatic stay, and hence proceed exactly as if there had been no filing.
In the instant case, the Debtor made no effort to modify the rights of the IRS per 11 U.S.C. § 1322(b)(2) in his Plan. He also indicated that he was quite willing to eschew the protections of the automatic stay, although a disposition of this issue would require a separate Motion by the IRS. We believe that the Debtor properly exercised a right to make the choice not to deal with the secured claims of the IRS in his Plan and we therefore must reject the Government's contentions to the contrary.[5]
This determination, while resolving an important and pervasive issue, does not totally resolve the disputes of the parties before us in this case. However, the analysis presented by Judge Woodside in In re Healis, 49 B.R. 939 (Bankr.M.D.Pa.1985), an authority cited with approval in the Briefs of both parties and one with which we concur, does resolve the remaining issues. Accord: In re Crotty, 11 B.R. 507 (Bankr.N.D.Tex.1981).
In Healis, Judge Woodside divides claims of the IRS similar to those in issue here into three (3) categories:
1. Secured claims, i.e., those pursuant to which the IRS has filed a tax lien or liens.
2. Priority claims, i.e., those which come within the scope of 11 U.S.C. § 507(a)(7)(A).
3. Unsecured claims, i.e., those which do not fall within either of the foregoing categories.
In the instant factual matrix, tax claims for the years 1978, 1979, and 1980, which total all but $2,820.37 of the Debtor's tax liability, are secured. The Debtor argues that his equity in his realty, which secures the $61,548.04 remaining secured portion of the IRS claim,[6] is far less than $61,548.04, and hence that a much smaller amount of the IRS case is actually secured. Such an analysis is performed by the Healis court, 49 B.R. at 341. However, we are unwilling to accept the value of the Debtor's equity as declared on his Schedules at this juncture, without providing the IRS an opportunity to contest same, now that it is aware that the valuation of this realty could be relevant to the determination of the status of at least part of its claim. Furthermore, as to this portion of his contentions, we believe that the Debtor, if he wishes to raise this issue, must proceed to do so in a separate adversarial complaint, per 11 U.S.C. §§ 502, 506, and Bankruptcy Rule 3007.
We also disagree with the Debtor's contention that his tax liabilities for the years 1982, 1983, and 1984 can be dealt with "outside" the Plan. These claims, totalling $997.08, are, as the Debtor concedes, priority claims within the scope of 11 U.S.C. § 507(a)(7)(A). These liabilities are not secured by any tax liens. They are, therefore, unsecured priority claims, concerning *511 which 11 U.S.C. § 1322(a)(2) mandates that "[t]he plan shall . . . provide for the full payment," unless the IRS, as seems unlikely here, should agree to a different treatment. See Healis, id. Therefore, the Debtor cannot pay this sum "outside" of the Plan, and must either provide for the payment of this sum, or suffer possible revocation of his confirmation and dismissal of his case.[7]
We agree with the Debtor that the residuum of his tax liability, i.e., the sums owing for tax year 1981, and the penalty on unsecured claims, in the amount of $1,823.29, which are neither secured nor enjoy a priority status per 11 U.S.C. § 507(a)(7)(A), constitute merely an unsecured claim. As to the unsecured portion of its claim, the IRS is accorded only the same status as other unsecured claimants.
The muddled procedural posture of this case makes the framing of an Order consistent with the aforesaid Opinion somewhat problematical. We are tempted, as the IRS suggests, to deny the Debtor's Objection to the claim because, as the IRS points out, the Debtor does not dispute the amounts or characterizations of the various claims of IRS for any of the tax years in issue, but only the legal consequences of same.
Hence, we believe that the Debtor can properly challenge certain aspects of the status of the IRS' claim, i.e., the issue here of whether disbursement on certain claims should be made by the Trustee because they are "outside" the Plan, by means of an Objection to its claim. The Debtor's brief, to which the IRS had an opportunity to fully respond, certainly makes his position clear.
Finally, we also suspect that the Debtor may once again wish to modify his Plan, to comport with 11 U.S.C. § 1325(a)(6), as well as the conclusions reached in this Opinion. He may also wish to reopen the issue of how much of the IRS claim is actually secured by an adversarial complaint directed to this issue. We do not agree with the statements of the IRS, in its Brief, that the Debtor must establish that there has been a "meaningful change in his financial position," or any other "cause," to modify his Plan, per 11 U.S.C. § 1329(a). Rather, we believe that leave to modify "shall be freely given when justice so requires," as is the case when an amendment to pleadings is sought, see Federal Rule of Civil Procedure 15(a), as a modification of a plan is effectively an amendment of pleadings. In contrast to the situation addressed in In re Beasley, 34 B.R. 51 (Bankr.S.D.N.Y.1983), cited by the IRS in opposition to allowing the Debtor to make any modification, we do not believe that modifications to the Debtor's Plan, made in full compliance with the pertinent rules and consistent with this Opinion, would violate any provision of 11 U.S.C. § 1325(a).
Our result herein also causes us to deny the Motion to Dismiss or convert this case filed by the IRS during the briefing and decision-making process in this matter. Contrary to the assertion of IRS in its Memorandum explaining this Motion, it is not necessary for the Debtor to pay the entire IRS claim and continue to pay $2,600.00 monthly to present a feasible plan.
ORDER
AND NOW, this 28th day of October, 1986, in conformity with the foregoing Opinion, it is hereby ORDERED AND DECREED as follows:
1. The Debtor's objection to the Proof of Claim of the Internal Revenue Service (IRS) is SUSTAINED in part, and only the portion of that claim which is accorded priority status, i.e., $997.08, shall be required to be paid under the Debtor's Plan, and must be disbursed to the IRS by the Trustee.
2. The Debtor may modify his Second Modified Plan within twenty (20) days of *512 this Order, comporting strictly with Bankruptcy Rule 3019 and Local Bankruptcy Rule 3019.1, and may classify this Claim consistently with the conclusions set forth in the foregoing Opinion in so doing.
3. The IRS' Motion to Dismiss Debtor from Chapter 13 or in the Alternative to Convert to Chapter 7 is DENIED.
NOTES
[1] There is no indication that the Debtor made any effort to comply with Bankruptcy Rule 3019, or Local Rule 3019.1, in either instance where he modified his Plan. It also appears that the Trustee perfunctorily filed his Report without consideration of the Debtor's compliance with these Rules, or any consideration as to whether the Plan was practical, given the Debtor's means. See page 508 infra. We hope that this is atypical.
[2] But see page 510, note 6 infra, which indicates that the sum of the figures on the Proof of Claim is actually $64,358.41
[3] We do not accept this explanation as justification for the course of action chosen by the Debtor's Counsel in this case. The Trustee is generally extremely cooperative in permitting pre-confirmation payments to creditors designated by the debtor, and this would have accomplished the purpose recited by Counsel as his justification. Rather, it appears that the motivating factor was the desire of the Debtor's Counsel to put the case in a posture to submit a fee petition, which he did and which was approved by Order of this Court in the amount of $900.00 on June 2, 1986. It is almost needless to comment that such a motivation did not justify the steps taken here, and notice is given that, in the future, fee orders will be revoked if similar conduct comes to light.
[4] Only Counsel for HUD in the Freeman matter accepted this invitation. The IRS, in the only Reply Brief filed, argued that the Debtor could not properly challenge the status of its claims through the medium of the Objection before the Court. This argument of the IRS has some merit insofar as the determination of the secured status of that portion of the IRS claim which is arguably secured is concerned. See page 510 infra. However, we believe that an Objection to a Proof of Claim is an appropriate device to determine what sums must be paid to a certain creditor in a Plan. Since the Debtor did, at least in his Brief, fully explain his factual and legal position and the IRS had ample opportunity to respond on the merits, and did so, we believe that refusal to decide the merits of the issue of what is required to be paid to IRS within the Debtor's Plan would be inappropriate.
[5] This result also disposes of the contrary position of HUD in its Brief and in the disposition of In re Valerie Freeman, supra. We can conceive of no reason why, under the circumstances in this case and in Freeman, we should accept the Government's argument that the Debtor's respective Plans do not meet the criteria of such cases as In re Estus, 695 F.2d 311, 317 (8th Cir.1983), for determining whether the Debtor's Plans were proposed "in good faith," per 11 U.S.C. § 1325(a)(3).
[6] Like the Debtor, by our addition, the sum of the IRS claims is $64,368.41, not $64,369.21 as is alleged by the IRS on its Amended Proof of Claim. We are unable to explain this $.80 discrepancy and therefore assume that the total figure is erroneous.
[7] In fact, as per the language quoted on page 507 of this Opinion, which also appears at paragraph (b) of the Debtor's Second Modified Chapter 13 Plan, the Debtor indicates that he does intend to pay such amounts in this Plan.
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98 Cal.App.3d 580 (1979)
159 Cal. Rptr. 584
PANDOL & SONS, Petitioner,
v.
AGRICULTURAL LABOR RELATIONS BOARD, Respondent; UNITED FARM WORKERS OF AMERICA, AFL-CIO, Real Party in Interest.
Docket No. 3446.
Court of Appeals of California, Fifth District.
November 9, 1979.
*584 COUNSEL
Seyfarth, Shaw, Fairweather & Geraldson, Joseph Herman, George Preonas, Bette Bardeen and Keith A. Hunsaker, Jr., for Petitioner.
Harry J. Delizonna, Dennis M. Sullivan, Marvin J. Brenner, Thomas M. Sobel, Edwin F. Lowry and Gary Williams for Respondent.
Jerome Cohen, Sanford N. Nathan, Tom Dalzell, Deborah Wiener Peyton, W. Daniel Boone, Glenn Pothner, E. Michael Heumann II, Linton Joaquin, Dianna Lyons, Kirsten Zerger, Marco E. Lopez, Carlos M. Alcala, Francis E. Fernandez and Carmen C. Flores for Real Party in Interest.
OPINION
FRANSON, Acting P.J.
STATEMENT OF THE CASE
On September 30, 1975, real party in interest United Farm Workers of America, AFL-CIO (UFW) filed two unfair labor practice charges *585 with the respondent Agricultural Labor Relations Board (Board) against Pandol & Sons (petitioner). On October 2, 1975, the Fresno regional director ordered the cases consolidated and issued a complaint against petitioner, alleging that by various acts it had violated Labor Code section 1153, subdivision (a).[1] An administrative law officer (ALO) held a hearing on October 13, 1975, and rendered his decision on October 12, 1976. The ALO found that petitioner had committed unfair labor practices by denying UFW organizers access to his property on September 29 and 30, 1975. On April 5, 1977, the Board adopted the ALO's findings in part and issued a modified order. The Board ordered petitioner to cease and desist from denying access to union organizers and from interfering with, restraining or coercing its employees in the exercise of their rights guaranteed under the Agricultural Labor Relations Act (Act), and, further, ordered petitioner to take affirmative action in various forms to effectuate the policies of the Act including posting, mailing and reading a notice to employees and giving a name and address list of employees to the UFW. The Board also ordered that the UFW be granted "expanded access" to the petitioner's property without restriction as to the number of organizers.
On May 5, 1977, petitioner filed a petition for review of the final order of the Board. This court accepted the case for review and handed down a decision upholding the Board's order with the exception of the unlimited access provision which the court struck from the order. The UFW petitioned this court for a rehearing urging that we remand the case to the Board for further proceedings on the expanded access question. We granted a rehearing and directed the parties to file briefs on certain questions pertaining to the requested remand, including whether the court has power to remand a case to the Board, and if so, whether the remand can be made as to a part only of the affirmative remedy ordered by the Board; and whether such a remand would revest full jurisdiction in the Board to enter new findings and a new final order requiring a new petition for review under section 1160.8 to revest jurisdiction in the court to review and enforce the new order.
*586 THE EVIDENCE
The Board's finding of unfair labor practices by petitioner is predicated upon events which occurred at petitioner's ranch on September 29 and 30, 1975, when the UFW was engaged in a campaign to organize petitioner's employees. The ALO found very little conflict in the testimony and no dispute as to what occurred. UFW organizers had entered petitioner's property to talk with the workers as permitted by the access rule (Cal. Admin. Code, tit. 8, § 20900). The organizers wore UFW buttons as identification. On one occasion they distributed leaflets to the workers. Matt Pandol, one of the petitioner's partners, had the UFW organizers arrested for trespassing.
DISCUSSION
Petitioner's challenge to the constitutionality of the adjudicative powers of the Board under section 1160.3 and the review provisions of section 1160.8 has been answered by our Supreme Court in Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335 [156 Cal. Rptr. 1, 595 P.2d 579].
(1) Petitioner makes two additional unavailing arguments. It contends there is no evidence that employee rights were interfered with by reason of the arrest of the UFW organizers on petitioner's premises since there is no evidence that the employees desired to speak with the organizers. The argument is specious. "[T]he question is not whether an employee actually felt intimidated but whether the employer engaged in conduct which may reasonably be said to interfere with the free exercise of employee rights under the Act." (Joy Silk Mills v. National Labor Relations Board (D.C. Cir.1950) 185 F.2d 732, 743-744, citing Labor Board v. Link-Belt Co. (1941) 311 U.S. 584 [85 L.Ed. 368, 61 S.Ct. 358].) The arrest of union organizers who are lawfully on the employer's property and conducting themselves in an orderly fashion ipso facto must be deemed to interfere with the employee's rights to self-organization.
(2) Petitioner also disputes the Board's view that the giving of UFW pamphlets to employees falls within the access rule. However, distributing literature is within the activities allowed under the access rule, *587 taking into account the absence in the agricultural setting of alternative channels usually available for communicating with industrial workers (Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd., supra 24 Cal.3d at p. 354). There is no evidence that the distribution of pamphlets caused any disruption of petitioner's farming operations (compare Cal. Admin. Code, tit. 8, § 20900, subd. (e) (4) (C)).
Petitioner's main argument is that the remedies fashioned by the Board are improper, excessive and cumulative in the following respects: The Board ordered the petitioner to post, mail and read a notice to employees; to provide UFW with a list of the names and addresses of all employees listed on its master payroll for the payroll period immediately preceding the filing of the petition for certification on October 2, 1975; and to allow the UFW access to its fields without restriction as to the number of organizers and without regard to the date of certification of the results of the election in case No. 75-RC-86-F.[2]
(3) The requirement of posting, mailing and reading the notice to employees is well within the Board's province (Tex-Cal Land Management, Inc., v. Agricultural Labor Relations Bd., supra, 24 Cal.3d at p. 355; see Food Store Emp. U., Loc. No. 347 Amal. Meat Cut. v. N.L.R.B. (D.C. Cir.1973) 476 F.2d 546, 549). The ALO premised the mailing requirement on the scattered nature of the work force, the literacy and language problems, and the employer's coercive influence. Petitioner's argument that the Board relied upon facts not in the record to support its findings and that these facts were gleaned from other cases is answered by the United States Supreme Court which addressed identical arguments under the National Labor Relations Act: "It is urged, however, that no evidence in this record supports this back pay order; that the Board's formula and the reasons it assigned for adopting it do not rest on data which the Board has derived in the course of the proceedings before us. But in devising a remedy the Board is not confined to the record of a particular proceeding. `Cumulative experience' *588 begets understanding and insight by which judgments not objectively demonstrable are validated or qualified or invalidated. The constant process of trial and error, on a wider and fuller scale than a single adversary litigation permits, differentiates perhaps more than anything else the administrative from the judicial process." (Labor Board v. Seven-Up Co. (1953) 344 U.S. 344, 348-349 [97 L.Ed. 377, 382-383, 73 S.Ct. 287]; see also Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 414-417 [128 Cal. Rptr. 183, 546 P.2d 687].)
Nor can we interfere with the Board's order that petitioner provide the UFW with a list of the names and addresses of all employees for the payroll period preceding the filing of the petition for certification. (4) We perceive no undue burden on petitioner in this regard. It is only when the record shows an abuse of discretion by the Board in ordering an affirmative act by the petitioner that this court may strike the remedy (Labor Board v. Seven-Up Co., supra, 344 U.S. 344, 346-347 [97 L.Ed. 377, 381-382]). The Board must be given relatively free rein in determining which remedy will best effectuate policies of the Act. (Compare Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd., supra, 24 Cal.3d 335, 354-355; see Fibreboard Corp. v. Labor Board (1964) 379 U.S. 203, 216 [13 L.Ed.2d 233, 241-242, 855 S.Ct. 398, 6 A.L.R.3d 1130]; Republic Aviation Corp. v. Board (1945) 324 U.S. 793, 798 [89 L.Ed. 1372, 1376-1377, 65 S.Ct. 982, 157 A.L.R. 1081].) As the Supreme Court stated in Phelps Dodge Corp. v. Labor Board (1941) 313 U.S. 177, 194 [85 L.Ed. 1271, 1283, 61 S.Ct. 845, 133 A.L.R. 1217]: "Because the relation of remedy to policy is peculiarly a matter of administrative competence, courts must not enter the allowable area of the Board's discretion and must guard against the danger of sliding unconsciously from the narrow confines of the law into the more spacious domain of policy." (See also Fibreboard Corp. v. Labor Board, supra, 379 U.S. 203, 216 [13 L.Ed.2d 233, 241-242].)
(5) Nevertheless, there is one remedy ordered by the Board which cannot be enforced granting the UFW the right to access without restriction as to the number of organizers. (See Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd. (1979) 93 Cal. App.3d 922, 940-941 [156 Cal. Rptr. 152].) The order provides that this right of access shall encompass four 30-day periods within the 12 months following the Board's decision and shall be effective without regard to the date of certification or the results of the election.
*589 The Board purported to order this remedy under its authority to order such "affirmative action, ... as will effectuate the policies of [the Act]." (§ 1160.3.) This accords with the federal law which gives the NLRB authority to devise remedies to further the policies of the NLRA. (See Fibreboard Corp. v. Labor Board, supra, 379 U.S. 203, 216 [13 L.Ed.2d 233, 241-242].) Expanded access to compensate a union for the employer's denial of access has been held a proper remedy. (See International Union of Electrical, R. & M. Wkrs. v. N.L.R.B. (D.C. Cir.1967) 383 F.2d 230, 232, fn. 4; cf. N.L.R.B. v. H.W. Elson Bottling Company (6th Cir.1967) 379 F.2d 223, 226.)
However, the Board's order granting access unlimited as to the number of UFW organizers is contrary to the policies of the Act and the access regulation itself.[3] Access without restriction could result in interference with petitioner's farming operations and create a volatile situation. It could also result in undue coercion of employees. Obviously, the number of organizers allowed on an employer's premises must bear some reasonable relationship to the number of employees on the premises. Thus, the Board should have specified the number of additional organizers it believed necessary to compensate the UFW for the denial of access. If this had been done, we could review the propriety of the order.
(6) Petitioner argues that we should not remand the additional access question to the Board because four years have elapsed since the employer wrongfully excluded the union representatives from his premises and because the employer was acting in good faith at the time in believing the access regulation to be constitutionally invalid. Be that as it may, we believe this argument should more properly be presented to the Board for its consideration in determining whether additional access would be appropriate at this time. The expertise of the Board in fashioning remedies for unfair labor practices renders it particularly qualified to decide the question of expanded access (see Phelps Dodge Corp. v. Labor Board, supra, 313 U.S. 177, 194 [85 L.Ed. 1271, 1283]). The case therefore should be remanded to the Board for further consideration of the expanded access question in the light of this opinion, if such remand is permissible and feasible under the Act.
*590 (7) The Act makes no provision for remand of a case back to the Board for further proceedings once the Court of Appeal has accepted it for review. Section 1160.8,[4] construed with section 1160.3,[5] appears to vest exclusive jurisdiction in the Court of Appeal once the record is filed in the court pursuant to the clerk's notice.
In Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd., supra, 24 Cal.3d 335, the Supreme Court viewed the court's jurisdiction to review and to enter a decree enforcing or modifying the order of the Board as an original proceeding in the nature of mandamus within the meaning of article VI, section 10 of the California Constitution (id., at pp. 351-352). This holding, however, should not foreclose the reviewing court's authority to remand all or any portion of the order back to the Board for reconsideration if it determines that justice requires this to be done.
Basic authority for a remand procedure is found in Code of Civil Procedure section 187 which provides: "When jurisdiction is, by the constitution or this code, or by any other statute, conferred on a court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code."
The NLRA expressly authorizes remand to the NLRB only when a party applies to the reviewing court for leave to produce additional evidence (§ 10 (e) of the act, 29 U.S.C. § 160 (e)); nevertheless, the federal courts of appeals almost immediately after enactment of the NLRA began interpreting 29 United States Code section 160 (e) to permit a court faced with a petition for review of a final order of the *591 NLRB to remand a case to the board for further consideration. For example, in Agwilines, Inc. v. National Labor Relations Board (5th Cir.1936) 87 F.2d 146, the court found that a board remedial order was "too indefinite to serve as a basis for an order of enforcement" and remanded the matter to the board with directions to conduct further proceedings. See also National Labor Relations Board v. Bell Oil & Gas Co. (5th Cir.1937) 91 F.2d 509, where the court enforced the order in part and remanded to the board for clarification that part of the order which was found to be vague. (8) Finally, as noted by the United States Supreme Court in Ford Motor Co. v. Labor Board (1939) 305 U.S. 364 [83 L.Ed. 221, 59 S.Ct. 301], "It is familiar appellate practice to remand causes for further proceedings without deciding the merits, where justice demands that course in order that some defect in the record may be supplied. Such a remand may be made to permit further evidence to be taken or additional findings to be made upon essential points." (305 U.S. at p. 373 [83 L.Ed. at p. 229], fns. omitted.)
Remand to the administrative tribunal for further proceedings in the course of judicial review of an administrative order is common in California (see Covert v. State Board of Equalization (1946) 29 Cal.2d 125 [173 P.2d 545]; La Prade v. Department of Water & Power (1945) 27 Cal.2d 47 [162 P.2d 13]; Universal Cons. Oil Co. v. Byram (1944) 25 Cal.2d 353 [153 P.2d 746]). We note also that remand is statutorily authorized by courts reviewing Workers' Compensation Appeals Board decisions (see Lab. Code, § 5953) and for review of orders of the Department of Alcoholic Beverage Control (Bus. & Prof. Code, § 23090.3).
The need for the reviewing court to remand cases to the Board for further proceedings results from the division of functions between the Board and the court as contemplated by section 1160.8. Without the power to remand, in many instances the court would have no choice but to annul an order or emasculate it because of some error which could easily be cured by further proceedings before the Board but which the court could not properly remedy on its own except by invoking rarely used procedures such as taking evidence which the appellate courts of this state are reluctant to do.[6]
*592 (9a) A second question arises: if a remand is ordered and the Board thereafter enters new findings and a new order concerning the issues on remand, is a new petition under section 1160.8 necessary to review the order? In other words, must the new order on remand be deemed a "final order" within the meaning of section 1160.8? We think not.
(10) There are two fundamental policies which should guide the reviewing court in designing a remand procedure in unfair labor practices cases arising under the Act: (1) the need for expeditious resolution of the unfair labor practice charges, and (2) judicial deference to the Board in matters of fact finding and the formulation of remedial orders. (9b) If the redetermination by the Board after remand from the court were to be considered a final order of the Board and binding on the parties absent a new petition for review, then the enforcement of the new order would be in the superior court (§ 1160.8) thereby resulting in two courts, i.e., the superior court and the Court of Appeal issuing enforcement decrees in the same labor-management dispute. This clearly would be contrary to the legislative policy implied in section 1160.8 that the reviewing court is vested with the jurisdiction to enforce Board orders in a particular labor management dispute once the court has elected to review the order.
Also, if the order on remand is treated as a final order of the Board, any aggrieved party would have 30 days in which to file a petition for review under section 1160.8. If a petition for review should be filed, the parties must be given a reasonable time to file points and authorities in light of the record filed by the Board (Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd., supra, 24 Cal.3d 335) and if the court should elect to review the new order, it would have to schedule oral argument and write a formal opinion on the new order all of which would require several weeks or perhaps months additional time.
Thus, it is apparent that for the Board's order on remand to be deemed a new final order under section 1160.8 would run counter to the important policy calling for the expeditious resolution of unfair labor practice charges.
*593 Because section 1160.8 vests jurisdiction to enforce Board orders in the Court of Appeal once a petition for review is granted (Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd., supra, 24 Cal.3d at pp. 350-352), we conclude that a remand to the Board revests only a limited jurisdiction in the Board to follow the directions of the court in the remand order. (11) (See fn. 7.) Accordingly, the subsequent findings and any new order by the Board will be advisory in nature, and a new petition to review will not be required to revest jurisdiction over the new findings and order in the court.[7]
The concept of retaining review and enforcement jurisdiction over the parties and the subject matter in the Court of Appeal while remanding the proceedings to the Board for reconsideration in light of the court's opinion is consistent with the federal practice under the NLRA. In National Labor Relations Board v. Bell Oil & Gas Co., supra, 91 F.2d 509 at page 515, the court's remand procedure is stated as follows: "When the clarified order has been entered, it and the additional proceedings, if any, taken in arriving at it, shall be supplemented and made a part of the pending record, for our final action and decree." (See also National Labor Relations Board v. Summerset Shoe Co. (1st Cir.1940) 111 F.2d 681 at p. 690.) "If the Board holds additional proceedings and issues a clarifying order as to back pay, such additional proceedings and order shall be made a supplemental part of the pending record for our final action and decree." (Also see N.L.R.B. v. Great Atlantic and Pacific Tea Company (5th Cir.1969) 409 F.2d 296; National Labor Relations Bd. v. Acme Air Appliance Co. (2d Cir.1941) 117 F.2d 417; Universal Cons. Oil Co. v. Byram, supra, 25 Cal.2d 353.)
The portion of the Board's order granting access unlimited as to the number of UFW organizers and without regard to the date of election certification is annulled, and the question of additional access is remanded to the Board for further consideration in the light of this opinion. The Board is directed to take whatever additional evidence it deems appropriate on the question and to make new findings and a proposed order not inconsistent with this opinion. The Board is further directed to certify the record on remand including the new findings and *594 proposed order to this court within 60 days from this date. Any party aggrieved by the Board's order on remand shall have 15 days from the date of the Board's certification of the supplemental record to this court within which to file points and authorities in opposition to the proposed order. If no such opposition is filed, the new order, if approved by this court, will be included in the final decree of enforcement to be issued by this court.
Except as annulled, the order of the Agricultural Labor Relations Board is affirmed.
Hopper, J., and Zenovich, J., concurred.
NOTES
[1] All code references are to the Labor Code unless otherwise indicated.
Section 1153 provides: "It shall be an unfair labor practice for an agricultural employer to do any of the following: (a) To interfere with, restrain, or coerce agricultural employees in the exercise of the rights guaranteed in section 1152 ..." Section 1152 guarantees employees the "right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection...."
[2] On October 9, 1975, an election was conducted at petitioner's ranch. The regional director issued a challenged ballot report on December 5, 1975. Following investigation, the director issued a report on July 20, 1977, as to the status of the challenged ballots. On August 30, 1977, the Board rendered its decision on the challenged ballots and finding that no party to the election could possibly receive a majority of the valid ballots cast at the election and a runoff election would not further the policies of the Act, ordered that a rerun election be held in 1977 if the UFW so moved, but otherwise that the proceedings be closed.
[3] The access regulation (Cal. Admin. Code, tit. 8, § 20900, subd. (e) (4)) provides that the number of union organizers allowed on an employer's property is two for each work crew and one additional organizer for each additional fifteen employees where the crew exceeds thirty.
[4] Section 1160.8 provides in pertinent part: "Upon the filing of such petition [for review], the court shall cause notice to be served upon the board and thereupon shall have jurisdiction of the proceeding. The board shall file in the court the record of the proceeding, certified by the board within 10 days after the clerk's notice unless such time is extended by the court for good cause shown. The court shall have jurisdiction to grant to the board such temporary relief or restraining order it deems just and proper and in like manner to make and enter a decree enforcing, modifying and enforcing as so modified, or setting aside in whole or in part, the order of the board."
[5] Section 1160.3 provides in pertinent part: "Until the record in a case shall have been filed in a court, as provided in this chapter, the board may, at any time upon reasonable notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any finding or order made or issued by it."
[6] Code of Civil Procedure section 909 authorizes the appellate court to take additional evidence for the purpose of making additional findings of fact or for any other purpose "in the interests of justice." In exceptional circumstances the reviewing court, on certiorari, has taken additional evidence not given in the proceedings below (Welde v. Superior Court (1942) 53 Cal. App.2d 168, 176 [127 P.2d 560]). However, the very suggestion that the court itself might hear evidence in an Agricultural Labor Relations Board review proceeding appears repugnant to section 1160.8, which makes the Board the trier of fact.
[7] This is not to suggest that the new findings and order of the Board should not be given deference in accordance with the policy stated in section 1160.8 that the findings of the Board with respect to factual questions are to be upheld by the court if supported by substantial evidence. The same respect should be accorded the Board's findings and new order on remand as is given to the original findings and order.
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DISMISS; Opinion Filed March 26, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00099-CV
SYED BILAL, Appellant
V.
SANIRAZA SIDDIQ, Appellee
On Appeal from the 193rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-13-00143
MEMORANDUM OPINION
Before Justices Moseley, Francis, and Lang
Opinion by Justice Moseley
The filing fee, docketing statement, and clerk’s record in this case are past due. By
postcard dated January 27, 2014 we notified appellant the $195 filing fee was due. We directed
appellant to remit the filing fee within ten days and expressly cautioned appellant that failure to
do so would result in dismissal of the appeal. Also by postcard dated January 27, 2014, we
notified appellant the docketing statement had not been filed in this case. We directed appellant
to file the docketing statement within ten days. We cautioned appellant that failure to do so
might result in dismissal of this appeal. By letter dated February 13, 2014, we informed appellant
the clerk’s record had not been filed because appellant had not paid for the clerk’s record. We
directed appellant to provide verification of payment or arrangements to pay for the clerk’s
record or to provide written documentation that he had been found entitled to proceed without
payment of costs. We cautioned appellant that failure to do so would result in the dismissal of
this appeal without further notice. To date, appellant has not paid the filing fee, filed the
docketing statement, provided the required documentation, or otherwise corresponded with the
Court regarding the status of this appeal.
Accordingly, we dismiss this appeal. See TEX. R. APP. P. 37.3(b); 42.3(b), (c).
/ Jim Moseley/
JIM MOSELEY
JUSTICE
140099F.P05
–2–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
SYED BILAL, Appellant On Appeal from the 193rd Judicial District
Court, Dallas County, Texas
No. 05-14-00099-CV V. Trial Court Cause No. DC-13-00143.
Opinion delivered by Justice Moseley.
SANIRAZA SIDDIQ, Appellee Justices Francis and Lang participating.
In accordance with this Court’s opinion of this date, this appeal is DISMISSED.
It is ORDERED that appellee SANIRAZA SIDDIQ recover her costs of this appeal from
appellant SYED BILAL.
Judgment entered this 26th day of March, 2014.
/Jim Moseley/
JIM MOSELEY
JUSTICE
–3–
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IN THE SUPREME COURT OF IOWA
No. 09–0342
Filed December 23, 2010
DALARNA FARMS,
Appellee,
vs.
ACCESS ENERGY COOP.,
Appellant.
Appeal from the Iowa District Court for Des Moines County,
Mary Ann Brown, Judge.
On discretionary review, we conclude Iowa Code section 657.1(2)
provides a potential comparative fault defense in any action for nuisance
against an electric utility. REVERSED AND REMANDED.
Gregory R. Brown and Joseph G. Gamble of Duncan Green Brown
& Langeness, P.C., Des Moines, and Stuart G. Mondschein of Wheeler,
Van Sickle & Anderson, S.C., Madison, Wisconsin, for appellant.
Nicholas G. Pothitakis of Pothitakis Law Firm, PC, Burlington, and
Scott Lawrence of Lawrence Law Office, S.C., St. Nazianz, Wisconsin, for
appellee.
2
HECHT, Justice.
In a nuisance suit brought by a dairy farm against an electric
utility, we are asked to interpret Iowa Code section 657.1(2) (2007) to
determine the scope and constitutionality of the ―electric utility defense.‖1
We conclude the potential comparative fault defense provided in section
657.1(2) is available in any nuisance action seeking damages against an
electric utility. We reverse and remand to the district court for further
proceedings consistent with this opinion.
I. Background Facts and Proceedings.
According to the petition filed in this case, New London Dairy
constructed and operated a dairy farm in New London, Iowa, from 1999
until 2003. The dairy herd suffered from health problems, eventually
driving the farm into bankruptcy. In 2003, Dalarna Farms bought the
dairy herd and began managing the dairy. Dalarna also experienced
problems with the herd, including low milk production and a high death
rate. After some research, Dalarna concluded the herd was being
affected by stray voltage originating from the utility system of Access
Energy Cooperative.
On March 1, 2007, Dalarna and New London filed suit against
Access Energy for nuisance based on the effects of stray voltage on the
farm. The district court severed the claims of the two plaintiffs.
Dalarna‘s suit consists of two counts, both based on nuisance theory.
The first count seeks money damages for past and present harm caused
by stray voltage on the dairy farm, and the second seeks an order to
abate and enjoin Access Energy from causing stray voltage on the farm.
1All citations to the Code of Iowa will be to the 2007 Code unless otherwise
indicated.
3
Access Energy filed a motion styled ―Motion for Partial Summary
Judgment and/or Motion for Adjudication of Law Point‖ requesting the
application of the Iowa Comparative Fault Act to Dalarna‘s damages
claim. The district court concluded the motion was not properly
supported as a motion for summary judgment. Instead, the court
concluded, ―[t]o the extent that the parties are asking the court to, in
advance of trial, advise them as to what it considers to be the controlling
law in the state of Iowa, the court will enter this advisory ruling.‖2 The
district court determined Iowa Code section 657.1(2) authorizes Access
Energy to assert a comparative fault defense only against Dalarna‘s claim
for future damages, if any, awarded in lieu of injunctive relief.
We granted Access Energy‘s application for interlocutory appeal.
II. Standard of Review.
Whether Access Energy‘s motion is characterized as a motion for
summary judgment or, under the former rule, as a motion for
adjudication of law points, our review is for correction of errors at law.
Iowa R. App. P. 6.907; see also Weber v. Warnke, 658 N.W.2d 90, 92
(Iowa 2003) (recognizing motions for adjudication of law points were
reviewed for errors at law); Fin. Mktg. Servs., Inc. v. Hawkeye Bank &
Trust of Des Moines, 588 N.W.2d 450, 455 (Iowa 1999) (stating summary
judgments are reviewed for correction of errors at law).
III. Discussion.
Access Energy contends the district court erred in interpreting
section 657.1(2) to allow the comparative fault defense only against
future damages, if any, awarded in lieu of injunctive relief. Simply put,
2As of August 1, 2002, the Iowa Rules of Civil Procedure no longer recognizes a
separate motion for adjudication of law points. See Weber v. Warnke, 658 N.W.2d 90,
92–93 (Iowa 2003). Neither party challenges the district court‘s authority to issue an
―advisory ruling.‖
4
Access Energy contends the statute permits an electric utility to assert a
comparative fault defense against any damages awarded for a nuisance
claim. Dalarna disagrees, contending the district court‘s interpretation
of the statute is faithful to the enactment‘s express limitation of the
defense to actions ―for abatement‖ of nuisances. Dalarna further asserts
that the interpretation of section 657.1(2) favored by Access Energy
would result in an unconstitutional taking and violation of the
inalienable rights clause of the Iowa Constitution and posits that the
application of comparative fault principles in nuisance actions in which
no negligent conduct is asserted against a utility is ―difficult, if not
unworkable.‖
A. Interpretation of Section 657.1(2). In October 2002, this
court issued an opinion in Martins v. Interstate Power Co., 652 N.W.2d
657 (Iowa 2002). The Martins case involved a factual scenario similar to
this case. The plaintiffs managed a dairy farm affected by stray voltage
from an electric utility located nearby. Martins, 652 N.W.2d at 658–59.
The Martins filed suit against Interstate Power alleging several theories,
including strict liability, negligence, and nuisance, eventually dismissing
all claims except the one based on nuisance. Id. at 659. After a jury
verdict in favor of the Martins, Interstate Power appealed on several
grounds. Id. The court of appeals affirmed the judgment. Id. We
granted further review to address one issue: ―whether the district court
erred by applying a ‗pure nuisance‘ claim against the utility without an
accompanying negligence claim.‖ Id. at 659–60. We held, contrary to
law in other jurisdictions, nuisance lawsuits in Iowa need not necessarily
be based on negligent conduct. Id. at 665. The question of whether a
nuisance has been created is primarily a fact question that depends on
the ― ‗reasonableness of conducting the business in the manner, at the
5
place, and under the circumstances in question.‘ ‖ Id. at 660 (quoting
Weinhold v. Wolff, 555 N.W.2d 454, 459 (Iowa 1996)). We distinguished
between negligent conduct and conditions constituting nuisances and
summarized that
[t]he true distinction between negligence and nuisance
is that ―to constitute a nuisance ‗there must be a degree of
danger (likely to result in damage) inherent in the thing itself,
beyond that arising from mere failure to exercise ordinary
care in its use.‘ ‖
Id. at 661 (quoting Guzman v. Des Moines Hotel Partners, L.P., 489
N.W.2d 7, 11 (Iowa 1992)). Although we concluded stray voltage
constituted such a ―pure nuisance,‖ we noted that if ―a nuisance is based
on negligence, however, liability for nuisance may depend upon the
existence of negligence‖ and ―apportionment of fault principles under
Iowa Code chapter 668 [would] apply.‖ Id. After acknowledging authority
from other jurisdictions concluding electric utilities are only liable for
nuisance if they have been negligent, we noted that those courts relied
upon a legislative immunity or modified nuisance principles to reach
their decisions. Id. at 662–64.
Unlike South Dakota, Iowa has no statute exempting
electric utilities from nuisance claims. The argument here,
of course, is that we as a court should not wait for legislative
action and should on our own adopt a similar stance in the
name of public policy. We decline to do so. Any exception to
our nuisance law with respect to electric utilities should
come from the legislature and not from this court.
Id. at 665.
Less than two years later, the legislature responded to our decision
in Martins and amended section 657.1, adding subsection 2. The statute
provides:
1. Whatever is injurious to health, indecent, or
unreasonably offensive to the senses, or an obstruction to
the free use of property, so as essentially to interfere
6
unreasonably with the comfortable enjoyment of life or
property, is a nuisance, and a civil action by ordinary
proceedings may be brought to enjoin and abate the
nuisance and to recover damages sustained on account of
the nuisance.
2. Notwithstanding subsection 1, in an action to abate
a nuisance against an electric utility, an electric utility may
assert a defense of comparative fault as set out in section
668.3 if the electric utility demonstrates that in the course of
providing electric services to its customers that it has
complied with engineering and safety standards as adopted
by the utilities board of the department of commerce, and if
the electric utility has secured all permits and approvals, as
required by state law and local ordinances, necessary to
perform activities alleged to constitute a nuisance.
Iowa Code § 657.1 (2005) (emphasis added).3
Thus, section 657.1, as amended, makes available a defense of
comparative fault, as described in section 668.3, to an electric utility if
the utility ―has complied with [specified] engineering and safety
standards‖ and ―has secured all permits and approvals‖ required by law.
The statute makes this defense available ―in an action to abate a
nuisance‖ against an electric utility.
The district court noted, and Dalarna urges on appeal, the plain
language of the statute suggests the defense is available only against
claims for injunctive relief. Although section 657.1(2) expressly
references application of the defense in ―action[s] to abate a nuisance,‖
the district court did not conclude comparative fault principles could be
applied to diminish the scope of injunctive relief. Instead, the court
reasoned that in some actions seeking abatement of a nuisance,
equitable considerations will not justify the issuance of an injunction. In
such cases, the court concluded future damages might be awarded to the
3Another proposed version of the bill would have granted broad immunity to any
―public utility‖ from nuisance lawsuits. See H.S.B. 278, 80th G.A., 2nd Sess. § 1 (Iowa
2004) (providing ―an act taken or property maintained by a public utility . . . in
compliance with administrative rules . . . or other legal standards shall not be
considered a nuisance‖).
7
plaintiff in lieu of an injunction. Under the district court‘s interpretation
of the statute, the defendant electric utility is allowed to present evidence
of the plaintiff‘s fault to diminish any award for such future damages.
Access Energy disagrees, contending comparative fault principles
are not well-suited to reduce or diminish injunctive relief. Emphasizing
the perceived impracticability of comparing the fault of the parties in the
context of a claim for an injunction, Access Energy posits that ―[o]ne
would not anticipate an injunction being issued to enjoin an activity half
the days of the year because a plaintiff was found fifty percent at fault.‖
Because it believes a literal interpretation of the statute is unworkable,
the utility company urges this court to conclude the legislature intended
the defense to be available in any nuisance action seeking money
damages—whether for past or future losses—against an electric utility.
We are not persuaded by the district court‘s valiant effort to apply
the plain language of section 657.1(2). Instead, we conclude the statute
is ambiguous, and we will accordingly apply our well-established
principles of statutory construction. See Carolan v. Hill, 553 N.W.2d
882, 887 (Iowa 1996).
Our goal is to ascertain the legislature‘s intent, and we will assess
―the statute in its entirety, not just isolated words or phrases.‖ State v.
Gonzalez, 718 N.W.2d 304, 308 (Iowa 2006). We seek to interpret the
statute so no part of it is rendered redundant or irrelevant. Id. We strive
for ―a reasonable interpretation that best achieves the statute‘s purpose
and avoids absurd results.‖ Id. Legislative intent is ascertained not only
from the language used but also from ―the statute‘s ‗subject matter, the
object sought to be accomplished, the purpose to be served, underlying
policies, remedies provided, and the consequences of the various
8
interpretations.‘ ‖ Cox v. State, 686 N.W.2d 209, 213 (Iowa 2004)
(quoting State v. Albrecht, 657 N.W.2d 474, 479 (Iowa 2003)).
Our review of section 657.1 convinces us the legislature intended
to allow an electric utility to assert a comparative fault defense in any
civil action seeking damages for the defendant electric utility‘s creation or
maintenance of a nuisance. The amendment to section 657.1 clearly
appears to have been a legislative response to our decision in Martins. It
is less clear, however, that the legislative response was intended to limit
the comparative fault defense to actions seeking injunctive relief.
Instead, we think a reading of section 657.1 in its entirety and in proper
context demonstrates a legislative intent to authorize a comparative fault
defense in any nuisance action seeking damages against an electric
utility if the utility demonstrates compliance with the standards and
secures the permits and approvals referenced in the statute.
Section 657.1(1) provides ―a civil action by ordinary proceedings
may be brought to enjoin and abate the nuisance and to recover
damages sustained on account of the nuisance.‖ Iowa Code § 657.1(1).
This language contemplates a single cause of action with two possible
remedies—injunctive relief and damages. We note that before section
657.1 was amended, the title of the statute was ―Nuisance – what
constitutes – action to abate.‖4 Id. § 657.1 (2003). We think this
demonstrates the legislature used the phrase ―action to abate‖ as a
shorthand for ―a civil action by ordinary proceedings . . . to enjoin and
abate the nuisance and to recover damages sustained on account of the
nuisance.‖ Id. § 657.1(1); see State ex rel. Bd. of Pharmacy Exam’rs v.
McEwen, 250 Iowa 721, 725, 96 N.W.2d 189, 191 (1959) (―In construing
4After the amendment, the title of the statute is now ―Nuisance – what
constitutes – action to abate – electric utility defense.‖ Iowa Code § 657.1 (2005).
9
any particular clause or words of a statute, it is especially necessary to
examine and consider the whole statute, including the title, and gather, if
possible, from the whole the expressed intention of the legislature.‖).
Since the same phrase was used when the legislature added subsection
2, it is reasonable to conclude the legislature was utilizing the same
shorthand.
Further, section 657.1(2) provides comparative fault principles, ―as
set out in section 668.3,‖ apply if the electric utility meets certain
requirements. Section 668.3 in turn provides a guide to how
comparative fault principles shall be applied to actions to recover
damages. Iowa Code § 668.3. Section 668.3(1)(a) provides contributory
fault may act as a bar to recovery ―in an action . . . to recover damages
for fault resulting in . . . injury to . . . property.‖ Id. § 668.3(1)(a).
Section 668.3(2) describes how the court shall instruct the jury to
allocate fault among the parties and to assess damages. Id. § 668.3(2).
Section 668.3(3), (4), (5), (6), and (7) prescribes how the court should
apply the findings of the jury in determining the award of damages. Id.
§ 668.3(3)–(7). Section 668.3(8) specifically addresses how awards that
include both past and future damages should be handled. Id. § 668.3(8).
Given these considerations, as well as the recognition of the
impracticability of applying a strictly literal reading of section 657.1(2),
we conclude the legislature intended to allow an electric utility to assert a
comparative fault defense, if certain requirements are met, in any
nuisance lawsuit seeking damages against it.
B. Constitutionality of Section 657.1(2). Dalarna contends,
relying on Bormann v. Board of Supervisors, 584 N.W.2d 309 (Iowa 1998)
and Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168 (Iowa 2004), our
interpretation of section 657.1(2) would result in an unconstitutional
10
taking of their valuable property right to relief against a nuisance and a
violation of Iowa‘s inalienable rights clause.
The statute at issue in Bormann provided that a farm operated in a
designated agricultural area could not be deemed a nuisance unless the
farm operated negligently or in violation of law. Bormann, 584 N.W.2d at
314. We noted, however, that under Iowa law, a plaintiff would not
generally have to establish the defendant acted negligently in order to
recover for nuisance.5 Id. at 315. After determining that the
maintenance of a nuisance is tantamount to a valuable property right,
specifically an easement, we considered whether granting the easement
in favor of the defendants without compensation was an unconstitutional
taking. Id. at 315, 319–21. Noting that a taking ― ‗may be anything
which substantially deprives one of the use and enjoyment of his
property or a portion thereof,‘ ‖ we concluded the statute violated the
Fifth Amendment of the United States Constitution and article I, section
18 of the Iowa Constitution. Id. at 321 (quoting Phelps v. Bd. of
Supervisors, 211 N.W.2d 274, 276 (Iowa 1973)).
Gacke involved a statute similar to the one in Bormann. Gacke,
684 N.W.2d at 172–73. The statute purported to immunize animal
feeding operations from nuisance liability unless two conditions were
met: (1) the animal feeding lot unreasonably and for substantial periods
of time interfered with the plaintiff‘s use and enjoyment of his or her life
or property and (2) the animal feeding lot failed to use existing prudent
generally accepted management practices reasonable for the operation.
Id. at 173. We concluded the second condition was analogous to the
5We noted while a nuisance may be caused by the defendant‘s negligence,
underlying negligence is not required for a nuisance recovery. Bormann, 584 N.W.2d at
315.
11
negligence standard deemed unconstitutional in Bormann. Id. We
determined, however, that the statute could be upheld against the
takings challenge to the extent the enactment could be interpreted to
allow for recovery of the diminution of the value of the plaintiff‘s property
caused by the nuisance because ―[t]he standard of compensation
required for the taking of an easement is ‗the decrease in value of the
dominant estate . . . resulting from the taking of the easement.‘ ‖ Id. at
174–75 (quoting 26 Am. Jur. 2d Eminent Domain § 385, at 790 (1996)).
We concluded the statute did not effect an unconstitutional taking by
immunizing the owner of the feed lot from an award for other damages
recoverable under a nuisance claim. Id. However, we further concluded
that, as applied, the immunity statute violated Iowa‘s inalienable rights
clause because it was unduly oppressive and not a reasonable exercise of
the state‘s police power. Id. at 179.
Dalarna asserts our interpretation of section 657.1(2) would result
in a taking in violation of the Federal and Iowa Constitutions as well as a
violation of the Iowa Constitution‘s inalienable rights clause. We will
address each claim in turn.
1. Does section 657.1(2) effect an unconstitutional taking? Dalarna
contends our interpretation of section 657.1(2) ―result[s] in [Access
Energy] gaining property rights over [Dalarna‘s] land without any
compensation by grafting a constitutionally irrelevant element—
negligence—onto [Dalarna‘s] claim.‖ We must begin our analysis of this
claim by pointing out that Dalarna‘s argument relies on a fundamental
misunderstanding of the implications of our interpretation of section
657.1(2) and the important differences between section 657.1(2) and the
statutes at issue in Bormann and Gacke. We do not interpret section
657.1(2) to require a plaintiff prove negligence as a condition of
12
entitlement to relief for nuisance. Our interpretation of section 657.1(2)
does not alter the elements of a nuisance claim in Iowa. A plaintiff may
still prove an electric utility created or maintained a nuisance without
establishing negligent conduct on the part of the defendant electric
utility.
The question remains, however, whether section 657.1(2) results
or could result in an unconstitutional taking of Dalarna‘s property rights
under the Iowa Constitution.6 At this pretrial stage, it is theoretically
possible a jury could return a verdict that would not implicate the
takings clause if (1) Dalarna fails to prove the existence of a nuisance, or
(2) Dalarna proves Access Energy caused a nuisance but fails to prove
damages resulted from it, or (3) Dalarna proves a nuisance and resulting
damages, but Access Energy fails to prove any fault of Dalarna
contributed to the causation of its damages. It is also theoretically
possible that if the statute is applied to the facts established at trial
consistent with the interpretation advanced by Access Energy, Dalarna‘s
nuisance damage remedy could be partially reduced or totally eliminated
as a consequence of Dalarna‘s causal fault.
We conclude an unconstitutional taking could result if section
657.1(2) is applied, as Access Energy urges, to reduce all elements of
Dalarna‘s damages by the percentage of fault attributed to Dalarna.
First, the jury could find Access Energy caused or maintained a
nuisance but also find Dalarna‘s fault caused some percentage of the
6Dalarna‘s challenge to Access Energy‘s interpretation of section 657.1(2) is
based on the Takings Clauses of the Federal and Iowa Constitutions. As we conclude
article I, section 18, the takings clause in the Iowa Constitution, is dispositive in this
case, we do not address the provisions of the Takings Clause under the Federal
Constitution. See Gacke, 684 N.W.2d at 174 (concluding that our disposition of the
plaintiffs‘ state constitutional challenge to section 657.11(2) made it unnecessary to
decide whether the statute also violated the Federal Takings Clause).
13
damages. If the jury finds Dalarna‘s causal fault is less than that of
Access Energy, Dalarna‘s recovery would, under the interpretation of
section 657.1(2) urged by Access Energy, be reduced by the percentage
of Dalarna‘s fault. See Iowa Code § 668.3(1)(a). If the jury determines
Dalarna‘s causal fault exceeds that of Access Energy, Dalarna‘s recovery
would be eliminated entirely if Access Energy‘s interpretation of the
statute is upheld. See id.
Generally, when a nuisance is deemed permanent, ―the proper
measure of damages is the diminution in the market value of the
property.‖ Weinhold, 555 N.W.2d at 465. ―This measure of damages
compensates the injured landowner for an interference that is
tantamount to a permanent taking.‖ Id. Additionally, the plaintiff may
also recover special damages to compensate the plaintiff for the
― ‗deprivation of the comfortable enjoyment of his property, and the
inconvenience and discomfort suffered by himself and his family, or other
affected persons.‘ ‖ Id. (quoting 58 Am. Jur. 2d Nuisances § 296 (1989)).
A plaintiff may also recover for ― ‗injuries to or destruction of buildings
and crops resulting from a permanent nuisance.‘ ‖ Id.
Our decision in Gacke made clear that a statute purporting to
immunize a defendant who creates or maintains a nuisance from liability
to another for the value of the diminution of the property caused by the
nuisance is unconstitutional. Gacke, 684 N.W.2d at 174–75. We
concluded, however, that the statute at issue in that case could be
upheld to the extent it could be interpreted to apply constitutionally. Id.
As in Gacke, we conclude any constitutional infirmity in section 657.1(2)
may be avoided by an interpretation of the statute that does not permit
the comparative fault scheme to reduce or eliminate a plaintiff‘s recovery
for the diminution of the value of the property caused by a nuisance. Put
14
another way, if a nuisance resulting in an easement is established,
Gacke requires that the plaintiff be compensated for the full value of the
easement on his land to avoid an unconstitutional taking. Dalarna‘s
recovery for other elements of damage, if any, caused by any nuisance
found by the fact finder to have been caused by Access Energy shall be
reduced in proportion to Dalarna‘s causal fault, if any. Id. at 175 (―The
Takings Clause does not prohibit limitations on other damages
recoverable under a nuisance theory.‖). When so interpreted and
applied, section 657.1(2) can be applied without a taking.
2. Does section 657.1(2) violate Iowa’s inalienable rights clause?
Dalarna also contends the application of section 657.1(2) in the manner
advanced by Access Energy would result in a violation of Iowa‘s
inalienable rights clause. See Iowa Const. art. I, § 1. We conclude
Dalarna‘s inalienable rights clause argument is premature at this
juncture. The analysis under this constitutional provision requires an
assessment of whether the statute is a reasonable exercise of the State‘s
police power. Gacke, 684 N.W.2d at 177–78. Specifically, the court
must determine whether the means chosen by the State to interpose its
regulatory authority are ― ‗reasonably necessary‘ and not ‗unduly
oppressive‘ ‖ on individuals by balancing the public interest in the
enforcement of the statute against the burden on the individual. Id. at
178 (quoting Gravert v. Nebergall, 539 N.W.2d 184, 186 (Iowa 1995)).
This balancing of interests is necessarily a fact-specific enterprise. See
id. at 178–79 (considering the length of time the Gackes resided on their
property, the money invested in their property, the extent of the adverse
effect of the statute on the Gackes‘ property, and the extent of any
remedy available to the Gackes). Although Dalarna alleges ―devastating
effects on the dairy operation due to exposure to electric current in the
15
ground,‖ these allegations have not been proven at this stage of the
litigation. In short, we cannot conduct a balancing of the respective
interests until, as in Gacke, a factual basis for them has been
established. At this pretrial stage of the proceeding, we conclude we are
unable to adjudicate whether the application of section 657.1(2) in a
manner consistent with this opinion would exceed the proper limits of
the state‘s regulatory authority by producing an unduly oppressive
result. Accordingly, we decline to address this issue.
C. Is the Application of Comparative Fault Principles to
Nuisance Actions “Workable”? Dalarna further contends that applying
comparative fault principles to a nuisance suit is unworkable.
Specifically, Dalarna argues that comparing an electric utility‘s liability
for the creation or maintenance of a nuisance against a dairy farmer‘s
alleged negligence is like comparing apples to oranges. Dalarna requests
that we provide specific guidance to the parties and the district court
regarding the evidence that should be considered by the jury to assess
the fault of the two parties.
While we have a great appreciation for the difficult endeavor
undertaken by a fact finder in assessing and allocating different types of
fault to parties under section 668.3, we are not persuaded that a fact
finder will be less capable of assessing a plaintiff‘s causal fault in a
nuisance case against an electric utility company than in any other case.
Nuisance liability in cases not alleging negligent conduct on the part of a
defendant has been likened to ―strict liability,‖ see Martins, 652 N.W.2d
at 665, and is arguably a qualitatively different kind of fault than
negligence or recklessness. However, section 668.3 already requires
juries to compare qualitatively different kinds of fault, including
recklessness, negligence, breach of warranty, unreasonable assumption
16
of risk, misuse of a product, and strict tort liability. See Iowa Code
§ 668.1. We do not think comparing an electric utility‘s liability for the
creation or maintenance of a nuisance with the plaintiff‘s causal fault, if
any, under section 657.1(2) will be any more difficult than comparisons
made by juries in other cases under section 668.3.
We are disinclined to attempt, at Dalarna‘s request, to articulate
what potential evidence may be considered on remand by the jury in the
comparative fault calculus under section 657.1(2). While we understand
Dalarna‘s interest in avoiding the introduction of irrelevant evidence, we
are not inclined to engage in speculation about what evidence might be
available to the parties and offered at the trial in this case. As this case
comes to us on discretionary review of a ruling on a pre-trial motion, no
factual record has been developed. We are confident the district court
will capably determine whether evidence proffered at trial is relevant to a
jury‘s determination of the ―causal relation between the conduct and the
damages claimed.‖ Id. § 668.3(3).
IV. Conclusion.
We conclude section 657.1(2) allows an electric utility to assert a
comparative fault defense to a claim for damages caused by nuisance if
the utility establishes it has complied with engineering and safety
standards adopted by the utilities board of the department of commerce
and secured the permits and approvals as provided in the statute.
However, we further conclude that to avoid an unconstitutional taking,
comparative fault principles may not be applied to reduce a plaintiff‘s
recovery for the diminution in value of his or her property caused by the
nuisance. Accordingly, we reverse and remand this case to the district
court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
All justices concur except Appel, J., who takes no part.
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596 N.E.2d 1335 (1992)
231 Ill. App.3d 950
173 Ill.Dec. 456
In re the MARRIAGE OF Patty S. ALEXANDER, Petitioner-Appellee, and
Ronald Alexander, Respondent-Appellant.
No. 4-92-0021.
Appellate Court of Illinois, Fourth District.
July 23, 1992.
*1336 Jay M. Watts, Decatur, for respondent-appellant.
Tietz & Richardson, Decatur (Michelle K. Robinson, of counsel), for petitioner-appellee.
Justice LUND delivered the opinion of the court:
Respondent Ronald Alexander appeals an order of the circuit court of Macon County requiring him to pay one-half of his minor son's tuition to a parochial high school. We affirm.
Respondent's marriage to petitioner Patty Alexander was dissolved in 1978. They had one son, Michael, who was two years of age at the time of the divorce. The divorce was heard as a contested matter. Petitioner was awarded custody of Michael. Respondent was ordered to pay the sum of $65 per week for Michael's partial support. Subsequently, respondent's child support obligation was raised to $100 per week.
Each party remarried and later divorced. Respondent has a child from his second marriage. Petitioner married a man of the Catholic faith, and she converted to that religion. Michael had been attending parochial school since the fourth grade. In November 1991, respondent filed a petition requesting reduction or abatement of his child support obligation due to a strike against his employer, Caterpillar, Inc. He alleged that his only source of income consisted of $100 per week in strike benefits. A hearing was held on this petition on December 4, 1991. The testimony generally supported respondent's request for reduction of his child support, and petitioner did not object. The parties agreed that petitioner could present an oral motion to the court at this hearing, asking that, when respondent returns to his employment, he be ordered to pay one-half of Michael's yearly tuition at St. Theresa's, a parochial high school.
Petitioner testified in support of her motion. Her approximate net income from her employment was $1,500 per month. Her second ex-husband resides with her and Michael. Michael's tuition at St. Theresa's is approximately $1,848 per year. Petitioner testified that she inherited some money from her mother when she died the previous year. She used $32,000 to pay toward the purchase of her home, and she has $25,000 in savings which she intends to use for Michael's college education. She stated she wanted Michael to go to St. Theresa's because she believes he will have a better education and be better prepared for college. She bases her opinion on experience with people she knows and works with. She testified that Michael attends church about once a month.
Respondent testified that he would prefer that Michael attend a public high school. When he is working, respondent's gross weekly income is in excess of $600. *1337 He does not believe he has the means to contribute one-half of Michael's tuition. Respondent testified that petitioner had previously told him it was none of his business where Michael went to school. When asked, respondent did not know who Michael's teachers were, what his grades had been, or what courses he was taking. He admitted that he had not attended any parent-teacher conferences since Michael was in fourth grade.
At the conclusion of the hearing, the trial court reduced respondent's child support for the remaining period of his unemployment and ordered respondent to pay one-half of Michael's yearly tuition at St. Theresa's when he returns to full-time employment. The court indicated it believed the controlling factors were the lifestyle Michael would have enjoyed had the parties remained married and the ability of both parents to pay the tuition. Respondent now appeals this order.
On appeal, respondent contends this is a case of first impression in the Illinois Appellate Court. He phrases the issue thus:
"[W]hether, absent a property settlement agreement and divorce judgment which dealt with the issue, or other agreement or ratification by the non-custodial parent, a trial court has the power to order a non-custodial parent to contribute toward tuition costs incurred by the custodial parent who unilaterally decides to send the minor child of the parties to a private (parochial) school." (Emphasis in the original).
Respondent concedes that unless the court orders otherwise, section 608(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill.Rev.Stat.1991, ch. 40, par. 608(a)) authorizes the custodial parent to determine the child's upbringing, which includes his religious training and education. He also concedes the court's authority under section 513 of the Act (Ill. Rev.Stat.1991, ch. 40, par. 513) to order contribution toward educational expenses of a child who has attained majority. However, respondent seeks to draw a distinction between college educational expenses and educational expenses for a minor child, since the latter has access to a public school system. According to respondent, it is logical to authorize courts to order noncustodial parents to help pay their children's college expenses, as a college education is normally not available to those who cannot pay. However, respondent argues there is less reason to order a noncustodial parent to assist in paying for a minor child's private school education where public schools are available and no persuasive reasons are given by the custodial parent for sending the child to a private school.
The trial court has wide discretion in awarding child support. (In re Marriage of Sipich (1980), 80 Ill.App.3d 883, 887, 36 Ill.Dec. 276, 279, 400 N.E.2d 696, 699.) Modification of a child support award also lies within the sound discretion of the trial court. Its decision will not be reversed by a court of review absent an abuse of discretion. In re Marriage of Bussey (1985), 108 Ill.2d 286, 296, 91 Ill. Dec. 594, 598, 483 N.E.2d 1229, 1233; In re Marriage of Erickson (1985), 136 Ill. App.3d 907, 912, 91 Ill.Dec. 346, 350, 483 N.E.2d 692, 696.
The source of a court's authority to order a noncustodial parent to contribute to a minor child's private school education lies in section 505(a)(2)(d) of the Act, which sets forth the factors which are relevant to a determination of child support. One of those factors is the educational needs of the child. (Ill.Rev.Stat.1991, ch. 40, par. 505(a)(2)(d).) Were it not anticipated that a court could order a noncustodial parent to contribute to the private school education of a minor child, it would be unnecessary in many cases for a court to consider a child's educational needs, since public schools typically involve little cost to parents.
Despite this statutory authority, respondent argues that petitioner should not be allowed to unilaterally enroll Michael in parochial school and then require respondent to contribute to his tuition. In support of this argument, he cites Van Nortwick v. Van Nortwick (1967), 87 Ill.App.2d 55, 230 N.E.2d 391 (Van Nortwick II). The background of that case is set out in the appellate court's opinion in a prior appeal *1338 between the parties in Van Nortwick v. Van Nortwick (1964), 52 Ill.App.2d 229, 201 N.E.2d 857 (Van Nortwick I). The parties agreed at the time of their divorce that defendant father would pay preparatory school and college expenses for their two minor sons. The schools to be attended were to be chosen by mutual agreement of the parties. By agreement, the older son Thomas attended Kent preparatory school in Connecticut for two years. The father paid his expenses. After that, the father withdrew his agreement and expressed a desire for Thomas to attend public school. Instead, the mother sent Thomas back to Kent and his grandmother paid his expenses. The mother filed a petition for rule to show cause, alleging the father was in contempt for violating the agreement to send Thomas to Kent and asking for reimbursement for his expenses. The trial court found in the mother's favor, and the father appealed. The appellate court reversed the finding of contempt. It pointed out that the father was not required by the agreement to send Thomas to Kent. Rather, the agreement required the father to pay Thomas' expenses at any school the parties might select by joint agreement. The court stated that once the father withdrew his consent for Thomas to attend Kent, that school had not been selected by joint agreement. The court also pointed out that no effort was made to resolve the impasse prior to the mother reenrolling Thomas at Kent. The court found that the mother should have attempted to discuss the matter with the father or sought a ruling from the court prior to unilaterally enrolling Thomas at Kent. (Van Nortwick, 52 Ill.App.2d at 232-38, 201 N.E.2d at 858-61.) In Van Nortwick II, the mother enrolled the younger son William at Kent, paid half the year's tuition, petitioned the court for directions, and requested the father be required to pay William's expenses at Kent. The trial court granted the petition, and the father appealed. The appellate court once again reversed, saying the mother could not unilaterally choose a school, pay the tuition, and then seek to require the father to reimburse her for those expenses. The record showed the mother made no attempt to consult the father, as required by the divorce decree. Van Nortwick, 87 Ill.App.2d at 57-58, 230 N.E.2d at 392-93.
Respondent contends that Van Nortwick II represents the law in Illinois in regard to a noncustodial parent's contribution to private school expenses. He believes, based upon that case, that we must reverse the trial court's decision in the instant case. We disagree with respondent's reasoning. Van Nortwick I and Van Nortwick II have no relevance to the instant case. In the Van Nortwick cases, the parties' divorce decree contained a provision giving the father a voice in the selection of schools for the children, requiring mutual agreement. The mother did not abide by that agreement when she enrolled both boys at the preparatory school without securing either the father's agreement or court authorization. This is the reason the father was not required to pay the school expenses. The Van Nortwick cases do not stand for the proposition that respondent here cannot be ordered to contribute to Michael's parochial school tuition.
In the instant case, evidence showed that Michael had been attending parochial school since the fourth grade, evidently without objection from respondent. We recognize that respondent testified petitioner had told him over the years that Michael's schooling was none of his concern. However, had respondent found objections to Michael's attendance at parochial school, section 608(a) of the Act was available for court review of petitioner's authority as the custodial parent in regard to Michael's education. We find that having basically acquiesced in Michael's attendance at parochial grade school for a number of years, that respondent's objection to his attendance at a parochial high school on the ground it is an inappropriate choice of schools is of no particular significance. At the time of the trial court hearing on tuition payments, petitioner as custodial parent was responsible for educational decisions. No agreement as in Van Nortwick existed.
Respondent claims that petitioner gave no persuasive reasons for Michael's *1339 attendance at St. Theresa's. In fact, he refers to her stated reasons as "whimsical." However, as noted above, the evidence was that Michael had received a parochial school education since the fourth grade, without objection from respondent. The trial court could have concluded that it was appropriate to allow Michael to continue this education, even though it would entail some cost to his parents. We do not find anything whimsical about petitioner's stated reasons for enrolling Michael at St. Theresa's. On the contrary, petitioner's desire for Michael to attend a parochial high school was consistent with the prior education he had received. We do not find it inappropriate for petitioner to have relied on the advice of others who had knowledge of St. Theresa's to support her statements at the hearing regarding her belief that attendance at St. Theresa's would give Michael a better education and better prepare him for college. Drawing upon the experience of others is often the best way for a parent to learn the merits of a particular school.
Respondent also argues that even assuming the trial court had the authority to order him to pay part of Michael's private school tuition, the court erred in this case because respondent cannot afford to pay one-half the tuition. We also reject this argument. Both parties testified concerning their financial resources and expenses. Financial affidavits of both parties were available to the trial court. Respondent testified that when he is working full-time, his gross weekly income exceeds $600. The trial court did not order respondent to contribute to Michael's tuition until he returned from the strike to full-time employment. Until that time, petitioner will bear the full cost of the tuition. Respondent claims that his half of Michael's tuition will amount to $200 per month. He claims the trial court abused its discretion in ordering him to make such a payment in addition to his child support. However, respondent's $200 figure is erroneous. In reality, based upon a yearly tuition of $1,848, respondent's share of Michael's tuition will be $924 annually, or $77 per month. We find no abuse of discretion.
The trial court's order requiring respondent to pay one-half of Michael's parochial school tuition upon his return to full-time employment is affirmed.
Affirmed.
STEIGMANN and COOK, JJ., concur.
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ACCEPTED
03-14-00323-CV
4516550
KASLING, HEMPHILL, THIRD COURT OF APPEALS
AUSTIN, TEXAS
DOLEZAL &ATWELL, L.L.P. 3/16/2015 3:50:13 PM
JEFFREY D. KYLE
CLERK
301 CONGRESS AVENUE, SUITE 300
AUSTIN, TEXAS 78701
(512) 472-6800
FAX: (512) 472-6823 FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
March 16, 2015
3/16/2015 3:50:13 PM
JEFFREY D. KYLE
Clerk
ViaE-tile
Third Court of Appeals
209 West 14th Street, Room 101
Austin, Texas 78701
RE: Cause No. 03-14-00323-CV; Roger Bujler and Sandy Bujler v. Apeck; In the
Court of Appeals for the Third District Court of Texas, Austin, Texas
Dear Sir or Madam:
I would like to waive the request for oral arguments regarding the above referenced
matter.
Thank you very much for your assistance in this matter and please call if you have any
questions.
Sincerely,
TLD/mac
cc: Rodney Geer- Via E-jile
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41 So.3d 843 (2008)
EX PARTE DAUN ROSE SUDDUTH.
No. 1070751 (CR-06-1657).
Supreme Court of Alabama.
November 14, 2008.
Decision Without Published Opinion Cert. denied.
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[Cite as State v. Romes, 2016-Ohio-5772.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 14CA0095-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
BRIAN M. ROMES MEDINA MUNICIPAL COURT
COUNTY OF MEDINA, OHIO
Appellant CASE No. 14 TRC 00284
DECISION AND JOURNAL ENTRY
Dated: September 12, 2016
MOORE, Judge.
{¶1} Defendant-Appellant, Brian Romes, appeals from his convictions in the Medina
Municipal Court. This Court affirms.
I.
{¶2} During the early morning hours of January 5, 2014, Mr. Romes struck the rear
fender of Rebecca Brummer’s car. At the time, Ms. Brummer was a passenger in the car and her
fiancé, Jesse Gast, was the driver. There is no dispute that Mr. Romes, Ms. Brummer, and Mr.
Gast were acquainted and that, directly before the collision occurred, they had all been at a bar
near Litchfield Circle. According to Mr. Romes, he accidentally struck Ms. Brummer’s car in
the bar’s parking lot due to icy pavement conditions. According to Ms. Brummer, Mr. Romes
struck her car as she and Mr. Gast were stopped at a stop sign near Litchfield Circle. It was her
testimony that Mr. Romes had been drinking before the crash and was visibly intoxicated after it
2
occurred. Meanwhile, Mr. Romes claimed that he was not intoxicated when he struck Ms.
Brummer’s car.
{¶3} As a result of the foregoing incident, Mr. Romes was charged with one count of
operating a vehicle under the influence of alcohol (“OVI”) and one count of failing to maintain
an assured clear distance. The matter proceeded to a bench trial, at the conclusion of which the
court found Mr. Romes guilty of both charges. The court sentenced him to jail, probation, and a
fine, but stayed his sentence for purposes of filing an appeal.
{¶4} Mr. Romes now appeals from his convictions and raises two assignments of error
for our review.
II.
ASSIGNMENT OF ERROR I
[MR. ROMES’] CONVICTION FOR [OVI] IS AGAINST THE SUFFICIENCY
OF THE EVIDENCE IN VIOLATION OF [HIS] RIGHTS UNDER THE FIFTH,
SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE OHIO STATE
CONSTITUTION.
{¶5} In his first assignment of error, Mr. Romes argues that his OVI conviction is
based on insufficient evidence. We disagree.
{¶6} The issue of whether a conviction is supported by sufficient evidence is a question
of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind
of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.
State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
3
{¶7} “No person shall operate any vehicle * * * within this state, if, at the time of the
operation, * * * [t]he person is under the influence of alcohol * * *.” R.C. 4511.19(A)(1)(a).
“To prove impaired driving ability, the state can rely on physiological factors (e.g., odor of
alcohol, glossy or bloodshot eyes, slurred speech, confused appearance) to demonstrate that a
person’s physical and mental ability to drive was impaired.” State v. Peters, 9th Dist. Wayne
No. 08CA0009, 2008-Ohio-6940, ¶ 5, quoting State v. Slone, 9th Dist. Medina No. 04CA0103-
M, 2005-Ohio-3325, ¶ 9, quoting State v. Holland, 11th Dist. Portage No. 98-P-0066, 1999 WL
1313665, *5 (Dec. 17, 1999). “[T]here is no prerequisite that an officer observe erratic driving
in order to effectuate an arrest for driving under the influence.” State v. Kurjian, 9th Dist.
Medina No. 06CA0010-M, 2006-Ohio-6669, ¶ 17. Moreover, “virtually any lay witness,
without special qualifications, may testify as to whether or not an individual is intoxicated.”
State v. Zentner, 9th Dist. Wayne No. 02CA0040, 2003-Ohio-2352, ¶ 19, quoting State v.
Delong, 5th Dist. Fairfield No. 02 CA 35, 2002-Ohio-5289, ¶ 60.
{¶8} Ms. Brummer testified that, on the evening of January 4, 2014, she and Mr. Gast
had dinner together and then went to a bar near Litchfield Circle. After they arrived, they saw
Mr. Romes, who was there celebrating the birthday of yet another mutual acquaintance of theirs.
Ms. Brummer testified that, over the course of the evening, she was able to observe Mr. Romes
and saw him drinking. When the bar closed at approximately 2:30 a.m., she and Mr. Gast left in
her car with Mr. Gast behind the wheel. As the two turned onto Route 83, they saw Mr. Romes’
car pulled off in the gravel behind a restaurant. Mr. Gast then drove over to Mr. Romes’ car and
stopped beside it so that they could check on him.
{¶9} According to Ms. Brummer, Mr. Romes was “slouched over” his steering wheel.
When he realized another car had pulled up next to him, Mr. Romes rolled down his window and
4
Mr. Gast and Ms. Brummer did the same. Ms. Brummer testified that Mr. Romes slurred his
words when he spoke. Because they knew he had been drinking, Ms. Brummer and Mr. Gast
tried to persuade Mr. Romes to leave his car there and come with them. He refused, however, so
they convinced him to take his car down the road to the home of a mutual acquaintance and stay
there. According to Ms. Brummer, Mr. Romes agreed to that arrangement, and they followed
behind him as he drove his car there.
{¶10} Ms. Brummer testified that, after she and Mr. Gast escorted Mr. Romes to the
arranged destination, they left and continued back down Route 83 toward Litchfield. She
testified that Mr. Gast stopped at a stop sign at Litchfield Circle while the two discussed where
they were headed. At that point, Ms. Brummer felt “a forceful hit from the rear” and realized
that another car had struck them. She then looked back and recognized Mr. Romes’ car. Ms.
Brummer stated that Mr. Gast motioned to Mr. Romes to drive out of the intersection and Mr.
Romes followed. After a brief conversation, they agreed to drive the cars to an area with better
lighting. They then drove a short distance to a nearby, residential driveway.
{¶11} According to Ms. Brummer, Mr. Romes stumbled when he exited his car and he
and Mr. Gast began yelling at one another. She stated that she heard Mr. Romes apologizing,
stating that he was “sorry [he] drank so much.” She also stated that Mr. Romes was slurring his
words and appeared to be disoriented. She used her cell phone to call her mother and, while she
was on the phone with her mother, Mr. Romes reentered his car and drove off. Ms. Brummer
then ended the call with her mother and called 911. She confirmed that, based on her
observations, she believed Mr. Romes was intoxicated at the time of the collision. She testified
that the crash occurred sometime between 2:30 a.m. and 3:00 a.m.
5
{¶12} At approximately 3:03 a.m., Ohio State Trooper Shawn Mollohan received a
dispatch regarding a two-car collision at Litchfield Circle. When he responded to the incident,
only one car was present and he learned that the other driver had left the scene. Trooper
Mollohan testified that he observed damage to Ms. Brummer’s vehicle, including an impression
mark left by the front license plate of the car that had struck hers. He spoke with Ms. Brummer
and Mr. Gast at the scene and learned that Mr. Romes was the other individual involved in the
crash. Ms. Brummer told Trooper Mollohan that Mr. Romes had been drinking while Mr. Gast
told him that he assumed Mr. Romes had been drinking. Trooper Mollohan then left the scene
and drove to Mr. Romes’ residence.
{¶13} Trooper Mollohan testified that he arrived at Mr. Romes’ residence at
approximately 5:00 a.m. At that time, Mr. Romes was still awake and fully dressed. According
to Trooper Mollohan, he detected a very strong odor of alcohol around Mr. Romes and Mr.
Romes stumbled when he let Trooper Mollohan into his home. Trooper Mollohan observed that
Mr. Romes had “extremely bloodshot and glassy eyes” as well as slurred speech. He further
observed that Mr. Romes was carrying a whiskey in one hand and a beer in the other. When
Trooper Mollohan initially asked Mr. Romes about the collision that occurred, Mr. Romes stated
that “he really wasn’t sure what [they] were talking about * * *.” Mr. Romes denied that he was
involved in any collision, but later admitted that he had “bumped” Ms. Brummer’s car. Still, Mr.
Romes insisted that he had not damaged the car. He also told Trooper Mollohan that he did not
understand why it was necessary to complete a crash report because he had already arranged to
handle the matter privately. Trooper Mollohan testified that he ultimately decided to charge Mr.
Romes with an OVI because, based on his observations of Mr. Romes and the information he
received from Ms. Brummer, he believed that Mr. Romes had driven his car while intoxicated.
6
{¶14} Joyce Brummer, Ms. Brummer’s mother, testified that she knew Mr. Romes
before this incident occurred and called him two days after the crash to try to get his insurance
information. She testified that, during the call, Mr. Romes apologized numerous times for
drinking and driving. According to Joyce, Mr. Romes stated that “[h]e was sorry, he had too
much to drink, he should not have been driving, and [] he did not mean to hurt anyone.” She
also stated that Mr. Romes admitted to leaving the scene of the crash so that he could drive home
and set out bottles of alcohol. She testified that, when she told Mr. Romes that his attempt to
make it appear that he was only drinking at home was “the oldest trick in the book,” he
responded “Yeah.”
{¶15} Mr. Romes argues that his OVI conviction is based on insufficient evidence
because Trooper Mollohan never actually saw him operating a car and the testimony provided by
Ms. Brummer and her mother is unreliable. He notes that Trooper Mollohan identified several
inconsistences or inaccuracies in Ms. Brummer’s statement and/or testimony. He further argues
that Joyce Brummer was biased against him because she insured her daughter’s car and wanted
to see that he was responsible for its repair.
{¶16} To the extent Mr. Romes argues that the State presented unreliable or biased
testimony, his argument sounds in weight rather than sufficiency. “A weight challenge tests the
persuasiveness of the evidence the State produced while a sufficiency challenge tests the very
production of that evidence.” State v. Poland, 9th Dist. Medina No. 14CA0003-M, 2014-Ohio-
5737, ¶ 24. A sufficiency challenge requires this Court to view the evidence in a light most
favorable to the State. Jenks, 61 Ohio St.3d 259 at paragraph two of the syllabus. Accordingly,
in reviewing Mr. Romes’ first assignment of error, we may not review the persuasiveness of the
7
State’s evidence. Instead, we must limit our review to the sufficiency of that evidence. See
Poland at ¶ 24.
{¶17} Mr. Romes does not dispute that, on the night in question, he operated his vehicle
and struck Ms. Brummer’s car. The only issue is whether he was intoxicated when the incident
occurred. Viewing all of the evidence in a light most favorable to the prosecution, we must
conclude that the State set forth evidence from which a rational trier of fact could have
concluded that Mr. Romes was intoxicated at that time. See Jenks at paragraph two of the
syllabus.
{¶18} Both Ms. Brummer and her mother testified that they heard Mr. Romes apologize
for drinking too much and causing the crash. Ms. Brummer also stated that she saw Mr. Romes
drinking that evening and, immediately before and after the crash, made several observations that
led her to believe he was intoxicated. See Zentner, 2003-Ohio-2352, at ¶ 19, quoting Delong,
2002-Ohio-5289, at ¶ 60. Specifically, she testified that Mr. Romes was “slouched over” his
steering wheel before the crash, slurred his words, and stumbled when exiting his car. The State
also presented the testimony of Trooper Mollohan. Trooper Mollohan made contact with Mr.
Romes within two hours of the crash and testified that Mr. Romes was visibly intoxicated. He
stated that Mr. Romes smelled strongly of alcohol, had extremely bloodshot eyes, was slurring
his speech, and stumbled at least once. Based on all of the foregoing evidence, a rational trier of
fact could have concluded that Mr. Romes was intoxicated at the time that he operated his
vehicle. See Kurjian, 2006-Ohio-6669, at ¶ 17. Accordingly, he has not shown that his OVI
conviction is based on insufficient evidence. His first assignment of error is overruled.
8
ASSIGNMENT OF ERROR II
[MR. ROMES’] CONVICTION FOR [OVI] IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE IN VIOLATION OF [HIS] RIGHTS UNDER
THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE OHIO
STATE CONSTITUTION.
{¶19} In his second assignment of error, Mr. Romes argues that his OVI conviction is
against the manifest weight of the evidence. We disagree.
{¶20} When a defendant asserts that his conviction is against the manifest weight of the
evidence:
an appellate court must review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses and determine
whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).
{¶21} At trial, Mr. Romes testified in his own defense. He testified that, on the night of
January 4, 2014, he went to a bar to celebrate a friend’s birthday. Although he saw Mr. Gast and
Ms. Brummer at the bar, he testified that he only talked to them for a few minutes and “really
wasn’t right next to them” throughout the evening. According to Mr. Romes, he consumed about
two drinks early on in the evening and then switched to drinking Red Bull. He denied that he
became intoxicated at the bar or that he ever left, pulled off the road, and “slumped over” his
steering wheel. Mr. Romes testified that his vehicle collided with Ms. Brummer’s in the parking
lot of the bar when both of them were leaving. He stated that the parking lot was icy and he was
traveling no more than five to ten miles per hour when his vehicle slid into the back of Ms.
Brummer’s.
9
{¶22} According to Mr. Romes, he spoke with Mr. Gast immediately after the collision
occurred and they agreed to settle the matter privately. Mr. Romes testified that he and Mr. Gast
worked together at a body shop and agreed that Ms. Brummer’s car would be fixed at the shop.
Once they agreed to that resolution, Mr. Romes drove home and started drinking again. He
estimated that he had approximately three drinks at home before Trooper Mollohan knocked on
his door. He denied telling Joyce Brummer that he started drinking again when he got home to
make it appear as if he had been drinking at home rather than at the bar before he drove his
vehicle. He also denied ever apologizing to her or anyone else for drinking too much that
evening. According to Mr. Romes, he apologized for the collision itself, but never stated that it
occurred because he had been drinking.
{¶23} Mr. Romes argues that the court lost its way in convicting him because the State
presented unreliable and biased testimony. Because Trooper Mollohan did not see him for at
least two hours after the collision occurred, he argues that it was not possible for the trooper to
know whether he drank before the crash or whether he became impaired after he had several
drinks at home. He casts Ms. Brummer’s testimony as unreliable because even Trooper
Mollohan acknowledged that her statement to him was “full of inaccuracies, exaggerations, and
false statements.” Additionally, he avers that Joyce Brummer was biased against him because
she was trying to recover the costs to repair her daughter’s car. He notes that Joyce “went so far
as to send a letter to the judge asking [the judge] to make [him] pay for the damage but then
denied sending the letter at trial even though it clearly appeared on the docket.”
{¶24} As previously noted, Ms. Brummer testified that Mr. Romes got back into his
vehicle and left the scene while she was still on the phone with her mother. Ms. Brummer stated
that Mr. Romes was not driving well at the point in time, so he “fishtailed in the driveway” and
10
also “rutted up [the] yard” of the house where they had driven their vehicles after the collision.
In her statement to Trooper Mollohan, Ms. Brummer estimated that Mr. Romes must have been
traveling at about 40 m.p.h. when he hit her car. Ms. Brummer also admitted that she had
consumed a few drinks that evening. Additionally, she admitted that she never called the police
before the crash, despite claiming that she saw Mr. Romes “slouched over” his steering wheel
and slurring his words. Ms. Brummer explained that Mr. Gast was friends with Mr. Romes and
they did not want to get him into trouble if they could avoid doing so.
{¶25} During cross-examination, Trooper Mollohan agreed that his accident report did
not include any information about Mr. Romes fishtailing or “rutt[ing] up” a yard when he left the
scene. He was never asked, however, whether Ms. Brummer ever reported that information to
him or whether he inspected the yard at issue for damage. He only agreed that the property
owners at that residence never complained to him about their lawn.
{¶26} Trooper Mollohan did testify that the damage he observed to Ms. Brummer’s car
was not consistent with it having been struck at 40 m.p.h. He noted that the bumper sustained
damage and a tail light was broken, but stated that the damage would have been more extensive
if the car had been struck at that speed. Nevertheless, Trooper Mollohan testified that people
tend to exaggerate when they are asked to estimate speed. He agreed that Ms. Brummer’s
statements about Mr. Romes’ level of intoxication were consistent with his observations of Mr.
Romes when he went to his house later that morning. He also testified that Mr. Romes initially
denied being involved in any collision and said that “he really wasn’t sure what [they] were
talking about * * *.” Mr. Romes’ initial denial that the collision occurred was inconsistent with
his later claim that he hit the car, but the parties agreed to handle the matter privately.
11
{¶27} As for Judy Brummer, she readily admitted that she insured her daughter’s car
and attempted to obtain Mr. Romes’ insurance information, only to learn that he did not have
insurance at the time of the crash. The trial court docket includes a letter from Judy, addressed to
the trial court and filed four months before Mr. Romes’ trial. In the letter, Judy expressed to the
court that she was “appalled by [Mr. Romes’] actions and the reckless disregard for the medical
and financial damage that he [] imposed on [her] family.” She also outlined for the court all of
the costs she incurred as a result of the accident and all of the medical problems her daughter
continued to suffer from the impact of the collision. At trial, defense counsel asked Judy one
question about the letter. That exchange reads as follows:
[DEFENSE COUNSEL]: Thank you, ma’am. And in fact, you also wrote a letter
to the Court trying to impress upon the Court that somebody needs to fix your
daughter’s car, isn’t that correct?
[JOYCE BRUMMER]: I did not write a letter to the Court impressing that
somebody needed to fix my daughter’s car.
Neither defense counsel, nor the State asked any follow-up questions about the letter. Having
reviewed it in conjunction with Joyce’s testimony, we do not agree with Mr. Romes’ portrayal of
the foregoing exchange as a complete denial on the part of Joyce that she sent a letter to the trial
court. A reasonable inference to be drawn from the testimony is that Joyce denied that she wrote
the court a letter for the specific purpose of securing repairs to her daughter’s car. Because she
was not asked, she never made a blanket denial that she never sent a letter to the court.
{¶28} Having reviewed the record, we cannot conclude that the court lost its way when
it concluded that Mr. Romes drove his vehicle while intoxicated. The court was presented with
conflicting testimony, and found the State’s witnesses to be more credible than Mr. Romes.
While Mr. Romes claimed that he was not intoxicated at the time he drove his vehicle, Ms.
Brummer, her mother, and Trooper Mollohan all gave evidence to the contrary. “This Court will
12
not overturn a verdict on a manifest weight challenge simply because the [court] chose to believe
the State’s witnesses rather than [Mr. Romes].” State v. Klein, 9th Dist. Summit No. 26573,
2013-Ohio-3514, ¶ 12. The trial court was in the best position to listen to the witnesses and to
judge their credibility. See State v. Johnson, 9th Dist. Summit No. 26914, 2014-Ohio-2856, ¶
45. This is not the extraordinary case where the trial court created a manifest miscarriage of
justice in finding Mr. Romes’ guilty of OVI. Consequently, his OVI conviction is not against the
manifest weight of the evidence, and his second assignment of error is overruled.
III.
{¶29} Mr. Romes’ assignments of error are overruled. The judgment of the Medina
Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Medina Municipal
Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
13
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
CARR, P. J.
SCHAFER, J.
CONCUR.
APPEARANCES:
GINA PULITO, Attorney at Law, for Appellant.
GREGORY HUBER, J. MATTHEW LANIER, JOHN G. QUILLIN, and MICHAEL JOHN,
Prosecuting Attorneys, for Appellee.
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633 So.2d 1094 (1994)
Israel MOREJON, Appellant,
v.
The STATE of Florida, Appellee.
No. 92-2578.
District Court of Appeal of Florida, Third District.
January 11, 1994.
Rehearing Denied April 12, 1994.
*1095 Mel Black, Miami, for appellant.
Robert A. Butterworth, Atty. Gen., and Randall Sutton, Asst. Atty. Gen., for appellee.
Before HUBBART, COPE and GERSTEN, JJ.
PER CURIAM.
Appellant, Israel Morejon (Morejon), appeals his convictions for sale or delivery of marijuana, possession with intent to distribute, and conspiracy. We reverse.
The evidence at trial established that prior to February 20, 1992, two Key West undercover detectives set up a surveillance of Lee Wright's home. After observing Wright standing outside his home talking on a cordless portable telephone, the officers used an "intercept device" to listen and record Morejon and Wright's conversations.
Morejon, Wright, and others, discussed a sale of "shirts" for "17". Two officers testified that they saw a British television documentary where "shirt" was a code word for heroin. Another officer testified that when he worked as a City of Miami police officer, the code word "shirts" meant contraband.
The officers then observed a brown Toyota arrive at the residence. A co-defendant, Guadalupe Flores, got out of the car and entered the house carrying an almost empty white plastic bag. Shortly thereafter, another person got out of a truck, walked to the middle of the street, and then gestured as if he were signalling someone. Then, Morejon arrived in another vehicle and entered the house carrying a gym bag.
After several minutes, Flores left the house with the same bag looking fuller than before. Flores and several others left in Morejon's truck. Morejon left separately in a brown Nissan.
Subsequently, two uniformed officers stopped the vehicle driven by Flores and arrested the occupants. Thereafter, they stopped Morejon who was driving alone. The police confiscated approximately a pound of marijuana from Flores, several bags of marijuana from another co-defendant, and $1429.00 cash from Morejon.
In a post-arrest statement, Morejon told one of the arresting officers that he had cashed a check the day before for $1400.00. His statement was uncontradicted and unrefuted by the State at trial.
At the conclusion of the State's case, Morejon moved for a judgment of acquittal on all of the charges. The motion was denied. Thereafter, Morejon was found guilty as charged.
*1096 Morejon presents three issues for review. The dispositive issue is whether the evidence was insufficient to convict him on all counts. We determine that the evidence was insufficient and reverse his convictions.
A special standard of review of the sufficiency of the evidence applies where a conviction is wholly based on circumstantial evidence. State v. Law, 559 So.2d 187, 188 (Fla. 1989); Jaramillo v. State, 417 So.2d 257 (Fla. 1982); Lynch v. State, 293 So.2d 44, 45 (Fla. 1974). Where the only evidence of guilt is circumstantial, no matter how strongly the evidence suggests guilt, a conviction cannot stand unless the evidence is inconsistent with any reasonable hypothesis of innocence. Law, 559 So.2d at 188; McArthur v. State, 351 So.2d 972 (Fla. 1977); Mayo v. State, 71 So.2d 899 (Fla. 1954).
A motion for judgment of acquittal should be granted in a circumstantial evidence case if the State fails to adduce evidence from which the jury can exclude every reasonable hypothesis except that of guilt. Law, 559 So.2d at 188; Wilson v. State, 493 So.2d 1019, 1022 (Fla. 1986). The State is not required to "rebut conclusively every possible variation"[1] of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant's theory of events. Law, 559 So.2d at 189; see Toole v. State, 472 So.2d 1174, 1176 (Fla. 1985).
Turning to the facts of this case, the evidence was woefully insufficient to support the defendant's conviction. Other than the fact that the defendant had $1429.00 cash in his possession, the State presented absolutely no evidence that he was a participant in either the sale or delivery of marijuana, possession of marijuana, or a conspiracy to sell marijuana.
The only evidence the State presented against Morejon was that he was involved in conversations with others discussing the sale of "shirts" for "17". The officers' explanation that "shirts" was a code word for heroin or contraband was insufficient to establish that the parties were indeed negotiating the sale or delivery of a pound of marijuana. No one ever observed Morejon in possession of the white plastic bag containing the marijuana, delivering the marijuana to one of the other participants, involved in the instant negotiations, or exchanging the $1429.00 cash for the sale of the marijuana.
Furthermore, the State never conclusively rebutted Morejon's reasonable hypothesis of innocence that the money was from a check that he had cashed the previous day. We conclude the trial court committed reversible error by denying Morejon's motion for judgment of acquittal. Accordingly, we reverse and remand with directions to discharge Morejon.
Reversed and remanded.
HUBBART and GERSTEN, JJ., concur.
COPE, Judge (dissenting).
I respectfully dissent. The evidence included a series of taped telephone conversations in which defendant participated, and a videotape of the arrivals and departures at the residence where the surveillance was conducted. Whether defendant's hypothesis of innocence was (on the facts present here) reasonable was for the jury to decide. See State v. Law, 559 So.2d 187, 188 (Fla. 1989). The convictions should be affirmed.
NOTES
[1] State v. Allen, 335 So.2d 823, 826 (Fla. 1976).
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[Cite as State v. Adams, 2012-Ohio-4440.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 25088
Plaintiff-Appellee :
: Trial Court Case No. 10-CR-216/1
v. :
:
DARRYL E. ADAMS : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 28th day of September, 2012.
...........
MATHIAS H. HECK, JR., by L. LYNN NOTHSTINE, Atty. Reg. #0061560, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, Post
Office Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ROBERT ALAN BRENNER, Atty. Reg. #0067714, Post Office Box 341021, Beavercreek,
Ohio 45434
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Darryl E. Adams appeals from his re-sentencing following a remand for the
trial court to hold a hearing to determine whether his theft and breaking-and-entering
2
convictions were allied offenses of similar import.
{¶ 2} Adams advances two assignments of error on appeal. First, he contends the
trial court erroneously limited its hearing to his theft and breaking-and-entering convictions.
He claims the trial court also should have considered whether his conviction for possession of
criminal tools was subject to merger. Second, Adams alleges ineffective assistance of trial
counsel based on his attorney’s failure to argue that the criminal-tools conviction should have
merged with the theft conviction.
{¶ 3} The charges against Adams stemmed from his after-hours removal of a snow
blower and a wood chipper from a Tractor Supply store. Police discovered Adams at the scene
with the snow blower and wood chipper in the back of his van. The two pieces of equipment
were connected to one another by a metal cable loop that was wired to an alarm. When Adams
placed the items in his van, he unknowingly pulled the wire, tripped the alarm, and alerted
police. In addition to the snow blower and wood chipper, police found bolt cutters in his van.
{¶ 4} Based on the foregoing incident, Adams pled guilty to theft, breaking and
entering, and possession of criminal tools. The trial court sentenced him to an aggregate prison
term of twenty-one months. Adams appealed, arguing that the three convictions should have
merged at sentencing as allied offenses of similar import. This court resolved the appeal in a
December 9, 2011 opinion, reasoning:
Upon review, we conclude that the record before us contains
insufficient facts to render a determination regarding whether Adams’
convictions for theft and breaking and entering are allied offenses of similar
import, and therefore, subject to merger. Accordingly, this matter is remanded
3
to the trial court to conduct a hearing and make a factual determination whether
Adams’ convictions for theft and breaking and entering should be merged.
Remanded for further proceedings consistent with this opinion.
State v. Adams, 197 Ohio App.3d 491, 2011-Ohio-6305, 968 N.E.2d 16, ¶ 9 (2d Dist.).
{¶ 5} The trial court held the required hearing on February 16, 2012. The only
witness was Adams. He testified about seeing the snow blower and wood chipper outside the
Tractor Supply store and deciding to steal them. (Tr. at 14-15). As he pulled the items to his
van, Adams noticed a steel cable wrapped around both of them. (Id. at 16). He proceeded to
place the items in his van with the cable around them. (Id.). He testified that it was not
necessary for him to break the cable loose from the snow blower and wood chipper in order to
steal them. (Id. at 18). Adams admitted not knowing the cable loop had been attached to an
alarm that alerted police. (Id. at 16). Finally, he admitted that bolt cutters were present in the
van when police arrived. He asserted, however, that they were present among other tools and
that he had not used them in the theft. (Id. at 19-20).
{¶ 6} Based on Adams’ testimony, the trial court found that the theft and breaking
and entering were allied offenses of similar import under State v. Johnson, 128 Ohio St.3d
153, 2010-Ohio-6314, 942 N.E.2d 1061. The State elected to proceed with sentencing on the
theft conviction. The trial court re-sentenced Adams to twelve months in prison for theft and a
consecutive nine months for the possession-of-criminal-tools conviction. (Id. at 28-29).These
were the same sentences the trial court previously had imposed for those offenses. The result
was that he again received an aggregate twenty-one-month prison term.1
1
Despite the merger, Adams’ aggregate prison term did not change because the trial court previously had ordered two nine-month
4
{¶ 7} In his first assignment of error, Adams contends the trial court erred in
restricting its remand hearing to his theft and breaking-and-entering convictions. As noted
above, he claims the trial court additionally should have determined whether his
possession-of-criminal-tools conviction was subject to merger under Johnson. In making this
argument, Adams notes that our prior opinion did not address merger of the criminal-tools
conviction. He asserts that this omission “was clearly a scrivener’s error and [that] it was an
abuse of discretion for the trial judge to refuse to consider the possession of criminal tools
conviction in the merger analysis.” (Appellant’s brief at 6).
{¶ 8} We disagree. On remand, this court specifically instructed the trial court “to
conduct a hearing and make a factual determination whether Adams’ convictions for theft and
breaking and entering should be merged.” The trial court complied with this remand order,
and it lacked the authority to do anything more. State v. Russell, 2d Dist. Montgomery Nos.
18155, 18194, 2000 WL 1547085, *8 (Oct. 20, 2000); State v. Letts, 2d Dist. Montgomery No.
17084, 1999 WL 42011, *3 (Jan. 29, 1999) (recognizing that “trial courts have no discretion
to disregard the mandate of a reviewing court, and they have no authority to extend or vary the
mandate given”). Accordingly, the first assignment of error is overruled.
{¶ 9} In his second assignment of error, Adams contends he received ineffective
assistance counsel on remand based on his attorney’s failure to seek merger of the
possession-of-criminal-tools conviction.
{¶ 10} Again, we disagree. The remand was for a specific, limited purpose. Given
sentences for breaking and entering and possession of criminal tools to be served concurrent to each other but consecutive to a twelve-month
sentence for theft. Therefore, removing the breaking-and-entering sentence from the equation did not change the result.
5
that our remand order did not permit the trial court to consider whether the criminal-tools and
theft convictions merged, defense counsel did not provide deficient representation by failing to
urge the trial court to exceed the purpose of the remand order. Adams’ second assignment of
error is overruled.
{¶ 11} The judgment of the Montgomery County Common Pleas Court is affirmed.
.............
FAIN and DONOVAN, JJ., concur.
Copies mailed to:
Mathias H. Heck, Jr.
R. Lynn Nothstine
Robert Alan Brenner
Hon. Steven K. Dankof
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 22, 2005
Charles R. Fulbruge III
Clerk
No. 04-51222
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SABINO MEZA-CARO, also known
as Sabino Meza-Cano,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:04-CR-302-ALL
--------------------
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Sabino Meza-Caro
raises arguments that are foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998), which held that a prior
conviction is a sentencing factor under 8 U.S.C. § 1326(b)(2) and
not a separate criminal offense. The Government’s motion for
summary affirmance is GRANTED, and the judgment of the district
court is AFFIRMED.
*
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.
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966 F.2d 1445
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
UNITED STATES of America, Plaintiff-Appellee,v.The REAL PROPERTY AND PREMISES KNOWN AS 4408 HILLSIDE COURT,Alexandria, Virginia 22306, Defendant-Appellant,Sharon JARRELL, Claimant-Appellant.
No. 91-2218.
United States Court of Appeals,Fourth Circuit.
Argued: April 7, 1992Decided: June 2, 1992
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior District Judge. (CA-91-567-A)
Argued: Robert Cooper Whitestone, Whitestone, Brent, Young & Merril, Fairfax, Virginia, for Appellants.
Gordon Dean Kromberg, Assistant United States Attorney, Alexandria, Virginia, for Appellee.
On Brief: Richard Cullen, United States Attorney, Alexandria, Virginia, for Appellee.
E.D.Va.
AFFIRMED.
Before HALL and MURNAGHAN, Circuit Judges, and WARD, United States District Judge for the Middle District of North Carolina, sitting by designation.
OPINION
PER CURIAM:
I.
1
The present appeal contests an August 30, 1991, grant of summary judgment against the appellant, Sharon Jarrell, and an order forfeiting her property to the United States government.
2
On April 24, 1991, the government filed a complaint for forfeiture of appellant's real property pursuant to 21 U.S.C.s 881(a)(7) (1989),1 alleging that the property had been used to facilitate the commission of felony narcotics violations. Jarrell was the sole non-government claimant to assert an interest in the property. On April 25, 1991, the Commonwealth of Virginia filed a criminal charge against Jarrell. That charge was subsequently dropped.2 The government noticed a deposition for Jarrell on July 23, 1991, but she, though her counsel acknowledged receipt of the notice, declined to appear, asserting "her Fifth Amendment right not to incriminate herself with respect to any questions involving the possession or distribution of cocaine" or knowledge of any such activity on her property.
3
The government filed a motion for summary judgment on August 9, 1991, claiming that it was entitled to a judgment of forfeiture as a matter of law. In support of the motion, the government offered the affidavit of a Fairfax County Police officer who alleged that Jarrell had made a variety of admissions regarding her knowledge of drug sales and the use of her premises. Jarrell thereupon filed an affidavit denying the charges and denying that she had made self-incriminating statements, and filed an additional similar affidavit. On August 29, 1991, the government moved to strike Jarrell's affidavits on the grounds that she had previously asserted her Fifth Amendment right as a justification for her refusal to be deposed. In a hearing the following day, the district court granted the motion to strike the Jarrell affidavits and also granted the government's motion for summary judgment.3 The order of forfeiture has been stayed pending the outcome of the present appeal.
4
The district court had ample authority to strike Jarrell's affidavits. In the absence of the affidavits, the government was clearly entitled to a grant of summary judgment.
II.
5
The residence in question is 4408 Hillside Court in Fairfax County, Virginia. In 1986 and 1987 various felonious narcotic activities originated from, or were directly connected to, 4408 Hillside Court. Cocaine was purchased at the residence, and away from the residence from people who lived there. Though Jarrell never admitted that she sold narcotics, individuals who did admit to selling it stated that Jarrell and her boyfriend had sold drugs in the past.
6
In 1991, Police Detective David A. Crank of the Fairfax County Police, armed with information gained from an informant, obtained a search warrant for 4408 Hillside Court. During the search of the residence investigators found a cocaine grinder containing Jarrell's fingerprints, a purse containing one ounce of cocaine, documents resembling drug "owe sheets," and a scale. At that time, Miguel Langebeck, a resident of the Hillside Court home, and a former husband of Jarrell, was arrested on drug possession and distribution charges.
7
Jarrell was interviewed by Crank several times between February and May of 1991. The content of the interviews was contradictory, but Jarrell made significant incriminating statements, according to Crank. Additionally, the Fairfax County Police received numerous statements from other individuals involved in the drug trade suggesting that both the 4408 Hillside Court residence and Jarrell were intimately involved in narcotics activity.
III.
8
To justify forfeiture under 21 U.S.C. § 881(a)(7), the government must establish probable cause for belief that the property to be forfeited was used to facilitate the criminal activity defined by the statute. Boas v. Smith, 786 F.2d 605, 609 (4th Cir. 1986). Once probable cause is shown, the burden shifts to the property owner to show, by a preponderance of the evidence, that the property was not used in the alleged manner. Id.
9
In the case at hand, Jarrell did not dispute that there was a showing of probable cause, but attempted to meet the burden of disproving the government's case with an affidavit denying participation in, or knowledge of, illegal activity on the premises. The district court, however, struck the affidavit from the record, granting summary judgment for the government, and concluding that Jarrell could not avail herself of her Fifth Amendment rights, thereby failing to respond to a government noticed deposition, and then provide testimony by her own affidavit concerning the facts at issue in the proposed deposition.
10
Jarrell has argued that the district court's ruling constituted an impermissible punishment for the exercise of constitutional rights. Specifically, she has contended that parallel criminal drug investigations and civil forfeiture proceedings present a claimant with conflicting interests concerning exercise of Fifth Amendment protections. Jarrell has suggested that, in response to the criminal investigation, it would almost certainly be most prudent for a claimant to say nothing, and that the consequent silence could not be held against her in a criminal trial. In the civil forfeiture proceedings, however, such silence might be used to provide an inference in the government's favor.4 She has argued that it is the responsibility of the district court in a proceeding of the present kind to accommodate the government's interest in stemming the harmful flow of illegal drugs with an individual's Fifth Amendment rights, whenever possible.
11
Jarrell has suggested that the district court could have accommodated the competing interests involved here with one of two relatively simple procedural steps. First, according to Jarrell, the court could have stayed the forfeiture proceedings, and thereby delayed the need for the notice of deposition, until the criminal proceedings against her had concluded. Second, Jarrell has contended that the court could have immunized her from criminal liability arising from anything stated in the forfeiture proceeding. Unfortunately for Jarrell, however, the issue on appeal is not what the district court could, or might, have done, but whether what it actually did was proper. Accordingly, we must determine whether Jarrell's original exercise of the Fifth Amendment protection justified the striking of the subsequent affidavit.
12
The government has successfully countered the assertion that an impermissible burden on Jarrell's Fifth Amendment rights was occasioned by the parallel proceedings involved here. In any situation in which the Fifth Amendment is invoked, a risk exists that the silence of the party pleading the Fifth Amendment may prove damning if the opposing party is able to introduce substantial evidence. In the present case, Jarrell, it may be assumed, had valid reasons for not wanting to testify prior to the dismissal of the criminal proceedings, but she had countervailing and similarly valid reasons for wanting to make a statement to the government concerning the house, and her knowledge (or the lack thereof) of its use for illegal activity.5 But the fact that valid concerns weighed on both sides of her dilemma does not indicate that Jarrell was improperly punished for making the choice she made.
13
As we stated in In Re Grand Jury Subpoena, 836 F.2d 1468, 1472 n. 4 (4th Cir. 1988):
14
In many civil cases the burden placed on a person's silence may be unavoidable. Where a plaintiff has gathered sufficient evidence to establish a claim prior to discovery, a defendant who risks incrimination by speaking will inevitably face the choice of forsaking silence or losing a civil judgment, even if the defendant's silence is not used against him.
15
The "plaintiff" in the present case, the government, has presented significant facts to support its claim. The defendant, Jarrell, has been provided with a choice of taking her chances on a verdict or judgment absent testimony, or asserting a defense by providing an affidavit. Jarrell could have chosen either path, but could not, as she here attempts, have chosen both paths at the same time.
16
In In Re Edmond, 934 F.2d 1304 (4th Cir. 1991), we held that a district court is justified in striking an affidavit when a party has selectively asserted "his Fifth Amendment privilege ... as a shield to oppose depositions while discarding it for the limited purpose of making statements to support a summary judgment motion." Id. at 1308. Although the statements presented in the present case were intended to withstand a summary judgment motion, the same standard, regarding the responsibilities and future options of a party who avoids a deposition, applies to the present case.
17
The First Circuit, in a case involving an almost identical forfeiture procedure, parallel criminal action, and failure to answer a government deposition, held that "the district court had ample authority to strike [claimant's] affidavit after he invoked the fifth amendment and refused to answer the government's deposition questions." United States v. Parcels of Land, 903 F.2d 36, 43 (1st Cir. 1990). The court went on to indicate that a district court, in a forfeiture proceeding, "if the forfeiture would genuinely prejudice the claimant's fifth amendment rights ... should seek alternative means of accommodating both the claimant's rights and the government's interest in the forfeiture." Id. at 44.
18
Jarrell has sought refuge in the language indicating a preference for accommodation by construing it to indicate that the district court's failure to provide some kind of accommodation in the present case constituted reversible error. If Jarrell had actively sought such an accommodation at the proper time, her claim would have had a greater chance of success. However, during the four month discovery period provided, Jarrell sought no delay, protective order, or other accommodation from the government or the district court. She, following the extensive discovery period, attempted to assert, after receiving the government's motion to strike her affidavit, that she had significant interests in discovery that had not been addressed by the district court. Her failure to state the proposed need for accommodation of her Fifth Amendment rights earlier failed to provide the district court with an opportunity to balance those rights with the rights of the government as her opponent. The failure suggests that the motive for her timing of the affidavit may have been the attaining of an unfair discovery advantage, and not, as she asserts, the promotion of her constitutional rights. While the responsibility of a district court to seek an accommodation for an individual's rights in a forfeiture proceeding may be significant, the district court's failure here sua sponte to impose such an accommodation cannot be seen as reversible error when no accommodation was proposed at the relevant time by the complaining party.6
19
Accordingly, the district court did not err in striking Jarrell's affidavit. Additionally, since she offered no other evidence to create a doubt regarding any issue presented by the government, the grant of summary judgment was proper.
AFFIRMED
1
21 U.S.C. § 881(a)(7) reads as follows:
The following shall be subject to forfeiture to the United States ...
All real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land ... which is used, or intended to be used ... to commit, or facilitate the commission of a violation of [Title 21] to be punishable by more that one year's imprisonment ...
2
The criminal charge concerned a single narcotic possession count
3
In ruling on Jarrell's affidavit, the district judge said: "I don't think she can take the Fifth Amendment when she is sought to be deposed, and then come in and, after depriving the Government of its discovery effort, file an affidavit which creates an issue of fact. I think the affidavit must be stricken ... and absent the affidavit, the Government is entitled to summary judgment."
4
The government in the present case has sought such an inference of knowledge of drug activity arising out of her failure to attend the noticed deposition
5
In fact, the limited nature of her alleged criminal offense, and the lack of a direct connection between that offense and an assertion that the premises were being used in ongoing drug activity, would have allowed Jarrell to testify on deposition as to perhaps the entire factual basis for the government's forfeiture action without making any incriminating statement about her own alleged criminal activity
6
Additionally, by the time that Jarrell raised an objection to the treatment of the affidavit, no "accommodation" of the competing interests was available to the court. The only options remaining for the court were to allow the affidavit to be admitted or to strike it. There was no opportunity to allow the government the fruit of the early discovery while shielding appellant from the criminal consequences of her statements. Jarrell had already been shielded by her silence and the dismissal of the criminal complaint. The allowance of the affidavit would, therefore, not amount to an accommodation or balancing, but, to a clear benefit to Jarrell, allowing avoidance of the harm caused by early testimony, while preventing the government from carrying out normal discovery procedures
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510 U.S. 1130
Huberv.Borg, Warden.
No. 93-7254.
Supreme Court of United States.
February 22, 1994.
1
Appeal from the C. A. 9th Cir.
2
Certiorari denied. Reported below: 5 F. 3d 537.
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IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 818 MAL 2016
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
SIDNEY LAMONT WATERS, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 29th day of March, 2017, the Petition for Allowance of Appeal is
DENIED.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 96-6188
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICHARD M. HIRSCHFELD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Norfolk. J. Calvitt Clarke, Jr., Senior
District Judge. (CR-90-142, CA-95-1089-2)
Submitted: November 12, 1996 Decided: January 9, 1997
Before WIDENER, HALL, and NIEMEYER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard M. Hirschfeld, Appellant Pro Se. Helen F. Fahey, United
States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Richard Hirschfeld appeals the district court's orders (i) de-
nying his motion to recuse the United States Attorney's office in
the Eastern District of Virginia and his motion filed under 28
U.S.C. § 2255 (1994), amended by Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214; and (ii)
denying his motion to recuse the district court judge.* We have
reviewed the record and the district court's opinions and find no
reversible error. Accordingly, we affirm on the reasoning of the
district court. United States v. Hirschfeld, Nos. CR-90-142; CA-95-
1089-2 (E.D. Va. Dec. 28, 1995; Jan. 22, 1996). We deny Appel-
lant's motion for general relief, deny Appellee's motion to supple-
ment the record, and 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
*
We have jurisdiction over the denial of the motion to recuse
because Appellant timely raised the claim in his informal brief.
See Smith v. Barry, 502 U.S. 244, 248-49 (1992).
2
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290 S.W.2d 483 (1956)
Daynon W. HICKS, Appellant,
v.
Mary F. HICKS, Appellee.
Court of Appeals of Kentucky.
May 11, 1956.
*484 J. P. Karem, Karem & Karem, Louisville, for appellant.
W. Clarke Otte, T. J. Nohalty, William S. Hamilton, Louisville, for appellee.
MONTGOMERY, Judge.
Mary F. Hicks, appellee, sought a divorce on the grounds of cruel and inhuman treatment and adultery. Daynon W. Hicks, appellant, by counterclaim, sought a divorce on the ground of cruel and inhuman treatment. Judgment was rendered granting appellee a divorce; $7,000 with 5% interest from date of judgment, secured by lien on residence property, for (a) her contribution on the purchase of the residence property, (b) subsequent accumulation of the equity therein, and (c) lump sum alimony; $150 alimony per month; $3,000 for her attorneys; and her costs. Appellant was adjudged to be the sole owner of the residence and a restaurant business and property. A restoration of property was decreed, except appellee was permitted to keep an auto and personal gifts from her husband, and appellant was to keep $1,000 supplied by appellee on purchase of the residence. Appellee has filed a cross-appeal.
The controversy on appeal concerns the allowance of $7,000 and the alimony of $150 per month. Appellant contends that the allowances are too much and the periodic alimony allowance should have been denied since he feels that the divorce should have been granted to him. He also urges that the alimony paid pendente lite should have been credited on the lump sum allowed. Appellee says that the allowances are too small.
The evidence was heard by a commissioner. Objections to his report were filed by both parties. After a hearing on the objections, the Chancellor heard additional evidence, over objection by appellant. Such action is proper. CR 53.04(2).
Appellant and appellee were married on May 13, 1947, and are 39 and 27 years of age, respectively. Appellant had two children by a previous marriage. Upon the death of the mother of the children in August 1950, appellant brought them to his home, where one infant daughter still resides and the other resided until her marriage on January 30, 1953. The Chancellor found that the presence of the two children in the home contributed to the domestic strife between the parties since they, apparently, failed to adjust well to the changed conditions of their home after the children came to live with them.
Appellant and appellee lived together as man and wife until March 5, 1952, when appellee left their home, taking her personal belongings. This action was filed on the day of separation. Without going into the details of the proof, the Chancellor found that the charges of adultery and cruel and inhuman treatment against appellant were sustained.
At the time of the marriage and for three years thereafter, appellant owned a restaurant called Kupie Lunch at Fifth and Walnut Streets in downtown Louisville. Appellee had worked there for several years prior to the marriage and continued to work there after the marriage. Within two weeks after the marriage, appellant opened a drive-in restaurant known as Hicks Drive-In Restaurant on Dixie Highway. While he was operating this venture, his wife managed the Kupie Lunch until it was sold in 1950 for $25,000. The development of the drive-in restaurant was found by the Chancellor to have been due almost entirely to the business acumen and ability of appellant, rather than to any assistance from appellee. *485 After the sale of the Kupie Lunch, appellee was occupied primarily with the duties of keeping their home and looking after appellant's two children.
Shortly after the marriage, the parties purchased a residence. Appellee contributed her savings of $1,000 on the purchase price, which was between $14,000 and $15,000. This property increased in value to between $22,000 and $25,500. It is urged on behalf of appellee that the savings resulting from her labor as manager of the Kupie Lunch for three years was a contribution on the purchase of the home.
The evidence was conflicting as to the income from and value of the drive-in restaurant. One real estate man placed the value of the land and improvements, aside from the value of the business as a going concern, at $66,475, while another realtor fixed its value at $52,500. There was a wider difference of opinion on the value of the business as a going concern.
The parties stipulated that the books and records of the business showing total assets of $86,660.74 were correct. Appellant's bookkeeper testified that the drive-in restaurant had a net profit of $30,340.10 for the calendar year of 1952, the last full year of which there was a record. A certified public accountant, who had handled some tax matters for appellant, estimated the average annual net profit for the period from June 1949 through 1952 to be $22,000. There was proof that appellant's liabilities were between $30,000 and $35,000. The accountant, on the basis of an audit by his firm, fixed appellant's net worth at approximately $50,000 as of June 1950. Counsel for appellant, in their brief, do not question the figures on the property value and income, but contend that appellee was not entitled to a divorce in the first instance and, therefore, she is not entitled to the alimony allowed.
In Petrie v. Petrie, Ky., 262 S.W.2d 182, 183, it was held:
"The determination of the amount of alimony, the form of its payment and the amount of maintenance and support are all matters resting in the sound discretion of the chancellor, which matters are to be decided on the peculiar facts of each particular case. Dalton v. Dalton, 304 Ky. 223, 200 S.W.2d 469; Osten v. Osten, 286 Ky. 473, 151 S.W. 2d 67. * * *"
The Chancellor in determining the amount and manner of the alimony to be paid is guided by no formula but, in his discretion, should consider the following elements with respect to each party: size of estate, income, earning capacity, age, ability to labor, health, and station in life. The cause of the divorce and the relative responsibility of the parties, as well as whether or not the wife has assisted in the accumulation of the property concerned, should also be considered along with any other pertinent matter. Support of children is a factor involved in some cases. The payment of alimony, either temporary or permanent, periodic or lump sum, must, of necessity, be decided upon the facts of each case, since all of the elements mentioned may or may not be present in each case. Brandenburg v. Brandenburg, 246 Ky. 546, 55 S.W.2d 351; Jones v. Jones, 261 Ky. 647, 88 S.W.2d 673; Ahrens v. Ahrens, 313 Ky. 55, 230 S.W.2d 73; Oldham v. Oldham, Ky., 259 S.W.2d 42; Patterson v. Patterson, Ky., 266 S.W.2d 91; Sharp v. Sharp, Ky., 283 S.W.2d 172.
A review of the record shows that the Chancellor considered all the appropriate elements mentioned above in fixing the amounts and methods of payment of alimony. In particular, some of the elements considered were the ability of appellant to pay periodic alimony by reason of his large income as related to the property owned and the payment of a lump sum. The age, health, and ability of appellee to work were considered in relation to the effect on her health, of three abortions and a hysterectomy, and her participation in the blame for the marital strife. Appellant's obligation to his small daughter and the need for a home for her were considered. The argument that the alimony pendente lite should be credited on the lump sum allowed is without merit, since the Chancellor took such payments into consideration in determining *486 the amounts of the other payments to be made. Gibson v. Gibson, Ky., 271 S.W.2d 880. The lump sum allowed covered three separate items. It is evident from the record, including eleven volumes of testimony, that the Chancellor made a very conscientious effort to arrive at a fair determination of the rights of the parties, and considering the quality of the testimony on certain issues, we feel that he was successful.
The decision of the Chancellor will not be disturbed. Newby v. Newby, Ky., 275 S.W.2d 779; Waits v. Waits, Ky., 277 S.W.2d 5.
Judgment is affirmed on the appeal and cross-appeal.
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50 Cal.App.4th 1069 (1996)
JOSEPH A. FISCHER et al., Plaintiffs and Respondents,
v.
CRAIG MACHADO et al., Defendants and Appellants.
Docket No. C021401.
Court of Appeals of California, Third District.
October 16, 1996.
*1070 COUNSEL
Martin B. Brifman for Defendants and Appellants.
Luke & Barron and Richard B. Barron for Plaintiffs and Respondents.
*1071 OPINION
RAYE, J.
Can a commission merchant convert the proceeds of the sale of farm products he sells as an agent for the farmer? The trial court held that neither state nor federal law precludes a common law action in conversion against a commission merchant who commingled such proceeds with its general accounts and then went out of business. Following a trial without a jury, the court entered judgment for the farmers for conversion. We affirm.
FACTS
Plaintiffs Joseph A. and Joan Fischer own a farm and a small fruit packing company, Cottonwood Packing Co. Defendants Craig and Marcia Machado owned North State Distributors, Inc., a company which acted as a sales agent for farmers. Craig Machado was the president and chief financial officer and Marcia was the corporation's vice-president and secretary. In April 1992 Fischer and Machado executed a written contract providing that North State would act as Cottonwood's sales agent for the 1992 crop for a 6 percent commission.
North State received a total of $108,174.78 for the sales of Cottonwood fruit and placed these proceeds into its operating account. The funds were used to pay payroll, to pay an overdraft of the corporate checking account, to reimburse Machado for a loan he had paid to North State, and to pay a bank loan and an equipment lease the Machados had personally guaranteed. The Machados knew of, and approved, the procedure by which funds received from the sale of the consigned farm products were put into the corporate account and utilized to pay operating expenses and to repay loans.
In August 1993 North State filed for bankruptcy. The farmers were never paid.
The Fischers filed a complaint against the Machados alleging they were the alter ego of the corporation and were personally liable for North State's debts and for conversion. Following a court trial, the court found the Machados liable for conversion. Having observed that section 56623 of the Food and Agricultural Code prohibits a commission merchant from using the proceeds of the sale of consigned products in a manner which jeopardizes prompt payment, the court ruled: "North State's use of funds received in connection with the sale of plaintiffs' consigned farm products for its own and the defendant's [sic] personal benefit impairing North State's faithful and prompt payment to plaintiffs constitutes conversion." The Machados appeal.
*1072 DISCUSSION
I.
The dispositive legal principle was written by Justice Traynor in 1941. (1) "A broker or agent is ordinarily liable for converting the funds of his principal when he refuses to account for them upon proper demand. [Citations.] While it is true that money cannot be the subject of an action for conversion unless a specific sum capable of identification is involved [citation], it is not necessary that each coin or bill be earmarked. When an agent is required to turn over to his principal a definite sum received by him on his principal's account, the remedy of conversion is proper." (Haigler v. Donnelly (1941) 18 Cal.2d 674, 681 [117 P.2d 331].)
North State was designated as a "sales agent" or "commission merchant" in the written agreement between North State and Cottonwood. (2) "Agency is both a consensual and a fiduciary relation. An agent is not merely a promiser or a promisee. The existence of the fiduciary relation modifies all agency agreements and creates rules which do not apply to contracts in which one party is not an agent for the other. The obligations of an agent are the same as those imposed on a trustee.... A tort action is not based upon the theory that the agent has failed to perform his promise, but upon the theory that the agent has improperly dealt with the affairs entrusted to him by the principal." (Haurat v. Superior Court (1966) 241 Cal. App.2d 330, 334 [50 Cal. Rptr. 520].)
(3a) Defendants contend they could not have converted the proceeds because plaintiffs were not entitled to exercise dominion and control over any specific funds. (4) "`To establish a conversion, plaintiff must establish an actual interference with his ownership or right of possession. ... Where plaintiff neither has title to the property alleged to have been converted, nor possession thereof, he cannot maintain an action for conversion.' [Citations.]" (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 136 [271 Cal. Rptr. 146, 793 P.2d 479, 16 A.L.R.5th 903], fn. omitted.) Because they were not obligated to segregate the proceeds, according to defendants, plaintiffs had no greater right to possession of the funds than North State or any of North State's creditors. We disagree.
"Conversion is any act of dominion wrongfully exerted over another's personal property in denial of or inconsistent with his rights therein." (Weiss v. Marcus (1975) 51 Cal. App.3d 590, 599 [124 Cal. Rptr. 297].) Weiss presents an analogous situation. A personal injury victim and his insurer hired a lawyer to provide legal services in return for the payment of a *1073 contingency fee and granted the lawyer a lien on all amounts recovered. The lawyer was eventually discharged after providing services with a reasonable value of $6,750. The victim recovered a $35,000 settlement but refused to pay the lawyer. The Court of Appeal, in reversing a judgment for the victim after a demurrer was sustained without leave to amend, found the lawyer had stated a cause of action for conversion. (Id. at p. 599.)
Similarly, in McCafferty v. Gilbank (1967) 249 Cal. App.2d 569 [57 Cal. Rptr. 695], a lawyer was sued for conversion. The lawyer received two drafts as a settlement of a personal injury lawsuit. The victim had agreed to pay his ex-wife one-half of the proceeds from the settlement. The lawyer was privy to these negotiations, and yet, he personally cashed the drafts. The ex-wife brought an action against the lawyer for conversion. The lawyer moved for a nonsuit claiming that as a matter of law the ex-wife did not have a property interest in the settlement proceeds and he had no control over any funds to which she was legally entitled. (Id. at p. 571.)
The Court of Appeal again reversed, finding "that any act of dominion wrongfully exerted over the personal property of another inconsistent with the owner's rights thereto constitutes conversion." (249 Cal. App.2d at p. 576.) The court acknowledged the defendant lawyer had complete control over the money and the knowledge it belonged to the plaintiff. Hence, he had a positive duty to hold the money for her. (Accord, Kaiser Foundation Health Plan, Inc. v. Aguiluz (1996) 47 Cal. App.4th 302, 307 [54 Cal. Rptr.2d 665]; Miller v. Rau (1963) 216 Cal. App.2d 68, 76 [30 Cal. Rptr. 612].) "`"[W]here a third party has paramount title to the money in the hands of the agent, and notifies the latter of his claim, if the agent nevertheless pays the principal, he is liable to the true owner."' [Citations.]" (McCafferty v. Gilbank, supra, 249 Cal. App.2d at p. 577.)
Weiss and McCafferty were cases involving the sufficiency of the pleadings to state causes of action for conversion. Both cases reaffirmed the sound legal principle that an agent, with knowledge of another's right to receive a specific amount of money, can be liable for conversion when he applies it for his own use. Both courts rejected defendants' contention there was no liability for conversion as a matter of law because there was no duty to segregate specific funds.
(3b) Here, plaintiffs' case was even stronger. Defendants do not dispute they were plaintiffs' agent nor do they dispute they received the proceeds from the sale of plaintiffs' consigned farm products and commingled the funds with their general corporate account. Since, as a matter of law, defendants had the obligation to turn over the definite sum it received as *1074 plaintiffs' agent, there was more than ample evidence to support the trial court's finding of conversion. That finding is not predicated on the state statutory scheme, as suggested by defendants, but on fundamental principles of conversion and agency. As an agent, defendants had the obligation to turn over the definite sum received by it on plaintiffs' account.
II
Defendants insist that federal and state law preclude a common law action for conversion. Defendants fail, however, to articulate a legal theory for such preclusion. Are they suggesting a theory of preemption or exclusivity of remedy? They cite to no authority, and we have found none, to support the proposition that either Congress or the state Legislature intended to obliterate a farmer's cause of action for conversion under the common law by enacting laws explicitly designed to protect farmers and expand their statutory remedies.
In 1930 Congress enacted the Perishable Agricultural Commodities Act (PACA). (7 U.S.C. § 499a et seq.) The primary purpose of the law is to provide a practical remedy for small farmers and growers who are vulnerable to the unscrupulous business practices of brokers in perishable commodities. (Chidsey v. Guerin (6th Cir.1971) 443 F.2d 584.) The act provides for the creation of a trust on sales proceeds for the benefit of unpaid sellers (7 U.S.C. § 499e(c)) provided the seller has given written notice as provided in the act. (7 U.S.C. § 499e(c)(3).) Plaintiffs conceded at trial they had not perfected their rights to establish a PACA trust; rather, their complaint was predicated on a common law action for conversion. They did not seek recovery under the federal law nor did they seek to impose a PACA trust as a remedy.
Nevertheless, defendants assert PACA would have been superfluous if sellers were able to establish a prima facie showing of conversion. In the absence of any indicia of legislative intent to abrogate a farmer's other remedies or any case law suggesting the federal scheme provides an exclusive remedy, we are unwilling to conclude PACA usurps a common law action thereby limiting the remedies of those the law was designed to protect and assist.
Nor do we find any evidence the Legislature unwittingly curtailed a farmer's cause of action for conversion by enacting a regulatory scheme for dealers of agricultural products which includes the imposition of criminal sanctions. (Food & Agr. Code, §§ 56181 to 56196, 56621 to 56632.2.) We acknowledge section 56623 specifically proscribes defendants' actions: "It is *1075 a violation of this chapter if any commission merchant who collects or receives funds in connection with the sale of consigned farm products has made any use or disposition of these funds in his or her possession or control that endangers or impairs faithful and prompt payment to the consignor of the product or to any other person having a financial interest therein."
Our previous observations regarding the exclusivity of federal remedies apply with equal force to state statutory remedies. There is nothing in the state statutory scheme to preclude plaintiffs from pursuing a claim for conversion at common law rather than a statutory remedy. To say that defendants are also guilty of a crime punishable according to the terms outlined in Food and Agricultural Code sections 56631 and 56634, is not to say farmers, whose interests were sought to be protected, are to be denied their right to a civil recovery. Defendants' reliance on People v. Rohe (1952) 114 Cal. App.2d 605 [250 P.2d 647] is misplaced as this case deals with the constitutionality of a prison sentence and not the viability of a civil action for conversion.
The judgment is affirmed.
Puglia, P.J., and Davis, J., concurred.
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770 F.Supp. 273 (1991)
AMERICAN TRADE PARTNERS, L.P.
v.
A-1 INTERNATIONAL IMPORTING ENTERPRISES, LTD.; John G. Cassidy, Sr.; Kevin P. Cassidy; Vincent G. Restivo; Francis R. Santangelo; and Premier International Importing Co., Inc.
Civ. A. No. 90-3992.
United States District Court, E.D. Pennsylvania.
August 19, 1991.
*274 Richard L. Scheff, Catherine Pappas, Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., for ATP.
Sheldon Eisenberger, Joseph Zelmanovitz, Stahl & Zelmanovitz, New York City, for Premier, Restivo and Santangelo.
John G. Cassidy, Sr. and Kevin P. Cassidy, pro se.
MEMORANDUM AND ORDER
DITTER, District Judge.
This case involves a dispute among four businessmen and arises from the dissolution of a company they ran, the formation of a new company by two of them, and the settlement of claims asserted against them by their factor. It comes before me on a motion to reconsider my dismissal of their cross-claims asserted against each other.
Francis R. Santangelo, Vincent G. Restivo, John G. Cassidy, Sr. ("Jack Cassidy"), and Kevin P. Cassidy were the founders, shareholders, and operators of A-1 International Importing Enterprises, Ltd. Restivo and the Cassidys were primarily responsible for A-1's management on a daily basis. Santangelo initially requested to be excluded from A-1's normal operations and his only responsibility was to use his contacts with The Home Shopping Network ("HSN") to increase A-1's sales to that company. The four shareholders agreed from the outset to submit their personal expenses to A-1 for payment. A-1 paid those personal expenses, but there was no evidence that Santangelo, Restivo, Jack Cassidy, and Kevin Cassidy ever accounted properly for those payments on their personal income tax returns.
To obtain financing for its operations, A-1 sold accounts receivables to plaintiff American Trade Partners, L.P. ("ATP"). In conjunction this factoring arrangement, Restivo and the Cassidys signed personal guarantees for any outstanding delinquencies that were not satisfied by A-1. Santangelo did not sign a guarantee. ATP provided more than $16,000,000 to A-1 over a twenty-two month period. By December, 1989, A-1 owed ATP approximately $1,500,000, an amount it could not pay because, at least in part, of excessive personal expenses charged by the Cassidys to A-1. When Santangelo learned of the amount of these charges, he and Restivo ousted the Cassidys from their financial management positions and eventually from A-1 entirely. At that same time, Santangelo and Restivo formed a new corporation, Premier International Importing Co., Inc., to carry on the business and to profit from Santangelo's contacts at HSN.
ATP was unable to collect its debt, so it brought suit against A-1, its four shareholders, and Premier. ATP's claims against the defendants were settled before trial. The four shareholders also initiated litigation against each other. Jack and Kevin Cassidy filed cross-claims against Santangelo, Restivo, and Premier. Santangelo and Premier countered with cross-claims against the Cassidys. Following a one week bench trial, on July 22, 1991, I made numerous findings of fact, reached conclusions of law, and rejected all of the cross-claims. Two days later, on July 24, 1991, I entered judgment against Santangelo and Premier on their cross-claims and I dismissed the Cassidys' cross-claim. Santangelo, Premier, and Restivo[1] now move for reconsideration of my July 24, 1991, order and certain findings of record.[2] For *275 the reasons that follow, their motions will be denied.
Santangelo essentially raises three contentions in his motion for reconsideration. First, he argues he did not violate the income tax laws when he and his fellow shareholders agreed to have and did have A-1 pay for their personal expenses. Second, he maintains he is not in pari delicto with the Cassidys because he is a victim of their fraud. Third, he claims I erred when I found wrongful his failure to pay ATP any part of the debt owed by A-1, and his use of the available funds to pay his and the other A-1 shareholder's personal expenses.
Santangelo's contentions are without merit.
As for the income tax fraud argument, the phrase "saying so, does not make it so" comes to mind. Santangelo argues he did not intend to violate the income tax laws, because A-1 is a "subchapter S" corporation. I agree that a subchapter S corporation may be operated in such a way that it lawfully advances money for the personal expenses of its shareholders. Here, however, the evidence is clear that Santangelo, Restivo, Jack Cassidy, and Kevin Cassidy had no intention of using A-1 in a legal fashion. Thus, saying the shareholders could lawfully use A-1 to provide for their personal expenses does not mean that they did. To the contrary, all the evidence suggests just the opposite.
I recognize[3] the many "pass through" benefits of a subchapter S corporation. Subchapter S regulations permit the creation of an account to which a shareholder's personal expenses paid by the corporation may be recorded as a distribution of income. These distributions must be reported on the shareholder's personal tax return. These provisions are applicable to A-1 in the abstract, but that is not how Santangelo, Restivo, Jack Cassidy, and Kevin Cassidy ran A-1.
The record here permits only one conclusion: from day one, Santangelo, Restivo, Jack Cassidy, and Kevin Cassidy intended to operate A-1 illegally. N.T. 7/22/91 at 4, 17, and 18. They intentionally had A-1 pay their personal expenses and made no effort to reimburse A-1 or have appropriate charges made to their distribution accounts. Id. They used A-1 to pay the cost of limousines, luxury cars, personal travel, personal entertainment, home furnishings, and many other accoutrements of the good life. There was no evidence any of them ever separated their personal from business expenses or paid income taxes on the personal expenses picked up by A-1.
It is incredible for Santangelo to assert he intended to use the pass through provisions available to A-1. A sophisticated and experienced businessman knows it is far *276 easier to separate his personal from business expenses at the time the expense is incurred. All he needs is two credit cards or two check books; no fancy accounting is required; no ex post facto deliberations are needed. Santangelo not only did not allocate his expenses when they were incurred; he never did. The only conceivable reason he did not do so is because he intended to defraud the United States and New York state. If all his expenses were classified as business-related and paid by A-1, he would not have to include the money A-1 used to pay those personal expenses as income on his personal tax return.
It is equally incredible for Santangelo to assert he was unaware the Cassidys were not allocating his expenses properly. Id. at 20 and 31-34. First of all, the Cassidys would have no way of knowing which of Santangelo's expenses were personal or business. There was nothing to suggest Santangelo ever told them. Second, the Cassidys never asked him to separate his bills by expense type. This should have tipped him off that A-1 was paying all the bills he submitted regardless of their relation to A-1's business. Third, a comparison of his profit distributions and his year-end K-1[4] would have revealed that no personal expenses were allocated to his capital account. Id. at 20.
Each of these facts lead to just one conclusion: Santangelo, as well as Restivo, Jack Cassidy, and Kevin Cassidy, did not intend to pass personal expenses through A-1 and, eventually, charge themselves. They intended A-1 to pay everything. Santangelo must have known this was the plan; he benefitted from it and was in on it from the beginning. I will not reverse any of my findings relating to the illicit operation of A-1 by Santangelo, Jack and Kevin Cassidy, and Restivo.
Santangelo next contends he was not in pari delicto with the Cassidys. He is mistaken. "In pari delicto, which literally means `of equal fault,' is ... fashioned to assure that transgressors will not be allowed to profit from their own wrongdoing. Under this construct, a party is barred from recovering damages if his losses are substantially caused by `activities the law forbade him to engage in.'" Tarasi v. Pittsburgh Nat. Bank, 555 F.2d 1152, 1156-57 (3d Cir.1977) (quoting Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 154, 88 S.Ct. 1981, 1992, 20 L.Ed.2d 982 (1968)). Additionally, "only in those cases were it can fairly be said that the plaintiffs' fault is substantially equal to that of the defendant will recovery be precluded." Tarasi, 555 F.2d at 1157. Santangelo clearly intended to engage in illegal activities, namely, tax fraud and fraud, and his fault with respect to ATP and with respect to the Cassidys is substantially equal to that of the Cassidys. N.T. 7/22/91 at 26-27.
There is no question Santangelo not only intended to violate federal and state income tax laws, but also to perpetuate a fraud on ATP, as did Restivo, Jack Cassidy, and Kevin Cassidy. With regard to ATP, Santangelo and the Cassidys have equal fault. They rendered A-1 unable to pay its debt to ATP in contravention of the accounts purchase agreement, the personal guarantees, and the security agreement. They each did so with fraudulent intent. The Cassidys' fraud occurred prior to their leaving A-1 and Santangelo continued the scheme to defraud in order to frustrate ATP's debt collection efforts. It is of no consequence that each shareholder's wrongful conduct with respect to ATP occurred at different times. The fact remains that these men, each in his own way, operated A-1 to defraud ATP.
*277 With regard to each other, Santangelo, Jack Cassidy, and Kevin Cassidy (and for that matter, Restivo), are in substantially equal fault. The Cassidys may have charged more in personal expenses to A-1 when they worked there, but Santangelo, once he excluded the Cassidys from A-1, effectively assured he would profit from their absence. He continued to charge personal expenses to the corporation, he paid previously charged personal expenses, he took a salary, and he formed a second corporation in order to take advantage of his relationship with HSN. Id. at 7, 13, 14, and 15. He made a conscious decision to avoid the payment of ATP's debt.
Santangelo could have saved A-1, paid ATP, and prospered based on the relationship between himself and HSN. Id. at 14 and 21. I conclude he formed Premier and refused to pay ATP because he wanted to exclude the Cassidys from A-1's operations. He harmed the Cassidys in a manner substantially equal to the harm inflicted upon him by the Cassidys. They are in pari delicto and their cross-claims for indemnification and contribution are without merit.[5]
Lastly, Santangelo seeks to be excused from the consequences of his wrongful conduct after he took over A-1's management in January, 1990. He maintains I am judging him with the wisdom of hindsight and that he acted reasonably under the circumstances in choosing the path out of the forest the Cassidys created. He asserts he did not pay ATP any part of the then-existing $1,500,000 secured debt, because he did not have any proof it was legitimate. Even under the kindest light, Santangelo cannot be relieved from his actions.
Santangelo's claim that he did not have enough information to verify the ATP debt is not credible. He was presented with ATP's documentation that a $1,500,000 debt had accrued. Robert Taylor, ATP's representative, told him ATP was a secured creditor with a sizable outstanding debt. Santangelo knew of ATP and the approximate size of the debt in late December, 1989, or at least by early, January, 1990. Id. at 13. Restivo knew of ATP and its relationship with A-1. Id. at 11-12. Santangelo formed Premier on the same day he met with Taylor from A-1. Id. at 13. The formation of Premier demands the inference that Santangelo contemplated the use of the new company to frustrate ATP's collection efforts and to exclude the Cassidys from a profitable business.
Santangelo claims he paid Logan Financial Services during this period but not ATP because ATP could not validate the debt to his satisfaction. This assertion rings hollow, however. I do not recall any documents which would have lead Santangelo to believe the Logan debt was any more valid than the ATP debt. For example, Santangelo's exhibit 502, the only document introduced by him relating to Logan's debt, is a letter from Logan's president stating that A-1 owed Logan approximately $1,000,000. There is no supporting documentation attached to that letter and no other evidence has been offered to show that a "valid" debt to Logan existed. Taylor, on the other hand, presented a similar letter to Restivo and Santangelo, a computer printout of A-1's transactions with ATP, and a computer printout of the outstanding *278 invoices and the amount of money owed by A-1 to ATP. Taylor also met with A-1's shareholders on two occasions to discuss A-1's delinquency. Taylor provided more information to validate his company's creditor status, but Logan was allegedly paid and ATP was not. Santangelo's own testimony confirmed he had not heard of either ATP or Logan prior to his direct involvement in A-1's affairs, but he asserts he promptly paid Logan, even though the reason he offers for not paying ATP seemingly would apply to Logan as well.
Additionally, he does not dispute, nor could he, that he used A-1's money during the debt's pendency to pay the shareholders' personal expenses. More importantly, however, he continued to use A-1 to pay personal expenses that he incurred during this period of time. It is hard for me to imagine more than one reason why Santangelo, a sophisticated businessman, would use A-1's allegedly limited cash supply to pay his personal expenses while the debt to ATP was outstanding. The only explanation I can reach based upon the evidence is that Santangelo planned to use A-1 just as he had in the past: to enrich himself unjustly. He had A-1 pay his personal expenses, he took a significant payment from A-1, authorized "loans" to Restivo, all in the face of ATP's claim that it was owed a significant amount of money. Santangelo did so with the fraudulent intent to frustrate ATP's collection efforts.[6]
Santangelo also urges me to correct the record in three respects. I will do so in only one regard. I inadvertently stated that Santangelo's wife was on A-1's payroll. Id. at 7. Linda Santangelo, Santangelo's daughter, was on A-1's payroll, but not his wife.
Santangelo asserts no payments were made by A-1 to bank accounts in Switzerland, other than those held by Logan. I found that A-1's bank records reveal that $200,000 and $150,000 were transferred by wire to the Credit Suisse Bank in Switzerland. Id. at 14. Restivo authorized the wire transfers. Id. I also found neither Santangelo nor Restivo introduced any documents to support their claim that the payments were to Logan. Id. Santangelo now points to Carmine Cornette's testimony in the preliminary injunction hearing and plaintiff's exhibit 66 for proof that those transfers went to Logan. Cornette's testimony merely confirmed that Restivo had ordered money wired to Bank Paribas in Switzerland allegedly for Logan's benefit. Exhibit 66 is just the transfer cover sheet completed by Cornette at Restivo's direction.
This evidence, however, has nothing to do with the wire transfers to Credit Suisse. There has been no evidence, other than Cornette's and Restivo's testimony, which is not credible, that the Credit Suisse transfers were to Logan. Moreover, even the Bank Paribas transfer is subject to some question. The only document purporting to identify Logan as the beneficiary of the transfer was completed at Restivo's request. No confirming documentation has been introduced into the record. I am not persuaded my findings concerning the Credit Suisse transfers were unjustified.
Finally, I agree over $400,000 was deposited into A-1's bank accounts in 1990. I also agree creditors other than ATP received payment from those accounts. My findings reflect as much. Id. at 13. The record, however, contradicts Santangelo's assertions that no money went to Premier *279 and no money went to cover expenses incurred in 1990. I see no reason to reiterate the many instances of improper payments A-1 made on Santangelo's behalf and at his or Restivo's direction.
For these reasons, I will deny Santangelo's, Premier's and Restivo's motions for reconsideration.
NOTES
[1] Restivo only seeks reconsideration of those specific factual findings and legal conclusions concerning his conduct during the relevant time period. Restivo, however, is not a cross-claim plaintiff and, of course, does not seek reconsideration of my decision dismissing the Cassidys' cross-claim asserted against him. His motion for reconsideration incorporates Santangelo's and Premier's motion in its entirety. The memorandum that accompanies Santangelo's and Premier's motion is, for the most part, silent as to Premier. For these reasons, I will refer to Santangelo only in the remainder of this memorandum.
[2] At the close of the trial, I informed Santangelo's and Restivo's counsel that I did not intend to order the trial transcript. I also informed him I expected him to refer me to particular portions of the transcript for support for his arguments if he intended to file a motion for reconsideration. I allowed him, however, to reserve the right in that motion to file a supplemental brief when he received the trial transcripts. In their motion, Santangelo and Restivo did not refer me to any trial transcript citations, only to the preliminary injunction transcripts. They stated they would like the opportunity to file a supplemental brief upon receipt of the transcripts. I have since learned that they have not ordered the transcript and do not plan to do so. No supplemental brief has been filed. Therefore, I see no reason to delay this matter any further and will rule on their motion based upon my notes of the proceedings. I will provide citations to the transcript of my findings of fact and conclusions of law, because my court reporter provided me with a copy of that portion of the transcript.
[3] The testimony concerning A-1's subchapter S status was limited. Santangelo and A-1's accountant mentioned the "pass through" benefit of a subchapter S corporation. Santangelo also introduced A-1's corporate tax returns for 1987 and 1988 and the shareholders' schedule K-1's for those same years. To my recollection that was the extent of the evidence in that regard. There was no statement that capital accounts were formed by the shareholders and no explanation by any expert or layman how a subchapter S corporation allocated personal and business expenses. Nevertheless, I took judicial notice of the subchapter S provisions prior to rendering my decision. As I noted then, and repeat today, Santangelo, Restivo, and the Cassidys had no intention of separating their personal and business expenses, had every intention of using A-1 to pay both, and had every intention of illegally withholding taxes from the United States and New York state governments. N.T. 7/22/91 at 17, 18, 24, 26, 32, and 33.
[4] Santangelo maintains that his 1988 K-1 reflected greater distributions than the other shareholders and that this must mean his personal expenses were included as distributions for which he paid personal income tax. The Cassidys assert, Restivo agreed, and Santangelo did not refute at trial, the greater distribution to Santangelo does not reflect an allocation of personal expenses but their agreement that Santangelo would not be responsible for financing costs. Moreover, no one has argued Santangelo separated his personal from business expenses for that taxable year. It is implausible then that Santangelo's additional distributions were related to the allocation of his personal expenses to his capital account, if one existed.
[5] As I noted in my conclusions of law, Santangelo's ninth cross-claim is for indemnification. Id. at 23. I granted judgment in favor of the Cassidys on that claim, because Santangelo is not without active fault with respect to ATP. Id. at 23-25. I also stated that the ninth cross-claim could not be construed as a claim for contribution, because Santangelo's cross-claim tracks the language necessary to assert an indemnification claim only. Id. at 25. Nonetheless, and merely for the purpose of providing the parties with a complete record, I construed it as a claim for contribution. Id. at 25. It is without merit under the doctrine of in pari delicto. Id. at 26. It is also substantively without merit for many other reasons. The contribution claim is essentially a claim to enforce an illegal contract among the shareholders to violate the federal and state income tax laws. Id. at 27-28. Of course, no such contract can be enforced. Even if it were capable of judicial enforcement, it is too vague to be enforced. Id. at 18 and 29. Finally, the doctrine of unclean hands bars the equitable relief, specifically an accounting, sought by Santangelo. Id. at 29-30. The Cassidys' sixth cross-claim for contribution failed for these same reasons. Id. at 30.
[6] Santangelo stresses he was not a guarantor of A-1's debt, did not sign the accounts purchase agreement, and did not know of ATP until after the debt had been incurred. I gather from his brief that it is his contention these facts permitted him to discount ATP's claim and to use A-1's money to pay other creditors and not ATP. This is a strange argument in that it provides an explanation of why Santangelo did not pay ATP. Santangelo used A-1's money to pay off previously incurred personal expenses and personal expenses he continued to incur. It makes perfect sense for him to have those debts paid by A-1, rather than to have A-1 pay ATP, because that eliminated the need for him to pay for his own personal expenses. He stood to gain more from the use of A-1's money to pay his personal expenses, because it was less likely that he could be reached by ATP for payment on A-1's debt. The claim that the reason he did not pay ATP was because ATP did not give him enough documentation, is a ruse to cover his obviously self-interested activity.
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437 S.E.2d 22 (1993)
SOUTH CAROLINA PUBLIC SERVICE AUTHORITY, Respondent,
v.
GREAT WESTERN COAL (KENTUCKY), INC., Great Western Coal, Inc., Clyde E. Goins and Joe C. Norman, Defendants,
of whom Clyde E. Goins is the Appellant.
No. 23907.
Supreme Court of South Carolina.
Heard April 20, 1993.
Decided July 19, 1993.
*23 T. Alexander Beard, of Cooper Beard & Dibble, and V. Thomas Lankford, of Sharp & Lankford, Charleston, for appellant.
Gedney Main Howe, III, and John Hamilton Smith, of Young, Clement, Rivers & Tisdale, Charleston, and Bristow Marchant, of Adams, Quackenbush, Herring & Stuart, Columbia, for respondent.
PER CURIAM:
This is an appeal from an order denying Appellant Clyde E. Goins's motion to compel arbitration. We reverse.
FACTS
In 1978 and 1980 South Carolina Public Service Authority (Santee Cooper), contracted with Great Western (Kentucky), Inc., and Great Western Coal, Inc., to purchase coal for ten and twenty years, respectively. Great Western Coal and Great Western Coal (Kentucky) are collectively referred to herein as Great Western. Both contracts contained an arbitration clause.
On November 21, 1990, Santee filed a complaint against Great Western; Great Western's President, individually (Goins); and a former Santee employee, Joe C. Norman, alleging civil conspiracy, fraud, fraudulent interference with an employee contract, and breach of fiduciary duty by Norman.[1] Santee alleged Norman and Goins had increased the price of the coal while lowering its quality. On December 11, 1990, Goins demanded arbitration.
*24 On February 11, 1991, Goins made a motion to dismiss and compel arbitration. Judge McInnis held the motion for arbitration in abeyance pending discovery and denied the motion to dismiss. Goins appealed. This Court dismissed the appeal without prejudice to any party's right to appeal the final order regarding arbitration. Further, this Court granted exclusive jurisdiction to hear all pretrial matters to Judge Howell.
In August 1991, Goins renewed his motion to compel arbitration. After a hearing on the motion, Judge Howell denied the motion.
ISSUES
(1) Did the trial judge err in holding the arbitration provision was unenforceable?
(2) Did Judge Howell err in concluding Santee, a quasi-public entity, cannot enter into binding arbitration agreements?
DISCUSSION
(1) Enforceability
Goins contends the trial judge erred in holding the arbitration clause was unenforceable because of fraud in factum. The trial judge held there was no allegation of fraud in inducement but found fraud in factum. The only evidence of any type of fraud in the complaint is Santee's allegation that Goins made false representations which caused it to undertake transactions.
In Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967), the United States Supreme Court addressed the issue whether a claim of fraud in the inducement of the entire contract is to be resolved by the court or may be arbitrated. The Court held arbitration clauses are separable from the contracts in which they are included. Therefore, there must be an allegation of fraud in inducement of the arbitration agreement to avoid arbitration of the contract itself. Id.
A few courts have distinguished fraud in the inducement from fraud in factum. In Cancanon v. Smith Barney, Harris, Upham & Co., 805 F.2d 998, 1000 (11th Cir.1986), the court held "where the allegation is one of fraud in factum, i.e., ineffective assent to the contract, the issue is not subject to resolution pursuant to an arbitration clause contained in the contract." See Three Valleys Mun. Water Dist. v. E.F. Hutton & Co., Inc., 925 F.2d 1136 (9th Cir.1991) (interpreted Prima Paint to be limited to challenges based upon fraud in inducement); Republic of Philippines v. Westinghouse Elect. Corp., 714 F.Supp. 1362 (D.N.J.1989). However, several courts have rejected this analysis and held the Prima Paint doctrine is not limited to rescission based on fraudulent inducement but extends to all challenges to a contract. See e.g. R.M. Perez & Assoc., Inc. v. Welch, 960 F.2d 534 (5th Cir.1992); C.B.S. Employees Credit Union v. Donaldson, Lufkin & Jenrette Sec. Corp., 912 F.2d 1563 (6th Cir.1990) (citing Rhoades v. Powell, 644 F.Supp. 645, 653 (E.D.Cal.1986)); Unionmutual Stock Life Co. v. Beneficial Life Ins. Co., 774 F.2d 524 (1st Cir.1985).
We join the jurisdictions which have rejected limiting the holding in Prima Paint. We hold a party cannot avoid arbitration through rescission of the entire contract when there is no independent challenge to the arbitration clause. Fraud as a defense to an arbitration clause must be fraud specifically as to the arbitration clause and not the contract generally. The arbitration clause is separable from the contract. Prima Paint, supra. Therefore, the trial judge erred in holding the arbitration clause is unenforceable because Santee did not plead the arbitration clause was fraudulently induced.
Goins also argues the trial judge erred in ruling Goins is not entitled to demand arbitration because he did not sign the contract in his individual capacity. We agree. In Arnold v. Arnold Corp., 920 F.2d 1269 (6th Cir.1990), the court held that a party should not be allowed to avoid an arbitration agreement by naming nonsignatory parties in his complaint, or signatory parties in their individual capacity because this would nullify the rule requiring arbitration. The court further held when the nonsignatory parties are willing to submit to arbitration, the case should be arbitrated. Id. Goins is the party seeking arbitration. Therefore, we hold the trial judge erred in *25 denying Goins's motion to compel arbitration because he did not sign the contract.
Goins argues the trial judge erred in ruling the causes of action set forth in Santee's complaint are not covered by the arbitration clause. The arbitration clause in this case reads: "Any controversy between the parties hereto arising out of or related to this contract, or the breach thereof, shall be settled by arbitration." (emphasis added).
Arbitration is a matter of contract and controlled by contract law. 5 Am.Jur.2d Arbitration and Award § 11 (1962). Santee in its amended complaint alleges, among other things, tortious interference with its employee contract with Joe Norman. Although the complaint does not allege a breach of the coal contract, Goins contends the actual cause of action is based upon the coal contracts.
To decide whether an arbitration agreement encompasses a dispute a court must determine whether the factual allegations underlying the claim are within the scope of the broad arbitration clause, regardless of the label assigned to the claim. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985); J.J. Ryan & Sons, Inc. v. Rhone Poulenc Textile, S.A., 863 F.2d 315 (4th Cir.1988). Any doubts concerning the scope of arbitration should be resolved in favor of arbitration. Moses H. Cone Memorial Hosp. v. Mercury Const. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.E.2d 765 (1983). Furthermore, unless the court can say with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the dispute, arbitration should be ordered. Mitsubishi, supra.
Here, we find only the actions for which Santee seeks damages based upon the coal contracts are arbitrable and not the remaining causes of action. Therefore, we reverse the order denying arbitration and remand this case for the trial court to determine which causes of action are arbitrable under this criterion.
(2) Quasi-public Entity
Goins also argues the trial judge erred in holding Santee was barred from entering arbitration agreements because it is a governmental agency or a quasi-public entity. We agree. S.C.Code Ann. § 58-31-30(17) (Supp.1992) authorizes the Public Service Authority (Santee) "to enter into agreements providing for binding arbitration...." Thus, Santee is specifically authorized by statute to enter arbitration agreements.
REVERSED AND REMANDED.
MOORE, J., not participating.
NOTES
[1] Santee and Great Western have reached a settlement in this action. Joe Norman died and his estate has not been substituted. Thus, the only defendant remaining in this action is Goins.
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Filed 10/20/15 P. v. Davis CA5
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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F068923
Plaintiff and Respondent,
(Super. Ct. No. CRF41782)
v.
RODNEY HAWKINS DAVIS, JR., OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tuolumne County. James A.
Boscoe, Judge.
Anne V. Moore, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and
Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Rodney Hawkins Davis, Jr., was convicted at the conclusion of a jury trial of
second degree commercial burglary (Pen. Code,1 § 459). One count of identity theft
(§ 530.5, subd. (a)) was dismissed prior to trial. The trial court denied defendant’s oral
and written motions for a new trial. The court suspended imposition of sentence and
placed defendant on felony probation for five years on various terms and conditions,
including that he spend eight months in county jail.
On appeal, defendant contends the trial court deprived him of a fair trial by ruling
a nonhearsay statement of a third party was inadmissible. Defendant contends the trial
court also erred in not permitting him to impeach the victim with evidence the victim
offered defendant money to enter into a plea agreement. Defendant argues the trial court
erred in permitting him to be impeached with prior convictions without sanitizing them
and there was cumulative error.
Defendant contends there was an error in the minute order granting him probation.
In a supplemental brief, defendant seeks relief from this court to modify his conviction
from a felony to a misdemeanor pursuant to Proposition 47 and section 1170.18. We
affirm the judgment with instructions for the trial court to clarify its ruling granting
defendant probation and without prejudice to defendant filing a motion with the trial
court to recall his sentence pursuant to section 1170.18.
FACTS
People’s Case
At 1:45 p.m. on July 20, 2013,2 defendant and a woman who identified herself as
Jessica Gomez or Gomes went to the Moccasin Point Marina at Lake Don Pedro to rent a
jet ski for two hours from reservations clerk Jerri Souza. Defendant paid $680 cash for a
two-hour rental. Neither defendant nor Gomez showed Souza any identification although
1Further statutory references are to the Penal Code unless otherwise indicated.
2Unless otherwise designated, all date references are to the year 2013.
2.
they both executed liability release forms. Defendant did not return the jet ski that
evening.
Defendant returned around 8:30 a.m. the next morning. As a courtesy, Souza
switched the two-hour rental to a 24-hour rental. Defendant asked to have some of his
cash payment refunded so he could place the balance on his credit card. Souza could not
remember whether defendant identified the credit card as “a credit card” or “his credit
card.”
Defendant handed Souza a credit card. Defendant and Gomez were not acting like
other customers who usually want to get over the paperwork and onto the lake. They
were being chatty, interacting with each other, and not in a hurry to finish the paperwork.
These interactions were unusual enough that Souza would have remembered them even
had an incident not happened. Also, defendant and Gomez made a point of stating they
were not a couple and were dating other people. The banter was distracting and made it
difficult for Souza to concentrate on the credit card transaction and move on. There were
other customers in the store. Souza asked them to let her concentrate.
When Souza started to swipe the credit card, defendant and Gomez became very
quiet and looked worried. Prior to swiping the card, defendant and Gomez told her not to
swipe it because it had not been working. They told Souza she would have to manually
enter the numbers. After swiping the credit card, it came up with all X’s and no name.
Souza had never seen this before. After Souza entered the credit card numbers manually,
the display showed the final numbers 8052 and the defendant’s name. The charge on the
card was $494.60.
Souza generated a new invoice that defendant signed. Defendant and Gomez
became chatty and interactive again. Souza never heard the name “Jay” mentioned in the
conversation between defendant and Gomez. About 3:30 p.m. that day, David Paravagna
called to explain that someone had used his credit card at the facility. Paravagna was
very upset and told Souza the amount of the transaction was $494.60. Paravagna gave
3.
Souza the last four numbers of his credit card. They were identical to those on the card
used by defendant.
Souza gave Paravagna the number to the sheriff’s department and she also
contacted rangers from the lake recreation agency. The rangers directed Souza to contact
the sheriff’s department. Deputy Timothy Wertz contacted Souza and she told him what
had happened and provided him with the paperwork from the transaction with defendant.
Paravagna lived in Walnut Creek and had a prior conviction in 2002 for assault
and battery on a peace officer. On July 21, Paravagna was trying to make a purchase at
Safeway and his credit card was declined. Paravagna used a bank application, or app, on
his cell phone to check his credit card activity and discovered purchases had been made
in Moccasin Point in Tuolumne County, at Wal-Mart twice, at Rite Aid, and at Carl’s Jr.
Paravagna contacted Moccasin Point about the charge on his credit card because he lived
in Walnut Creek.
The woman with whom Paravagna talked to sounded panicked when he asked her
about the charges on his credit card and at first shared no information. The woman called
back later and provided more information, including that the suspect had been arrested.
Paravagna provided her and law enforcement with the entire credit card number. A
sheriff’s deputy told Paravagna to get an affidavit of forgery from his bank.
Paravagna had replaced the old card with a new one. He recalled the old card had
the last four numbers 8052 and the purchase from the jet ski vendor was $468 or $470.
After refreshing his recollection, Paravagna verified the amount was $494.50. No one
had Paravagna’s permission to use his credit card or to rent anything at Moccasin Point
on July 21. Paravagna did not know defendant, Jessica Gomez, or a Hispanic woman
named Jay. No one else had access to Paravagna’s credit card, which he kept in his
wallet. Paravagna had been to the marina in the past, but never used his credit card there.
Tuolumne County Sheriff’s Deputies Timothy Wertz and Robert Speers, on boat
patrol on Don Pedro Lake on July 21, were dispatched to the Moccasin Point Marina that
4.
afternoon. There, they contacted Souza who told them about the incident and described
defendant. The deputies soon found defendant. Wertz supervised the return of the jet ski
and Speers talked to defendant. Defendant provided deputies with a phone number that
was disconnected. Wertz recalled that defendant described his companion as his
girlfriend. Wertz talked to Souza and Paravagna and the credit card numbers they each
provided matched.
Prior to questioning defendant, Speers read defendant his Miranda rights from a
department-issued card.3 Defendant waived his rights and talked to Speers. Defendant
said he had come to Tuolumne County with Erica and a woman he had been seeing for a
couple of weeks whom he variously referred to as Jay Degair, Jay Degairy, and Jay
Deguer. Defendant explained they had stopped at a store on the way to the lake and
bought ice with the credit card.
After not bringing the jet ski back on time, defendant said he got a “sweet deal” on
an extended rental. Jay told defendant to get their cash back and place the rental fees on
the credit card. Defendant initially said his name was on the credit card. Defendant said
Jay took the credit card to do some shopping at Wal-Mart after he rented the jet ski.
Asked how Jay could go shopping with his credit card, defendant told Speers the card had
Jay’s name on it. Defendant then said he did not know what name was on the credit card
but he “just knew” the card belonged to Jay. When Speers asked defendant why he was
lying, defendant replied that some of what happened “was on him” because he signed the
receipt. Defendant admitted he was the one who rented the jet ski.
A male and female came up to the marina after defendant was arrested and asked
for property off the jet ski. The female asked for keys from defendant. Speers did not
know the name of either person.
3Miranda v. Arizona (1966) 384 U.S. 436.
5.
Defense Evidence
Defendant testified he went camping on July 20 with Jessica Gomez and her
friends, Erica and Jay. Defendant had prior convictions for pimping and unlawful sex
with a minor in 2005. Gomez, Jay, and Erica purchased snacks at Wal-Mart on the way
to the lake, but defendant did not know how they paid for them. Defendant denied telling
investigators he paid for anything with Jay’s credit card.
Defendant went with Gomez to rent the jet ski on July 20. Defendant brought
nearly $1,000 for the camping trip because he wanted to ride a jet ski. Defendant did not
have a credit or debit card. After losing track of time and not returning the jet ski on the
20th, the group decided to change the rental to 24 hours.
The credit card used to change the rental agreement belonged to Jay, not
defendant. Defendant denied his name was on the card, although he admitted he never
looked at the card to see whose name was on it. Jay gave the card to Jessica Gomez at
the campsite, who later gave it to defendant when they changed the rental agreement.
Defendant believed he had permission to use the credit card. Gomez, not defendant, told
Souza the card would not work if swiped. Defendant did not know there was anything
wrong with the card until deputies told him the card was stolen.
Defendant was unsure of Jay’s last name and denied he told anyone it was Deguer.
Defendant has a friend named Valorie Deguair, but she was not with the camping party.
Defendant never gave any officer a phone number, but Gomez did. Gomez and her
boyfriend were the two people who retrieved property from the jet ski. Defendant could
not explain why Gomez was not subpoenaed to testify at trial.
Rebuttal Evidence
Souza testified that Jay’s name was not on the credit card used to pay for the jet
ski rental and defendant’s name was on the card. Souza would not have accepted the
credit card if it had Jay’s name on it. Speers testified that the woman who retrieved
6.
property from the jet ski was Jessica Valdez according to her driver’s license. She did
not identify herself as Jessica Gomez.
DISCUSSION
1. Excluding Third Party Statement
Defendant contends the trial court erred in excluding a statement from “Jay” to
defendant regarding Jay’s authority to use the credit card because the statement was not
hearsay and was relevant for an issue at trial. Although we find error in the trial court’s
ultimate ruling, we conclude it was harmless.
Pretrial Motion
Defense counsel sought to introduce evidence a third person, Jay, had the credit
card and gave permission to defendant to use it to rent the jet ski. The prosecutor
objected to the statement that Jay gave defendant permission to use the card because she
was not under subpoena, it was hearsay offered for the truth of the matter, and there was
no hearsay exception. Defense counsel replied the statement was admissible because it
was proof of defendant’s state of mind when he used the card, even if the card did not
belong to Jay. According to defense counsel, Jay’s statement was admissible to show its
effect on the listener.
After arguing other matters, the court returned to the admissibility of Jay’s
statement to defendant. Defense counsel explained defendant would testify Jay gave the
credit card to Jessica Gomez, and defendant used the card with Jay’s permission. The
prosecutor again objected this was hearsay with no applicable exception. The prosecutor
argued it did not fit within the state of mind exception under Evidence Code section 1250
because that exception goes to the state of mind of the declarant, not to the listener’s state
of mind. The prosecutor further objected to the trustworthiness of the statement.
Defense counsel insisted the statement was admissible to show its effect on the listener.
The court noted Jay’s statement was not being offered for the truth of the matter
asserted and was relevant. Finding the statement outside the purview of hearsay and
7.
admissible, the court held the declarant still had to be identifiable and asked defense
counsel if defendant would be able to identify the person who made the statement. The
only requirement the court imposed to admit the statement was the declarant’s name,
including the last name. The court stated it was concerned about the trustworthiness and
reliability of the statement and that defendant relied on it.
Trial Objections
Defendant did not give Jay’s last name during his testimony. As defendant
testified concerning how the group decided to rent the jet ski, the prosecutor objected to
any part of defendant’s testimony relying on hearsay. The trial court ruled defendant
could describe how he rented the jet ski, but not to statements from others in the party.
Defendant proceeded to testify the card belonged to Jay.
When asked how he came to use the card, the trial court sustained the prosecutor’s
hearsay objection and reminded defense counsel his ruling would stand until the court got
“more information.” Defendant testified he understood he was to use the card to pay for
the jet ski the next day, he believed he had permission to use the card, and Jay gave the
card to Jessica Gomez, who then gave the card to defendant.
Analysis
During the in limine hearing, the trial court found the statement was not being
offered for the truth of the matter asserted, but to show defendant’s intent when he used
the credit card to rent the jet ski. The trial court’s ruling followed the principle that an
out-of-court statement can be admitted for the nonhearsay purpose of showing it imparted
information to the hearer, and the hearer, believing such information to be true, acted in
conformity with that belief. The nonhearsay purpose must also be relevant to an issue in
dispute. (People v. Montes (2014) 58 Cal.4th 809, 863.)
The trial court’s concern, however, was with the trustworthiness of the statement,
and it required defendant to give the full name of the declarant to ensure the statement
was trustworthy. In so ruling, the trial court appeared to be following the requirement of
8.
Evidence Code section 1252 holding that: “Evidence of a statement is inadmissible
under this article if the statement was made under circumstances such as to indicate its
lack of trustworthiness.” The article this section refers to is the one governing the use of
hearsay. (Evid. Code, § 1200 et seq.)
Because the declarant Jay’s statement was nonhearsay, the hearsay section and
exceptions were not applicable, and the requirement of trustworthiness set forth in
Evidence Code section 1252 does not appear to be applicable to the trial court’s ruling.
We find no reason why defendant had to provide Jay’s entire name because the absence
of a last name goes not to the admissibility of the statement but to the weight the jury
should have accorded it.
Any error in excluding Jay’s nonhearsay statement that she told defendant to use
the credit card, however, was harmless under the standards set forth in People v. Watson
(1956) 46 Cal.2d 818, 836 and Chapman v. California (1967) 386 U.S. 18. The evidence
against defendant was far stronger than he argues in his opening brief. The victim,
Paravagna, testified he discovered after his credit card had been denied during an
attempted purchase that the card had been used at the Moccasin Point Marina and several
other locations in Tuolumne County without his permission, and no one was authorized
to use his credit card. Souza testified she later received a telephone call on the day of the
credit card transaction from Paravagna who related to her the exact amount of the jet ski
rental purchase.
Souza, the clerk at the marina, related a series of events that bring into question
defendant’s entire account. The card defendant handed to Souza had defendant’s name
on it, not the victim’s name or Jay’s name. It matched the identification defendant
provided. Souza explained that had defendant presented a card with another person’s
name, she would not have accepted it.
Defendant and Gomez were very talkative prior to the credit card transaction, but
became quiet as Souza attempted to swipe the card. They told Souza not to swipe the
9.
card because it would not work, though she swiped it anyway. After swiping the card,
Souza saw X’s show up where the credit card number and card holder’s name would
normally appear. She had never seen this happen before. Defendant and Gomez told
Souza to key in the number of the credit card. Defendant’s demeanor before and after
Souza swiped the credit card was highly suspicious, as was the entire transaction.
Also, defendant testified his camping group decided to rent a jet ski and, more
importantly, that Jay handed the credit card to Gomez, who in turn handed it to defendant
prior to the credit card transaction. The most exculpatory evidence offered by defendant
and the gravamen of Jay’s actions was her act of handing off the credit card. The only
reasonable implication of this conduct was that the card belonged to Jay, not to Gomez or
defendant, and Jay had given them permission to use the card. The jury heard this key
evidence, although without the accompanying statement telling defendant to use the
credit card. We further note the substance of the challenged statement came into
evidence through the testimony of Deputy Speers who testified defendant told him Jay
directed him to get back the cash deposit and use the credit card for the extended jet ski
rental.
Defendant testified Gomez, not defendant, told Souza the card would not work if
swiped. Defendant did not know there was anything wrong with the card until deputies
told him the card was stolen. Defendant inconsistently told Speers the credit card had his
name on it and later said it had Jay’s name on it. The jury was able to weigh the evidence
advanced by the People and defendant and evaluate its credibility. We conclude the
absence of the proffered testimony could not have changed the jury’s verdict.
2. Victim’s Pretrial Encounter With Defendant
Defendant contends the trial court abused its discretion, violating his Sixth
Amendment right to confrontation, when it excluded impeachment evidence regarding a
pretrial encounter between him and Paravagna in the courthouse hallway. We do not
agree.
10.
Pretrial Hearing on Courthouse Encounter
As the trial was about to commence with jury selection, Paravagna encountered
defendant in the hallway of the courthouse. Defense counsel brought a motion to
introduce details of the encounter to impeach Paravagna, and the trial court conducted an
in limine motion to determine the admissibility of the evidence.
The trial court viewed a video of the conversation between Paravagna and
defendant without audio. The court noted the conversation took place over six minutes.
The video reflected that Paravagna “reached into his left pocket and displayed some
material” to defendant. A bailiff, Deputy Muriel Dutch, heard at least part of the
conversation. According to Dutch, Paravagna said something like: “‘Come on, Davis.
Let’s—make a plea. Let’s get out of here.’”
As an offer of proof, defense counsel stated defendant would testify Paravagna
came over, asked if defendant was Davis, and defendant replied affirmatively. Paravagna
explained he was the one whose credit card was used, or that he was the victim.
Paravagna told defendant he did not want to testify and stated he was only there because
they would arrest him if he did not come. Paravagna told defendant he should take a
deal. Paravagna said: “‘What are you going to do for me? I’ll take the 5th on the
stand.’” Counsel explained that when Paravagna went through security, he took a large
wad of cash out of his pocket and then put it back into his pocket. Defense counsel
believed Paravagna threatened defendant to one of the officers who was going to testify
and was asked to leave until 11:00 a.m.
While noting Paravagna’s absurd behavior made him look like an idiot, the court
asked defense counsel how Paravagna’s conduct would impeach his testimony that his
credit card was used without his permission. Defense counsel replied defendant would
testify the third party, Jay, gave defendant permission to use the card. The court was
unconvinced any of this information impeached Paravagna.
11.
Deputy Wertz testified he spoke with Paravagna about the incident. Paravagna
said he only told defendant to “just plead out, get rid of this” so he could go home. Wertz
told Paravagna they rarely ever apprehend the suspect for these types of crimes.
Paravagna told Wertz he did a good job and he was happy the person responsible got
caught.
At the hearing, Valorie Deguair testified she was sitting in the courthouse hallway
when the conversation between Paravagna and the deputy occurred. She heard the
deputy mention he was the one who arrested defendant and Paravagna reply, “‘Good
job.’” The deputy told Paravagna he did not know why defendant was “trying to beat the
case.”
Deguair said she heard the conversation between defendant and Paravagna.
Paravagna introduced himself to defendant as “‘the guy whose credit card number it
was’” and urged defendant to “‘take the deal.’” Paravagna told defendant he was
subpoenaed and had to be there. Paravagna asked defendant not to make him go onto the
witness stand. Paravagna told defendant his credit card was denied as he tried to
purchase diapers. Paravagna outlined the purchases made on his credit card and asked
defendant to settle the case so he did not have to take the stand. Paravagna asked
defendant what he had for Paravagna or what defendant could offer Paravagna.
Deguair further explained Paravagna said, ““We could take this outside and handle
it, but I’m coming to you man to man, sitting right in front of you man to man.’”
Paravagna continued, “‘You need to just take the deal’” and “‘[w]hat do you have to offer
me?’” Defendant replied he had paid cash and was just trying to explain his case.
Paravagna replied, “‘That’s not enough.’” According to Deguair, Paravagna pulled out a
big wad of money from his pocket and showed it to defendant. Deputy Speers testified
he was not present during these encounters, which occurred in the morning. That
afternoon, Speers and Wertz saw Paravagna talking to a prosecution witness and told him
to stop talking to people involved with the case.
12.
Defense counsel argued the incident was directly relevant to Paravagna’s
credibility. The prosecutor conceded there was some relevance to Paravagna’s
credibility, but argued the evidence was more prejudicial than probative and should be
excluded pursuant to Evidence Code section 352.
The trial court ruled the consumption of time to present the evidence outweighed
its relevance. The court did allow for the evidence to be admitted if Paravagna somehow
opened the door during his testimony.
Analysis
The constitutional right to confrontation is guaranteed under both the United
States and California Constitutions. The primary reason an accused is entitled to confront
adverse witnesses is to permit cross-examination. (People v. Brown (2003) 31 Cal.4th
518, 538.) The right to cross-examine adverse witnesses includes the opportunity to
question them on matters reflecting on their credibility. Judges retain wide latitude to
impose reasonable limits on cross-examination. (People v. Frye (1998) 18 Cal.4th 894,
946, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn.
22; People v. Szadziewicz (2008) 161 Cal.App.4th 823, 841-842.) Confrontation rights
are not violated unless a defendant shows a prohibited cross-examination would have
produced a significantly different impression of the witness’s credibility. (People v.
Frye, supra, at p. 946; People v. Szadziewicz, supra, at p. 842.)
A trial court has broad discretion under Evidence Code section 352 to exclude
evidence if its probative value is substantially outweighed by the probability its
admission will either necessitate undue consumption of time, or create a substantial
danger of undue prejudice, confusing the issues, or misleading the jury. The trial court
retains broad power to control the presentation of evidence to prevent criminal trials from
descending into nitpicking wars of attrition over collateral credibility issues. Rulings
under Evidence Code section 352 are evaluated on appeal using the abuse of discretion
standard. (People v. Riccardi (2012) 54 Cal.4th 758, 808-809.) Although Evidence Code
13.
section 352 must yield to a defendant’s due process right to a fair trial and to present all
significant probative evidence to his or her defense, the exclusion of defense evidence on
a minor or subsidiary point does not interfere with that constitutional right. (People v.
Cunningham (2001) 25 Cal.4th 926, 999.)
Here, the probative value of the excluded evidence was low because it did not
have any effect on Paravagna’s statements to Souza or investigators; these statements
were corroborated by Souza and investigators. Also, defendant’s case did not rest on
Paravagna’s credibility because defendant did not challenge the evidence establishing the
credit card belonged to Paravagna. Instead, while acknowledging the card did not belong
to him, defendant maintained the card was given to him by Jay.
Paravagna’s statements to defendant and to Wertz during the courthouse hallway
encounters indicate he clearly did not want to testify at trial and he related this to
defendant. Paravagna was nervous on multiple occasions during his trial testimony.4
However, in his encounter with defendant, he never indicated the allegations were false
or exaggerated.
A mini-trial on Paravagna’s encounter with defendant would have included
evidence from Deputies Dutch and Wertz, and Valorie Deguair that Paravagna did not
want to testify and Paravagna had urged defendant to accept a plea deal. Furthermore,
evidence relating to a prior offer to plead guilty or of a prior guilty plea that was
withdrawn is inadmissible in a criminal trial. (See Evid. Code, § 1153.) Evidence of the
full encounter could have further included statements from Paravagna to Wertz that he
did a good job in catching the culprit and Wertz’s statement to Paravagna that they rarely
catch perpetrators of credit card fraud. These statements would only have inculpated the
defendant, confused the issues, and misled the jury.
4During his testimony, Paravagna talked quickly and apologized. He said, “I am a little
nervous being up here, so—it is not my cup of tea.” Later, the trial court asked Paravagna to
slow down and Paravagna again said he was “a little nervous being up on the stand.”
14.
According to defense counsel, defendant alone would have added to the facts that
Paravagna offered defendant money for Paravagna to plead the Fifth Amendment. The
statement that Paravagna would plead the Fifth Amendment makes no sense in the
context of these proceedings and would not impeach Paravagna because Paravagna was
not charged with any offense.
The statement in defense counsel’s offer of proof that cash was offered to
defendant was corroborated by Deguair, but not by Dutch. After reviewing the video of
the encounter, which lasted about six minutes, the trial court stated that it looked as
though Paravagna was pulling “material” out of his pocket. We have viewed the video,
which is part of the record, and cannot conclusively determine what Paravagna did.
Paravagna is sitting on a bench seat across from defendant, who is also seated.
Paravagna is talking to defendant using animated hand and arm gestures. Toward the end
of the conversation, Paravagna stands up, places his left hand into his left pants pocket,
and briefly pulls something out of his pocket before placing it back and sitting down.
Even if we assume Paravagna displayed cash to defendant, this would not necessarily cast
Paravagna’s credibility in a negative light. There could be multiple innocent
explanations for Paravagna’s conduct. Taking the time for the jury to hear those
explanations, along with the time it would take to hear the negative connotations, would
ultimately do little to impeach Paravagna, lead to confusion over the issues, and
potentially mislead the jury.
We agree with the trial court’s early assessment of Paravagna’s encounter with
defendant as absurd and casting Paravagna in a ridiculous light. Even though defendant
couches the excluded evidence as substantial proof that undermined Paravagna’s integrity
and credibility, the exclusion of evidence of Paravagna’s encounter with defendant,
which was carefully considered by the trial court, ultimately involved a subsidiary point.
Paravagna’s testimony established there was unauthorized use of his credit card. Most
other key elements of the prosecution’s case were established by other witnesses. The
15.
trial court did not abuse its discretion in applying Evidence Code section 352 to foreclose
a mini-trial on a collateral matter that would have had the strong potential to confuse the
issues and mislead the jury.
The parties cite People v. Ardoin (2011) 196 Cal.App.4th 102, 121-122. In
Ardoin, the trial court limited defense cross-examination of a prosecution witness who
had engaged in violent acts and deceit. There was already evidence the witness had prior
convictions and had other character flaws affecting her credibility. The excluded
impeachment evidence added little more to the witness’s profile. But the witness’s
testimony was corroborated on key points by other prosecution witnesses.
The court in Ardoin found no error in the trial court’s application of Evidence
Code section 352. Here, too, the strongest impeachment evidence against Paravagna was
his prior felony conviction for assaulting a peace officer. This was presented to the jury.
Also, Paravagna’s testimony was corroborated by other prosecution witnesses. We apply
the holding in Ardoin to this case and find no error in the trial court’s application of
Evidence Code section 352.
Furthermore, as discussed above concerning the alleged statement from Jay, the
prosecution had a strong case. We are convinced, beyond a reasonable doubt, the jury’s
verdict would have been the same had the challenged evidence been presented to the jury.
(People v. Brown (2003) 31 Cal.4th 518, 546.)
3. Sanitizing Defendant’s Prior Convictions
Defendant contends the trial court erred in failing to sanitize his prior convictions
in 2005 for unlawful intercourse with a minor under 16 years by a person 21 years or
older (§ 261.5, subd. (d)) and pimping (§ 266h, subd. (a)). Defendant argues the trial
court should have sanitized these convictions prior to them being presented to the jury.
Defendant argues the convictions were “relatively remote and … did not reflect directly
on [his] honesty.”
16.
Notably, although defendant made a motion to exclude his prior convictions, he
did not include a request to have them sanitized. Also, to reduce the element of surprise
to the jury, defense counsel asked defendant on direct examination if he had prior
convictions for the above offenses, and he replied affirmatively. Because defendant
introduced this testimony, he is subject to the doctrine of invited error. (People v.
Gutierrez (2002) 28 Cal.4th 1083, 1138-1139.)
Even if this issue was not subject to invited error, the trial court did not err in
denying defendant’s motion. The admissibility of past misconduct for impeachment
depends on whether it is relevant to moral turpitude. Trial courts have broad discretion to
admit or exclude convictions used for impeachment. In making a determination on the
admissibility of such evidence, courts should consider whether the prior conduct or
offenses reflect on a witness’s honesty or veracity, if it is near or remote in time, if it is
for the same or similar conduct as the charged offense, and the effect of its admission on
the defendant’s decision to testify. (People v. Edwards (2013) 57 Cal.4th 658, 721-722;
People v. Clark (2011) 52 Cal.4th 856, 931-932.) The impeaching offense may postdate
the charged offense. (People v. Edwards, supra, at p. 722.)
Prior convictions for pimping, pandering, and burglary can be used against a
defendant to impeach his or her testimony in a prosecution for assault likely to cause
great bodily injury with a great bodily injury enhancement. Engaging in conduct
showing moral depravity, such as pimping, demonstrates a readiness to do evil and is
admissible under Evidence Code section 210. Pimping and pandering are crimes of
moral turpitude. (People v. Jaimez (1986) 184 Cal.App.3d 146, 148-150.) Unlawful
sexual intercourse with a minor has also been found to be a crime of moral turpitude.
(See People v. Fulcher (1987) 194 Cal.App.3d 749, 753.)
The prior convictions were not for the same or similar conduct as the charged
offense and, as the People point out, there was little danger the jury would confuse the
issues or consider the prior offenses as a propensity by defendant to commit the instant
17.
offense. The trial court instructed the jury pursuant to CALCRIM No. 303 that the prior
convictions could only be considered for assessing the credibility or believability of the
testimony and not for any other purpose. The instruction was not only directed to the
testimony of defendant, but to Paravagna as well.
Convictions from 2005 were not too remote in time to be admissible. The prior
convictions were eight years prior to the current offense. Prior convictions as far back as
20 years before the current offense have been found to be not too remote where there is
other evidence the defendant has failed to lead a blameless life. (People v. Green (1995)
34 Cal.App.4th 165, 183; People v. Muldrow (1988) 202 Cal.App.3d 636, 648.)
According to the probation report, defendant was convicted of misdemeanor vandalism in
2011 and was still on probation for that offense when he committed the current crime.
The jury was not informed of this misdemeanor conviction or defendant’s probationary
status. Defendant had not led a blameless life since committing the prior offenses. Given
these facts, we do not find defendant’s prior convictions to be too remote to be relevant.
Finally, defendant elected to testify at trial. The trial court’s ruling did not
negatively impact defendant’s decision. We reject defendant’s contentions that his prior
convictions were too remote in time and did not directly reflect on his honesty. The trial
court did not abuse its broad discretion to permit defendant’s impeachment with
unsanitized prior convictions. (People v. Clark, supra, 52 Cal.4th at p. 932.)
4. Cumulative Error
Defendant argues the cumulative effect of the alleged errors constituted a denial of
his right to due process. A series of errors during trial, though independently harmless,
may under some circumstances rise to the level of reversible and prejudicial error.
Where there are a few harmless errors, considered individually or collectively, the
doctrine of cumulative error does not apply. The defendant is entitled to a fair trial, not
to a perfect one. (People v. Cunningham, supra, 25 Cal.4th at p. 1009; People v. Box
(2000) 23 Cal.4th 1153, 1214, disapproved on another ground in People v. Martinez
18.
(2010) 47 Cal.4th 911, 948, fn. 10.) The few errors occurring here were harmless,
whether considered individually or collectively. We reject defendant’s cumulative error
argument.
5. Correction of Minute Order
After the proposed terms and conditions of probation, the probation officer’s
report requested under a separate section entitled “PROBATION FEES” that defendant
pay $31.25 per month for probation supervision services. The minute order also has a
section entitled “PROBATION FEES.” This section, however, sets forth probation
supervision services in the amount of $30.75 per month. In granting defendant probation,
the court ordered defendant pay the probation fees set forth in the order granting
probation.
Defendant contends the minute order of the sentencing hearing requires
modification to clearly state the costs of probation supervision are not a condition of
probation. Although the People argue otherwise, we agree with defendant.
The costs of probation supervision may not be made a condition of probation.
(People v. Flores (2008) 169 Cal.App.4th 568, 578.) Here, the applicability of this fee as
a condition of probation is ambiguous in the trial court’s ruling, and the minute order
should be clarified to indicate payment of the fees is not itself a condition of probation.
6. Proposition 47 Contention
Defendant contends the provisions of Proposition 47 enacted by the people at the
November 4, 2014, General Election apply to his offense committed on July 21, 2013,
and convert his offense of second degree burglary into shoplifting since the larceny did
not exceed $950. The charge on Paravagna’s credit card was only $494.60. Because the
law created a retroactive procedure pursuant to section 1170.18, subdivision (a) to have a
felony reduced to a misdemeanor, unless the court determines defendant presents an
unreasonable risk of danger to public safety, defendant argues this court should order a
modification of his conviction to a misdemeanor.
19.
The People reply defendant is not entitled to automatic reclassification and
resentencing, but must file a petition for relief from the trial court pursuant to section
1170.18. We agree defendant is not entitled to automatic resentencing on direct appeal
and decline to retroactively apply Proposition 47 to his case on this appeal. (People v.
Delapena (2015) 238 Cal.App.4th 1414, 1425-1429; People v. Lopez (2015) 238
Cal.App.4th 177, 180-182; see People v. Yearwood (2013) 213 Cal.App.4th 161, 167-179
[defendant not entitled to retroactive application of changes to three strikes law on appeal
without first petitioning trial court].)
We observe defendant’s current felony conviction, however, is not a serious or
violent felony as defined in sections 1192.7, subdivision (c), and 667.5, subdivision (c).
Our opinion is issued without prejudice to defendant to pursue any remedies he may have
before the trial court on remand to recall his sentence pursuant to section 1170.18.
DISPOSITION
The case is remanded for the trial court to clarify that payment of the probation
supervision fee is not a condition of defendant’s probation. The judgment is affirmed
without any prejudice to the rights defendant may have under section 1170.18 to petition
the trial court for a recall of his sentence and resentencing.
___________________________
PEÑA, J.
WE CONCUR:
________________________________
LEVY, Acting P. J.
________________________________
KANE, J.
20.
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172 N.J. Super. 314 (1980)
411 A.2d 1170
MARSHA R. TYSON, PLAINTIFF-APPELLANT,
v.
EDWARD H. GROZE, DEFENDANT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Argued February 4, 1980.
Decided February 14, 1980.
*315 Before Judges BISCHOFF, BOTTER and MORTON I. GREENBERG.
Donald G. Howard argued the cause for appellant (Apell, Howard and Mathews, attorneys).
*316 Robert J. Partlow argued the cause for respondent (Parker, McCay and Criscuolo, attorneys; Ronald C. Morgan, on the brief).
The opinion of the court was delivered by MORTON I. GREENBERG, J.A.D.
Plaintiff Marsha R. Tyson appeals from an order of the Superior Court, Law Division, granting a summary judgment in favor of defendant on the ground that this action is barred by the statute of limitations. The appeal requires this court to determine whether the provisions of N.J.S.A. 2A:14 21 extending the period for suit under N.J.S.A. 2A:14 2 have been modified by N.J.S.A. 9:17B 1 et seq., effective January 1, 1973, lowering the age of majority from 21 years to 18 years.
Plaintiff was born August 26, 1956. She was involved in an automobile accident with defendant on June 19, 1976 when she was 19 years old. This action was filed July 6, 1978. Defendant moved for summary judgment, relying on N.J.S.A. 2A:14-2 which provides that
Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued.
Plaintiff countered defendant's motion by citing N.J.S.A. 2A:14-21 which provides that if a person entitled to bring an action subject to N.J.S.A. 2A:14 2 or certain other sections is under 21 years at the time of the accrual of the action "such person may commence such action ... within such time as limited by said sections, after his coming to or being of full age...." The trial judge granted the motion, reasoning that N.J.S.A. 9:17B 1 et seq. superseded N.J.S.A. 2A:14 21 since, with certain exceptions not deemed applicable, persons 18 years of age are now adults with the full right to sue and be sued. Additionally, the trial judge denied plaintiff's application to take defendant's deposition in an attempt to develop facts *317 that defendant had been a nonresident during a portion of the time from the accident to the date of the filing of the suit.
N.J.S.A. 9:17B 1 provides in pertinent part as follows:
The Legislature finds and declares and by this act intends, pending the revision and amendment of the many statutory provisions involved, to:
a. Extend to persons 18 years of age and older the basic civil and contractual rights and obligations heretofore applicable only to persons 21 years of age or older, including the right to contract, sue, be sued and defend civil actions ...
Two sections in N.J.S.A. 9:17B et seq. deal with the statute of limitations. N.J.S.A. 9:17B 2 declares that the Legislature did not intend to "[a]lter the provisions of N.J.S.A. 2A:14 21 with respect to the time within which a person under 21 years of age as of January 1, 1973 may commence an action or make an entry under a cause or right accrued prior to said date." N.J.S.A. 9:17B-3 provides that
Except with respect to the provisions of N.J.S.A. 2A:14 21 ... every person 18 or more years of age shall in all other matters and for all other purposes be deemed to be an adult and, notwithstanding any other provision of law to the contrary, shall have the same legal capacity to act and the same powers and obligations as a person 21 or more years of age.
It seems clear from these sections that the Legislature intended to protect persons who were under 21 years of age on January 1, 1973, the effective date of N.J.S.A. 9:17B 1 et seq., from having their actions barred. Indeed that is the precise impact of N.J.S.A. 9:17B 2. Absent such a clause it could have otherwise been argued that a person between 18 and 21 on January 1, 1973 would have had only two years from having become 18 to sue or be barred by N.J.S.A. 2A:14 2. Such a result would have immediately barred the actions described in N.J.S.A. 2A:14 2 which had accrued more than two years previously if the plaintiff was 20 years of age on January 1, 1973, *318 even though before that date he would have had at least two years to sue. We are of the view that the Legislature intended to avoid this inequitable result.[1] The broader language referring to N.J.S.A. 2A:14 21 in N.J.S.A. 9:17B 3 should thus be read to be consistent with the explicit limitation of N.J.S.A. 9:17B 2. Any other reading would negate the language of that section confining the continuation of the protection of persons under 21 years of age in N.J.S.A. 2A:14 21 to persons under that age on January 1, 1973.
Our construction is consistent with N.J.S.A. 9:17B 1 and N.J.S.A. 9:17B 3 which indicate that obligations as well as rights are extended to persons between 18 and 21 years of age. It is also consistent with New Jersey State Patrolmen's Benev. Ass'n v. Morristown, 65 N.J. 160 (1974), and State v. Morgenstein, 147 N.J. Super. 234 (App.Div. 1977), which respectively held that N.J.S.A. 9:17B 1 et seq. superseded prior legislation prohibiting employment of persons under 21 as police officers and that a statute entitling indigent litigants 21 years of age or over to free transcripts now applies to persons 18 years of age or older, without regard for their parents' resources. Further the Supreme Court, in Goss v. Allen, 70 N.J. 442 (1976), indicated that "18 years would appear to be the age at which a person should be held to adult responsibility in tort matters." While the court was writing in terms of conduct, it is difficult to see why a different approach should be followed for procedural matters. Our construction is also in harmony with a literal reading of N.J.S.A. 2A:14 21 which, though cast in terms of a time extension for persons under 21 years, in fact by its terms only suspends the running of the applicable statute of limitations until the plaintiff comes to "full age." "Full age" is now 18 years.
*319 Our result reached should not be regarded as a surprise. Indeed the "State Bar Civil Procedure Section Committee Report on Eighteen Year Olds," see 95 N.J.L.J. 1321 (1972), implicitly assumed the result now reached. This is reflected by the emphasis in the report of protection of the right to sue of persons under 21 at the effective date of the act. The report further declared:
[I]t does not appear that the Act will make any substantial changes that will drastically affect the present status of the field of tort law. Some changes, however, will be occasioned due to the fact that a person eighteen years or older will have the right to sue or be sued the same as a person who is presently twenty-one years of age or older. In this regard the new law will eliminate the necessity for a guardian ad litem of the parties between the ages of eighteen and twenty-one whether they be defendants or plaintiffs provided, of course, the party is not an incompetent person. [Id. at 1323]
Finally, plaintiff argues that the trial judge erred in not allowing discovery with respect to the residence of defendant. Plaintiff apparently hoped to establish that for some time after the accident defendant was a nonresident and thus the statute of limitations was tolled. See N.J.S.A. 2A:14 22. Defendant unequivocally swore to a continuous New Jersey residence from the time of the accident to the time the complaint was brought. The response of the trial judge to the motion for summary judgment was correct. The motion should be granted "forthwith" if there is no dispute as to a material fact and the moving party is entitled to judgment as a matter of law. Judson v. People's Bank & Trust Co., 17 N.J. 67 (1954); R. 4:46-2. A party served with a motion for summary judgment may supply an affidavit pursuant to R. 4:46 5(a) indicating why he cannot by affidavit meet the motion. In that event the court may allow discovery. But plaintiff did not comply with this section. While R. 4:46-5(a) is not always strictly enforced, in this case there is nothing in the record to indicate that further discovery might be useful. And indeed since defendant has *320 supplied his place of residence plaintiff has had the opportunity to investigate his claim of residency to raise a factual dispute. The trial judges did not err in not allowing further discovery.
For the foregoing reasons the judgment below is affirmed.
NOTES
[1] Perhaps N.J.S.A. 9:17B-1 et seq. would be construed to allow persons under 23 on January 1, 1973 to have until they became 23 to sue without being barred.
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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
NARSISO RETANA, §
No. 08-09-00130-CV
Appellant, §
Appeal from the
v. §
65th Judicial District Court
§
ANA RETANA, of El Paso County, Texas
§
Appellee. (TC# 2008CM7416)
§
MEMORANDUM OPINION
Pending before the Court is Appellant’s motion to dismiss this appeal pursuant to
TEX .R.APP .P. 42.1(a)(1). Appellant represents that the parties reached an agreement to settle and
compromise their differences and requests that this Court dismiss the appeal. Appellee has not
objected to the motion and there is no indication that dismissal would prevent Appellee from
seeking the relief to which she would otherwise be entitled. See TEX .R.APP .P. 42.1(a)(1). We
therefore grant Appellant’s motion and dismiss the appeal pursuant to the parties’ settlement
agreement. As the motion does not indicate the parties have agreed otherwise, costs will be
taxed against Appellant. See TEX .R.APP .P. 42.1(d).
August 12, 2009
DAVID WELLINGTON CHEW, Chief Justice
Before Chew, C.J., McClure, and Rivera, JJ.
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856 F.2d 202
Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(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.SCHUBERT & SALZER MASCHINENFABRIK AKTIENGESELLSCHAFT,Plaintiff-Appellee,v.W. SCHLAFHORST & CO., American Schlafhorst Company, andGreenwood Mills, Inc., Defendants-Appellants.
No. 88-1036.
United States Court of Appeals, Federal Circuit.
Aug. 24, 1988.
Before MARKEY, Chief Judge, DAVIS* and EDWARD S. SMITH, Circuit Judges.
EDWARD S. SMITH, Circuit Judge.
DECISION
1
W. Schlafhorst & Co., American Schlafhorst Co., and Greenwood Mills, Inc. (Schlafhorst), appeal the judgment, as finally amended, of the United States District Court for the District of South Carolina in Schubert & Salzer Maschinenfabrik Aktiengesellschaft v. W. Schlafhorst & Co., Civil Action No. 6:85-3467-3K (D.S.C. July 10, 1987). We affirm.
OPINION
2
The district court's judgment, as finally amended, included both jury verdicts in favor of Schubert & Salzer Maschinenfabrik Aktiengesellschaft (Schubert) on the issues of patent validity, infringement, and damages and a decision by the magistrate, setting forth both findings of facts and conclusions of law, in favor of Schubert on the issues of equitable estoppel and compliance with the filing requirements of 35 U.S.C. Sec. 135(c). On appeal, Schlafhorst raises five principal contentions.
3
First, Schlafhorst argues that the magistrate erred by refusing to enter judgment on the jury's verdict in favor of Schlafhorst on the section 135(c) issue and by substituting therefor, and entering judgment in favor of Schubert on, his own findings of facts and conclusions of law. Schlafhorst contends that Schubert entered a general demand for trial by jury at the time Schubert filed its complaint and that, in view of this demand, Schlafhorst was entitled to a jury trial on all issues. We disagree.
4
Rule 39(a) of the Federal Rules of Civil Procedure provides that, when requested pursuant to Fed.R.Civ.P. 38, a trial shall be by jury unless either (1) the parties consent by written stipulation filed with the court, or by oral stipulation made in open court, to trial by the court sitting without a jury or (2) the court determines there is no right to trial by jury. Here, Schlafhorst consented to trial by the magistrate on the section 135(c) issue. The magistrate repeatedly articulated his intention that he independently was going to decide the section 135(c) issue and that the section 135(c) issue was being sent to the jury in an advisory capacity only. Not only did Schlafhorst fail to object at trial to the magistrate's proposed treatment of the issue but, when questioned by the magistrate, Schlafhorst, in open court, consistently maintained the position that the section 135(c) issue was a legal issue not appropriate for resolution by a jury.
5
Second, Schlafhorst argues that the magistrate erred, as a matter of law, in reaching his conclusion on the merits of the section 135(c) issue. We disagree. The magistrate determined that there was no causal connection between either the 1965 consortium agreement or the 1969 supplemental agreement and the termination of the interference. Because Schlaforst has not given us grounds to disturb this determination by the magistrate, we must affirm his decision on this issue. See CTS Corp. v. Piher International Corp., 727 F.2d 1550, 1555-56, 221 USPQ 11, 15 (Fed.Cir.), cert. denied, 469 U.S. 871 (1984) ("Section 135(c) requires that any agreement or understanding made in connection with or in contemplation of the termination of an interference must be filed with the [United States Patent and Trademark Office].").
6
Third, Schlafhorst argues that the magistrate erred, as a matter of law, in reaching his conclusion that Schubert was not precluded by the doctrine of equitable estoppel from bringing this action against Schlafhorst. Schlafhorst contends that the magistrate misapplied the legal precedent on the issue. We disagree. The magistrate determined that, although Schlafhorst may have been prejudiced by Schubert's delay in bringing its action, Schlafhorst failed to establish that Schubert either abandoned its claims against Schlafhorst or induced Schlafhorst into thinking the same. Because application of equitable estoppel is predicated upon such a showing, see Hottel Corp. v. Seaman Corp., 833 F.2d 1570, 1573, 4 USPQ2d 1939, 1941 (Fed.Cir.1987), we cannot conclude that the magistrate's resolution of this issue is erroneous, as a matter of law. Schlafhorst's attacks on the magistrate's underlying factual findings on this issue are unpersuasive.
7
Fourth, Schlafhorst argues that the magistrate prejudiced Schlafhorst by excluding from the jury evidence of inconsistent positions taken by Schubert, and of rulings made by the German Federal Patent Court, during prosecution of Schubert's counterpart German patent application. We are not persuaded. Under the law of the Fourth Circuit, which law controls this issue on appeal, exclusion of evidence is squarely within the discretion of the trial court. See DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512, 518 (4th Cir.1985). Here, although evidence of proceedings before foreign tribunals may have some relevance to the issues in this case, Schlafhorst has not established that the magistrate abused his discretion by excluding this evidence.
8
Finally, Schlafhorst argues that the magistrate erred in instructing the jury on the reverse doctrine of equivalents. For us to disturb the jury's verdict on that issue, Schlafhorst has the burden of establishing that the error was so egregious, considering the instructions as a whole, as to require the verdict to be set aside. Jamesbury Corp. v. Litton Industrial Products, Inc., 756 F.2d 1556, 1560, 225 USPQ 253, 256 (Fed.Cir.1985). Schlafhorst failed to carry its burden on appeal.
*
Judge Davis, who died on June 19, 1988, took no part in the decision of this case
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953 F.2d 643
U.Sv.Moreno*
NO. 91-2011
United States Court of Appeals,Fifth Circuit.
Jan 22, 1992
1
Appeal From: S.D.Tex.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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41 F.3d 1519NOTICE: 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.
Diane C. BROWN, Petitioner,v.DEPARTMENT OF the AIR FORCE, Respondent.
No. 94-3362.
United States Court of Appeals, Federal Circuit.
Nov. 7, 1994.
Before MICHEL, Circuit Judge, BENNETT, Senior Circuit Judge, and RADER, Circuit Judge.
JUDGMENT
PER CURIAM.
1
AFFIRMED. See Fed.Cir.R. 36.
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922 A.2d 322 (2007)
101 Conn.App. 527
STATE of Connecticut
v.
Roger P. COTE.
No. 26152.
Appellate Court of Connecticut.
Argued January 4, 2007.
Decided June 5, 2007.
*323 Jennifer C. Vickery, special public defender, for the appellant (defendant).
Melissa Streeto Brechlin, assistant state's attorney, with whom, on the brief, *324 were Patricia M. Froehlich, state's attorney, and Bonnie R. Bentley, assistant state's attorney, for the appellee (state).
FLYNN, C.J., and DiPENTIMA and McDONALD, Js.
DiPENTIMA, J.
In this appeal from the judgments of conviction following a jury trial, the defendant, Roger P. Cote, challenges the pretrial procedures surrounding his motion for a speedy trial and the denial of his motion to dismiss. On appeal, the defendant claims that (1) the trial court improperly denied his motion to dismiss on speedy trial grounds and (2) this court should exercise its supervisory powers to prohibit continuances in certain instances. We affirm the judgments of the trial court.
The following facts and procedural history are necessary for our resolution of the defendant's claims. On December 23, 2002, as a result of an incident involving the defendant and his then girlfriend, the defendant was arrested and charged with assault in the second degree in violation of General Statutes § 53a-60(a)(2), threatening in the second degree in violation of General Statutes § 53a-62(a)(1) and unlawful restraint in the first degree in violation of General Statutes § 53a-95(a). On July 25, 2003, additional charges stemming from the December, 2002 incident were filed against the defendant. The defendant was unable to post bond and remained incarcerated from the date of his arrest on December 23, 2002, for a period of seventeen months and two weeks pending the commencement of his trial on July 14, 2004.
On March 8, 2004, the defendant filed a pro se motion for a speedy trial pursuant to General Statutes § 54-82m and Practice Book § 43-39(d). Thereafter, the defendant filed a motion to dismiss pursuant to Practice Book § 43-41[1] on June 3, 2004. The court delayed ruling on the motion for a speedy trial and on July 14, 2004, denied the defendant's motion to dismiss after determining that the motion for a speedy trial was premature given the amount of time excludable[2] in accordance with Practice Book § 43-40.[3] After denying the *325 defendant's motion to dismiss, the court then granted the defendant's motion for a speedy trial and began jury selection that day on all outstanding charges against the defendant.[4]
On September 22, 2004, the jury returned a verdict of guilty on the charges of assault in the second degree, threatening in the second degree, unlawful restraint in the first degree and criminal violation of a protective order.[5] The defendant was sentenced to a total effective term of twelve years incarceration, followed by six years special parole. At sentencing, the court also issued a standing criminal restraining order against the defendant as to his former girlfriend. This appeal followed. Additional facts will be set forth as necessary.
I
The defendant first claims that the court improperly denied his motion to dismiss. In support of his claim, the defendant challenges certain pretrial procedures and argues that the court improperly delayed ruling on the motion for a speedy trial until after ruling on the motion to dismiss.[6] We disagree.
We note, initially, that although the defendant has framed his argument as a *326 challenge to the court's interpretation and application of the speedy trial statute, as was articulated more clearly during oral argument before this court, the defendant essentially challenges the court's factual findings with respect to excludable time from speedy trial calculations. Our standard of review for this type of challenge is well established. "The determination of whether a defendant has been denied his right to a speedy trial is a finding of fact, which will be reversed on appeal only if it is clearly erroneous. . . . The trial court's conclusions must stand unless they are legally and logically inconsistent with the facts." (Internal quotation marks omitted.) State v. Jeffreys, 78 Conn.App. 659, 669-70, 828 A.2d 659, cert. denied, 266 Conn. 913, 833 A.2d 465 (2003); State v. Rodriguez, 47 Conn.App. 91, 98, 702 A.2d 906 (1997), cert. denied, 243 Conn. 960, 705 A.2d 552 (1998).
"The speedy trial statute [§ 54-82m] requires the judges of the Superior Court to adopt rules that are necessary to assure a speedy trial for any person charged with a criminal offense. . . ." (Internal quotation marks omitted.) State v. McCahill, 265 Conn. 437, 446-47, 828 A.2d 1235 (2003). With respect to a defendant who is incarcerated in a correction institution of this state pending trial, § 54-82m requires the rules to provide: "(1) in any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of a criminal offense shall commence . . . within eight months from the filing date of the information or indictment or from the date of arrest, whichever is later; and (2) if a defendant is not brought to trial within the time limit set forth in subdivision (1) and a trial is not commenced within thirty days of a motion for a speedy trial made by the defendant at any time after such time limit has passed, the information or indictment shall be dismissed. Such rules shall include provisions to identify periods of delay caused by the action of the defendant, or the defendant's inability to stand trial, to be excluded in computing the time limits set forth in subdivision (1)." General Statutes § 54-82m; see also Practice Book § 43-39(d).[7] "Practice Book § 43-40 then sets forth ten circumstances constituting those periods of time [that] shall be excluded in computing the [eight months] within which the trial of a defendant . . . must commence pursuant to Section 43-39. . . ." (Internal quotation marks omitted.) State v. McCahill, supra, 265 Conn. at 447, 828 A.2d 1235.
We will review the defendant's challenges to the trial court's exclusion of certain time periods from speedy trial calculations in turn.
A
The defendant first argues that certain time periods from January 7 through April 11, 2003, should not be considered as excludable because the continuances were not requested specifically by the defendant.[8]
On December 24, 2002, the defendant was arraigned on charges involving the December 23, 2002 incident, and was represented *327 by Mark Shapera, a public defender, for the purposes of a bond hearing only. The case was continued until January 7, 2003, when Matthew Davis, an assistant public defender, was present with the defendant. At that appearance, the state informed the court that the public defender's office was appointed for bond purposes only and that the defendant had secured a private attorney, Brian Mead, who intended to file an appearance to represent the defendant. The state represented that Mead sought a continuance until February 11, 2003, which the court granted. At that point, Davis stated that he would inform Mead of the court's decision.
On February 11, 2003, the defendant appeared again on the December, 2002 charges, and he was arraigned on another charge for violating his probation. Mead informed the court that he represented the defendant for the arraignment on the probation violation only. At that time, Mead also informed the court that the defendant wanted to consolidate his cases and that a public defender would be representing the defendant from thereon. Mead sought a continuance on behalf of the defendant until February 28, 2003. On February 28, 2003, Davis appeared with the defendant, sought and received appointment as defense counsel and requested a continuance until March 14, 2003. On March 14, 2003, Davis sought appointment to represent the defendant on the two additional matters[9] and sought a further continuance until April 11, 2003.
As stated previously, "Practice Book § 43-40(7) expressly provides for the exclusion of time resulting from a continuance granted by the judicial authority at the personal request of the defendant. The applicable language provides: `The following periods of time shall be excluded in computing the time within which the trial of a defendant charged by information with a criminal offense must commence pursuant to Section 43-39 . . . (7) The period of delay resulting from a continuance granted by the judicial authority at the personal request of the defendant.' Practice Book § 43-40." State v. Jeffreys, supra, 78 Conn.App. at 671, 828 A.2d 659. In Jeffreys, we rejected the argument that continuances made on behalf of the defendant by defense counsel did not toll the speedy trial time period. Id., at 673-74, 828 A.2d 659; see also State v. Stewart, 64 Conn.App. 340, 349-50, 780 A.2d 209 ("[a]bsent some indication to the contrary, a court is entitled to rely on counsel's representations on behalf of his or her client"), cert. denied, 258 Conn. 909, 782 A.2d 1250 (2001).
In State v. Jeffreys, supra, 78 Conn. App. at 659, 828 A.2d 659, we stated that where "[t]he delays were occasioned by the defendant's counsel for the defendant's advantage" and "[t]he defendant took advantage of the numerous continuances requested on his behalf by counsel," the "defendant cannot stand by mute while his counsel continues the proceedings on his behalf and then, when the speedy trial clock runs out, claim that counsel did not have the authority to request those continuances. Although mere silence is not enough from which to infer a waiver of a constitutional right, such a waiver may be found in the defendant's course of conduct." Id., at 673, 828 A.2d 659; see also State v. Holloway, 147 Conn. 22, 25-26, 156 A.2d 466 (1959) ("[w]aiver may be implied where the defendant, in court, interposes no objection *328 to a continuance"), cert. denied, 362 U.S. 955, 80 S.Ct. 869, 4 L.Ed.2d 872 (1960).
In the present case, the record shows that the continuances now being challenged on appeal were requested on behalf of the defendant. The record does not indicate that the defendant was not present, nor does the defendant argue that he was absent when the requests were made. We conclude, therefore, that the time period being challenged was appropriately determined by the court to be excludable from speedy trial calculations.
B
The defendant next challenges the exclusion of certain time periods from September 5 through October 17, 2003. Specifically, the defendant argues that the time period during which the defense awaited discovery material from the state should not be excludable. This challenge is without merit.
On May 2, 2003, the court ordered that the defendant be examined and evaluated for drug and alcohol dependency. By June 27, 2003, a course of treatment was recommended, which included long-term inpatient drug and alcohol rehabilitation. On July 25, 2003, the defendant was arrested on a warrant on three additional charges involving the December 23, 2002 incident. On September 5, 2003, the defendant filed a motion to suspend prosecution in order to obtain the recommended treatment and to gather discovery materials relating to all charges, including the more recent charges from his July 25, 2003 arrest. On October 17, 2003, the court denied the defendant's motion to suspend prosecution.
Practice Book § 43-40(1)(D) expressly provides for the exclusion of time "between the commencement of the hearing on any pretrial motion and the issuance of a ruling on such motion. . . ." Here, the defendant filed a pretrial motion to suspend prosecution on September 5, 2003, which was not resolved by the court until October 17, 2003. This was a pretrial motion on which the court required time to reflect prior to deciding the time at issue and, as such, was properly excludable under Practice Book § 43-40(1)(D). Accordingly, we conclude that the court properly determined the challenged time periods to be excludable time from speedy trial calculations.
C
Because we conclude that the court properly excluded certain time periods from speedy trial calculations, we reject the defendant's claim that the court improperly delayed ruling on the motion for a speedy trial until after ruling on the motion to dismiss. Under the speedy trial statute and accompanying rules of practice, a defendant can file a motion for a speedy trial only after expiration of the speedy trial time frame. Practice Book § 43-41. In the present case, that would be "within eight months from the filing date of the information or indictment or from the date of arrest, whichever is later. . . ." General Statutes § 54-82m; see also Practice Book § 43-39(d). Furthermore, a defendant is entitled to a dismissal of all charges with prejudice only after the passage of the statutory speedy trial time period plus the thirty days required by § 54-82m and after his filing a motion to dismiss on speedy trial grounds. In the present case, those required time periods were not met.
On March 8, 2004, the defendant filed his pro se motion for a speedy trial. On March 30, 2004, the state indicated that special public defender Mark Hauslaib was appointed to the defendant's case but was out of the country. The court continued *329 the case to April 20, 2004. On April 20, 2004, the defendant and his counsel appeared and sought a two week continuance. The court asked the defendant if such a continuance was in accord with his speedy trial motion, to which the defendant assented that it was. On May 7, 2004, defense counsel requested a further continuance to June 11, 2004. On June 3, 2004, the defendant filed a pro se motion to dismiss all pending matters. On June 21, 2004, defense counsel sought a continuance to July 16, 2004, in order to discuss a state's plea offer with the defendant. On July 14, 2004, after determining that there were nine periods of excludable time from speedy trial calculations, the court denied the defendant's motion to dismiss as premature and granted his motion for a speedy trial.
First, we note that the defendant's March 8, 2004 motion for a speedy trial would have been denied as premature due to the excludable time periods that the court determined tolled the speedy trial statute. See General Statutes § 54-82m. The defendant's subsequent motion to dismiss on speedy trial grounds would necessarily have been denied as premature as well. In State v. DeClaybrook, 60 Conn. App. 480, 759 A.2d 1046, cert. denied, 255 Conn. 920, 763 A.2d 1042 (2000), this court concluded that where a motion for a speedy trial had been denied as premature, any subsequent filing of a motion to dismiss on the speedy trial motion would have been premature and necessarily would have been denied as well. Id., at 486, 759 A.2d 1046. Similarly, here, the defendant's motion to dismiss on speedy trial grounds would have been denied as premature irrespective of the order in which the court made its ruling.[10]
Second, the court properly delayed ruling on the defendant's motion for a speedy trial to account for the absence in representation and continuances that were requested on behalf of the defendant, which are excludable time periods from speedy trial calculations. See Practice Book §§ 43-39 and 43-40. On the basis of facts and circumstances of the present case, the court's delay in ruling on the motion for a speedy trial was not improper. The motion for a speedy trial was premature and, thus, the motion to dismiss was premature as well. Accordingly, we conclude that the court properly denied the defendant's motion to dismiss.
II
The defendant's final claim on appeal is that the court improperly granted various continuances at the request of attorneys appearing on his behalf for limited purposes only. The defendant concedes that this unpreserved claim is not a constitutional claim but requests that this court exercise its supervisory power to direct trial courts to adopt a procedure that would preclude continuances when requested by attorneys who have filed limited appearances on behalf of the defendant. "Our supervisory powers are not a last bastion of hope for every untenable appeal. They are an extraordinary remedy to be *330 invoked only when circumstances are such that the issue at hand, while not rising to the level of a constitutional violation, is nonetheless of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole." (Emphasis in original; internal quotation marks omitted.) State v. Hines, 243 Conn. 796, 815, 709 A.2d 522 (1998). Because the issue as presented under the factual circumstances of this case does not rise to the extraordinary level described previously, we do not consider this an appropriate case in which to exercise our supervisory powers. Accordingly, we decline the defendant's request to invoke our supervisory powers.
The judgments are affirmed.
In this opinion the other judges concurred.
NOTES
[1] Practice Book § 43-41 provides: "If the defendant is not brought to trial within the applicable time limit set forth in Sections 43-39 and 43-40, and, absent good cause shown, a trial is not commenced within thirty days of the filing of a motion for speedy trial by the defendant at any time after such time limit has passed, the information shall be dismissed with prejudice, on motion of the defendant filed after the expiration of such thirty day period. For the purpose of this section, good cause consists of any one of the reasons for delay set forth in Section 43-40. When good cause for delay exists, the trial shall commence as soon as is reasonably possible. Failure of the defendant to file a motion to dismiss prior to the commencement of trial shall constitute a waiver of the right to dismissal under these rules."
[2] Implicit in the court's ruling are the findings that as to the December 23, 2002 charges, there were nine periods of excludable time resulting in a period less than the required eight months for calculation of a motion for a speedy trial. As for the July 25, 2003 charge, at the time the motion for a speedy trial was filed, only seven months and fifteen days had passed without calculating periods of excludable time. On appeal, the defendant challenges only the periods of January 7 through April 11, 2003, September 5 through October 17, 2003, and February 17 through April 20, 2004.
[3] Practice Book § 43-40 provides in relevant part: "The following periods of time shall be excluded in computing the time within which the trial of a defendant charged by information with a criminal offense must commence pursuant to Section 43-39:
"(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to:
"(A) delay resulting from any proceeding, including any examinations, to determine the mental competency or physical capacity of the defendant . . .
"(D) the time between the commencement of the hearing on any pretrial motion and the issuance of a ruling on such motion;
"(E) delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the judicial authority . . .
"(2) Any period of delay resulting from the absence . . . of . . . counsel for the defendant. . . .
"(3) Any period of delay resulting from the fact that the defendant is mentally incompetent or physically unable to stand trial. . . .
"(7) The period of delay resulting from a continuance granted by the judicial authority at the personal request of the defendant.
"(8) The period of delay resulting from a continuance granted by the judicial authority at the request of the prosecuting authority, if . . .
"(B) the continuance is granted to allow the prosecuting authority additional time to prepare the state's case and additional time is justified because of the exceptional circumstances of the case. . . ."
[4] Voir dire commenced on July 14, 2004, but that jury subsequently was dismissed and a new jury was selected.
[5] The defendant also was charged in a part B information with being a persistent serious felony offender, which resulted from a prior conviction. He pleaded nolo contendere to the persistent serious felony offender charge.
[6] The state contends that this claim is not reviewable because the defendant filed his motion to dismiss pro se while he was represented by counsel. This argument warrants little discussion.
"Although a represented defendant does retain the absolute right to make a limited number of choices regarding his case . . . neither the United States Supreme Court, nor this court, has ever expanded that extremely narrow class to include the choice of whether to file a motion to dismiss for lack of a speedy trial. Indeed, such a choice clearly is one of the vast panoply of trial decisions for which one retains an experienced and competent attorney." (Citation omitted.) State v. Gibbs, 254 Conn. 578, 610-11, 758 A.2d 327 (2000). That stated proposition, however, does not affect reviewability based on the facts and circumstances of the present case. In Gibbs, the Supreme Court held that the defendant had no authority to make a pro se oral motion to dismiss on speedy trial grounds while he was represented by counsel.
In the present case, however, the defendant first filed his motion for a speedy trial pro se while he was unrepresented by counsel and filed a subsequent pro se motion to dismiss while he was represented by counsel. See id. As we noted in State v. Gaston, 86 Conn.App. 218, 222 n. 3, 860 A.2d 1253 (2004), cert. denied, 273 Conn. 901, 867 A.2d 840 (2005), a defendant preserves his claim simply by his motion for a speedy trial; therefore it is inconsequential that he filed his subsequent pro se motion to dismiss while represented by counsel as long as his motion for a speedy trial was filed properly.
[7] Practice Book § 43-39(d) provides: "The trial of such defendant shall commence within eight months from the filing of the information or from the date of the arrest, whichever is later, if the following conditions are met:
"(1) the defendant has been continuously incarcerated in a correctional institution of this state pending trial for such offense; and
"(2) the defendant is not subject to the provisions of General Statutes § 54-82c."
[8] During oral argument, the defendant conceded that the initial period of December 23, 2002, through January 7, 2003, was excluded properly pursuant to Practice Book § 43-40(7).
[9] Prior to that appearance, Davis informed the court that Mead still held an appearance on the defendant's December 23, 2002 charge and that the matter had been resolved, allowing Davis to file an appearance on behalf of the defendant.
[10] With respect to the defendant's assertion that the court failed to follow Practice Book § 43-41, we note that Practice Book § 1-8 specifically dictates that the rules of practice are to be interpreted liberally to achieve their intended effect of facilitating the business of the courts and advancing justice. Practice Book § 1-8 provides: "The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice." Therefore, it was within the court's discretion to facilitate the administration of justice and to revive the defendant's motion for a speedy trial after denying his motion to dismiss.
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Court of Appeals
of the State of Georgia
ATLANTA, April 17, 2020
The Court of Appeals hereby passes the following order
A20D0361. DOMINIQUE JADON HILL v. THE STATE.
Upon consideration of the Application for Discretionary Appeal, it is ordered that it be
hereby GRANTED. The Appellant may file a Notice of Appeal within 10 days of the date of
this order. The Clerk of Superior Court is directed to include a copy of this order in the record
transmitted to the Court of Appeals.
LC NUMBERS:
09SC81793
Court of Appeals of the State of Georgia
Clerk's Office, Atlanta, April 17, 2020.
I certify that the above is a true extract from the minutes
of the Court of Appeals of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk.
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Supreme Court of Florida
____________
No. SC14-2347
____________
LENNART S. KOO,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
[February 11, 2016]
PERRY, J.
Lennart Koo seeks review of the decision of the First District Court of
Appeal in Koo v. State, 149 So. 3d 693 (Fla. 1st DCA 2014), on the ground that it
expressly and directly conflicts with a decision of another district court of appeal
and this Court on a question of law. We have jurisdiction. See art. V, § 3(b)(3),
Fla. Const.
FACTS
Koo was convicted of burglary with a firearm after he removed a BB gun, an
AK-47, a .22 caliber rifle, a .38 pistol, and a .44 Magnum revolver from Dr.
Mohammed Saleh’s storage unit. Koo later returned the .38 pistol, the AK-47, and
the .44 Magnum revolver. Dr. Saleh testified at trial that Koo did not have
permission to enter the storage unit without him.
After Koo’s trial, but before his sentencing, Dr. Saleh wrote a letter to the
trial court purporting to add context to the incident and provide a possible motive
for Koo’s action. Koo filed a motion for new trial arguing that the letter qualified
as newly discovered evidence. The trial court conducted a hearing and then denied
the motion, finding that the letter did not qualify as newly discovered evidence
because nothing in the letter was a recantation of Dr. Saleh’s trial testimony. Koo
received a minimum mandatory sentence of ten years.
Koo appealed to the First District Court of Appeal which affirmed the trial
court’s order stating, “any evidence in the victim’s letter was known to the parties,
and as such . . . did not qualify as newly discovered evidence.” Koo, 149 So. 3d at
695. Furthermore, the First District held that the letter was not material because it
did not contain evidence that disproved one of the elements of burglary with a
firearm. Id. Koo moved for rehearing and rehearing en banc, which the district
court denied, stating “our decision is consistent with any existing precedent[,]”
because “[t]he letter does not contradict the victim’s trial testimony, and it does not
provide any information that would tend to rebut any of the elements of the
convicted crime.” Koo v. State, 162 So. 3d 156, 157 (Fla. 1st DCA 2015).
-2-
DISCUSSION
The issue in this case is whether the trial court abused its discretion by
finding that a post-trial, pre-sentencing letter written by the victim, purporting to
offer a possible explanation for the defendant’s actions, did not constitute a
recantation and denying the defendant’s motion for a new trial without an
evidentiary hearing to determine the letter’s credibility. Because the letter did not
recant any material trial testimony, meaning that no evidence supporting any
element of the crime was undermined by the statements in the letter, the trial court
correctly denied the motion for new trial without holding an evidentiary hearing.
However, the trial court improperly found that the letter could not constitute newly
discovered evidence because the information was known to the defendant at trial.
A motion for new trial may be granted if “[n]ew and material evidence,
which, if introduced at the trial would probably have changed the verdict . . . , and
which the defendant could not with reasonable diligence have discovered and
produced at the trial, has been discovered.” Boyd v. State, 910 So. 2d 167, 178
(Fla. 2005) (quoting Fla. R. Crim. P. 3.600(a)(3)). If a witness recants trial
testimony, that may be considered newly discovered evidence. See, e.g., Stephens
v. State, 829 So. 2d 945, 945-46 (Fla. 1st DCA 2002). “[A] recantation is not
precluded from being considered newly discovered evidence simply because the
defendant knew, as reflected by what the defendant claimed the facts to be, that the
-3-
recanting witness was not telling the truth at the time of the trial or because the
defendant took the stand to testify contrary to the witness.” Archer v. State, 934
So. 2d 1187, 1994 (Fla. 2006).
Based on this standard, if the information in Dr. Saleh’s letter had
constituted a recantation of his trial testimony, the trial court should have held an
evidentiary hearing, even if Koo knew that Dr. Saleh’s trial testimony was false.
However, the lower court correctly determined that the information in Dr. Saleh’s
letter did not constitute a recantation of his trial testimony. Instead, Dr. Saleh
gives equivocal explanations for Koo’s actions. Although Koo’s defense at trial
was that he felt it was necessary to take Dr. Saleh’s weapons to protect himself,
and argues that Dr. Saleh’s letter supports this theory of defense, no such statement
is made in the letter.
Dr. Saleh’s testimony at trial was brief. The entirety of his testimony on
direct examination was as follows:
Q: Last November did you have a storage unit at the Atlantic
Boulevard U-Haul storage unit?
A: I did.
Q: And what did you put in that storage unit?
A: I had a lot of clothing. Before, your Honor, for quite a
while, I had some clothing and merchandise that I ordered from
China.
Q: Did you put guns in that storage unit?
A: Yes, sir.
Q: On November 14th, did you and the defendant, Mr. Lennart
Koo, put guns in that storage unit?
A: You know I love you, man, but I have to go with the truth.
-4-
....
Q: Last November 14th?
A: Yes, sir.
Q: Was Mr. Koo allowed to go in that storage unit without
you?
A: No, sir.
Q: And did Mr. Koo take guns out of that storage unit?
A: Yes, sir.
....
Q: Dr. Saleh, is this an AK-47?
A: Yes, sir.
Q: Is this your AK-47?
A: I believe it is.
Q: Is this the AK-47 that was in the storage unit?
A: Yeah, I remember the scratch on it.
On cross-examination, Dr. Saleh testified that he had known Koo for
approximately five years, and that Koo had worked for him for the last two to three
years, “off and on.” Dr. Saleh testified that he was notified on November 15,
2011, that his storage unit was missing a lock but did not visit the unit until
January 7, 2012. Dr. Saleh testified that he received a phone call from Koo’s
mother on November 16, and met with her and Koo on November 17 where Koo
returned the AK-47 and a handgun.
Q: In fact, Mr. Koo, as your employee, had the authority to go
to these different properties, which you owned, correct?
A: No. He may – I may send him on an errand, but nobody
gave him the permission to go to the room, break in and steal my gun.
Q: And, in fact, you actually provided Mr. Koo with keys to all
of these properties that you owned?
A: No.
Q: He had a keyring which had keys to your vehicles?
A: No. He stole keys, stole a lot of things. No, we didn’t trust
him very much.
-5-
....
Q: So even though you allegedly knew that this person had
stolen a keyring to properties you owned you kept him as an
employee?
A: He was not an employee. He was doing some independent
contract[ing], if you wish, but he was not formally employed. We
were trying to help him out.
In his letter to the trial judge after Koo was convicted and before he was
sentenced, Dr. Saleh wrote that Koo “had keys to every dwelling” and could have
taken something more valuable. Koo argues that this is a recantation of Dr.
Saleh’s trial testimony that Koo did not have access to all of Dr. Saleh’s properties.
However, this statement does not contradict Dr. Saleh’s testimony that Koo had
stolen a keyring. His acknowledgment in his letter that Koo had keys to his
dwellings is not materially different from his testimony at trial because neither Dr.
Saleh’s letter nor trial testimony stated that Koo had authority to have those keys.
Nothing else in Dr. Saleh’s letter can be characterized as contradicting or
contrasting any of this testimony at trial. For example, his statement in the letter,
“I miss [Koo] very much and I am devastated that he was convicted to serve a
minimum ten years in prison. He does not deserve that . . . .” is consistent with his
testimony at trial that he loved Koo like a brother, but was compelled to tell the
truth. Dr. Saleh’s post-trial letter appears to be an attempt to provide an
explanation for Koo’s actions, but is consistent with his trial testimony:
I suddenly remembered that [Koo’s] “intent” may have been
motivated by something more benign than what has transpired during
-6-
the trial . . . . The only explanation for [Koo] to remove the guns from
the storage room, may have been his desire to protect me from my
own self. I believe he may have felt that leaving the guns in the
storage room was not enough, because I could still have had access to
them. Of course, I would never harm my wife or anybody else . . . .
Dr. Saleh does not state in the letter that Koo had permission to enter the storage
unit, that Koo was asked to move the guns, or that he had given Koo a reason to
feel imminent danger.
In Archer, we explained:
It is correct that not all recantations will be considered newly
discovered evidence. See, e.g., Jones v. State, 678 So. 2d 309, 313
(Fla. 1996) (finding defendant’s reliance on Court’s traditional
treatment of recantations as newly discovered evidence misplaced
because defendant’s situation was not the typical case where a witness
suddenly recanted his or her trial testimony years after the fact). A
recantation will not be considered newly discovered evidence where
the recantation offers nothing new or where the recantation is offered
by an untrustworthy individual who gave inconsistent statements all
along. Jones, 678 So. 2d at 312-13 (finding that recantation “simply
offers nothing new” because the witness had already been impeached
at trial with a prior sworn statement which was consistent with the
recantation); Walton v. State, 847 So. 2d 438, 454-55 (Fla. 2003)
(finding that recantation was “simply a new version of the events from
a witness/participant who has presented multiple stories since the time
of the occurrence of the events themselves”); Smith v. State, 400 So.
2d 956 (Fla. 1981) (finding that recantation testimony was cumulative
to the evidence introduced at trial because both court and counsel
were aware that prior to trial the recanting witness had confessed to
the crime and said that defendant was not involved).
However, in this case, the postconviction court erred when it
rejected the claim based on what the postconviction court concluded
was Archer’s knowledge of Bonifay’s testimony at the time of the
trial. We find that a recantation is not precluded from being
considered newly discovered evidence simply because the defendant
knew, as reflected by what the defendant claimed the facts to be, that
-7-
the recanting witness was not telling the truth at the time of the trial or
because the defendant took the stand to testify contrary to the witness.
See Burns v. State, 858 So. 2d 1229 (Fla. 1st DCA 2003); Lee v.
State, 677 So. 2d 312 (Fla. 1st DCA 1996). The appropriate question
was whether Archer was or should have been aware of the existence
of evidence that would demonstrate that Bonifay’s testimony was
false.
Archer, 934 So. 2d at 1194. In addition to other claims, Archer claimed that a
witness against him had recanted his trial testimony. The trial court held that the
recantation was not newly discovered evidence because Archer knew at the time of
trial that Bonifay was lying. We affirmed, but rejected the postconviction court’s
rationale. Nevertheless, we agreed with the postconviction court’s determination
that Bonifay’s testimony was not credible. Id. at 1196 (noting that recantations are
“exceedingly unreliable”) (citing Armstrong v. State, 642 So. 2d 730, 735 (Fla.
1994); Johnson v. State, 769 So. 2d 990, 998 (Fla. 2000)).
Likewise, in the instant case, the trial court and First District improperly
determined that Dr. Saleh’s letter did not qualify as newly discovered evidence
because “any evidence in the victim’s letter was known to the parties. . . . ” Koo,
149 So. 3d at 695. However, unlike Archer, there was no recantation to consider
and both courts correctly determined that the unsworn letter did not qualify as
newly discovered evidence because nothing in the letter recanted Dr. Saleh’s trial
testimony. “As stated by Judge Roberts, the unsworn letter by the victim did not
-8-
involve a recantation.” Koo, 149 So. 3d at 696 (Wolf, J., concurring). Thus, there
was “nothing new” offered by the letter.
For the foregoing reasons, we hold that the trial court did not abuse its
discretion in denying Koo’s motion for a new trial without an evidentiary hearing
although the trial court and First District misstated the appropriate standard for
determining whether a recantation constitutes newly discovered evidence.
We decline to reach Koo’s second issue on appeal because it was “not
properly preserved for appellate review and [does] not constitute fundamental
error.” Wright v. State, 19 So. 3d 277, 295-96 (Fla. 2009).
For the foregoing reasons, we affirm the result of the First District Court of
Appeal, but quash the portion of the decision that states “any evidence in the
victim’s letter was known to the parties, and as such . . . did not qualify as newly
discovered evidence,” Koo, 149 So. 3d at 695, because this is an incorrect
statement of law.
It is so ordered.
LABARGA, C.J., and LEWIS and QUINCE, JJ., concur.
CANADY and POLSTON, JJ., concur in result.
PARIENTE, J., concurs in part and dissents in part with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
-9-
PARIENTE, J., concurring in part and dissenting in part.
I concur in the majority’s decision explaining that the letter from Dr. Saleh,
the victim in this case, did constitute newly discovered evidence. I dissent to the
extent that the majority denies that the defendant is entitled to an evidentiary
hearing regarding Dr. Saleh’s recantation because—according to the majority—
“the letter did not recant any material trial testimony.” Majority op. at 3.
The majority’s statement that an evidentiary hearing is not required because
“the letter did not recant any material trial testimony” is overly broad and ignores
the reality that the statements in the letter could constitute impeachment of the key
prosecution witness. See Brooks v. State, 175 So. 3d 205, 231 (Fla. 2015)
(evaluating weight of newly discovered evidence includes factoring whether it
constitutes impeachment or goes to the merits of the case).
Only when the recantation is “inherently incredible or obviously immaterial
to the verdict and sentence” is an evidentiary hearing not required. Davis v. State,
26 So. 3d 519, 526 (Fla. 2009) (emphasis added). In fact, in Stephens v. State, 829
So. 2d 945, 946 (Fla. 1st DCA 2002), the First District recognized and properly
applied the “inherently incredible or obviously immaterial” standard in remanding
for an evidentiary hearing to consider a state witness’s affidavit.
Evidentiary hearings are of critical importance. As this Court recognized in
McLin v. State, 827 So. 2d 948, 954-57 (Fla. 2002), only through evidentiary
- 10 -
hearings can the credibility of the witness’s testimony be evaluated. See also
Nordelo v. State, 93 So. 3d 178, 185 (Fla. 2012) (finding witness’s recantation,
unless inherently incredible or obviously immaterial to verdict, requires
evidentiary hearing); Harris v. State, 128 So. 3d 44, 46 (Fla. 3d DCA 2012)
(requiring evidentiary hearing to resolve claims of newly discovered evidence,
especially when resolution of those claims necessarily requires the trial court to
make credibility determinations); Cammarano v. State, 602 So. 2d 1369, 1371 (Fla.
5th DCA 1992) (determining that recantation of testimony by key prosecution
witness requires evidentiary hearing to determine whether verdict likely would
have been different had witness either not testified or had the testimony at trial
been recanted).
The majority additionally fails to acknowledge that a recantation can be
material even if it would only impeach a witness’s testimony. In this case, Dr.
Saleh was the key prosecution witness. At trial, although he stated that he loved
Koo as a brother, Dr. Saleh depicted Koo as not even an employee, but rather an
“independent contractor,” in contrast to Koo’s testimony that he was Dr. Saleh’s
“right hand man,” with whom he shared a close relationship.
The post-trial letter contains admissions that were not part of his trial
testimony that the jury heard: Dr. Saleh writes that he “suddenly remembered” that
Koo’s intent “may have been motivated by something more benign than what []
- 11 -
transpired during the trial,” because he spent long hours talking and venting his
frustrations with Koo and “told [Koo] to make sure I did not do something that I
might regret.” In contrast, at trial, what the jury heard from Dr. Saleh was that “we
didn’t trust [Koo] very much,” and that “nobody gave [Koo] the permission to go
to the room, break in and steal my gun.”
The statements made in the post-trial letter speak directly to Koo’s consent
defense and the intent element. Based primarily on Dr. Saleh’s trial testimony, the
jury convicted the defendant of burglary with a firearm that triggered a mandatory
ten-year sentence. As Judge Makar states in dissent: “The jury could not have
convicted Koo without Dr. Saleh’s testimony, which it apparently found credible.”
Koo v. State, 149 So. 3d 693, 698 (Fla. 1st DCA 2014) (Makar, J., dissenting). As
Judge Makar further elaborates:
Dr. Saleh’s recantation letter may be credible, at least as to the
portions related to Koo’s consent and necessity defenses, which are
material to the verdict. Under these circumstances, when the State’s
star witness recants a material portion of his testimony that goes to
two key defenses in an exceptionally close case in which the jury
expressed reservations (if not remorse) about its verdict—beseeching
the trial judge to be lenient on the defendant—it was an abuse of
discretion not to at least hold a hearing on the matter. Koo’s request
for a hearing is an exceptionally modest one given his liberty interest
is at stake; his freedom for the next ten years has been taken away
based on the disavowed testimony of Dr. Saleh, a person that even the
trial judge had difficulty believing. A remand for an evidentiary
hearing under Stephens is necessitated; whether a new trial is
warranted would depend upon the results of that hearing. Koo is
entitled to this minimal degree of due process before the State can
take away a decade of his life.
- 12 -
Id. at 698-99 (emphasis added) (internal citation omitted).
I agree with the reasoning in Judge Makar’s dissent. Impeachment of the
key prosecution witness, Dr. Saleh, could have been the difference between a
conviction and a not guilty verdict. The sole basis for the conviction is the
testimony of Dr. Saleh, the main accuser, and his credibility is key. Whether his
letter would show that he simply suffers from “buyer’s remorse” or that it would
materially impeach his credibility is a matter that should have been heard at an
evidentiary hearing. If the victim testifies at an evidentiary hearing, his credibility
can be evaluated so that a factual determination can be made of the materiality of
his new testimony in light of his prior testimony. Because Dr. Saleh’s letter was
not “inherently incredible or obviously immaterial to the verdict,” an evidentiary
hearing should have been held in this case.
Accordingly, I would remand for an evidentiary hearing on the issues raised
by Dr. Saleh’s statements.
Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions
First District - Case No. 1D12-4866
(Duval County)
Daniel Gray Thomas of the Law Office of D. Gray Thomas, P.A., Jacksonville,
Florida,
for Petitioner
- 13 -
Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and
Matthew V. Pavese, Assistant Attorney General, Tallahassee, Florida,
for Respondent
- 14 -
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133 Ill. App.2d 234 (1971)
272 N.E.2d 768
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
JOHN ROBERTS, Defendant-Appellant.
No. 54374.
Illinois Appellate Court First District.
May 28, 1971.
Gerald W. Getty, Public Defender, of Chicago, (Suzanne M. Kohut and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
Edward V. Hanrahan, State's Attorney, of Chicago, (Robert A. Novelle and Brent F. Carlson, Assistant State's Attorneys, of counsel,) for the People.
Judgment affirmed.
Mr. JUSTICE LORENZ delivered the opinion of the court:
A jury found the defendant guilty of murder. He was sentenced to a term of twenty to thirty years. On appeal defendant contends: (1) the prosecution failed to prove defendant's guilt beyond a reasonable doubt; (2) the court erred in failing to give instructions on voluntary *235 and involuntary manslaughter; (3) the court erred in not granting a mistrial; and (4) the sentence was excessive.
Earl Fernell testified for the State that he was the husband of Catherine Fernell (hereinafter "deceased"). For about six or seven years she had lived with defendant and was living with defendant at the time of her death.
William R. Browne testified for the State that he lived in apartment 307 of the Mansfield Hotel. Deceased lived with defendant in apartment 309. On the night of decedent's death he heard five shots: two, an interval, two more, a shorter interval, and then one. About six or seven minutes later he saw the police in the hall outside of the apartments.
Edmund Woodard called by the State, testified that he lived in apartment 305. On the night in question he heard two shots then three more.
Officer Lynch testified for the State that upon reaching the third floor of the Mansfield Hotel he saw defendant in the hall. Defendant went into his room whereupon the witness and his fellow officers knocked on the door, ordered defendant out of the room and placed him under arrest. The witness then entered the apartment where he discovered a towel-covered body of a woman lying alongside the bed. Although the witness remained in the apartment approximately ten minutes he recalled no signs of a struggle.
Dr. William Sterner, a pathologist, was called by the State. He conducted an external and internal examination of the body of the deceased. The examination revealed three anterior wounds of entry and two pasterior wounds of exit. The entry wounds were made by a gun held within three feet of the body. The path of the bullets through the body was slightly downward from front to back. In his opinion the gun was probably held higher than the victim who was 5 feet 2 inches in height. Any of the wounds could have been fatal.
Officer Steward testified for the State that after ordering defendant into the hall the witness entered the apartment whereupon he found the body of a female lying on the floor near the bed. Partially under the right hand of the victim was a .45 automatic pistol. The room was untidy but bore no evidence of a struggle. His examination of defendant revealed a laceration on defendant's right thumb.
Detective Stuparitz testified for the State that he found at the right arm of the deceased a .45 pistol with the slide back and lying nearby, a broken handle of a gun. An examination of that handle revealed it to be free of blood. Pellets were found in various places throughout the room, one of which was under a rug beneath the bed, another under the body. The bullet found under the bed apparently passed through the bed clothing and mattress. Speckles of blood were found on the bed *236 clothing; blood stains were found under the body. Three shirts were found to have blood on them: one, freshly laundered, was found on the bed; a second, also freshly laundered was found in the washroom; and the third was found hanging out of a dresser drawer. Blood was also found in the toilet bowl and sink and on the clothing defendant was wearing. Defendant was also discovered to have a cut on the side of his right thumb.
Detective Renfroe, called by the State, testified that pellets and casings from bullets were found in various areas of the apartment. A bullet hole was found in the couch. The room was in a general state of disarray but no furniture was upset. The only knives found in the apartment were found with other eating utensils. Defendant was found to have a laceration on the side of his right thumb. Renfroe also testified each time a .45 pistol is fired the trigger must be pulled.
John Roberts testified on his own behalf. He had lived with the deceased for approximately the last eight of his fifty-seven years. On the night in question he came home from work, ate dinner and talked with deceased. She bathed and remained nude. One more of a series of recurring arguments broke out over their financial status. Deceased picked up a steak knife and slashed at defendant cutting his right hand. He wrestled the knife away from her, threw it aside and went into the washroom to try to stop the bleeding. Deceased then appeared with a gun. Defendant rushed her and the gun went off twice. As they struggled for the gun deceased fell against the bed and the gun went off "a bunch of times" whereupon deceased fell to the floor. Defendant, while in shock, went to the washroom, ran some water on his bleeding hand, picked up the furniture knocked over during the struggle, covered deceased with a towel and started to get dressed. He did not wipe the gun with a shirt. The police later took him to the hospital to have his hand sutured.
Detective Renfroe was called in rebuttal by the State. He stated that evidence technicians at the scene dusted the weapon for fingerprints while he looked on. No fingerprints or foreign matter were visible on the weapon. He knew of no oily substance on the pink shirt.
1, 2 Defendant first contends that the prosecution failed to prove him guilty beyond a reasonable doubt. His position is untenable in view of the evidence brought out by the State. The prosecution showed the angle of entry was from above the wounds in the victim's chest. Each time a .45 pistol is fired the trigger must be pulled. Any one of the three wounds inflicted on the deceased was sufficient to kill her. Three police officers testified that there was no sign of a struggle at the crime scene. Neither fingerprints nor blood were found on the weapon although blood was found on defendant and throughout the apartment. *237 In an attempt to support his claim of innocence defendant testified in his own behalf as to the events leading to the victim's death. It is apparent that the jury did not believe defendant's version. The credibility of a witness is a matter to be determined by the jury and the jury's determination of defendant's guilt will be disturbed only when the evidence is so unsatisfactory as to leave a reasonable doubt of defendant's guilt. (People v. Hairston (1970), 46 Ill.2d 348, 365-366.) In the present case the evidence is not of such an unsatisfactory character as to raise a reasonable doubt of defendant's guilt.
Defendant's next contention revolves around the trial court's refusal to give certain instructions to the jury. Basing his argument on the purported existence of evidence which raised the issue of manslaughter, voluntary or involuntary, he contends that the lower court erred in refusing defense instructions on involuntary manslaughter and in failing to give sua sponte an instruction on voluntary manslaughter.
In considering the refusal of defendant's instruction on involuntary manslaughter[1] both parties cite cases which clearly indicate such instruction should be given when the record discloses evidence which, if believed by the jury, could reduce the crime to manslaughter. (See People v. Latimer (1966), 35 Ill.2d 178, 182.) The parties differ, however, as to what the record discloses; the State contending the evidence only supports a theory of death by accident or murder, the defense contending the testimony of defendant as to the struggle over the gun placed evidence in the record from which the jury could have concluded defendant's conduct to be reckless and negligent thereby supporting a finding of involuntary manslaughter. As stated in the statute (footnote 1, supra), involuntary manslaughter requires reckless conduct on the part of an offender. Recklessness is defined by Ill. Rev. Stat. 1967, ch. 38, sec. 4-6 as follows:
"A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation."
Defendant's narration of the events, if believed, reveals no reckless conduct on his part. While washing the knife wound allegedly inflicted by *238 the deceased, defendant was confronted by the deceased brandishing a pistol. In defendant's attempt to disarm the deceased the weapon discharged. Without evidence supporting the essential element of recklessness there was no basis for the court to have an instruction on involuntary manslaughter.
Turning to the appropriateness of the lower court's failure to give an instruction on voluntary manslaughter[2] of its own initiative, we find no error. This matter was extensively considered in People v. Taylor (1967), 36 Ill.2d 483, 487-492, where the court held that it is within the trial judge's discretion whether or not a manslaughter instruction should be given on the court's own initiative in a murder trial even where there is evidence in the record which would be sufficient to sustain a conviction of manslaughter. After failing to request an instruction on voluntary manslaughter the defendant cannot complain that the trial judge erred in not offering such instruction sua sponte.
3 Defendant also urges that the reference by a State's witness to the victim's death as "murder" was ground for a mistrial. In response to a question the witness said, "I saw her the day before she was murdered." Defense counsel objected moving that the answer be stricken and mistrial be ordered. The court instructed the jury to disregard the witness' statement but denied the motion for a mistrial. Later the same witness responded to another question by saying he saw the deceased again "the night the murder was [sic]." An objection was made and sustained with the jury again instructed to disregard the answer. Defendant also contends the question "Have you been present on the scene of other homicides?" addressed by the prosecutor to Detective Renfroe to which an objection was made and sustained was improper. The court finds no error here which could have reasonably affected the verdict. A conviction will not be reversed merely because improper remarks were made unless defendant can show prejudice arising from those remarks. (People v. *239 Franklin (1953), 415 Ill. 514, 521.) Where an examination of the entire record shows the conviction of defendant firmly resting on substantial evidence defendant cannot claim prejudice resulting from inconsequential remarks contended as error. That the present case reveals such an evidentiary basis for defendant's conviction is clear from the facts brought out at trial, which we have found constitutes proof of guilt beyond a reasonable doubt.
Defendant next calls the following colloquy to our attention:
"PROSECUTOR: Where did you see [defendant] that night?
DETECTIVE STUPARITZ: We attempted to interview him."
Defense counsel immediately objected, moved that the answer be stricken and moved for a mistrial. The court denied the motion for a mistrial but instructed the jury to disregard the answer as not responsive to the question. Defendant contends that the court erred in denying a mistrial on the ground that this testimony implied to the jury that defendant refused to make a statement at the time of his arrest. We find no prejudice arising from the statement in the instant case, nor error in the court's rulings in regard thereto. In People v. Lewerenz (1962), 24 Ill.2d 295 the Supreme Court stated at page 299:
"[A]n accused is within his rights when he refuses to make a statement, and the fact that he exercised such right has no tendency to prove or disprove the charge against him, thus making evidence of his refusal neither material or relevant to the issue being tried."
This is not one of those situations in which the prosecution attempts to prove defendant guilty by showing he refused to make a statement. There was no elaboration which would indicate defendant actually did refuse to make a statement. The question was asked as part of a continuing exchange between the prosecution and Stuparitz wherein Stuparitz was testifying as to his observations at the crime scene and of defendant at the police station.
Defendant also contends that insinuations made by the prosecution denied his right of confrontation and cross-examination and was proper grounds for a mistrial. This contention arises out of questions by the prosecutor as to whether defendant wiped the gun with a pink shirt and whether he laid the gun under the victim's arm. In support of that position defendant cites People v. Nuccio (1969), 43 Ill.2d 375, where the opinion set out at length some nine pages of insinuations none of which were supported by rebuttal testimony. The Nuccio case is readily distinguishable from the case at bar. Here we find no barrage of insinuations otherwise unsupported by the record; but rather an exchange between defendant and the prosecutor where defendant was asked whether *240 he wiped the gun and placed it under the arm of deceased. The basis for prosecutor's questions was found in the subsequent testimony of Detective Renfroe where it was pointed out that no fingerprints or foreign matter were found on the weapon at the crime scene. There was therefore no prejudice by the prosecutor in his asking of the defendant the above-mentioned questions.
Further complaint is made by defendant over the refusal of the court to grant a mistrial after the prosecutor, during closing argument, rubbed the .45 pistol with the pink shirt, both items being previously admitted into evidence. This was done to demonstrate the State's theory of the case that defendant wiped the gun clean after the shooting. The prosecutor may not place before the jury during his closing arguments facts not based upon evidence in the case. In the absence of evidence supportive of his theory it would therefore be improper for the prosecutor to argue to the jury that defendant wiped the gun rendering it free of fingerprints and other foreign matter. (People v. Beier (1963), 29 Ill.2d 511, 516-517.) Such impropriety would exist whether the argument was made orally or by way of demonstration. In the present case, however, the gun was found free of fingerprints and foreign matter. Such was the testimony of the rebuttal witness called by the State as to his observations at the crime scene. We cannot agree with the defendant when he states a mistrial should have been granted on this point where evidentiary foundation of the prosecutor's argument is found. Nor can we agree with defendant in his contention that comments by the prosecutor during final argument about the power of the weapon found at the crime scene were improper in view of the wide latitude allowed during final argument and the instruction by the court to the jury concerning the non-evidentiary nature of final argument.
Defendant next argues that the court erred in permitting Detective Renfroe, who was in the courtroom during the entire course of the trial by express permission of the court, to testify in rebuttal in face of a pretrial order to exclude witnesses. As defendant was nearing the end of his testimony the prosecution noticed that an evidence technician who was to have testified in rebuttal inadvertently strayed into the courtroom. The defense objected to the technician testifying, and the objection was sustained. Detective Renfroe was then allowed to testify, over defense counsel's objection, as to his observations at the crime scene. This cannot be considered as error in light of the holding of the Supreme Court in People v. Adams (1968), 41 Ill.2d 98, 100-101, where the court approved the common practice of trial courts in excepting from the motion to exclude, one witness for the State. Frequently that witness is a police officer.
4 Defendant's remaining contention relates to the sentence of twenty *241 to thirty-five years imposed upon him which he contends was excessive and harsh. We find this contention to be without merit. When the sentence is within the limits prescribed by the legislature it will not be reversed unless it is at variance with the purpose and spirit of the law or in excess of the proscriptions found in the Illinois Constitution. (People v. Taylor (1965), 33 Ill.2d 417, 424 and People v. Miller (1965), 33 Ill.2d 439, 444-445.) Because this sentence meets the standard set by the Supreme Court we find no reason to reduce it.
The judgment is affirmed.
Judgment affirmed.
ENGLISH, P.J., and DRUCKER, J., concur.
NOTES
[1] Ill. Rev. Stat. 1967, ch. 38, sec. 9-3(a):
A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.
[2] Ill. Rev. Stat. 1967, ch. 38, sec. 9-2:
(a) A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) The individual killed, or
(2) Another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed.
Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.
(b) A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, (justifiable use of force) but his belief is unreasonable.
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138 Cal.App.3d 578 (1982)
188 Cal. Rptr. 45
LUTHER T. FAIR, Plaintiff and Appellant,
v.
RALPH HERNANDEZ, Defendant and Respondent.
Docket No. 27752.
Court of Appeals of California, Fourth District, Division Two.
December 23, 1982.
*579 COUNSEL
Allard, Shelton & O'Connor and Gary C. Wunderlin for Plaintiff and Appellant.
Garza & Jure, Florentino Garza, Horvitz & Greines, Kent L. Richland and Alan G. Martin for Defendant and Respondent.
*580 OPINION
TROTTER, J.
FACTS
The present case is an election contest for the Third Ward seat on the Common Council of the City of San Bernardino. This marks the second time that the case has been before us. Briefly, Fair was one of two runoff candidates on the printed ballot for the seat. Hernandez was a legally qualified write-in candidate.
After the election, Hernandez was declared the winner. Fair filed an election contest. After proceedings before a special master, the trial court determined that Hernandez received 756 uncontested votes, Fair received 773 uncontested votes, and 76 votes were contested. The trial court ruled on the contested votes after taking extensive evidence, and finally determined that Hernandez received 796 votes and Fair received 794 votes. The court entered judgment confirming Hernandez's election.
Fair appealed, challenging the trial court's determinations on 36 of the contested ballots. On that appeal we determined that the trial court had erroneously allowed 5 contested ballots for Hernandez, and that Hernandez's total was therefore reduced to 791. (See Fair v. Hernandez (1981) 116 Cal. App.3d 868, 875-877, 878 [172 Cal. Rptr. 379].)
However, in controlling the order of proof, the trial court did not require Hernandez to go forward unless, after Fair concluded his presentation, Fair had more votes than Hernandez. Since the trial court had ruled that Hernandez had more votes, Hernandez had not had an opportunity to pursue the defenses and contentions he had raised below. Accordingly, we reversed and remanded the cause for further proceedings to allow Hernandez to go forward with his defense. (Id., at p. 880.)
Further trial was held in which Hernandez attacked 11 ballots which had previously been counted for Fair. The court sustained the challenges to the 11 ballots and deducted those ballots from Fair's total. The final count was thus 791 for Hernandez and 783 for Fair. Once again, the court entered judgment confirming Hernandez's election. Fair appeals.
ISSUES
The objection raised by Hernandez to the 11 ballots was that the 11 absentee ballots had been delivered to the city clerk by Fair's campaign worker, and that this delivery violated Elections Code section 1013. The trial court found that *581 the delivery did violate section 1013, and invalidated those ballots. Fair argues that (1) these ballots had already been confirmed to Fair at the first phase of the trial, and that therefore the trial court was without authority to deduct those votes, and (2) the delivery by the campaign worker did not violate section 1013.
DISCUSSION
1. Authority of the Trial Court to Rule on the Ballots
(1) Fair contends that, at the conclusion of the first phase of the trial, the court ruled that the 11 ballots "were properly cast," and that, since this particular finding was not challenged in the first appeal, the court was without power to rule that the ballots should be rejected.
Fair is incorrect. The last time this case was here, we specifically noted that, because the trial court had not required Hernandez to proceed with his case, "[a]s a result Hernandez has not affirmatively pursued defenses and contentions raised below, and he should have the opportunity to do so." (Fair v. Hernandez, supra, 116 Cal. App.3d 868, 880.) The issue of the personal delivery of the ballots is just such an issue as had been reserved to Hernandez and it was proper for him to pursue it on remand.
A review of the prior record in this case shows that the primary issue to which the court addressed its findings in the first phase of the trial was whether the 11 ballots were timely received by the city clerk. Moreover, contrary to Fair's contention, Hernandez could not have cross-appealed from the finding of fact, as the judgment was in his favor. (Muchenberger v. City of Santa Monica (1929) 206 Cal. 635, 646 [275 P. 803]; Gosney v. State of California (1970) 10 Cal. App.3d 921, 928 [89 Cal. Rptr. 390].) The earlier finding of fact did not preclude Hernandez's challenge to the 11 ballots.
2. Delivery of the Ballots by a Third Party
(2) Fair next contends that, even though one of Fair's campaign workers delivered the ballots to the city clerk, this method of delivery did not violate section 1013.
We begin our analysis with the code section itself. Section 1013 provides: "After marking the ballot, the absent voter may return it to the official from whom it came by mail or in person, or may return it to any member of a precinct board at any polling place within the jurisdiction. The ballot must, however, be received by either the official or the precinct board before the close of the polls on election day.
*582 "The official shall establish procedures to insure the secrecy of any ballot returned to a precinct polling place." (Italics supplied.)
Hernandez argued below that this section means that the ballots must be returned personally by the voter without the use of another person or agent.
We agree. Although this interpretation is not completely free of difficulties, a common sense approach to the reading of the statute requires this result. First of all, it is clearly the purpose of the statute to preserve the secrecy, uniformity, and integrity of the voting process. (See McFarland v. Spengler (1926) 199 Cal. 147, 152 [248 P. 521].) Requiring personal delivery of the absentee ballot by the voter avoids potential problems affecting the secrecy, uniformity and integrity of the absent voter's franchise. As Justice Kaufman pointed out when this case was last before us, "[P]reservation of the integrity of the election process is far more important in the long run than the resolution of any one particular election." (Fair v. Hernandez, supra, 116 Cal. App.3d 868, 881, conc. opn. of Kaufman, J.) This important policy is admirably served by the interpretation we have placed on the statute.
Such authorities as are available on the subject support the conclusion that personal delivery is required. The Attorney General in 1979 issued an opinion on this very question, stating that section 1013 required the absent voter to return the ballot personally or by mail. The Attorney General noted that section 1017 provides under special circumstances for delivery of an absentee ballot by an authorized representative. The Attorney General then stated that, "From a comparison of the language of section 1013 with section 1017, if the Legislature intended to include delivery by an authorized representative in section 1013 it is reasonable to conclude it would have done so." (62 Ops.Cal. Atty.Gen. 439, 443 (1979).)
Beatie v. Davila (1982) 132 Cal. App.3d 424 [183 Cal. Rptr. 179], cited by Fair in support of his contention that third party delivery is proper, actually supports the opposite rule. Beatie involved the question whether an absent voter may use a third party to return the ballot by mail. The Beatie court asked the question, "Why would the Legislature require the voter to deliver his absentee ballot personally to the elections official and yet allow him to utilize a third party for mailing it to the official? We think the answer to the question is clear. The Legislature recognized the impossibility of policing the act of mailing by the absentee voter...." (Id., at p. 429.) Thus, for practical reasons, delivery by mail might be made by a third party, but implicit in the argument and in the statute is the requirement that delivery "in person" means personal delivery, since personal delivery can be policed.
*583 Moreover, the integrity and secrecy of the process are such important interests that ballots may be voided even though it is not shown that the ballots were actually tampered with. (See Garrison v. Rourke (1948) 32 Cal.2d 430, 443 [196 P.2d 884], overruled on another point in Keane v. Smith (1971) 4 Cal.3d 932, 939 [95 Cal. Rptr. 197, 485 P.2d 261].)
Reason and authority both support the judgment of the trial court that delivery by a third party to the city clerk was improper under the statute. The rule requiring personal delivery clearly serves the paramount purpose of preserving the secrecy, uniformity, and integrity of the voting process.
DISPOSITION
The judgment confirming Hernandez's election is affirmed.
Kaufman, Acting P.J., and McDaniel, J., concurred.
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465 F.2d 934
INDUSTRIAL INDEMNITY COMPANY, Plaintiff-Appellant,v.AETNA CASUALTY AND SURETY COMPANY, Defendant-Appellee.
No. 25857.
United States Court of Appeals,
Ninth Circuit.
July 17, 1972.
Alexander C. Marrack (argued), of Anthony & Waddoups, Honolulu, Hawaii, for plaintiff-appellant.
Ronald T. Y. Moon (argued), Ronald D. Libkuman, of Libkuman, Shimabukuro & Ventura, Honolulu, Hawaii, for defendant-appellee.
Before BROWNING, WRIGHT and CHOY, Circuit Judges.
CHOY, Circuit Judge:
1
Industrial Indemnity Company (Industrial), a California corporation, appeals a judgment by a judge without a jury denying subrogation against Aetna Life & Surety Company (Aetna), a Connecticut corporation. Hawaii law controls this diversity of citizenship case. We reverse and remand.
2
In the summer of 1959, Hawaiian Dredging and Construction Company (Hawaiian Dredging) and Bechtel Corporation (Bechtel) formed a joint venture to construct a cement plant in Hawaii for Hawaiian Cement Corporation (Hawaiian Cement). The Hawaiian Cement contract required the joint venture to maintain general liability insurance, including automobile insurance. The joint venture purchased a comprehensive liability policy from Industrial through B. F. Dillingham Company, Ltd., Industrial's general agent in Hawaii. The joint venture was the named insured. Hawaiian Dredging had previously purchased an identical comprehensive policy from Aetna, through Dillingham, which was also Aetna's Hawaiian agent.
3
When the Industrial policy was purchased, the joint venturers had not decided whether the joint venture itself or the individual joint venturers would supply vehicles for the cement project. It was eventually agreed that Hawaiian Dredging would supply all necessary vehicles. Pursuant to this agreement, Hawaiian Dredging purchased and registered with the State of Hawaii a 1959 Fargo truck, the possession of which it transferred two weeks later to the joint venture. From October, 1959 until July, 1960, the truck was used and controlled solely by the joint venture, although title remained with Hawaiian Dredging.
4
On December 24, 1959, the truck was being driven with the joint venture's permission by Richard H. Hubbard, an employee of a subcontractor. Hubbard hit a car injuring William and Nancy Yen. The Yens sued Hubbard, the joint venture, the individual joint venturers, and the subcontractor in the state court, and recovered a judgment against Hubbard alone. Industrial agreed to defend the lawsuit, and subsequently paid the judgment. Aetna did not participate.
5
After paying the judgment, Industrial sued Aetna for subrogation. Relying upon parol evidence which indicated that the parties intended that the Industrial policy cover all vehicles used in the cement job, the district court found that the truck was covered by the Industrial, not the Aetna policy. Subrogation was denied, and Industrial appealed.
6
Insurance policies are subject to the general rules of contract construction. A policy's words and terms are construed according to "their plain, ordinary and accepted sense in the common speech of man unless it appears from the policy that a different meaning is intended." Teixeira v. Globe Indemnity Co., 349 F.2d 502, 505 (9th Cir. 1965) (emphasis supplied). The parol evidence rule is applicable, and evidence of contemporaneous oral agreement is admissible only to explain an ambiguity in the policy. Finally, ambiguities which do exist are construed against the insurer, who has the primary duty to provide a clear and unambiguous policy. Law v. Hawaiian Life Insurance Co., Ltd., 51 Haw. 288, 292, 459 P.2d 195, 198 (1969); Yoshida v. Liberty Mutual Insurance Co., 240 F.2d 824, 826 (9th Cir., 1957).
7
The Industrial and Aetna policies are identical. Automobile coverage is extended to "the named insured" and "any person while using an owned automobile or a hired automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission . . ." This coverage does not apply "with respect to any non-owned automobile" driven by "any person or organization other than the named insured . . ."
Automobile is defined in both policies:
8
"Automobile. Except where stated to the contrary, the word 'automobile' means a land motor vehicle or trailer as follows:
9
"(1) Owned Automobile-an automobile owned by the named insured;
10
"(2) Hired Automobile-an automobile used under contract in behalf of, or loaned to, the named insured provided such automobile is not owned by or registered in the name of (a) the named insured or (b) an executive officer thereof or (c) an employee or agent of the named insured who is granted an operating allowance of any sort for the use of such automobile;
11
"(3) Non-Owned Automobile-any other automobile."
12
Each policy specifies that if the insured has other insurance, "the insurance under this policy with respect to loss arising out of . . . the use of any non-owned automobile shall be excess insurance over any other valid and collectible insurance."
13
Neither policy defines "owned," a term which is susceptible to several possible interpretations. However, ownership under Hawaii insurance law turns upon legal title. "[T]he word 'owner' as applied to motor vehicles is commonly understood to designate the person in whom title is vested either as a legal owner or as a registered owner." Teixeira, supra, 349 F.2d at 505. See also Allstate Insurance Co. v. Stevens, 445 F.2d 845, 847 (9th Cir. 1971). Here, title remained with Hawaiian Dredging although the truck was used and controlled by the joint venture. The document transferring possession of the truck to the joint venture states that Hawaiian Dredging "owns" the vehicles. Hawaiian Dredging and not the joint venture "owned" the truck.1
14
Aetna contends, however, that all the parties-the joint venturers, the two insurance companies, and the latter's mutual agent-intended that the truck, like all vehicles controlled by the joint venture, be covered by the Industrial, not the Aetna, policy. The policies do not on their faces so provide, and the parol evidence rule bars any parol evidence which tends to show that the parties' intent was not reflected by the two policies.
15
In the absence of fraud, duress, mutual mistake, or ambiguity, the parol evidence rule requires the exclusion of extrinsic evidence, oral or written, where the parties have reduced their agreement to an integrated document. 4 Williston on Contracts, Sec. 631, p. 949; Midkiff v. Castle & Cooke, Inc., 45 Haw. 409, 422, 368 P.2d 887, 894 (1962).
16
"Once the parties execute an instrument which contains their whole agreement, their previous negotiations and agreements are legally ineffective and evidence relating to those previous negotiations or agreements is irrelevant regardless of who offers it." Akamine and Sons, Ltd. v. American Security Bank, 50 Haw. 304, 309, 440 P.2d 262, 266 (1968).
17
This strict adherence to the parol evidence rule is reenforced in the insurance filed by statute. Hawaii Revised Statutes (H.R.S.) Sec. 431-425 reads in part,
18
"Must contain entire contract. (a) No agreement in conflict with, modifying or extending any contract of insurance shall be valid unless in writing and made a part of the policy.
19
"(b) No insurer or its representatives shall make any insurance contract or agreement relative thereto other than as is plainly expressed in the policy."
20
See Brown v. First Insurance Company of Hawaii, 424 F.2d 680, 681 (9th Cir. 1970). In this case, parole evidence of the parties' intent was inadmissible.
21
First the two insurance policies are both integrated documents. Each policy contains the recital that "this policy embodies all agreements existing between [the insured] and the company or any of its agents relating to this insurance." (emphasis supplied.) When the Industrial policy was purchased, the joint venturers had not yet decided who would supply vehicles for the cement job. However, this indecision does not affect the integration of the policy, which covered three categories of vehicles-owned, hired, and non-owned. The belated decision that Hawaiian Dredging would supply all vehicles resolved how many vehicles would be placed in each category, not whether any one or more of the categories would be covered.
22
Second, there is no ambiguity in either policy. The term "owner" is not ambiguous. Teixeira, supra. Third, there is no evidence of fraud, duress, or mutual mistake. The joint venturers' postponed decision does not indicate that the Industrial policy was founded upon mutual mistake. The parties sought to provide coverage for all vehicles used on the cement job. They did that. All the parties knew when the Industrial policy was purchased that there was a distinct possibility that Hawaiian Dredging alone would, as in the past, supply all vehicles. Nevertheless, the parties agreed to and signed the Industrial policy knowing exactly what it covered.
23
Fourth, parol evidence is inadmissible as proof of "the subsequent modification or termination of the integrated agreement by parol or written contract." 4 Williston on Contracts, Sec. 631, p. 951 (3rd edition). Any subsequent alterations were made by the joint venturers alone, not by the parties to the insurance policies, which specify that "the terms of this policy [shall not] be waived or changed, except by endorsement issued to form a part of this policy."
24
Finally, even if the parol evidence rule were inapplicable, H.R.S. Sec. 431-425 expressly bars all modifications of any insurance contract unless written and made a part of the policy, a condition also embodied in the two policies here. The statute is without exception and does not mention intent. An insurance policy must contain all its provisions in writing. Kapahua v. Hawaiian Insurance and Guaranty Co., 50 Haw. 644, 447 P.2d 669 (1968). If the policies here do not conform to the statute the insurance companies must bear the consequences.
25
The construction contract with Hawaiian Cement does not provide any evidence of the parties' intent. It merely requires the joint venture to maintain adequate comprehensive bodily injury liability insurance. The joint venture properly instructed Dillingham to draft an Industrial policy covering whatever vehicles the joint venture might have. The Industrial policy alone, as written, does that. All the joint venture's vehicles were "hired" or "non-owned." All its vehicles were covered.
26
It may well have been the parties' intention to obtain a new policy which would cover all vehicles used by, not necessarily owned by, the joint venture. It would have been simple to alter the meaning of "owned automobile" to include automobiles used or controlled by the joint venture. But this was not done. It would also have been simple expressly to provide that Aetna's coverage was excess to Industrial's. However, this was not done. It is not for the court to reform an insurance contract to conform to the parties' negotiations or haphazardly expressed intentions.
27
Aetna argues, nonetheless, that the truck was not covered by its policy when the accident occurred. Aetna asserts that Hawaiian Dredging did not list the truck as covered by the Aetna policy on its regular vehicles audit until July 15, 1960, the day the joint venture returned control of the truck to Hawaiian Dredging. Under Aetna's standard fleet automobile policy, it was not necessary for Hawaiian Dredging to report each newly acquired automobile when purchased. At the end of each policy period, an audit was performed and Hawaiian Dredging retroactively informed Aetna which vehicles had been covered during the previous period. After each audit, the insurance premium was based upon the number of vehicles actually insured during the preceding year.
28
The truck in question was purchased in October, 1959, and transferred to the joint venture shortly thereafter. The next audit occurred at the end of the year, but Aetna did not introduce this audit into evidence. Instead, it presented the 1961 audit, which contained the notation that Hawaiian Dredging added the truck to coverage on July 15, 1960. Aetna argues that since Hawaiian Dredging did not consider the truck to be covered by the Aetna policy until mid-July, it could not have been covered by the Aetna policy when the accident happened in December, 1959.
29
This argument fails for two reasons. First, the custom was that the truck was covered by the Aetna policy until Hawaiian Dredging affirmatively asked in writing that it be removed from the policy's protection. Until specifically excluded, the truck was covered by the Aetna policy.2
30
Second and more important, the Yen accident occurred on December 24. Assuming arguendo that the 1961 notation indicates that Hawaiian Dredging did not consider the truck to be covered in 1959, such retroactive annulment of liability coverage is prohibited by statute after the occurrence of injury for which the insured may be liable. H.R.S. Sec. 431-433. After December 24, neither Aetna nor Hawaiian Dredging could annul coverage.
31
Finally, Aetna asserts that it is not liable because Hubbard did not comply with the terms of the Aetna policy regarding notice of the accident and the Yens' suit. Although Aetna raised this defense in its answer, it was not pressed at trial. In fact, Aetna's counsel twice informed the court that he was not raising faulty notice as a defense. Aetna thereby waived this defense, and cannot resurrect it on appeal.
32
In sum, we hold that the truck was covered by the Aetna policy as an "owned automobile." Industrial concedes that the truck was also covered by its own policy as a "non-owned automobile." Therefore, Aetna was primarily liable for the Yen judgment which Industrial paid. Since Industrial defended the Yen litigation and satisfied the judgment, it is entitled to subrogation. Alamida v. Wilson, 53 Haw. -, 495 P.2d 585 (April 5, 1972); Kapena v. Kaleleonalani, 6 Haw. 579 (1885); First Insurance Company of Hawaii v. Continental Casualty Company, 466 F.2d 807 (9th Cir. 1972). Industrial is entitled to recover from Aetna the amount of the Yen judgment plus half the costs, expenses, and attorneys' fees for defending that action. In First Insurance Company of Hawaii v. Continental Casualty Co., 466 F.2d 807 (9th Cir. 1972), also decided today, we hold it fair and equitable that insurance companies with independent but mutual duties to defend split defense costs equally regardless of the pro rata division of the principal liability. Both Industrial and Aetna shared a duty to defend the Yen lawsuit; both companies are liable for that judgment although Aetna's liability is primary and Industrial's excess. Each company should pay half the defense costs.3
33
Reversed and remanded for entry of judgment for Industrial in the amount of the Yen judgment, half the costs, expenses, and attorneys' fees for that litigation, and all costs, expenses, and reasonable attorneys' fees for this litigation.
1
When legal title of an automobile rests with or is registered to a partnership, the individual partners are not "owners." See State Farm Mutual Automobile Insurance Co. v. General Mutual Insurance Co., 282 Ala. 212, 210 So.2d 688 (1968); Mission Insurance Co. v. Feldt, 62 Cal. 2d 97, 41 Cal.Rptr. 293, 396 P.2d 709 (1964). Compare American Mutual Liability Company of Boston v. Meyer, 115 F.2d 807 (3rd Cir. 1940). Similarly, where, as here, the joint venturers agree that one partner will supply all the vehicles needed, retaining title but allowing them to be used by the joint venture, the vehicles remain the property of the individual joint venturer. Compare Roberts v. Roberts, 118 Colo. 524, 527, 198 P.2d 453, 454 (1948), with In re Perry's Esstate, 121 Mont. 280, 287-289, 192 P.2d 532, 536 (1948)
2
The Aetna policy provides that premiums shall be adjusted semi-annually on the basis of statements submitted by the insured. Extrinsic evidence is admissible to establish the trade usage for the computation of these fleet automobile premiums unless it contradicts the express language of the contract. Honolulu Paper Co., Ltd. v. Makino, 34 Haw. 87, 92 (1937); 5 Williston on Contracts, Sec. 650, p. 21 (3rd Edition). The evidence here does not contradict, modify or extend the insurance contract. Therefore, H.R.S. Sec. 431-425 is also inapplicable
3
Contra, Universal Underwriters Insurance Co. v. Aetna Insurance Company of Hartford, Connecticut, 249 Cal.App.2d 144, 57 Cal.Rptr. 240 (1967)
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139 So.2d 67 (1962)
Doyal E. LUDLAM, Plaintiff-Appellant,
v.
INTERNATIONAL PAPER COMPANY, Defendant-Appellee.
No. 9675.
Court of Appeal of Louisiana, Second Circuit.
March 7, 1962.
Rehearing Denied April 4, 1962.
*68 Booth, Lockard, Jack, Pleasant & LeSage, Shreveport, for appellant.
Madison, Madison & Files, Bastrop, Stewart & Stewart, Minden, for appellee.
Before HARDY, AYRES and BOLIN, JJ.
BOLIN, Judge.
This is a compensation suit filed under the occupational disease portion of the workmen's compensation statute. The lower court sustained a plea of prescription filed by the employer on the grounds that the disease had manifested itself more than four months previous to his claim, and from this judgment the employee has appealed.
Our decision being limited to the correctness of the lower court's ruling on the prescriptive plea, the recitation of facts will be limited to the pleadings and the evidence adduced under the plea. Plaintiff alleges he had been employed by International Paper Company since September 1951; that in 1954 he was assigned duties as a third hand on a papermaking crew, operating a unit of machinery known as a "winder and cutter"; that he continued such work until August 8, 1960, at which time he sought medical attention and was forced by his condition to discontinue his employment. Plaintiff alleges this condition was causally connected with his employment. To this petition, defendant filed a plea of prescription of four months, alleging a claim for compensation was made more than four months from the date of the contraction of the disease and more than four months from the date such disease first manifested itself. The plea was separately tried and the only evidence offered was the testimony of Mr. D. B. Clark, personnel director of defendant's plant in Springhill. At such hearing, it was shown plaintiff quit work on August 8, 1960, and soon thereafter applied to Clark for benefits under a Metropolitan Life Insurance Company group policy and received payments thereunder of $40.00 per week for twenty-six weeks, dating from August 8, 1960. This policy excluded any payments for injuries or disabilities compensable under the workmen's compensation act.
At about the same time Ludlam quit work he sought medical advice about his condition from Dr. Bays, a physician of Shreveport, who apparently wrote him a note and letter recommending his discontinuance of any type of work where he would subject himself to irritating fumes and dust. Though the note and letter were not introduced into evidence, Mr. Clark testified as to the statements contained therein and further testified he did not see them until March, 1961.
After termination of the 26 weekly payments under the Metropolitan policy in April, 1961, plaintiff applied for total and permanent disability payments under the policy. In this application of April, 1961, Mr. Clark testified Ludlam stated his disability was caused by working in paper dust. Clark apparently told plaintiff that his group policy did not cover such disability as it was work related and compensable under the Workmen's Compensation Act.
In May, 1961, plaintiff sought legal advice and claim was made upon defendant for workmen's compensation benefits by letter dated May 17, 1961. Upon refusal of International Paper Company to make compensation payments, suit was filed on July 26, 1961.
Counsel for appellant specifies error in the judgment as follows:
1. The District Judge erred in an apparent finding that appellant knew that his disabling condition was caused by his working *69 environment more than four months before making demand for compensation payments.
2. The District Judge erred in apparently refusing to apply the provisions of LSA-R.S. 23:1295 and thereby denying the plea of prescription on the grounds appellee knew or should have known of appellant's condition.
3. The District Judge erred in apparently refusing to apply the provisions of LSA-R.S. 23:1295 and thereby denying the plea of prescription for appellee's failure to show any prejudice as a result of appellant's delay in making a claim.
The first specification of error presents for determination the question of the time of manifestation of an occupational disease. LSA-R.S. 23:1031.1 (D) provides:
"All claims for disablement arising from an occupational disease are forever barred unless the employee files a claim with his employer within four months of the date of his contraction of the disease or within four months of the date that the disease first manifested itself. Notice filed with the compensation insurer of such employer shall constitute a claim as required herein." (Emphasis supplied.)
This court had occasion to consider the above statute in Frisby v. International Paper Company (La.App. 2 Cir., 1954) 76 So.2d 621. The salient facts being strikingly similar to the instant case, we deem it appropriate to briefly outline same.
Frisby commenced his employment on September 1, 1951, as a laborer in the pulp department of defendant's paper mill located in Bastrop. About April 1, 1952, ulcers and sores began to appear on his body. He then consulted several doctors to ascertain the cause of his trouble and received treatments, which, however, failed to alleviate his condition. In August, 1952, he was forced to discontinue his employment and his condition grew progressively worse. Finally when his bones and lungs became affected he reported to the Veterans Hospital in Shreveport on January 12, 1953, where he was hospitalized until April 29, 1953, and at the time of trial he was still receiving out-patient treatments from that institution. Plaintiff testified he did not know or realize that his condition was compensable under the Workmen's Compensation Act until he was so informed by his attorney following a professional visit by plaintiff to Dr. Anderson of Monroe, who made a diagnosis of blastomycosis on July 13, 1953, and expressed an opinion that the cause of the disease had a definite relation to his employment. Suit for workmen's compensation benefits was then filed on July 29, 1953, and the Court held:
"Our Workmen's Compensation Act directs the courts to give a liberal interpretation to its provisions. The Supreme Court unquestionably followed this injunction of the Legislature in the Mottet case wherein it held the injury did not develop until plaintiff was forced to cease employment through total disability. Manifestly, knowledge of the diagnosis but without knowledge or reasonable information that his disease was related to his employment and within the purview of the Workmen's Compensation Act could not enable plaintiff to avail himself of the rights granted under the Act. We are thus of the opinion that the claim had not `manifested itself' within the Act until July of 1953, when he first became aware the disease was related to his employment. We therefore resolve, that insofar as the Workmen's Compensation Act has application, the blastomycosis from which plaintiff was suffering did not manifest itself within the provisions of LSA-R.S. 23:1031.1, subd. C until July of 1953, when Frisby was informed of the connection between his disease and his employment. The plea in bar or plea of peremption was, therefore, properly disposed of by the district court." (Emphasis supplied by this Court.)
*70 Therefore, an occupational disease does not "manifest itself" within the purview of LSA-R.S. 23:1031.1 (D) until the employee has knowledge of the connection between his disease and his employment. It follows the prescriptive period in the instant case commenced only from the date plaintiff became aware of the causality between his employment and his disease. There is nothing in this record to show Ludlam was aware his employment caused the condition until April, 1961. To the contrary, plaintiff drew benefits under a policy of insurance for disability not connected with his employment. The application forms were processed under the supervision of appellee's personnel manager and on each of these forms plaintiff indicated a belief his condition was not related to his work.
The only evidence presented which would tend in any way to indicate plaintiff's knowledge of any causal relationship between his work and disease is the testimony relative to a note and letter from Dr. Bays about which Mr. Clark testified. However, Clark admitted Dr. Bays did not refer to any initial causality between Mr. Ludlam's work and disability except to advise plaintiff to discontinue any work which exposed him to fumes, dust and other irritants.
Under these circumstances, to conclude appellant was aware of the causal connection between his job and his physical condition could only be accomplished by a reliance upon inference, not direct evidence. We certainly cannot infer such knowledge from the advice given him by Dr. Bays, because his admonition to stay away from fumes and dust would apply to any respiratory disease whether work connected or not.
The burden is upon the one filing a plea of prescription to present sufficient legal evidence to substantiate same and no presumptions may be made in favor thereof. The record convinces us the disease or condition only "manifested itself" to Ludlam in April, 1961, when he made application for total and permanent disability payments under the Metropolitan policy wherein he apparently indicated for the first time his belief in a causal connection between his disability and work. Accordingly, the plea of prescription should have been overruled.
Having disposed of this issue favorably to appellant, it is unnecessary to consider the other specifications of error raised and it is therefore ORDERED, ADJUDGED AND DECREED that the plea of prescription be overruled and the case remanded for consideration and trial on the merits. The costs of this appeal are assessed against defendant and all other costs are to await a final decision on the merits.
Reversed and remanded.
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25 Wis.2d 536 (1964)
CARR, Appellant,
v.
INDUSTRIAL COMMISSION and others, Respondents.[*]
Supreme Court of Wisconsin.
October 27, 1964.
November 24, 1964.
*538 For the appellant there was a brief by Glassner, Clancy & Glassner of Milwaukee, and oral argument by William E. Glassner, Jr.
For the respondent Industrial Commission the cause was argued by Roy G. Mita, assistant attorney general, with whom on the brief was George Thompson, attorney general.
For the other respondents there was a brief by Moore & Moore, and oral argument by Frank Crivello, all of Milwaukee.
HEFFERNAN, J.
The question is whether there is credible evidence which, if unexplained, would support the finding of the Industrial Commission in a workmen's compensation case. Shawley v. Industrial Comm. (1962), 16 Wis. (2d) 535, 114 N. W. (2d) 872; Wagner v. Industrial Comm. (1956), 273 Wis. 553, 565, 79 N. W. (2d) 264, 80 N. W. (2d) 456; Indianhead Truck Lines v. Industrial Comm. (1962), 17 Wis. (2d) 562, 565, 117 N. W. (2d) 679. See also Seymour v. Industrial Comm., ante, p. 482, 131 N. W. (2d) 323.
Upon the record of this case, we must affirm. The testimony of Dr. Smith that in his opinion Carr did not have the bends is the evidence upon which the Industrial Commission could rely. Although Carr made out a prima facie case based upon the conclusion of his personal physician, Dr. Becker, that he had caisson disease, this diagnosis was disputed at the hearing by Dr. Smith. It is not our function to *539 resolve or weigh conflicting medical evidence. That function is solely within the province of the Industrial Commission. Unruh v. Industrial Comm. (1959), 8 Wis. (2d) 394, 399, 99 N. W. (2d) 182:
"The weight and credibility to be given medical witnesses in a workmen's compensation case are for the Industrial Commission. The rule as stated in Milwaukee E. R. & T. Co. v. Industrial Comm. (1951), 258 Wis. 466, 475, 46 N. W. (2d) 198, is: `It is a well-established rule that the commission's finding on disputed medical testimony is conclusive. A. D. Thomson & Co. v. Industrial Comm. (1928), 194 Wis. 600, 602, 217 N. W. 327; General A. F. & L. Assur. Corp. v. Industrial Comm. (1937), 223 Wis. 635, 641, 271 N. W. 385; Crucible Steel Casting Co. v. Industrial Comm., supra [(1936), 220 Wis. 665, 265 N. W. 665] (p. 669).' See also Borden Co. v. Industrial Comm., supra; Borum v. Industrial Comm. (1959), 6 Wis. (2d) 168, 93 N. W. (2d) 860."
This is true even though this court might have ruled differently had it been in the position of the Industrial Commission.
The Industrial Commission must choose between any conflicting testimony. Deciding these issues of fact is the peculiar office of the Industrial Commission. Unruh v. Industrial Comm., supra.
The Industrial Commission on all disputed facts chose on the basis of credible evidence to resolve those facts against Carr. We agree with the trial court that the findings of the Industrial Commission must be sustained.
By the Court.Judgment affirmed.
NOTES
[*] Motion for rehearing denied, without costs, on February 2, 1965.
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656 So.2d 1234 (1995)
J.V.
v.
STATE DEPARTMENT OF HUMAN RESOURCES.
In the Matter of D.V.
AV93000293.
Court of Civil Appeals of Alabama.
March 24, 1995.
*1235 Victor Jackson, Gadsden, for appellant.
William Prendergast and Lynn Sensabaugh Merrill, Asst. Attys. Gen., Dept. of Human Resources, for appellee.
L. CHARLES WRIGHT, Retired Appellate Judge.
The Etowah County Department of Human Resources filed a petition to terminate the parental rights of J.V. (mother) to her son, D.V. After oral proceedings, the trial court ordered the termination of all parental rights. The mother appeals.
In order to terminate parental rights based on the state's petition, a court must make several findings. First, the court must determine that the child is dependent, based on clear and convincing evidence. Second, the court must find that there exists no viable alternative to termination of the parent's custodial rights. Ex parte Beasley, 564 So.2d 950 (Ala.1990). The trial court was presented the evidence ore tenus; therefore, its judgment is presumed to be correct and will be set aside only if the record reveals the judgment to be plainly and palpably wrong. Varnadore v. State Dep't of Human Resources, 543 So.2d 1194 (Ala.Civ.App.1989).
Although a child's parents have a prima facie right to custody, the paramount concern in these proceedings is the child's best interests. Mitchell v. State Dep't of Human Resources, 513 So.2d 647 (Ala.Civ. App.1987). In determining the child's best interests, the court must examine whether the parents are physically, financially, and mentally able to provide for the child. Mitchell. If clear and convincing evidence reveals that the parents cannot, or are unwilling to, discharge these responsibilities, parental rights may be terminated. Mitchell; § 26-18-7, Code 1975.
The mother asserts that the trial court erred in terminating her parental rights. She insists that the department failed to present clear and convincing evidence to support its petition.
The record reflects that the department first obtained legal custody of the child in December 1990, following a finding that the child had been truant. The child was eight years old at the time. Upon investigation the department determined that the mother was addicted to prescription narcotic drugs.
In February 1991 the mother entered counseling with Dr. Cleve Estis. He recommended that she enter a drug treatment program. The department arranged for her to enter a program on an outpatient basis. She was very cooperative, and the child was subsequently placed back in her care in March 1991.
In May 1991 the department was informed that the mother had not been attending her outpatient program and that the child had been missing school. There was testimony that at this time the child was acting socially withdrawn and was not doing well academically. The child was removed from his mother's care and placed in foster care.
The mother began to show signs of improvement in June 1991. The child was again returned to her care. During that month the mother learned that the child had been sexually molested by his father. There was testimony that the child was traumatized and depressed during this period. The father subsequently pleaded guilty to the offense and was incarcerated at the time of the hearing.
In August 1991, while still in the custody of his mother, the child had a bicycle accident and suffered a concussion. He was hospitalized for several days. His mother reported that he had amnesia. Personnel at the hospital *1236 contacted the department with several concerns. They stated that the child appeared very tense and fidgety around his mother and that he did not have amnesia. Neighbors and other collateral sources reported to the department that the mother was continuously encouraging the child to act as if he did not remember people or what had happened to him in the past. Later, she took him to the emergency room on several occasions, requesting he be given suppositories. The child's doctor was concerned that the mother was addicted to the suppositories herself and used the child as an excuse to obtain them.
The mother allegedly told the child that the doctor said he had brain damage and that he was going to die. She told school officials that he was only supposed to stay in school half a day. The department contacted the child's neurologist and learned that he had not restricted the child's school activities. In August 1991, the child was removed from his mother's custody and placed in foster care, where he has continuously remained.
The department and her counselor continued to work with the mother. Both recommended that she receive drug rehabilitation. The mother, however, denied that she had a drug problem. She continuously indicated that she only took medicine that was prescribed for her. The evidence indicated that she took approximately 350 tablets of Diazepam and/or Doxipen between May and July 1993, only two months before these proceedings began. The mother began attending a drug treatment program the month after the petition was filed. She testified, however, that she did not have a drug problem.
At the time of the hearing the mother was 41 years old. She had no income and had not worked in 12 years. She lived with her mother in an apartment. She testified that she had heart problems, problems with her nerves, and recurring pain in her leg from an injury sustained in 1990, for which she took pain medication. She confirmed that she was found guilty of shoplifting in 1991. She attempted suicide in 1992.
At the time of the hearing the child was 11 years old. He had been in the department's legal custody since December 1990. While in the department's custody, the mother visited with the child once a month. There was testimony that following the visits, the child would regress. He would begin to make twitching motions and to walk and talk like a baby.
A department employee testified that at the time of the hearing, the child was doing well in school. Although his grades ranged from A's to D's, there were more good grades than bad grades. He had no unexcused absences. The employee testified that the child was a typical eleven-year-old boy and that the department did not anticipate any difficulty placing him for adoption.
The record reflects that the department attempted to locate relative resources for placement. The relatives, however, were not found to be suitable for long-term placement.
We find the court's decision to be supported by clear and convincing evidence. The only less drastic alternative available was to maintain the child in foster care until, perhaps, the mother could rehabilitate herself sufficiently to become a fit mother. The child is now 13 years of age and presently adoptable, according to the department. He has been in foster care for nearly five years. He has expressed to the department and professional counselors his desire to have his future made as certain as possible. Further foster care is not desirable. The mother has shown that she does not intend to relinquish her addiction to drugs. The father has been convicted of sexual abuse of his son. This court recognizes the primary parental rights of parents to custody of their child. However, the rights of the child are paramount when it is clearly and convincingly shown that his best interests are no longer served by the custody of the parent.
The life of this child has been in limbo for five years. He has parents, but no parental concern or care. He now cries out to be given an opportunity to be free from primary concern for the rights of a parent who cares so little for him that she will not correct her life for his sake. He asks that his life be the primary concern. The legislature of this state has provided the court with the power to grant him his desire. The trial court has exercised that power after much consideration. This court will not alter the judgment of that court.
*1237 The mother next asserts that the trial court erred in admitting certain medical records, mental health records, pharmacy records, and counselor's reports into evidence.
We presume that the trial court considered this evidence for purposes of deciding the disposition of the child because he had previously been found to be dependent. T.W.W. v. Lauderdale County Dep't of Human Resources, 628 So.2d 761 (Ala.Civ.App. 1993); Gentry v. State Dep't of Pensions & Security, 462 So.2d 929 (Ala.Civ.App.1984). Under such circumstances, § 12-15-65(g), Code 1975, is controlling. That section provides:
"(g) In disposition hearings all relevant and material evidence helpful in determining the questions presented, including oral and written reports, may be received by the court and may be relied upon to the extent of its probative value, even though not competent in a hearing on the petition. The parties or their counsel shall be afforded an opportunity to examine and controvert written reports so received and to cross-examine individuals making reports."
On appeal the mother does not assert that she was refused the opportunity to examine and to controvert the written reports. Her assertion is that the admittance was in violation of the hearsay rule. Application of § 12-15-65(g) renders her assertion groundless. Furthermore, in-court testimony corroborated and in most instances duplicated the information contained in the reports. The reports were therefore cumulative and, in any event, harmless. Rule 45, Ala. R.App.P.
The judgment of the trial court is affirmed.
The foregoing opinion was prepared by Retired Appellate Judge L. CHARLES WRIGHT while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code 1975.
AFFIRMED.
All the Judges concur.
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19 So.3d 260 (2007)
PAUL ERIC SMITH
v.
STATE.
No. CR-06-0457.
Court of Criminal Appeals of Alabama.
October 26, 2007.
Decision of the alabama court of criminal appeal without published opinion. Affirmed.
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450 F.2d 667
146 U.S.App.D.C. 206
GOULD, INC. and Eltra Corporation, Appellants,v.John H. CHAFEE, Secretary of the Navy ESB, Inc., Appellees.
No. 71-1305.
United States Court of Appeals,District of Columbia Circuit.
June 30, 1971.
Robert L. Ackerly, Washington, D. C., was on the pleadings for appellants. C. Stanley Dees, Washington, D. C., entered an appearance on behalf of appellants.
Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Robert M. Werdig, Jr. and Joseph M. Hannon, Asst. U. S. Attys., were on the oppositions for appellee Chafee.
Messrs. Eldon H. Crowell and Gerald P. Johnston, Washington, D. C., were on the oppositions for appellee ESB, Inc.
Before LEVENTHAL, MacKINNON and WILKEY,* Circuit Judges.
LEVENTHAL, Circuit Judge:
1
Appellants and appellee ESB, Inc. were originally awarded contracts for the provision of several lots of industrial batteries to the U. S. Navy. After a protest by ESB, the Assistant Comptroller General determined that ESB was low bidder on all the lots. The Navy terminated appellants' contracts and awarded a new contract for all the batteries to ESP. Appellants then sued in District Court for declaratory and injunctive relief to prevent performance of the new contract awarded to ESB, and to reinstate their original contracts. The District Court dismissed appellants' complaint without indicating reasons for its action, and this appeal followed. After the dismissal in the District Court, the Acting Comptroller General issued a new opinion apparently indicating that the original split award to appellants and ESB was correct. This Court now has before it appellants' motions (a) for summary reversal of the District Court's dismissal, and for expedited oral argument thereon, and (b) to supplement the record with the new opinion of the Acting Comptroller General.
2
At the time when the District Court dismissed appellants' complaint, the Navy's action in terminating appellants' contracts was based on an at least apparently reasonable opinion by the Assistant Comptroller General indicating that ESB was low bidder on all the batteries. It seems unlikely that the Navy's action, whether based on agreement with that opinion or on acquiescence to avoid conflict, could have been found arbitrary and capricious, so that the District Court should have granted the relief requested under Scanwell Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d 859 (1970). This Court has previously indicated the need for employment of expeditious and economical means for terminating those challenges to procurement actions, over which the District Court has jurisdiction by virtue of the Scanwell decision, which are nonmeritorious. See Blackhawk Heating & Plumbing Co. v. Driver, 140 U.S.App.D.C. 31, 35, 433 F.2d 1137, 1141 & n. 4 (1970). However, we are concerned that the District Court's action rests on an erroneous legal premise.
3
The District Court granted the Government's motion to dismiss for lack of subject-matter jurisdiction and for failure to state a claim on which relief may be granted. Yet appellants' complaint makes at least the bare allegations of a claim on the merits under Scanwell that is within the District Court's jurisdiction, and that would entitle appellants to relief if they could substantiate their assertion that the termination of their contracts and the award to ESB were arbitrary because of errors in the determination of certain costs by contracting authorities and the Comptroller General's office.
4
The Government's argument for dismissal rested in substantial measure on the assertion that appellants have an adequate remedy at law. But it is questionable whether appellants' legal remedies as aggrieved bidders and contractors are adequate enough to justify dismissal of their suit for want of equity. See Keco Industries, Inc. v. United States, 192 Ct.Cl. 773, 784-785, 428 F.2d 1233, 1240 (1970); John Reiner & Co. v. United States, 163 Ct.Cl. 381, 325 F.2d 438 (1963).
5
It may be that the District Court dismissed the complaint on the ground that the facts before the court conclusively demonstrated that the Government's actions were not arbitrary, and hence it was entitled to a favorable decision on the merits. Since the parties presented some affidavits and additional material other than pleadings, the District Court's action may be supportable as a summary judgment if the record before it was adequate for a decision on the merits. See Fed.R.Civ.P. 12, 56; Richardson v. Rivers, 118 U.S.App.D.C. 333, 335 F.2d 996 (1964); 2A J. Moore, Federal Practice paragraphs 12.07-.09 (2d ed. 1968, Supp. 1970); 6 id. paragraphs 56.02, 56.03 (2d ed. 1965, Supp. 1970); 5 C. Wright & A. Miller, Federal Practice & Procedure Sec. 1366 (1969, Supp.1970). However, in the interest of orderly procedure, appellants should have been advised that their case was to be considered on the merits-on motion for summary judgment, or less preferably, on a motion to dismiss which they had been informed would be treated as a motion for summary judgment.
6
Because the District Court's order dismissing the complaint did not state reasons, and because some bases for the order would be at best of doubtful legality, we vacate that order and remand the case for clarification, and if need be reconsideration, by the District Court. On remand, the District Court may simply explain its dismissal. But if the court instead grants summary judgment on the merits, it should indicate that after appropriate notice, appellants failed to make any showing of contested material facts (as contrasted with bare or conclusory allegations) that would entitle them to relief.1
7
The disposition herein makes it unnecessary to act on appellants' motion to supplement the record on appeal with the most recent opinion of the Acting Comptroller General. The District Court, not this Court, should consider the new opinion in the first instance.
8
Any request of appellants for interlocutory injunctive relief should likewise be addressed initially to the District Court. However, we are not to be understood as implying disapproval of the District Court's action terminating the injunctive relief provided by its extended temporary restraining order; the present record on appeal does not seem to us to indicate a probability of appellants' success on the merits sufficient to warrant temporary injunctive relief that would interfere with the Government's procurement processes. Cf. Page Communications Eng'rs, Inc., v. Resor, No. 24,784 (D.C. Cir., Dec. 4, 1970) (unreported).
9
The order of the District Court dismissing appellants' complaint is vacated, and the case is remanded for further proceedings in accordance with this opinion.
10
So ordered.
*
Circuit Judge Wilkey did not participate in the disposition of this case
1
We express no opinion on whether summary judgment would be proper, or on appellants' contention that the record before the District Court was inadequate to permit any judgment on the merits. See Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419-420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584 (1971) (slip opinion at 18-22); Environmental Defense Fund, Inc. v. Hardin, 138 U.S.App.D.C. 391, 397-398, 428 F.2d 1093, 1099-1100 (1970)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Maye Lee Slone Altieri, :
Appellant :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Transportation, : No. 556 C.D. 2018
Bureau of Driver Licensing : Submitted: April 9, 2019
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge (P.)
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: April 25, 2019
Maye Lee Slone Altieri (Licensee) appeals from the Luzerne County
Common Pleas Court’s (trial court) March 19, 2018 order denying and dismissing
Licensee’s operating privilege suspension appeal from the Commonwealth of
Pennsylvania, Department of Transportation, Bureau of Driver Licensing
(Department). The sole issue before this Court is whether the trial court erred in
dismissing the appeal in light of the police officer’s reading of the enhanced criminal
penalties portion of the implied consent warnings. After review, we affirm.
On February 21, 2017, Lehman Township Police Officer Harold Cain
(Officer Cain) stopped Licensee due to her vehicle’s broken tail light. Officer Cain
approached the vehicle and noticed Licensee had bloodshot, glassy eyes and smelt an
odor of alcohol. Licensee admitted she had been drinking. Officer Cain then asked
Licensee to perform field sobriety tests. As a result thereof, Officer Cain placed
Licensee under arrest for driving under the influence of alcohol (DUI).1
Officer Cain took Licensee to the hospital, where he asked her to take a
blood test. There, Officer Cain read Licensee the implied consent warnings (Form
DL-26).2 Despite the fact that a new form was created in response to the decision in
Birchfield v. North Dakota, ___ U.S.___, 136 S.Ct. 2160 (2016),3 Officer Cain read
the first four paragraphs of the old DL-26 Form to Licensee.
In pertinent part, the DL-26 Form Officer Cain read to Licensee
contained the following warnings:
If you refuse to submit to the chemical test, your operating
privilege will be suspended for at least 12 months. If you
previously refused a chemical test or were previously
convicted of driving under the influence, you will be
suspended for up to 18 months. In addition, if you refuse
to submit to the chemical test and you are convicted of
violating Section 3802(a)(1) (relating to impaired
driving) of the Vehicle Code, then, because of your
refusal, you will be subject to more severe penalties set
forth in Section 3804(c) (relating to penalties) of the
Vehicle Code. These are the same penalties that would be
imposed if you were convicted of driving with the highest
rate of alcohol, which include a minimum of 72 consecutive
hours in jail and a minimum fine of $1,000, up to a
maximum of five years in jail and a maximum fine of
$10,000.
1
See Section 3802(a)(1) of the Vehicle Code, which provides: “An individual may not
drive, operate or be in actual physical control of the movement of a vehicle after imbibing a
sufficient amount of alcohol such that the individual is rendered incapable of safely driving,
operating or being in actual physical control of the movement of the vehicle.” 75 Pa.C.S. §
3802(a)(1).
2
“The DL-26 Form contains the chemical test warnings required by Section 1547 of the
Vehicle Code, [75 Pa.C.S. § 1547,] which are also known as the implied consent warnings.” Vora
v. Dep’t of Transp., Bureau of Driver Licensing, 79 A.3d 743, 745 n.2 (Pa. Cmwlth. 2013).
3
Section 1547 of the Vehicle Code was amended July 20, 2017 to comply with Birchfield,
five months after Licensee’s arrest.
2
Reproduced Record (R.R.) at 25a (emphasis added). Officer Cain and Licensee
signed the form, but Licensee stated that she would not submit to the blood test.
On March 13, 2017, the Department notified Licensee that her driver’s
license privileges would be suspended for a period of one year, effective May 21,
2018, pursuant to Section 1547 of the Vehicle Code, 75 Pa.C.S. § 1547, due to her
refusal to submit to chemical testing. On April 18, 2018, Licensee appealed from the
suspension to the trial court. A hearing was held and, on March 19, 2018, the trial
court denied and dismissed Licensee’s appeal. Licensee appealed to this Court. 4 On
April 24, 2018, the trial court ordered Licensee to file a Statement of Errors
Complained of on Appeal pursuant to Pennsylvania Rule of Appellate Procedure
1925(b) (Rule 1925(b) Statement). Licensee filed her Rule 1925(b) Statement with
the trial court on May 8, 2018. The trial court filed its opinion on June 14, 2018.
Licensee argues that the implied consent warnings that Officer Cain read
to her were partially inaccurate and the inclusion of that legally incorrect warning
made the Birchfield ruling applicable to the matter herein. Therefore, Licensee
contends that she had the right to refuse Officer Cain’s request to submit to a
warrantless search and seizure of her blood. This Court disagrees.
The licensee in Renfroe v. Department of Transportation, Bureau of
Driver Licensing, 179 A.3d 644, 648 (Pa. Cmwlth. 2018), asserted the same
argument. Specifically, the licensee therein argued: “because the warnings he was
given contained language about enhanced criminal penalties, which was declared
unconstitutional under Birchfield . . . he cannot be punished for refusing to take the
blood test, either civilly or criminally.” Renfroe, 179 A.3d at 650.
4
“Our review is to determine whether the factual findings of the trial court are supported by
competent evidence and whether the trial court committed an error of law or abused its discretion.”
Renfroe v. Dep’t of Transp., Bureau of Driver Licensing, 179 A.3d 644, 648 n.3 (Pa. Cmwlth.
2018).
3
The Renfroe Court rejected this argument, explaining:
The Birchfield [C]ourt explicitly limited its holding to
implied consent laws imposing criminal penalties. In so
doing, the Supreme Court observed that the petitioners
in Birchfield did not question the constitutionality of
implied consent laws that impose only civil penalties,
and stated that nothing in its opinion ‘should be read to
cast doubt on them.’ Birchfield, ___ U.S.___ , 136 S.Ct.
at 2185. The Court explained that it is one thing to approve
implied consent laws that impose civil penalties and
evidentiary consequences on motorists who refuse to
comply, but quite another for a state to insist upon an
intrusive blood test and then impose criminal penalties on
motorists who refuse to submit. Therefore, ‘[t]here must be
a limit on the consequences to which motorists may be
deemed to have consented by virtue of a decision to drive
on public roads.’ Id. (emphasis added).
Subsequently, in Boseman v. Department of Transportation,
Bureau of Driver Licensing, 157 A.3d 10, 21 (Pa. Cmwlth.),
appeal denied, . . . 170 A.3d 996 ([Pa.] 2017), this Court
held that Birchfield, which prohibits a state from criminally
penalizing a motorist for refusing to submit to a warrantless
request for a blood test, does not apply in a civil license
suspension proceeding. Our holding in Boseman is
grounded upon the settled distinction between a civil license
suspension proceeding and a criminal DUI proceeding
arising out of the same incident. Further, it is not a crime to
refuse to submit to chemical testing under the Implied
Consent Law.
...
[I]n Marchese [v. Commonwealth, 169 A.3d 733, 740 (Pa.
Cmwlth. 2017)] [this Court] explain[ed] as follows:
By its own language, the Birchfield Court
unequivocally stated that ‘nothing we say here
should be read to cast doubt’ on the constitutionality
of state implied consent laws imposing civil
penalties and evidentiary consequences for refusing
a blood test. . . . [W]e believe the U.S. Supreme
Court clearly indicated nothing in Birchfield
4
questions the constitutionality of state implied
consent laws imposing only civil sanctions. To that
end, the Court stated: ‘It is another matter, however,
for a [s]tate to not only insist upon an intrusive
blood test, but also to impose criminal penalties on
the refusal to submit to such a test.’ Therefore, the
Court concluded ‘that motorists cannot be deemed
to have consented to submit to a blood test on pain
of committing a criminal offense.’
Given the Birchfield Court’s explicit limitation on
its holding to implied consent laws imposing
criminal penalties, we reject [the l]icensee’s
contention that it must logically be extended to
render unconstitutional implied consent laws which
provide for only civil penalties for refusal of a blood
test. Such an interpretation would be contrary to the
U.S. Supreme Court’s limiting language in
Birchfield.
Marchese, 169 A.3d at 739–40 (emphasis and internal
quotations omitted). Consistent with our decisions in
Boseman and Marchese, we conclude that the [common
pleas] court did not err by holding that Birchfield does
not apply to civil license suspensions.
Renfroe, 179 A.3d at 650-51 (emphasis added). Accordingly, the trial court properly
denied and dismissed Licensee’s appeal.
For all of the above reasons, the trial court’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Maye Lee Slone Altieri, :
Appellant :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Transportation, : No. 556 C.D. 2018
Bureau of Driver Licensing :
ORDER
AND NOW, this 25th day of April, 2019, the Luzerne County Common
Pleas Court’s March 19, 2018 order is affirmed.
___________________________
ANNE E. COVEY, Judge
| {
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United States Court of Appeals
for the Federal Circuit
______________________
RACHEL MCCULLOCH, AS PARENT AND LEGAL
GUARDIAN OF A.M.,
Petitioner-Appellee
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellant
______________________
2018-2046
______________________
Appeal from the United States Court of Federal Claims
in No. 1:09-vv-00293-CFL, Judge Charles F. Lettow.
______________________
Decided: May 3, 2019
______________________
CHRISTINA CIAMPOLILLO, Conway Homer, PC, Boston,
MA, argued for petitioner-appellee. Also represented by
RONALD C. HOMER.
DANIEL ANTHONY PRINCIPATO, Vaccine/Torts Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellant. Also repre-
sented by JOSEPH H. HUNT, ALEXIS B. BABCOCK, C.
SALVATORE D'ALESSIO, CATHARINE E. REEVES.
______________________
2 MCCULLOCH v. HHS
Before LOURIE, O’MALLEY, and TARANTO, Circuit Judges.
TARANTO, Circuit Judge.
Rachel McCulloch, acting as guardian on behalf of her
daughter A.M., filed a petition for compensation for vac-
cine-related injuries under the National Childhood Vaccine
Injury Act of 1986, codified as amended at 42 U.S.C.
§§ 300aa-1 to -34. After the special master found that
A.M.’s injuries justified compensation under § 300aa-15(a),
McCulloch v. Sec’y of Health & Human Servs., No. 09-
293V, 2015 WL 3640610, at *1 (Fed. Cl. May 22, 2015) (Li-
ability Decision), the parties agreed on the amounts to be
paid, and a decision and judgment on the merits were en-
tered in accordance with the agreement, McCulloch v. Sec’y
of Health & Human Servs., No. 09-293V, 2016 WL
7655181, at *1 (Fed. Cl. Nov. 28, 2016) (Compensation De-
cision); J.A. 41−42 (judgment dated Dec. 7, 2016). Neither
party sought review by the Court of Federal Claims.
In June 2017, Ms. McCulloch filed a motion requesting
an award of attorneys’ fees and costs under § 300aa-
15(e)(1). In December 2017, the special master awarded
fees and costs, and he included in the award amounts to
cover the expenses, under Florida guardianship law, of
maintaining the guardianship for A.M that had to be main-
tained as a condition of receiving the full payments that
were part of the merits judgment. McCulloch v. Sec’y of
Health & Human Servs., No. 09-293V, 2017 WL 7053992,
at *10 (Fed. Cl. Dec. 19, 2017) (Fees/Costs Decision). When
the government appealed the inclusion of those guardian-
ship-maintenance expenses in the fees/costs award, the
Court of Federal Claims upheld inclusion of those amounts,
but did so under § 300aa-15(a), the provision governing
merits awards of compensation, instead of § 300aa-15(e),
the fees/costs provision on which the special master relied.
McCulloch v. Sec’y of Health & Human Servs., 137 Fed. Cl.
598, 602 (2018) (CFC Decision).
MCCULLOCH v. HHS
3
In this appeal by the government, we agree with the
government that the Court of Federal Claims improperly
reopened a final merits judgment by awarding money un-
der § 300aa-15(a). We do not decide whether guardianship-
maintenance expenses of the sort at issue here could be
awarded under § 300aa-15(a). But we conclude that in this
case it was appropriate for the special master to award the
guardianship-maintenance expenses under § 300aa-15(e)
because Ms. McCulloch incurred a continuing liability to
pay such expenses as a condition of receiving, for her
daughter, the compensation awarded on the merits in this
proceeding. Because the government did not seek modifi-
cation of the form of the special master’s award, and the
Court of Federal Claims affirmed the special master’s
award, we affirm the judgment, though on different
grounds from those stated by the Court of Federal Claims.
I
A.M. received a vaccine for human papillomavirus in
August 2007. Shortly thereafter, she developed autoim-
mune limbic encephalitis and an intractable seizure disor-
der, resulting in cognitive impairment. Two years later, on
May 11, 2009, Ms. McCulloch filed a petition under the
Vaccine Act on behalf of A.M. On May 22, 2015, the special
master found that Ms. McCulloch was entitled to compen-
sation under the statute for A.M.’s injury. Liability Deci-
sion, at *1. The parties then agreed on the amounts and
mechanisms of compensation, and the special master ac-
cepted the agreement on November 28, 2016. Compensa-
tion Decision, at *1.
The merits award represented “compensation for all
damages that would be available under 42 U.S.C. § 300aa-
15(a).” Id. It included several lump-sum payments for lost
earnings, pain and suffering, past unreimbursable ex-
penses, and satisfaction of a Medicaid lien. Id. It also in-
cluded funding for an annuity to “provide [periodic]
payments for the life care items contained in the life care
4 MCCULLOCH v. HHS
plan.” Id. at *3. Both the lump-sum and annuity-payout
amounts were to be paid to “the party or parties appointed
by a court of competent jurisdiction to serve as guard-
ian(s)/conservator(s) of the estate of A.M.” Id. The award
was entered pursuant to the government proffer that Ms.
McCulloch accepted, id. at *1, and the proffer recognized
that Ms. McCulloch “has been appointed as the guardian of
A.M.’s estate under the State law of Florida,” J.A. 29. On
December 7, 2016, the parties filed a notice that they “d[id]
not intend to seek review” of the special master’s finding of
entitlement or damages, J.A. 40, and the Court of Federal
Claims entered judgment, J.A. 41−42.
On June 2, 2017, Ms. McCulloch timely moved for at-
torneys’ fees and costs under 42 U.S.C. § 300aa-15(e)(1).
Along with items not disputed before us, the motion sought
to have included in the fees/costs award the expenses of
maintaining Ms. McCulloch’s guardianship of A.M. under
Florida law. It is undisputed before us that Florida law
requires preparation of an annual guardianship plan, Fla.
Stat. § 744.367(1); preparation of an annual accounting of
the estate, id. § 744.367(2); an audit fee associated with
preparing the accounting of the estate, id. § 744.3678(4);
and an annual bond premium, id. § 744.474(8). See
Fees/Costs Decision, at *10 (“[Ms. McCulloch] states that
the local court ‘ordered the guardian post a $200,000 bond’
and set the premium on that bond at $860 per year.”). The
special master granted Ms. McCulloch’s request, determin-
ing that she incurred liability for the guardianship-mainte-
nance expenses as required by the statute. Fees/Costs
Decision, at *1, *5–8. The special master gave the govern-
ment the option either to pay the guardianship-mainte-
nance expenses as a lump sum or to pay them by funding
an annuity for the term of A.M.’s life. Id. at *12.
The government appealed the fees/costs award to the
Court of Federal Claims, challenging only inclusion of the
guardianship-maintenance expenses, not any other aspect
of the award. The Court of Federal Claims ruled that such
MCCULLOCH v. HHS
5
expenses were not properly awardable under the fees/costs
provision of the Vaccine Act, 42 U.S.C. § 300aa-15(e). CFC
Decision, 137 Fed. Cl. at 602. But the court nevertheless
upheld the award of the amounts. It concluded that Ms.
McCulloch was entitled to the guardianship-maintenance
expenses under § 300aa-15(a) either as expenses for “case
management services” or as “residential and custodial care
and service expenses.” Id.
The government timely appealed. We have jurisdiction
under 42 U.S.C. § 300aa-12(f) and 28 U.S.C. § 1295(a)(3).
II
The Court of Federal Claims lacked jurisdiction to
grant Ms. McCulloch the guardianship fees under § 300aa-
15(a). Based on the parties’ agreement about the compen-
sation that would be awarded under § 300aa-15(a), the spe-
cial master rendered his decision on November 28, 2016.
When the parties filed a notice that no appeal would be
taken, judgment was entered on that decision on December
7, 2016. Given the parties’ agreement that this award con-
stituted “compensation for all damages that would be avail-
able under 42 U.S.C. § 300aa-15(a),” Compensation
Decision, at *1, the award was not an interim award that
could later be supplemented. See Lerwick v. Sec’y of Health
& Human Servs., No. 06-847V, 2014 WL 1897656, at *1−8
(Fed. Cl. Apr. 16, 2014) (discussing interim awards under
§ 300aa-15(a)).
The statute permits only 30 days to seek review of the
special master’s decision in the Court of Federal Claims, 42
U.S.C. § 300aa-12(e)(1), and we have treated the 30-day pe-
riod as “jurisdictional,” Widdoss v. Sec’y of Dep’t of Health
& Human Servs., 989 F.2d 1170, 1177 (Fed. Cir. 1993).
Neither party appealed from the November 28 decision—
or from the December 7 judgment—within the 30 days.
There is no justification for departing, in this context, from
the broadly applicable rule that finality of a merits judg-
ment is not postponed pending resolution of an issue of
6 MCCULLOCH v. HHS
attorney’s fees. See Budinich v. Becton Dickinson & Co.,
486 U.S. 196, 202 (1988) (“[A]n unresolved issue of attor-
ney’s fees . . . does not prevent judgment on the merits from
being final.”); Special Devices, Inc. v. OEA, Inc., 269 F.3d
1340, 1345 (Fed. Cir. 2001) (same). Indeed, motions for
fees and costs under § 300aa-15(e) are treated as separate
proceedings under the Vaccine Rules. Ct. Fed. Cl. Vaccine
R. 10(c), 13(b). It follows that the merits judgment—com-
pensation under § 300aa-15(a)—was final in this matter,
and no longer reviewable on appeal, long before Ms. McCul-
loch even moved for fees and costs in June 2017, let alone
before the Court of Federal Claims was asked to review the
special master’s ruling on that motion. See Budinich, 486
U.S. at 203 (merits ruling not reviewable, where not timely
appealed, on appeal from fees ruling).
In the Court of Federal Claims, as in district courts, the
governing procedural rules provide in certain circum-
stances for “relief from a final judgment [or] order”—spe-
cifically, based on mistake, newly discovered evidence,
fraud, void judgments, satisfied judgments, or “any other
reason that justifies relief.” Ct. Fed. Cl. R. 60(b). But that
authorization does not apply here.
The Supreme Court has held that Rule 60(b) is not a
substitute for a timely appeal. United Student Aid Funds,
Inc. v. Espinosa, 559 U.S. 260, 270 (2010). We have held
the same in the context of the Vaccine Act and the Court of
Federal Claims rules. Patton v. Sec’y of Dep’t of Health &
Human Servs., 25 F.3d 1021, 1028 (Fed. Cir. 1994);
Widdoss, 989 F.2d at 1177–78. To rely on Rule 60(b) here
would be to use it simply as a substitute for appeal to seek
a change that could have been sought at the time that the
appeal opportunity was available but bypassed.
This case is not like Patton, where the special master
deferred granting pain-and-suffering damages until the at-
torneys’ fees proceeding and then did not include them
when ruling on the motion for attorneys’ fees. 25 F.3d at
MCCULLOCH v. HHS
7
1024. The special master deemed the absence of a ruling
on pain-and-suffering damages as an inadvertent error,
and we held it rectifiable under Rule 60(b). Id. at 1029−30.
There is no such error here. The final merits decision and
judgment embodied what the parties (and the special mas-
ter) agreed was a complete resolution of the merits, i.e., of
compensation under § 300aa-15(a). Relief under Rule 60(b)
was therefore unavailable.
Because we have determined that the Court of Federal
Claims lacked jurisdiction to consider awarding expenses
for maintaining a guardianship under § 300aa-15(a), we do
not reach the issue of the availability of that subsection to
award such expenses. Not reaching the merits of the
§ 300aa-15(a) issue, we indicate neither agreement nor dis-
agreement with the conclusions of the Court of Federal
Claims regarding the types of expenses covered by § 300aa-
15(a). This court’s review of whether § 300aa-15(a) permits
compensation for the types of guardianship-maintenance
expenses at issue here will have to await another case.
III
The remaining issue in this case is whether the special
master was correct in holding that the guardianship-
maintenance expenses at issue were properly awardable
under § 300aa-15(e)(1). We conclude that he was. 1
The subsection embraces “reasonable attorneys’ fees”
and “other costs” “incurred in any proceeding on [the Vac-
cine Act] petition.” 42 U.S.C. § 300aa-15(e)(1). The gov-
ernment does not take a narrow view of “reasonable
attorneys’ fees” or “other costs”; for example, it
1 In so ruling, we do not decide that such expenses
are not awardable under § 300aa-15(a). We decide neither
the scope of § 300aa-15(a) on its own terms nor whether
that subsection reaches certain expenses that also fit, in
the alternative, under § 300aa-15(e).
8 MCCULLOCH v. HHS
acknowledges that the phrases cover expert fees, which
have long been awarded under the provision. Oral Arg. at
7:33–43. In particular, the government does not dispute
that the guardianship-maintenance expenses fall within
“other costs.” Notably, it has not challenged the special
master’s award of the initial guardianship-registration ex-
penses, needed for initial collection of amounts under the
merits judgment, as within § 300aa-15(e)(1). J.A. 59,
61−62, 105.
Rather, the government focuses entirely on the “in-
curred in” language. Even as to that language, the govern-
ment makes no argument that the expense at issue must
be solely attributable to the Vaccine Act proceeding; again,
the government did not object to inclusion of the expense of
initially establishing a guardianship under Florida law,
whose purpose presumably was not limited to the Vaccine
Act proceeding. The government’s only argument is a time-
related one: it argues that “incurred in” excludes future
payments for guardianship-maintenance expenses simply
because they are not yet due to be made. We disagree.
We follow the government part of the way in its analy-
sis. The government relies on this court’s decision in Black
v. Secretary of Health and Human Services, 93 F.3d 781
(Fed. Cir. 1996), as indirectly furnishing a standard for ap-
plying “incurred in” for § 300aa-15(e)(1). See Gov’t Br. at
21−22. There, we explained that the phrase “incurred rea-
sonable expenses” in a different provision of the Vaccine
Act “does not refer to anticipated payments or obligations
for which liability has not already attached.” Id. at 786
(Fed. Cir. 1996). We accept, at least for purposes of this
case, the borrowing of that formulation to help apply
§ 300aa-15(e)(1). But we conclude, contrary to the govern-
ment’s position, that the “liability/attached” formulation is
best applied in this context to mean that liability for guard-
ianship-maintenance expenses did attach in these Vaccine
Act proceedings, because the continuing payment of those
MCCULLOCH v. HHS
9
expenses over time is a condition of receipt of the full com-
pensation provided for A.M. in the merits judgment.
Black explains that “[i]n ordinary usage, . . . to ‘incur’
expenses means to pay or become liable for them.” Id. at
785 (emphasis added). In one common usage, a person be-
comes liable for yet-to-arise expenses at the time of under-
taking an obligation to pay those expenses if and when they
arise. See Liability, Black’s Law Dictionary (10th ed. 2014)
(defining liability as the state “of being legally obligated or
accountable,” through civil or criminal penalties); see also
Standard Oil Co. of Ohio v. Fed. Energy Admin., 612 F.2d
1291, 1297 n.5 (Temp. Emer. Ct. App. 1979) (holding that
a party became liable under a contract “upon signing the
contracts . . . not with the delivery” of the goods); Akerly v.
N.Y. Cent. R. Co., 168 F.2d 812, 814 (6th Cir. 1948) (“[T]he
first, and more inclusive definition [of liability] is ‘The state
or quality of being liable.’ Liable, in turn, is defined as be-
ing ‘bound or obliged in law or equity; responsible; . . . an-
swerable or exposed to a certain contingency or casualty of
an undesired character.’”); Md. Sav. Share Ins. Corp. v.
United States, No. 154-75, 1980 WL 4700, at *12 (Ct. Cl.
Feb. 26, 1980) (“[B]oth sides agree that losses ‘incurred’
means losses for which the insurer has become liable dur-
ing the taxable year even if they have not yet been reported
to it.”). That notion fits the present context much better
than the government’s notion that no current liability has
attached for future years’ guardian-maintenance expenses
even though maintaining the guardianship is a legal pre-
condition to continuing receipt of the annuity portion of the
merits-judgment compensation for A.M.
The compensation-providing judgment limits future
payments “to the party or parties appointed by a court of
competent jurisdiction to serve as guardian(s).” Compen-
sation Decision, at *4. To carry out that judgment for the
benefit of A.M., Ms. McCulloch had to establish, and she or
a successor had to maintain, a guardianship in order to re-
ceive the payments for the care of A.M., including the
10 MCCULLOCH v. HHS
annuity payments over the course of many years into the
future. The underlying government proffer, agreed to by
the parties, recognized that Ms. McCulloch had been ap-
pointed as a guardian under the law of Florida, where the
family lived. The current liability for such guardian-
maintenance expenses as relevant law required into the fu-
ture matched, and was the counterpart to, the current right
to receive payments into the future. This situation differs
from a situation, discussed in Ex rel. Crespo v. Secretary of
Health and Human Services, 139 Fed. Cl. 231, 236 (2018),
where a Vaccine Act judgment of a lump-sum payment re-
quires only the establishment, but not continuing mainte-
nance, of a guardianship. In the present circumstances, the
best application of the government-urged Black test is that
continuing legally required guardianship-maintenance ex-
penses are incurred in the Vaccine Act proceeding where,
as here, their payment is a precondition for continuing re-
ceipt of the compensation granted in the judgment.
Accordingly, we agree with the special master that
these expenses come within § 300aa-15(e)(1). We note that
the special master’s order permits the government either
to pay a lump sum or to buy an annuity to fund the guard-
ianship-maintenance expenses. J.A. 26. That order leaves
the possibility of overpayment insofar as it does not ex-
pressly provide for cessation of government payments if, for
example, a relocation out of Florida leads to a guardianship
in another State whose law does not impose comparable
maintenance expenses. But the government in this case
made only its more categorical statutory arguments
against award of guardianship-maintenance expenses; it
did not more narrowly seek a modification of the special
master’s order to allow for such cessation. In this circum-
stance, we affirm the judgment of the Court of Federal
Claims, which affirmed the special master’s order.
MCCULLOCH v. HHS
11
IV
For the reasons stated in this opinion, we affirm the
judgment of the Court of Federal Claims.
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
9 F.Supp.2d 1205 (1998)
HUMANITARIAN LAW PROJECT, et al., Plaintiffs,
v.
Janet RENO, as Attorney General of the United States, et al., Defendants.
No. CV 98-1971 ABC (BQRx).
United States District Court, C.D. California.
June 15, 1998.
*1206 David Cole, Georgetown University Law Center, Washington, DC, Nancy Chang, Center for Constitutional Rights, New York City, Paul Hoffman, Carol Sobel, Center for Constitutional Rights, Santa Monica, CA, Visuvanathan Rudrakumaran, New York City, for Plaintiffs.
Frank W. Munger, Assistant Attorney General, David J. Anderson, John R. Tyler, Martha E. Rubio, Department of Justice, Civil Division, Los Angeles, CA, for Defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER RE: PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
COLLINS, District Judge.
The Court makes the following findings of fact and conclusions of law with respect to the Motion for Preliminary Injunction of Plaintiffs HUMANITARIAN LAW PROJECT, RALPH FERTIG, ILANKAI THAMIL SANGAM, TAMILS OF NORTHERN CALIFORNIA, TAMIL WELFARE AND HUMAN RIGHTS COMMITTEE, FEDERATION OF TAMIL SANGAMS OF NORTH AMERICA, WORLD TAMIL COORDINATING COMMITTEE, and NAGALINGAM JEYALINGAM:
FINDINGS OF FACT
The Regulatory Scheme
1. President Clinton signed the Antiterrorism and Effective Death Penalty Act ("AEDPA") into law on April 24, 1996. Section 302 of the AEDPA permits the Secretary of State (the "Secretary"), in consultation with the Secretary of the Treasury and the Attorney General, "to designate an organization as a foreign terrorist organization ... if the Secretary finds that (A) the organization is a foreign organization; (B) the organization engages in terrorist activity ...; and (C) the terrorist activity of the organization threatens the security of United States nationals or the national security of the United States." 8 U.S.C. § 1189(a)(1). The AEDPA defines "terrorist activity" as "an act which the actor knows, or reasonably should know, affords material support to any individual, organization, or government in conducting a terrorist activity at any time." Id. § 1182(a)(3)(B)(iii). "National security" is defined as "the national defense, foreign relations, or economic interests of the United States." Id. § 1189(c)(2).
2. Prior to designating an organization as a foreign terrorist organization, the Secretary must notify specified members of Congress. See id. § 1189(a)(2)(A). Seven days thereafter, the Secretary must publish the designation in the Federal Register. See id. *1207 The designation is effective upon publication. See id. § 1189(a)(2)(B).
3. A group designated as a foreign terrorist organization may seek judicial review of the Secretary's designation by filing an action in the United States Court of Appeals for the District of Columbia within 30 days of the published designation. Id. § 1189(b)(1). Any review "shall be based solely upon the administrative record, except that the Government may submit, for ex parte and in camera review, classified information used in making the designation." Id. § 1189(b)(2). Section 1189 sets forth certain circumstances wherein the Court of Appeals may set aside the Secretary's designation.[1] In addition to the Court of Appeals setting aside a designation, a group may cease to be designated as a foreign terrorist organization if: (1) the Secretary fails to renew the designation after two years, see id. § 1189(a)(4)(B); (2) Congress blocks or revokes a designation, see id. § 1189(a)(5); or (3) the Secretary revokes the designation based on a finding that changed circumstances or national security warrants such a revocation. See id. § 1189(a)(6)(A).
4. Section 303 of the AEDPA provides: "Whoever, within the United States or subject to the jurisdiction of the United States, knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 10 years, or both." 18 U.S.C. § 2339B(a). The AEDPA defines the term "material support or resources" as "currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials." Id. § 2339A(b).
The Secretary's Designation
5. On October 8, 1997, the Secretary designated 30 organizations as "foreign terrorist organizations" under the AEDPA. See 62 Fed.Reg. 52,649-51. The designated organizations included the Kurdistan Workers' Party, a.k.a. Partiya Karkeran Kurdistan, a.k.a. PKK ("PKK") and the Liberation Tigers of Tamil Eelam, a.k.a. LTTE, a.k.a. Tamil Tigers, a.k.a. Ellalan Force ("LTTE"). On November 6, 1997, the LTTE sought judicial review of the Secretary's designation. To date, the Court of Appeals has not rendered a decision. The PKK did not seek judicial review of the designation.
The Plaintiffs
6. Plaintiffs are six organizations and two United States citizens. Plaintiffs seek to provide support to the humanitarian and political activities of the PKK and the LTTE. Since October 8, 1997, the date on which the Secretary designated the PKK and the LTTE as foreign terrorist organizations, Plaintiffs and their members and individuals associated with the organizational Plaintiffs have not provided such support, fearing criminal investigation, prosecution, and conviction.
The PKK and the Plaintiffs That Support it
7. The PKK was formed approximately 20 years ago with the goal of achieving self-determination for the Kurds in Southeastern Turkey. It is comprised primarily of Turkish Kurds. The PKK is the leading political organization representing the interests of the Kurds in Turkey. Plaintiffs allege that for more than 70 years, the Turkish government has subjected the Kurds to human rights abuses and discrimination. The PKK's efforts on behalf of the Kurds include political organizing and advocacy and diplomatic activity *1208 around the world. It organizes political forums, international conferences, and cultural festivals outside Turkey to bring attention to the plight of the Kurds there. It publishes and distributes newspapers and pamphlets championing the Kurds' cause and denouncing human right violations. It provides social services and humanitarian aid to Kurds in exile, has established a quasi-governmental structure in areas of Turkey under its control, and defends the Kurds from alleged Turkish human rights abuses.
8. Two Plaintiffs, Humanitarian Law Project ("HLP") and Administrative Judge Ralph Fertig,[2] HLP's President, seek to support the PKK's peaceful and non-violent activities. The HLP, a not-for-profit organization headquartered in Los Angeles, is dedicated to furthering international compliance with humanitarian law and human rights law and the peaceful resolution of armed conflicts.[3]
9. The HLP has consultative status to the United Nations ("UN") as a non-governmental organization and regularly participates in meetings of the UN Commission on Human Rights in Geneva, Switzerland. The HLP conducts fact-finding missions, writes and publishes reports, and works for the peaceful resolution of armed conflicts around the world.
10. Judge Fertig has a career of over 50 years in human rights work. He has been a member of the HLP's Board of Directors since 1989, serving as President from 1993 to 1995 and from 1997 to the present. He has participated in HLP delegations that have investigated alleged human rights violations in Turkey, Mexico, and El Salvador, has written reports for the HLP, and has trained others in the use of international human rights law and other lawful means for the peaceful resolution of disputes.
11. Since 1991, the HLP and Judge Fertig have devoted substantial time and resources advocating on behalf of the Kurds living in Turkey and working with the PKK. Judge Fertig and other individuals associated with the HLP have conducted fact-finding investigations on the Kurds in Turkey and have published reports and articles presenting their findings, which are supportive of the PKK and the struggle for Kurdish liberation. They assert that the Turkish government has committed extensive human rights violations against the Kurds, including the summary execution of more than 18,000 Kurds, the widespread use of arbitrary detentions and torture against persons who speak out for equal rights for Kurds or are suspected of sympathizing with those who do, and the wholesale destruction of some 2,400 Kurdish villages. Applying international law principles, they have concluded that the PKK is a party to an armed conflict governed by Geneva Conventions and Protocols and, therefore, is not a terrorist organization under international law.
12. To further peaceful resolutions of the armed conflict in Turkey and protect the human rights of the Kurds, the HLP, Judge Fertig, and other individuals associated with the HLP have worked with and supported the PKK in numerous ways. They have advocated for the political freedoms and human rights of the Kurds and the PKK before the UN Commission on Human Rights, and have urged the UN to extend to the PKK the protections of the Geneva Conventions and Protocols. They have petitioned members of Congress to support Kurdish human rights and to encourage negotiations between the PKK and the Turkish government. They have argued for the release of Leyla Zana, Hatip Dicle, Orhan Dogan, and Selim Sadak, four Kurds who were elected to the Turkish Parliament in 1991, but sentenced to 15 years in prison by the Turkish courts for being members or supporters of the PKK. Finally, the HLP, Judge Fertig, and other individuals associated with the HLP have also assisted and trained some PKK members in using humanitarian law and international human *1209 rights law and in seeking a peaceful resolution of the conflict in Turkey. Both the HLP and Judge Fertig only support the PKK in its non-violent and lawful activities.
13. Since the Secretary designated the PKK as a foreign terrorist organization, the HLP and Judge Fertig have been frustrated in their efforts to improve conditions for the Kurds living in Turkey. But for the AEDPA, they would continue to provide the forms of support which they had previously provided, and would provide further support as well. The HLP and Judge Fertig fear, however, that continuing to do so would subject them to criminal investigation, prosecution, and conviction.
14. The HLP, Judge Fertig, and individuals associated with the HLP would specifically like to, but are afraid to, provide support to the PKK in the following ways:
(1) solicit funds for, and make cash contributions to the PKK's political branch, for its lawful political work on behalf of the Kurds' human rights and for humanitarian assistance to Kurdish refugees;
(2) advocate on PKK's behalf before the UN Commission on Human Rights and the United States Congress;
(3) train the PKK in how to engage in political advocacy and on how to use international law to seek redress for human rights violations;
(4) write and distribute publications supportive of the PKK and the cause of Kurdish liberation;
(5) advocate for the freedom of Turkish political prisoners convicted of being PKK members or supporters;
(6) work with PKK members at peace conferences and other meetings toward the cause of peace and justice for the Kurds; and
(7) provide lodging to PKK members in connection with these activities.
15. HLP and Judge Fertig are committed to providing the above-mentioned support.[4] They have been deterred from providing it, however, fearing criminal sanctions under §§ 302 and 303 of the AEDPA.
The LTTE and the Plaintiffs that Support it
16. The LTTE was formed in 1976 with the goal of achieving self-determination for the Tamil residents of Tamil Eelam, the Northern and Eastern provinces of Sri Lanka. Plaintiffs allege that the Tamils constitute an ethnic group that, for decades, has been subjected to human rights abuses and discriminatory treatment by the Sinhalese, who have governed Sri Lanka since the nation gained its independence from Great Britain in 1948. The Sinhalese constitute a numerical majority of Sri Lanka's population.
17. Plaintiffs further allege that the LTTE, to further its goal of self-determination for the Tamils, engages in: (1) political organizing and advocacy; (2) diplomatic activity; (3) the provision of social services and economic development through the establishment of a quasi-governmental structure in Tamil Eelam; (4) humanitarian aid to Tamil refugees fleeing from the Sri Lankan armed forces; and (5) defense of the Tamil people from human rights abuses.
18. The LTTE also administers a chain of orphanages in Tamil Eelam, including the Chensoilai and Kantharupan Orphanages. Through the Tamil Eelam Economic Development Organization, the LTTE supports the development of Tamil Eelam's economy, from agriculture to transportation. It also regularly issues publications regarding the political situation in Sri Lanka. It administers a civil police force that maintains public safety in areas under LTTE control. Finally, the LTTE administers the Tamil Eelam Education Secretariat that oversees children's educational services.
19. Six Plaintiffs four membership organizations, an organizational Plaintiff, and an individual seek to provide support to the LTTE. These Plaintiffs are committed to the human rights and well-being of the Tamils in Sri Lanka. Many members of these organizations, many of the individuals associated with the organizational plaintiff, and the individual Plaintiff, Dr. Nagalingam Jeyalingam, are Tamils born in Sri Lanka. Although *1210 they now reside in the United States and many are United States citizens, they still have close friends and family members living in Sri Lanka, many of whom have allegedly been the victims of abuses by the Sri Lankan government.
Ilankai Thamil Sangam
20. Plaintiff Ilankai Thamil Sangam ("Sangam"), a New Jersey not-for-profit corporation founded in 1977 has approximately 135 members, most of whom are Tamils born in Sri Lanka. The Sangam's objectives are to promote the association of Tamils in the New York City metropolitan area, to promote knowledge of the Tamil language, culture, and heritage, and to provide humanitarian assistance to the Tamils in Sri Lanka, many of whom are refugees and orphans in need of the basic necessities of life, including food, clothing, and housing. The Sangam, as an organization, and many of its members, as individuals, would like to solicit and make donations of cash, clothing, food, including prepared food for infants, and educational materials, to the LTTE for humanitarian assistance to the Tamils in Sri Lanka. Sangam specifically wishes to support the LTTE-run Chensoilai and Kantharupan orphanages.
21. Neither the Sangam nor its members seek to support any military or unlawful activities of the LTTE. The Sangam and its members have been deterred from providing the above-described aid by the AEDPA. They have been deterred from freely engaging in political discussions on the topic of soliciting and making donations to the LTTE and organizations affiliated with the LTTE.
Dr. Nagalingam Jeyalingam
22. Plaintiff Dr. Nagalingam Jeyalingam is a naturalized United States citizen who is a Tamil from Sri Lanka. Dr. Jeyalingam, a surgeon, was President of Sangam from 1995 to 1997 and is currently one of its committee members. Members of Dr. Jeyalingam's family, including his mother, brothers, and sisters, were displaced from their homes and forced to flee from Sri Lanka to India as refugees in 1983.
23. Dr. Jeyalingam has made cash donations to organizations that provided assistance to Tamil refugees in Sri Lanka and encouraged others to make such donations. Dr. Jeyalingam believes that the LTTE plays a crucial role in providing humanitarian aid, social services, and economic development to the Tamils in Sri Lanka. But for the AEDPA, Dr. Jeyalingam would support the lawful and non-violent activities of the LTTE by providing the following:
(1) food and clothing to the Tamil Eelam Economic Development Organization, a branch of the LTTE engaged in economic development activities in Tamil Eelam including assisting refugees, implementing plans to develop the area's agriculture, forestry, fishing, and industries, and conducting environmental surveys;
(2) school supplies, books, and other educational materials to the Tamil Eelam Education Secretariat;
(3) money to the LTTE to pay for its legal fees and costs in challenging the Secretary's decision to designate the LTTE as a foreign terrorist organization;
(4) money to support the LTTE's political work, including the dissemination of written publications describing the plight of the Tamils in Sri Lanka to exile communities around the world; and
(5) money to support the LTTE's work in providing medical and rehabilitative assistance to Tamil victims of landmine explosions.
24. Dr. Jeyalingam only wishes to support the LTTE's humanitarian, social, and political efforts, and does not wish to support the LTTE's military activities. Dr. Jeyalingam wishes to but is afraid to provide assistance for fear of criminal prosecution.
Tamils of Northern California
25. Plaintiff Tamils of Northern California ("TNC"), a California not-for-profit organization founded in 1994, has approximately 120 members, most of whom are Tamils who were born in Sri Lanka and who are United States citizens and non-citizens. TNC's primary objectives include providing opportunities for Tamils in the Northern California area to share their knowledge of Tamil culture, *1211 politics, and history, and providing humanitarian assistance to the Tamils of Sri Lanka.
26. The TNC and its members would like to donate money as well as children's supplies, including infant formula, baby food, children's shoes and clothing, school books, and toys, to the LTTE-run orphanages. They seek to do so as a means of expressing their support for the self-determination of the Tamil people in Sri Lanka. Neither the TNC nor its members seek to support the LTTE's military activities. The TNC and its members have been deterred from providing such support for fear that they will be criminally prosecuted under the AEDPA.
World Tamil Coordinating Committee
27. Plaintiff World Tamil Coordinating Committee (the "WTCC"), an organization based in Jamaica, New York, has distributed LTTE literature and informational materials throughout the United States since 1987 to advocate on behalf of the Sri Lankan Tamils' human rights. Part of the WTCC's founding purpose is to advocate on behalf of the human rights and self-determination of the Sri Lankan Tamils. Since the enactment of the AEDPA, many individuals who were receiving LTTE literature from the WTCC have asked the WTCC to stop distributing it to them because they fear that it could lead to criminal investigation, prosecution, and conviction. Many of the WTCC's former donors have stopped making contributions out of fear of criminal investigation and prosecution for providing material support to the LTTE. The WTCC does not intend any of its activities to further any illegal ends.
Federation of Tamil Sangams of North America
28. Plaintiff Federation of Tamil Sangams of North America ("FETNA") is a nonprofit corporation founded in 1986. FETNA's membership includes 30 Sangams in the United States. The FETNA member Sangams are comprised mainly of United States citizens and legal permanent residents who are ethnic Tamils from all over the world, including India and Sri Lanka.
29. FETNA's purposes are to encourage appreciation of Tamil language, literature, arts, cultural heritage and history, and friendship among the Tamils and the Tamil Sangams around the world. FETNA, its member Sangams, and its individuals members would like to make donations to the LTTE for humanitarian assistance to Tamil refugees in Sri Lanka. They are afraid, however, of being criminally prosecuted for doing so. FETNA does not seek to support any unlawful or military activities of the LTTE.
Tamil Welfare and Human Rights Committee
30. Finally, Plaintiff Tamil Welfare and Human Rights Committee ("TWHRC") is a Maryland association of approximately 100 Tamils, both United States citizens and non-citizens. Its primary objectives are to protect the human rights of the Tamils in Sri Lanka and to promote their health, social well-being, and welfare. Its members are concerned about the destitute Tamil refugees in the war-torn areas of Northeast Sri Lanka who have lost their homes and been forced to flee. The TWHRC, as an organization, and its members, as individuals, would like to provide money to the major organizations in Sri Lanka that provide direct relief, medical, and social services to these refugees, including the Tamil Eelam Economic Development Organization. Because of the AEDPA, however, the TWHRC and its members have been deterred from doing do. The TWHRC seeks only to support the LTTE's humanitarian efforts and does not seek to support the LTTE's military activities.
31. Any conclusions of law which are deemed to be findings of fact are incorporated herein by reference.
CONCLUSIONS OF LAW
1. Jurisdiction and venue are proper in this court.
Guilt by Mere Association
2. Plaintiffs have not established a probability of success on the merits that the AEDPA's prohibition on all material support to designated terrorist organizations, regardless of the individual's lack of intent to further illegal activities, violates their First Amendment rights to freedom of speech and *1212 association and, thus, are not entitled to a preliminary injunction on this claim.[5]
3. The AEDPA's prohibition on providing any financial contributions to the PKK and LTTE is a content-neutral limitation on Plaintiffs' right to freedom of association, because it is unrelated to the suppression of the communicative nature of Plaintiffs' associational activities. Turner Broadcasting Sys. v. FCC, 512 U.S. 622, 643, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994); United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); Order at Section IV.A.2.
4. As a content-neutral regulation incidentally burdening Plaintiffs' First Amendment rights, the AEDPA is subject to an intermediate scrutiny level of review as articulated in O'Brien. Turner Broadcasting, 512 U.S. at 642, 114 S.Ct. 2445; O'Brien, 391 U.S. at 376-77, 88 S.Ct. 1673; Order at Section IV.A.2.
5. The Court concludes that the AEDPA does not impose "guilt by association alone" in violation of the First Amendment because the AEDPA only limits the permissible ways in which Plaintiffs can associate with the PKK and LTTE, rather than punishing Plaintiffs' ability to exercise their First Amendment right to associate with the PKK and LTTE altogether. Order at Section IV. B.1.[6]
6. In analyzing whether the AEDPA's regulation of Plaintiffs' First Amendment activities is justified, the Court determines: (1) whether the regulation is within the power of the government; (2) whether the regulation furthers an important or substantial governmental interest; (3) whether the proffered interest is unrelated to the suppression of free expression; and (4) whether the incidental restriction on First Amendment freedoms is no greater than is essential to further the important interest. O'Brien, 391 U.S. at 377, 88 S.Ct. 1673.
7. The enactment of the AEDPA is within the constitutional power of the government. "The Supreme Court has long recognized the broad authority accorded the national government in the foreign policy realm." Palestine Information Office v. Shultz, ("PIO"), 853 F.2d 932, 940 (C.A.D.C. 1988) (citing Regan v. Wald, 468 U.S. 222, 242, 104 S.Ct. 3026, 82 L.Ed.2d 171 (1984)).
8. The AEDPA furthers the government's substantial interest in national security and foreign relations. See, e.g., Farrakhan v. Reagan, 669 F.Supp. 506, 510-12 (D.D.C.1987), aff'd without opinion, 851 F.2d 1500 (1988) (government has a "compelling" interest in national security and ending "state-sponsored" terrorism); Order at Section IV.B.2.b.
9. The government's interest in prohibiting contribution for political and humanitarian activities to the PKK and LTTE is not related to the suppression of Plaintiffs' political speech or advocacy of the PKK's and LTTE's political agenda. Order at Section IV.B.2.c.
10. The AEDPA restricts Plaintiffs' right to political association and expression no more than is essential to further its compelling interest in national security and foreign policy. See 18 U.S.C. § 2339B note ("foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct."); Farrakhan, 669 F.Supp. at 512 (upholding economic sanctions against Libya, including contributions to religious organizations and stating that "in the face of the national security interest lying behind the sanction regulations [directed at Libya], we conclude that there is no alternative that would allow organizations to speak through contributions while still allowing the government to effectuate its legitimate and compelling interests in national security"); Order at Section IV.B.2.d.
*1213 11. The AEDPA's exemption for medicine and religious materials does not render the statute's limitations on Plaintiffs' right to freedom of association greater than is essential. See Order at 42-44.
12. Based on the foregoing, the Court concludes that Plaintiffs have not demonstrated a likelihood of success on the merits of their claim that the AEDPA's prohibition of all contributions to the PKK and LTTE despite Plaintiffs' lack of specific intent to further illegal activities is an impermissible restriction on their First Amendment freedoms.[7]
Vagueness
13. For the reasons set forth in the Court's June 8, 1998 Order, Plaintiffs have not established a probability of success on their claims that the AEDPA: (1) affords the Secretary unfettered discretion; or (2) is impermissibly vague because it grants the Secretary unfettered discretion.
14. Plaintiffs have, however, demonstrated a probable success on the merits and irreparable injury based on their claim that the AEDPA is impermissibly vague because it fails to provide adequate notice as to what constitutes "material support or resources." Specifically, the Court concludes that the terms "personnel" and "training" are impermissibly vague. Thus, Plaintiffs are entitled to a preliminary injunction. See International Jensen v. Metrosound U.S.A., 4 F.3d 819, 822 (9th Cir.1993).
15. A challenge to a statute based on vagueness grounds requires the court to consider whether the statute is sufficiently clear so as not to cause persons "`of common intelligence ... necessarily [to] guess at its meaning and [to] differ as to its application.'" United States v. Wunsch, 84 F.3d 1110, 1119 (9th Cir.1996) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926)).
16. Vague statutes are void for three reasons: "(1) to avoid punishing people for behavior that they could not have known was illegal; (2) to avoid subjective enforcement of the laws based on `arbitrary and discriminatory enforcement' by government officers; and (3) to avoid any chilling effect on the exercise of First Amendment freedoms." Foti v. City of Menlo Park, 146 F.3d 629, 638 (9th Cir.1998) (citing Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)).
17. "A statute is void for vagueness when it does not sufficiently identify the conduct that is prohibited." United States v. Makowski, 120 F.3d 1078, 1081 (9th Cir.), cert. denied, ___ U.S. ___, 118 S.Ct. 610, 139 L.Ed.2d 497 (1997); see also Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1057 (9th Cir.1986) ("A fundamental requirement of due process is that a statute must clearly delineate the conduct it proscribes.") (citing Grayned, 408 U.S. at 108, 92 S.Ct. 2294). "A statute must be sufficiently clear so as to allow persons of `ordinary intelligence a reasonable opportunity to know what is prohibited.'" Foti, 146 F.3d at 638 (quoting Grayned, 408 U.S. at 108, 92 S.Ct. 2294).
18. "[P]erhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights. If, for example, the law interferes with the right of free speech or of association, a more stringent vagueness test should apply." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). "[W]hen First Amendment freedoms are at stake, an even greater degree of specificity and clarity of laws is required." Foti, at 638.
19. "[D]ue process does not require `impossible standards' of clarity." Kolender v. Lawson, 461 U.S. 352, 361, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (quoting United States v. Petrillo, 332 U.S. 1, 7-8, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947)). "[W]e can never expect mathematical certainty from our language." Grayned, 408 U.S. at 110, 92 S.Ct. 2294. Nevertheless, "[t]he requirement of clarity is enhanced when criminal sanctions are at issue or when the statute abuts upon sensitive areas of basic First Amendment freedoms." Information Providers' Coalition for the Defense *1214 of the First Amendment v. FCC, 928 F.2d 866, 874 (9th Cir.1991) (quotation omitted); see also Kolender, 461 U.S. at 357, 103 S.Ct. 1855 (stating that statutes imposing criminal penalties are void for vagueness if they fail to "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement"); United States v. Robel, 389 U.S. 258, 275, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967) ("The areas of permissible indefiniteness narrows ... when the regulation invokes criminal sanctions and potentially affects fundamental rights.") (Brennan, J., concurring). Thus, under the Due Process Clause, a criminal statute is void for vagueness if it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute." United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 808, 98 L.Ed. 989 (1954).
20. The determinative issue is whether the AEDPA sufficiently identifies the prohibited conduct. See Makowski, 120 F.3d at 1081. Because the AEDPA provides for criminal sanctions for those who provide material support to foreign terrorist organizations, "[t]he requirement of clarity is enhanced." Information Providers' Coalition, 928 F.2d at 874.[8] In this case, the terms "personnel" and "training" are not "sufficiently clear so as to allow persons of `ordinary intelligence a reasonable opportunity to know what is prohibited.'" Foti, at 638 (quoting Grayned, 408 U.S. at 108, 92 S.Ct. 2294).[9]
21. The AEDPA contains no language which limits the prohibition of "personnel" to people working at the headquarters and at the direction of foreign terrorist organizations.
22. HLP and Judge Fertig have advocated for the PKK before the UN Commission on Human Rights, petitioned members of Congress, and advocated for the freedom of four Turkish political prisoners convicted of being PKK members or supporters. Additionally, HLP and Judge Fertig would like to but are afraid to write and distribute publications supportive of the PKK and work with PKK members at peace conferences and other meetings toward the cause of peace and justice for the Kurds. Further, Plaintiff WTCC has distributed LTTE literature and informational materials throughout the United States to advocate on behalf of the Sri Lankan Tamils' human rights.
23. Each of these activities could be construed as the prohibited provision of "personnel" under the AEDPA. The AEDPA places no limitation on the type of personnel which is prohibited, or whether the use of any human resources in support of a foreign terrorist organization is prohibited. Thus, the term "personnel" broadly encompasses the type of human resources which Plaintiffs seek to provide, including the distribution of LTTE literature and informational materials and working directly with PKK members at peace conferences and other meetings.
24. The AEDPA also contains no limitation on the proscribed "training."
25. In this case, HLP and Judge Fertig have assisted and trained some PKK members *1215 in using humanitarian law and international human rights law and in seeking a peaceful resolution of the conflict in Turkey. HLP and Judge Fertig would also like to train the PKK in how to engage in political advocacy and on how to use international law to seek redress for human rights violations.
26. The AEDPA broadly prohibits all "training" without express limitation. See 18 U.S.C. § 2339A(b). It does not prohibit only training on how to use weapons, build bombs, or raise funds. Thus, the AEDPA criminalizes some of the activities in which Plaintiffs have engaged and would like to engage.
27. The AEDPA's scienter requirement, see 18 U.S.C. § 2339B(a)(1) ("whoever ... knowingly provides material support ...") (emphasis added), does not mitigate the Court's conclusion that the AEDPA is impermissibly vague.
28. The Supreme Court "has recognized that a scienter requirement may mitigate a law's vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed." See Hoffman Estates, 455 U.S. at 499, 102 S.Ct. 1186. In this case, however, the scienter requirement does not mitigate a finding of vagueness. It is undisputed that the Plaintiffs have provided and seek to continue to "knowingly" provide personnel and training. The AEDPA does not, however, appear to allow persons of ordinary intelligence to determine what type of training or provision of personnel is prohibited. See Foti, at 638. Rather, the AEDPA appears to prohibit activity protected by the First Amendment distributing literature and information and training others to engage in advocacy. Thus, the AEDPA's scienter requirement does not mitigate a finding of vagueness.
29. For all these reasons, Plaintiffs have demonstrated a probability of success on the merits of their claim that the terms "personnel" and "training" are impermissibly vague.
30. Because Plaintiffs have demonstrated a probability of success on their claim that the terms "personnel" and "training" are vague, they have necessarily established irreparable injury. "[T]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); see Jacobsen v. United States Postal Serv., 812 F.2d 1151, 1154 (9th Cir.1987). Accordingly, Plaintiffs are entitled to a preliminary injunction.
31. Any findings of fact deemed to be conclusions of law are incorporated herein by reference.
ORDER
IT IS HEREBY ORDERED:
1. That Defendants JANET RENO, as Attorney General of the United States, UNITED STATES DEPARTMENT OF JUSTICE, MADELEINE ALBRIGHT, as United States Secretary of State, and UNITED STATES DEPARTMENT OF STATE, their officers, directors, principals, agents, servants, employees, and successors, and all those acting in concert or participation with them, are preliminarily enjoined from:
enforcing Section 303 of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996), codified at 18 U.S.C. § 2339B, against RALPH FERTIG and NAGALINGAM JEYALINGAM, or against HUMANITARIAN LAW PROJECT, ILANKAI THAMIL SANGAM, TAMILS OF NORTHERN CALIFORNIA, TAMIL WELFARE AND HUMAN RIGHTS COMMITTEE, FEDERATION OF TAMIL SANGAMS OF NORTH AMERICA, and WORLD TAMIL COORDINATING COMMITTEE and any of their members, for providing "personnel" or "training" to either the Kurdistan Workers' Party, a.k.a. Partiya Karkeran Kurdistan, a.k.a. PKK or the Liberation Tigers of Tamil Eelam, a.k.a. LTTE, a.k.a. Tamil Tigers, a.k.a. Ellalan Force.
2. The bond requirement under Rule 65 of the Federal Rules of Civil Procedure shall be waived because the defendants are unlikely to suffer any monetary damages from the issuance of this preliminary injunction.
NOTES
[1] Section 1189(b)(3) provides:
The Court shall hold unlawful and set aside a designation the court finds to be
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitation, or short of statutory right;
(D) lacking substantial support in the administrative record taken as a whole or in classified information submitted to the court under paragraph (2) or
(E) not in accord with the procedures required by law.
8 U.S.C. § 1189(b)(3).
[2] Although Judge Fertig is an administrative judge for the United States Equal Employment Opportunity Commission, he sues solely in his personal capacity.
[3] The HLP was absorbed by the International Educational Development, Inc. ("IED") in 1989. The HLP is sometimes referred to as the International Educational Development, Inc. *Humanitarian Law Project ("IED*HLP"). The IED was formed in the 1950's by a group of Jesuit Fathers to conduct non-sectarian work to aid schools, hospitals, and impoverished third world communities.
[4] Judge Fertig would also like to solicit for and make contributions to the international campaign to free political prisoners Zana, Dicle, Dogan, and Sadak.
[5] See Section IV of this Court's June 8, 1998 Order for a more detailed analysis supporting the Court's conclusions of law regarding Plaintiffs' claim that the AEDPA violates the First Amendment for imposing guilt by mere association ("Order").
[6] See Order at 28-31 (distinguishing American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045, 1058 (9th Cir.1995) and American-Arab Anti-Discrimination Committee v. Reno, 119 F.3d 1367, 1376 (9th Cir.1997), cert. granted in part, ___ U.S. ___, 118 S.Ct. 2059, 141 L.Ed.2d 137 (1998)).
[7] See also Order at 20 n.45 (concluding that even under strict scrutiny analysis AEDPA's prohibition on all contributions is justified).
[8] The AEDPA defines the term "material support or resources" as "currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials." 18 U.S.C. § 2339A(b) (emphasis added).
[9] Other cases support the finding that the terms "personnel" and "training," similar to language held impermissibly vague in other cases, do not allow a person of ordinary intelligence to know what conduct is prohibited. See, e.g., Kolender, 461 U.S. at 357, 103 S.Ct. 1855 (sustaining facial challenge to ordinance requiring loiterers to provide police with "credible and reliable" identification); Smith v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974) (finding statute barring "treat[ing] contemptuously the flag of the United States" void for vagueness); Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972) (invalidating vagrancy ordinance which permitted police to arrest a person for being a "common thief"); Shuttlesworth v. City of Birmingham, 382 U.S. 87, 95, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965) (invalidating statute permitting police to arrest loiterer for not obeying officer's request to "move on"); Lanzetta v. New Jersey, 306 U.S. 451, 458, 59 S.Ct. 618, 83 L.Ed. 888 (1939) (invalidating statute which made it illegal to be a "gangster").
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539 U.S. 983
Dorseyv.Johnson, Executive Director, Texas Department of Criminal Justice, et al., ante, p. 906.
No. 02-9857.
Supreme Court of United States.
August 25, 2003.
1
Petition for rehearing denied.
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SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
58
CA 13-01275
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, AND WHALEN, JJ.
IN THE MATTER OF THE APPLICATION FOR DISCHARGE
OF RICHARD HOLMES, CONSECUTIVE NO. 185048, FROM
CENTRAL NEW YORK PSYCHIATRIC CENTER PURSUANT TO
MENTAL HYGIENE LAW SECTION 10.09,
PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
STATE OF NEW YORK, NEW YORK STATE OFFICE OF
MENTAL HEALTH AND NEW YORK STATE DEPARTMENT OF
CORRECTIONS AND COMMUNITY SUPERVISION,
RESPONDENTS-RESPONDENTS.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF
COUNSEL), FOR PETITIONER-APPELLANT.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATHLEEN M. TREASURE
OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.
Appeal from an order of the Supreme Court, Oneida County (Louis
P. Gigliotti, A.J.), entered April 18, 2013 in a proceeding pursuant
to Mental Hygiene Law article 10. The order, among other things,
directed that petitioner shall continue to be committed to a secure
treatment facility.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: In March 2009 petitioner was determined to be a
dangerous sex offender in need of civil confinement (see Mental
Hygiene Law § 10.07 [f]), and he is currently confined at the Central
New York Psychiatric Center in Oneida County. Petitioner appeals from
an order continuing his confinement in a secure treatment facility (§
10.09 [h]). A subsequent order stayed all future annual review
proceedings pending this appeal. Thus, contrary to respondents’
contention, this appeal has not been rendered moot (cf. Matter of
Martinek v State of New York, 108 AD3d 1048, 1049).
Contrary to petitioner’s contention, we conclude that Supreme
Court properly denied his motion to substitute counsel because “he
made no good cause showing to warrant [the assignment of] substitute
counsel” (People v Walker, 105 AD3d 1154, 1156, lv denied 21 NY3d 857;
see Matter of Brooks v State of New York, 120 AD3d 1577, 1578-1579).
Also contrary to petitioner’s contention, we conclude that he waived
-2- 58
CA 13-01275
his right to an annual review hearing and thus was not entitled to an
annual hearing. Here, petitioner indicated on the annual written
notice of the right to petition the court for discharge, which
included a waiver option, that he did not wish to waive his right to
petition for discharge (see Mental Hygiene Law § 10.09 [a]; Matter of
Davis v State of New York, 106 AD3d 1488, 1488). Nevertheless,
petitioner responded “Yes, sir” when the court inquired of petitioner
on the date scheduled for the hearing whether he was “willing to waive
[his] right to a hearing or withdraw any requests for such a hearing.”
We therefore conclude that petitioner waived that right (see § 10.09
[d]; Davis, 106 AD3d at 1489-1490).
Entered: February 6, 2015 Frances E. Cafarell
Clerk of the Court
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379 U.S. 497 (1965)
CITY OF EL PASO
v.
SIMMONS.
No. 38.
Supreme Court of United States.
Argued November 17, 1964.
Decided January 18, 1965.
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
*498 William J. Mounce argued the cause for appellant. With him on the brief was Thornton Hardie.
Greenberry Simmons, appellee, argued the cause and filed a brief pro se.
MR. JUSTICE WHITE delivered the opinion of the Court.
Under the applicable statutes existing in Texas in 1910, the year in which the contracts in this case were made, the State Land Board was authorized to sell the public lands allocated to the Permanent Free School Fund on longterm contracts calling for a down payment of one-fortieth of the principal and annual payment of interest and principal. The time for payment of principal was extended periodically and the principal was never called due. In the event of nonpayment of interest, however, the statutes authorized the termination of the contract and the forfeiture of the lands to the State without the necessity of re-entry or judicial proceedings, the land again to become a part of the public domain and to be resold for the account of the school fund.[1] The provision chiefly in issue in this case provided:
"In any cases where lands have been forfeited to the State for the non-payment of interest, the purchasers *499 or their vendees may have their claims reinstated on their written request, by paying into the treasury the full amount of interest due on such claim up to the date of reinstatement; provided, that no rights of third persons may have intervened. In all such cases the original obligations and penalties shall thereby become as binding as if no forfeiture had ever occurred." Tex. Gen. Laws 1897, ch. 129, art. 4218f.
In 1941, the foregoing provisions were amended. Among other things, the offering of forfeited land for sale on a subsequent sale date was made permissive instead of mandatory and a provision was added stating that the right to reinstate lands forfeited thereafter "must be exercised within five (5) years from the date of the forfeiture." Tex Gen. & Spec. Laws 1941, ch. 191, § 3, Vernon's Ann. Civ. Stat., art. 5326. In 1951, the right of reinstatement was limited to the last purchaser from the State and his vendees or heirs. Tex. Gen. & Spec. Laws 1951, ch. 59, § 2, Vernon's Ann. Civ. Stat., art. 5326.[2]
*500 In 1910, certain predecessors in title of Simmons, the appellee, executed their installment contracts to purchase school lands from the State of Texas. The original purchasers made a down payment of one-fortieth of the principal and made annual interest payments. The purchase contracts were assigned several times and interest payments fell into arrears during the forties. On July 21, 1947, after a notice of arrears and request for payment, the land was forfeited for nonpayment of interest. A notice of forfeiture and a copy of the 1941 Act allowing reinstatement within five years were sent to the last purchaser of record, but were returned unclaimed. Appellee Simmons, a citizen of Kentucky, thereafter took quitclaim *501 deeds to the land in question and filed his applications for reinstatement, tendering the required payments. The applications were denied because they had not been made within five years of the forfeiture as required by the 1941 statute. In 1955, pursuant to special legislation, the land was sold by the State to the City of El Paso. Simmons then filed this suit in the Federal District Court to determine title to the land in question. In its answer the City relied upon the 1941 statute as barring Simmons' claim and also pleaded adverse possession and laches as additional defenses. The District Court granted the City's motion for summary judgment on the ground of the 1941 statute.[3] The Court of Appeals reversed, 320 F. 2d 541 (C. A. 5th Cir.), ruling that the right to reinstate was a vested contractual right and that the prohibition against impairment of contracts contained in Art. I, § 10, of the Constitution of the United States prohibited the application of the 1941 statute to the contract here in question. We noted probable jurisdiction. 377 U. S. 902. We reverse.
I.
Although neither party has raised the issue, we deal at the outset with a jurisdictional matter. The appeal in this case is here under 28 U. S. C. § 1254 (2) (1958 ed.).[4] The Court of Appeals, after holding the Texas statute *502 unconstitutional, remanded the case to the District Court to determine the City's defenses of laches and adverse possession. Under a prior interpretation of § 240 (b) of the Judicial Code, the predecessor provision of § 1254 (2), a final judgment or decree of the Court of Appeals is necessary to the exercise of our jurisdiction over the case by way of appeal, Slaker v. O'Connor, 278 U. S. 188, which was followed without comment in South Carolina Electric & Gas Co. v. Flemming, 351 U. S. 901, and questioned but not put to rest in Chicago v. Atchison, Topeka & Santa Fe R. Co., 357 U. S. 77, the judgment in that case being deemed a final one. These questions under § 1254 (2) were neither briefed nor argued in this case and it is not appropriate to resolve them here.
In 1962 Congress expanded the scope of 28 U. S. C. § 2103 to apply to appeals from the United States courts of appeals.[5] That section now provides that an appeal improvidently taken from a court of appeals as well as from a state court shall not be dismissed for that reason alone, but that the appeal papers shall be regarded and acted on as a petition for a writ of certiorari. The restriction in 28 U. S. C. § 1254 (2) (1958 ed.) providing that an appeal from the court of appeals "shall preclude review by writ of certiorari at the instance of such appellant" is no bar to our treating this case as here on a *503 petition for certiorari. For this provision means only that if an appeal is proper and has been taken, certiorari will not thereafter be available; where the appeal is not proper, this Court will still consider a timely application for certiorari.[6]Bradford Electric Light Co. v. Clapper, 284 U. S. 221. No timely application for certiorari has been filed in the instant case. But 28 U. S. C. § 2103 (1958 ed., Supp. V) now requires that we treat the papers whereon the appeal was taken as a petition for certiorari. Accordingly we dismiss the appeal and grant the writ of certiorari.
II.
We turn to the merits. The City seeks to bring this case within the long line of cases recognizing a distinction between contract obligation and remedy and permitting a modification of the remedy as long as there is no substantial impairment of the value of the obligation. Sturges v. Crowninshield, 4 Wheat. 122, 200; Von Hoffman v. City of Quincy, 4 Wall. 535, 553-554; Honeyman v. Jacobs, 306 U. S. 539. More specifically, it invokes three cases in this Court, two from Texas, that held it constitutionally permissible to apply state statutes allowing forfeiture of land purchase rights to land contracts between private persons and the State made when the law did not provide for forfeiture or permitted it only upon *504 court order. Wilson v. Standefer, 184 U. S. 399; Waggoner v. Flack, 188 U. S. 595; Aikins v. Kingsbury, 247 U. S. 484.[7] In those cases the Court reasoned that the state statutes existing when the contracts were made were not to be considered the exclusive remedies available in the event of the purchaser's default since there was no promise, express or implied, on the part of the State not to enlarge the remedy or grant another in case of breach.
The Court of Appeals rejected the City's contention. The Texas cases, according to the Court of Appeals, hold *505 that the reinstatement provision confers a vested right which is not subject to legislative alteration.[8] From this it concluded that under state law the five-year limitation on reinstatement was not a mere modification of remedy *506 but a change in the obligation of a contract. Relying on the theory that it is state law that determines the obligations of the parties, the Court of Appeals found that the 1941 statute abrogated an obligation of the contract and thus violated the Contract Clause of the Constitution.
We do not pause to consider further whether the Court of Appeals correctly ascertained the Texas law at the time these contracts were made, or to chart again the dividing line under federal law between "remedy" and "obligation," or to determine the extent to which this line is controlled by state court decisions, decisions often rendered in contexts not involving Contract Clause considerations.[9] For it is not every modification of a contractual *507 promise that impairs the obligation of contract under federal law, any more than it is every alteration of existing remedies that violates the Contract Clause. *508 Stephenson v. Binford, 287 U. S. 251, 276; Stone v. Mississippi, 101 U. S. 814, 819; Manigault v. Springs, 199 U. S. 473. Assuming the provision for reinstatement after default to be part of the State's obligation, we do not think its modification by a five-year statute of repose contravenes the Contract Clause.
The decisions "put it beyond question that the prohibition is not an absolute one and is not to be read with literal exactness like a mathematical formula," as Chief Justice Hughes said in Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 428. The Blaisdell opinion, which amounted to a comprehensive restatement of the principles underlying the application of the Contract Clause, makes it quite clear that "[n]to only is the constitutional provision qualified by the measure of control which the State retains over remedial processes, but the State also continues to possess authority to safeguard the vital interests of its people. It does not matter that legislation appropriate to that end `has the result of modifying or abrogating contracts already in effect.' Stephenson v. Binford, 287 U. S. 251, 276. Not only are existing laws read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order. . . . This principle of harmonizing the constitutional prohibition with the necessary residuum of state power has had progressive recognition in the decisions of this Court." 290 U. S., at 434-435. Moreover, the "economic interests of the State may justify the exercise of its continuing and dominant protective power notwithstanding interference with contracts." Id., at 437. The State has the "sovereign right . . . to protect the . . . general welfare of the people. . . . Once we are in this domain of the reserve power of a State we must respect the `wide discretion on the part of the legislature in determining what is and *509 what is not necessary.' " East New York Savings Bank v. Hahn, 326 U. S. 230, 232-233. As Mr. Justice Johnson said in Ogden v. Saunders, "[i]t is the motive, the policy, the object, that must characterize the legislative act, to affect it with the imputation of violating the obligation of contracts." 12 Wheat. 213, 291.
Of course, the power of a State to modify or affect the obligation of contract is not without limit. "[W]hatever is reserved of state power must be consistent with the fair intent of the constitutional limitation of that power. The reserved power cannot be construed so as to destroy the limitation, nor is the limitation to be construed to destroy the reserved power in its essential aspects. They must be construed in harmony with each other. This principle precludes a construction which would permit the State to adopt as its policy the repudiation of debts or the destruction of contracts or the denial of means to enforce them." Blaisdell, supra, at 439. But we think the objects of the Texas statute make abundantly clear that it impairs no protected right under the Contract Clause.
III.
Texas, upon entering the Union, reserved its entire public domain, one-half of which was set aside under the 1876 Constitution to finance a universal system of free public education.[10] These lands, over 42,000,000 acres, *510 were to be sold as quickly as practicable in order to provide revenues for the public school system and to encourage the settlement of the vast public domain. The terms of sale were undemanding and designed to accomplish the widespread sale and development of the public domain. The State required a down payment of one-fortieth of the purchase price, an annual payment of one-fortieth of principal and an annual payment of interest.[11] The terms were frequently modified in favor of purchasers. Periodically, during the course of almost a century, the time for payment of the nominal principal amount was extended.[12] In 1919, the requirement that the purchaser settle on the land or adjoining land was lifted,[13] provisions allowing forfeiting purchasers a first opportunity to repurchase forfeited land at a newly appraised *511 value were thrice added,[14] interest in arrears was forgiven under one of these acts,[15] and reclassification of lands was held not to deprive forfeiting purchasers, upon reinstatement, of their mineral rights in the land.[16] But eventually the evolution of a frontier society to a modern State, attended by the discovery of oil and gas deposits which led to speculation and exploitation of the changes in the use and value of the lands, called forth amendments to the Texas land laws modifying the conditions of sale in favor of the State. Beside increasing the required down payment from one-fortieth to one-fifth of the purchase price,[17] the State restricted the right of reinstatement to the last purchaser from the State or his assigns and required that this right be exercised within five years from the date of forfeiture.
The circumstances behind the 1941 amendment are well described in the Reports of the Commissioner of the General Land Office. The general purpose of the legislation enacted in 1941 was to restore confidence in the stability and integrity of land titles and to enable the State to protect and administer its property in a *512 businesslike manner. 1938-1940 Rep. 5. "[T]he records [of the land office] show that through the years many thousands of purchase contracts, covering, in the aggregate, millions of acres of school land, have been forfeited by failure of the purchasers to meet the small annual interest payments requisite to the maintenance of the contracts." Id., at 11-12. In 1939, 15,000 sales contracts were found delinquent and subject to forfeiture and there were about 600,000 acres of unsold surveyed school lands, the major portion of which had produced no revenue for a decade. Ibid. This state of affairs was principally attributable to the opportunity for speculation to which unlimited reinstatement rights gave rise. Forfeited purchase contracts which had remained dormant for years could be reinstated if and when the land became potentially productive of gas and oil. Where forfeited lands were purchased without reservation of minerals to the State, as was the case in respect to early purchases before discovery of the extensive mineral wealth in the State, all of the mineral rights reverted to the owner of the reinstated claims, regardless of the State's later attempts in forfeited sales to share in the mineral interest. Gulf Production Co. v. State, 231 S. W. 124 (Tex. Civ. App.). Hence the Land Commissioner noted that the majority of sales and resales under the laws requiring sale to the highest bidder[18] were to purchasers buying a "speculative option," "taken for possible profits on the rights of the surface owners to lease the land for oil and gas." "Under such conditions lands were bid in at highly inflated prices such as no one who expected to keep the land could afford to offer." 1940-1942 Rep. 5. The attempts to assure some stability in land sales through *513 repurchase acts, allowing delinquent owners a preferential right to buy forfeited land at a reappraised value, and, under one act, without payment of accumulated interest in arrears, proved unsuccessful, and expensive. In regard to one of the State's attempts to quiet titles through a repurchase act, the Land Commissioner in 1925 expressed the belief that the "owners can realize such returns from [the lands] as will enable them to pay interest thereon instead of continuing the recurring annual forfeiture and resale and so on indefinitely." 1924-1926 Rep. 5. In 1939, a new Commissioner noted that 1,872,326 acres had been forfeited and 1,195,993 acres repurchased under the three repurchase acts. The net loss to the School Fund from repurchases was said to be $1,661,980 plus the loss in interest arrears of $418,000. 1938-1940 Rep. 12.
No less significant was the imbroglio over land titles in Texas. The long shadow cast by perpetual reinstatement gave rise to a spate of litigation between forfeiting purchasers and the State or between one or more forfeiting purchasers and other forfeiting purchasers. See, e. g., Weaver v. Robison, 114 Tex. 272, 268 S. W. 133; Anderson v. Neighbors, 94 Tex. 236, 59 S. W. 543; Mound Oil Co. v. Terrell, 99 Tex. 625, 92 S. W. 451. Where the same land had been sold and contracts forfeited several times, as was frequently the case, the right to reinstate could be exercised by any one of the forfeiting purchasers or his vendees. Hoefer v. Robison, 104 Tex. 159, 135 S. W. 371. Cf. Faulkner v. Lear, 258 S. W. 2d 147 (Tex. Civ. App.). It was this situation to which the Texas Legislature addressed itself in 1941 and it is in light of this situation that we judge the validity of the amendment.
The Contract Clause of the Constitution does not render Texas powerless to take effective and necessary *514 measures to deal with the above. We note at the outset that the promise of reinstatement, whether deemed remedial or substantive, was not the central undertaking of the seller nor the primary consideration for the buyer's undertaking. See Wilson v. Standefer, 184 U. S. 399; Waggoner v. Flack, 188 U. S. 595; Aikins v. Kingsbury, 247 U. S. 484. Under this agreement the State promised to transfer title to the buyer upon his payment of the purchase price; in turn the buyer was obliged to make a nominal down payment of one-fortieth of the purchase price and to maintain annual interest payments. Where the buyer breached what was practically his only obligation under the contract, the land reverted back to the school fund, Boykin v. Southwest Texas Oil & Gas Co., 256 S. W. 581, and a right of reinstatement arose, conditioned on the State's refusal or failure to dispose of the land by sale or lease. Hoefer v. Robison, 104 Tex. 159, 135 S. W. 371. We do not believe that it can seriously be contended that the buyer was substantially induced to enter into these contracts on the basis of a defeasible right to reinstatement in case of his failure to perform, or that he interpreted that right to be of everlasting effect. At the time the contract was entered into the State's policy was to sell the land as quickly as possible, and the State took many steps to induce sales. See Becton v. Dublin, 163 S. W. 2d 907, 910 (Tex. Civ. App.). Thus, for example, the Land Commissioner was required to reclassify forfeited lands by the next sale day and to publicize widely the forfeiture and sale. Weaver v. Robison, 114 Tex. 272, 268 S. W. 133. This policy clearly indicates that the right of reinstatement was not conceived to be an endless privilege conferred on a defaulting buyer. A contrary construction would render the buyer's obligations under the contract quite illusory while obliging the State to transfer the land whenever the purchaser decided to comply with the contract, *515 all this for a nominal down payment. We, like the Court in Faitoute Iron & Steel Co. v. City of Asbury Park, 316 U. S. 502, 514, believe that "[t]he Constitution is `intended to preserve practical and substantial rights, not to maintain theories.' Davis v. Mills, 194 U. S. 451, 457."
The State's policy of quick resale of forfeited lands did not prove entirely successful; forfeiting purchasers who repurchased the lands again defaulted and other purchasers bought without any intention of complying with their contracts unless mineral wealth was discovered. The market for land contracted during the depression. 1938-1940 Rep. 12. These developments hardly to be expected or foreseen, operated to confer considerable advantages on the purchaser and his successors and a costly and difficult burden on the State. This Court's decisions have never given a law which imposes unforeseen advantages or burdens on a contracting party constitutional immunity against change. Honeyman v. Jacobs, 306 U. S. 539; Gelfert v. National City Bank, 313 U. S. 221; East New York Savings Bank v. Hahn, 326 U. S. 230. Laws which restrict a party to those gains reasonably to be expected from the contract are not subject to attack under the Contract Clause, notwithstanding that they technically alter an obligation of a contract. The five-year limitation allows defaulting purchasers with a bona fide interest in their lands a reasonable time to reinstate. It does not and need not allow defaulting purchasers with a speculative interest in the discovery of minerals to remain in endless default while retaining a cloud on title.
The clouds on title arising from reinstatement rights were not without significance to the State's vital interest in administering its school lands to produce maximum revenue and in utilizing its properties in ways best suited to the needs of a growing population. The uncertainty *516 of land titles, the massive litigation to which this gave rise, and the pattern of sale and forfeiture were quite costly to the school fund and to the development of land use. Timeless reinstatement rights prevented the State from maintaining an orderly system of land sales and the resultant confusion impeded the effective disposition of lands and utilization of mineral wealth within them. Where sales by the State were not feasible or desirable, the State was prevented from utilizing the lands or permitting its subdivisions to utilize them by the possibility that some one of several purchasers might at some unknowable future date assert the right to reinstatement. In this very case, the legislature authorized by special act the transfer of this land to the City of El Paso, reserving the minerals to the State, in recognition of "[t]he fact that the City of El Paso is in urgent need of expanding its sources of water and of protecting water wells previously drilled," Tex. Gen. & Spec. Laws 1955, ch. 278. This transfer would have been invalid absent the 1941 Act.
The program adopted at the turn of the century for the sale, settlement, forfeiture, and reinstatement of land was not wholly effectual to serve the objectives of the State's land program many decades later. Settlement was no longer the objective, but revenues for the school fund, efficient utilization of public lands, and compliance with contracts of sale remained viable and important goals, as did the policy of relieving purchasers from the hardships of temporary adversity. Given these objectives and the impediments posed to their fulfillment by timeless reinstatement rights, a statute of repose was quite clearly necessary. The measure taken to induce defaulting purchasers to comply with their contracts, requiring payment of interest in arrears within five years, was a mild one indeed, hardly burdensome to the purchaser *517 who wanted to adhere to his contract of purchase, but nonetheless an important one to the State's interest. The Contract Clause does not forbid such a measure.
The judgment is
Reversed.
MR. JUSTICE BLACK, dissenting.
I have previously had a number of occasions to dissent from judgments of this Court balancing away the First Amendment's unequivocally guaranteed rights of free speech, press, assembly and petition.[1] In this case I am compelled to dissent from the Court's balancing away the plain guarantee of Art. I, § 10, that
"No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . ,"
a balancing which results in the State of Texas' taking a man's private property for public use without compensation in violation of the equally plain guarantee of the Fifth Amendment, made applicable to the States by the Fourteenth, that
". . . private property [shall not] be taken for public use, without just compensation."
The respondent, Simmons, is the loser and the treasury of the State of Texas the ultimate beneficiary of the Court's action.
*518 I.
In 1910 Texas obligated itself by contract to sell the land here involved, the purchasers to pay one-fortieth of the price in cash, the balance due at unnamed dates, with annual interest at 3% of the unpaid balance to be paid each succeeding year. The contracts of sale approved on behalf of the State by the Texas Land Commissioner provided that the land was sold "in accordance with the provisions of" two Texas statutes.[2] The provisions of these statutes relating to the sale were thus incorporated in and became a part of the obligation assumed by Texas and the purchasers, just as if they had been spelled out word for word in the contracts. One of these incorporated statutes provided that upon failure to pay any interest due, a purchaser's rights under his contract should be "forfeited to the State," but that even after such forfeiture the purchaser could have his claim under the original contract
"re-instated on . . . written request by paying into the Treasury the full amount of interest due on such claim up to the date of re-instatement, provided that no rights of third persons may have intervened."[3]
Some 37 years after execution of the contracts involved in this case, interest payments fell into arrears and the State declared the contracts forfeited. Five years and two days later Simmons, having become the owner of the contracts by valid sale and assignment, tendered payment of all interest due[4] and asked the State to carry out its *519 contractual obligation to reinstate his claim to the land. Since the State still owned the land and admittedly no rights of third persons had intervened, Simmons was unquestionably entitled to reinstatement of his claim under the terms of the State's original obligation. The State nevertheless refused to honor its contracts providing for reinstatement on tender of interest, and several years later sold the land, less mineral rights, to the City of EI Paso for a price much higher than it would have received by honoring the contract and selling to Simmons at the contract price.[5] Simmons brought an action in federal court to establish his title. The Court of Appeals, reversing the District Court, held that the Contract Clause of the Constitution, Art. I, § 10, prevented Texas from thus repudiating the obligation it had assumed in its 1910 contracts.
This Court now reverses the Court of Appeals and holds that Texas was justified in dishonoring its contractual obligation because of a state law passed in 1941 which attempted to change the obligation of this contract and the many others like it from one unconditionally allowing reinstatement, provided no rights of third parties had intervened, to one which cast off that right unless "exercised within five (5) years from the date of the forfeiture."[6] The Court says that the State, after making a contractual obligation voluntarily and eagerly when the property was a drug on the market, was nevertheless free to enact the 1941 statute which not only impaired but flatly repudiated its former obligation after the land had greatly increased in value. And strange as *520 it sounds, one of the reasons the Court gives as justification for Texas' repudiation of its obligation to Simmons and many others is that these contracts had turned out to be a bad bargain and Texas had lost millions of dollars by honoring them in the past. If the hope and realization of profit to a contract breaker are hereafter to be given either partial or sufficient weight to cancel out the unequivocal constitutional command against impairing the obligations of contracts, that command will be nullified by what is the most common cause for breaking contracts. I cannot subscribe to such a devitalizing constitutional doctrine.
The Court does not deny that under Texas law the State's contractual promise to permit reinstatement gave the purchaser a right which the State under its law was bound by the contract to honor.[7] The Court carefully *521 does not deny that this promise by Texas is the kind of "obligation" which the Contract Clause was written to protect. The Court does not, unless by a most oblique reference in its footnote 9, nor could it in my judgment, allow Texas to escape its obligation by treating this as a mere change in court remedies for enforcement. Instead of relying on such grounds, the Court says that since the State acts out of what this Court thinks are good motives, and has not repudiated its contract except in a way which this Court thinks is "reasonable," therefore the State will be allowed to ignore the Contract Clause of the Constitution. There follow citation of one or two dicta from past cases and a bit of skillful "balancing," and the Court arrives at its conclusion: although the obligation of the contract has been impaired here, this impairment does not seem to the Court to be very serious or evil, and so therefore "The Contract Clause does not forbid such a measure."
II.
In its opinion the Court's discussion of the Contract Clause and this Court's past decisions applying it is brief. For the most part the Court instead discusses the difficulties and regret which the Government of Texas has experienced on account of the contracts it entered. I therefore think that the first thing it is important to point out is that there is no support whatever in history or in *522 this Court's prior holdings for the decision reached in this case. Indeed, I believe that the relevant precedents all point the opposite way.
The Contract Clause was included in the same section of the Constitution which forbids States to pass bills of attainder or ex post facto laws. All three of these provisions reflect the strong belief of the Framers of the Constitution that men should not have to act at their peril, fearing always that the State might change its mind and alter the legal consequences of their past acts so as to take away their lives, their liberty or their property. James Madison explained that the people were "weary of the fluctuating policy" of state legislatures and wanted it made clear that under the new Government men could safely rely on States to keep faith with those who justifiably relied on their promises. The Federalist, No. 44, at 301 (Cooke ed. 1961).
The first great case construing the Contract Clause involved, much like the present case, an attempt by a State to relieve itself of the duty of honoring land grants which it regretted having made. In Fletcher v. Peck, 6 Cranch 87, decided in 1810, this Court speaking through Chief Justice John Marshall held that a law of the State of Georgia which attempted to terminate grants of land made by the State under authority of a prior state law was invalid as a violation of the Contract Clause.[8] Later in Sturges v. Crowninshield, 4 Wheat. 122, decided in 1819, Chief Justice Marshall again speaking for the Court went on to say that "Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct,"[9] thus drawing a distinction between state action deemed to *523 be a mere change of remedy, that is, the method for enforcing the contract, and state impairment of a contractual obligation.[10] As to the latter he emphasized that a thing promised to be done by a party to a contract is
"of course, the obligation of his contract. . . . Any law which releases a part of this obligation, must, in the literal sense of the word, impair it. . . .
"The words of the constitution, then, are express, and incapable of being misunderstood."[11]
On other occasions this Court held that the Contract Clause prohibits a State from repudiating a tax exemption included by the State in a grant of land. Gordon v. Appeal Tax Court, 3 How. 133; New Jersey v. Wilson, 7 Cranch 164.
The Court does not purport to overrule any of these past cases, but I think unless overruled they require a holding that the Texas statute violates the Contract Clause. It is therefore at least a little surprising that the Court does not find it necessary to discuss them. Instead the Court quotes a few abstract statements from some other cases, hardly a solid and persuasive basis for devitalizing one of the few provisions which the Framers deemed of sufficient importance to place in the original Constitution along with companion clauses forbidding States to pass bills of attainder and ex post facto laws.
The cases the Court mentions do not support its reasoning. Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, which the Court seems to think practically read the Contract Clause out of the Constitution, actually did *524 no such thing, as the Blaisdell opinion read in its entirety shows and as subsequent decisions of this Court were careful to point out. Blaisdell without resort to "balancing" simply held that a State could constitutionally pass a law extending the period of redemption of a mortgage for two years where it provided for compensation to the mortgagee for the resulting delay in enforcement. In so holding the Blaisdell Court relied on and approved the established distinction between an invalid impairment of a contract's obligation and a valid change in the remedy to enforce it.[12] Viewed this way the Court *525 in Blaisdell found no contractual promise or "obligation" by the State to keep the old law as to remedy static. It could and did treat the challenged state law as a general one which did no more than change the remedy to enforce contracts, a change which had carefully provided that parties entitled under the old law to foreclose mortgages should during those two years be paid the fair rental value of the property just as if the foreclosure had taken place. In so holding the Court recognized that contracts are subject to the right of partial or total eminent domain, West River Bridge Co. v. Dix, 6 How. 507, so long as compensation is paid, and it held that since there was provision that the mortgagees would be paid the Contract Clause would permit such "limited and temporary interpositions"[13] designed to give "temporary relief"[14] through a "temporary and conditional restraint" on the remedy.[15] The Court noted that the mortgage contract was one between private persons rather than one between a private person and the State itself, and relied on past decisions which had held that "One whose rights, such as they are, are subject to state restriction, cannot remove them from the power of the State by making a contract about them." Hudson County Water Co. v. McCarter, 209 U. S. 349, 357. See also, e. g., Dillingham v. McLaughlin, 264 U. S. 370, 374; Marcus Brown Holding Co. v. Feldman, 256 *526 U. S. 170, 198; Manigault v. Springs, 199 U. S. 473, 480. The Contract Clause, said the Court in Blaisdell, would not be construed to "permit the State to adopt as its policy the repudiation of debts or the destruction of contracts or the denial of means to enforce them." 290 U. S., at 439. That, the Court held, would impair the contract instead of merely delaying enforcement while compensating the creditor for the delay. No such thing can be said about this Texas law, as the Court implicitly recognizes by placing no reliance upon the distinction between the obligation and the remedy, preferring instead its "balancing" technique.[16] Chief Justice Hughes, the author of Blaisdell, later reiterated and emphasized that that case had upheld only a temporary restraint which provided for compensation, when four months later he spoke for the Court in striking down a law which did not. W. B. Worthen Co. v. Thomas, 292 U. S. 426. Other state laws which did not meet the *527 constitutional standard applied in Blaisdell were subsequently struck down. See, e. g., W. B. Worthen Co. v. Kavanaugh, 295 U. S. 56; Treigle v. Acme Homestead Assn., 297 U. S. 189; Wood v. Lovett, 313 U. S. 362.[17]
None of the other cases which the Court quotes or mentions in passing altered in any way the rule established in Fletcher v. Peck, supra, and adhered to in Blaisdell and thereafter, that a State may not pass a law repudiating contractual obligations without compensating the injured parties.[18] Especially should this be true when, as in the *528 case before us, the contractual obligation repudiated is the State's own. Compare Perry v. United States, 294 U. S. 330, with Norman v. Baltimore & O. R. Co., 294 U. S. 240.
III.
To subvert the protection of the Contract Clause here, as well as the Fifth and Fourteenth Amendments' prohibition against taking private property for public use without just compensation,[19] the Court has, as I said, imported into this constitutional field what I believe to be a constitutionally insupportable due process "balancing" technique to which I have objected in cases arising under the Due Process Clauses of the Fifth and Fourteenth Amendments,[20] and which has done so much to water down the safeguards of First Amendment freedoms. See note 1, supra. The Court says, "Laws which restrict a party to those gains reasonably to be expected from the *529 contract are not subject to attack under the Contract Clause, notwithstanding that they technically alter an obligation of a contract." Otherwise stated, a person can make a good deal with a State but if it turns out to be a very good deal for him or a very bad deal for the State, the State is free to renege at any time. And whether gains can "reasonably be expected from the contract" is of course, in the Court's view, for this Court to decide. Thus this Court's judgment as to "reasonableness" of a law impairing or even repudiating a valid contract becomes the measure of the Contract Clause's protection.
The Court in its due process "reasonableness" formula, true to the principle of that indefinable standard, weighs what it considers to be the advantages and disadvantages to Texas of enforcing the contract provision, against the advantages and disadvantages to the purchasers. The Court then concludes that in its judgment the scales tip on the side of Texas and therefore refuses to give full faith to the constitutional provision. On the side of the purchasers the Court finds nothing that weighs much: the promise to reinstate was not "central" or "primary"; the contracts as viewed today seem to have been very generous to the buyers; buyers were probably not substantially induced to enter into these contracts by the "defeasible right to reinstatement." The Court tries to downgrade the importance of the reinstatement obligation in the contract by volunteering the opinion that this obligation "was not the central undertaking of the seller [Texas] nor the primary consideration for the buyer's undertaking." Why the Court guesses this we are not told. My guess is different. This particular provision was bound, I think, to have been a great inducement to prospective purchasers of lots and blocks of land that the State of Texas was understandably eager to sell for many reasons. It took purchasers to build up the population of Texas and thereby improve *530 its business and increase its land values. It is not surprising, therefore, that the State was willing to sell its oversupply of land on liberal terms, nor should it be surprising to suggest that Texas knew that its land could be sold for more, and more quickly, by promising purchasers that so long as Texas kept the property the right of these first purchasers and their assigns to buy at the original prices should never be forfeited. To my way of thinking it demonstrates a striking lack of knowledge of credit buying and selling even to imply that these express contractual provisions safeguarding credit purchasers against forfeitures were not one of the greatest, if not the greatest, selling arguments Texas had to promote purchase of its great surfeit of lands. The Court's factual inference is all the more puzzling since its opinion emphasizes that many people entered these contracts for speculative purposes which without the redemption provision would not have been nearly so attractive.
The Court observes that it believes "[t]he Constitution is `intended to preserve practical and substantial rights, not to maintain theories.' "[21] Of course I agree with that. But while deprivation of Simmons' right to have Texas carry out its obligation to permit him to reinstate his claim and purchase the land may seem no more than a "theory" to the Court, it very likely seems more than that to Texas, which by repudiating its contract has undoubtedly gained millions of dollars, and to purchasers who have concededly, and I think unconstitutionally, lost those millions. It appears odd to me also to have the Court support its holding on what is nothing more than the Court's theory that all Texas has done is "technically alter an obligation of a contract." Much as has been said about the wealth of Texas, I was unaware until now *531 that a multi-million dollar windfall for that State could be dismissed as a mere technicality; it sounds like more than a technicality to me, and perhaps to the purchasers whose rights Texas took away from them.
Let us now look at some of the weights the Court throws on the scales on the side of Texas: thousands of purchase contracts were forfeited from time to time by failure of purchasers to pay interest; forfeited claims under many of these contracts could be reinstated by purchasers "if and when the land became potentially productive of gas and oil"; some of the purchases were made for speculative purposes; purchasers thwarted efforts of Texas to repurchase the lands in order to resell them at a higher value; the lands went up in value as the years rolled by, which caused Texas to "lose" millions of dollars; much litigation arose between the State and contract purchasers; the State's policy of quick resale of forfeited lands, in order to cause rights of third parties to intervene, did not prove successful; the market for land contracted during the depression; clouds on titles arose because of reinstatement rights on land which Texas had resold; "interest" and "necessity" prompted Texas to pass the 1941 law repudiating its contractual reinstatement rights; carrying out the obligations would have been "quite costly to the school fund and to the development of land use"; when the land here involved was sold to El Paso in breach of the State's obligation to Simmons, El Paso was " `in urgent need of expanding its sources of water' "; the State needed more money for its school fund and for efficient utilization of its public lands, money which it could get painlessly if it was allowed to repudiate these obligations, which were "impediments" to the State's desire to raise money by reselling these lands for a higher price.
I do not believe that any or all of the things set out above on which the Court relies are reasons for relieving Texas of the unconditional duty of keeping its contractual *532 obligations as required by the Contract Clause. At most the Court's reasons boil down to the fact that Texas' contracts, perhaps very wisely made a long time ago,[22] turned out when land soared in value, and particularly after oil was discovered, to be costly to the State. As the Court euphemistically puts it, the contracts were "not wholly effectual to serve the objectives of the State's land program many decades later. Settlement was no longer the objective, but revenues . . ." among other things were. In plainer language, the State decided it had made a bad deal and wanted out. There is nothing unusual in this. It is a commonplace that land values steadily rise when population increases and rise sharply when valuable minerals are discovered, and that many sellers would be much richer and happier if when lands go up in value they were able to welch on their sales. No plethora of words about state school funds can conceal the fact that to get money easily without having to tax the whole public Texas took the easy way out and violated the Contract Clause of the Constitution as written and as applied up to now. If the values of these lands and of valid contracts to buy them have increased, that increase belongs in equity as well as in sound constitutional interpretation not to Texas, but to the many people who agreed to these contracts under what now turns out to have been a mistaken belief that Texas would keep the obligations it gave to those who dealt with it.
All this for me is just another example of the delusiveness of calling "balancing" a "test." With its deprecatory view of the equities on the side of Simmons and other claimants and its remarkable sympathy for the State, the Court through its balancing process states the case in a way inevitably destined to bypass the Contract Clause and let Texas break its solemn obligation. As the Court's *533 opinion demonstrates, constitutional adjudication under the balancing method becomes simply a matter of this Court's deciding for itself which result in a particular case seems in the circumstances the more acceptable governmental policy and then stating the facts in such a way that the considerations in the balance lead to the result. Even if I believed that we as Justices of this Court had the authority to rely on our judgment of what is best for the country instead of trying to interpret the language and purpose of our written Constitution, I would not agree that Texas should be permitted to do what it has done here. But more importantly, I most certainly cannot agree that constitutional law is simply a matter of what the Justices of this Court decide is not harmful for the country, and therefore is "reasonable." Cf. Ferguson v. Skrupa, 372 U. S. 726; Federal Power Comm'n v. Natural Gas Pipeline Co., 315 U. S. 575, 599 (concurring opinion). James Madison said that the Contract Clause was intended to protect people from the "fluctuating policy" of the legislature. The Federalist, No. 44, at 301 (Cooke ed. 1961). Today's majority holds that people are not protected from the fluctuating policy of the legislature, so long as the legislature acts in accordance with the fluctuating policy of this Court.
IV.
In spite of all the Court's discussion of clouds on land titles and need for "efficient utilization" of land, the real issue in this case is not whether Texas has constitutional power to pass legislation to correct these problems, by limiting reinstatements to five years following forfeiture. I think that there was and is a constitutional way for Texas to do this. But I think the Fifth Amendment forbids Texas to do so without compensating the holders of contractual rights for the interests it wants to destroy. Contractual rights, this Court has held, are property, and *534 the Fifth Amendment requires that property shall not be taken for public use without just compensation. Lynch v. United States, 292 U. S. 571; see also Perry v. United States, 294 U. S. 330; cf. United States v. General Motors Corp., 323 U. S. 373. This constitutional requirement is made applicable to the States by the Fourteenth Amendment. See Griggs v. Allegheny County, 369 U. S. 84, 85; Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 241. The need to clear titles and stabilize the market in land would certainly be a valid public purpose to sustain exercise of the State's power of eminent domain, and while the Contract Clause protects the value of the property right in contracts, it does not stand in the way of a State's taking those property rights as it would any other property, provided it is willing to pay for what it has taken. Contributors to the Pennsylvania Hospital v. City of Philadelphia, 245 U. S. 20; City of Cincinnati v. Louisville & N. R. Co., 223 U. S. 390; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685; West River Bridge Co. v. Dix, 6 How. 507. The Texas statute which the Court upholds, however, took away Simmons' contract rights without any compensation.
The Court seems to say that because it was "necessary" to raise money and clear titles, Texas was not obligated to pay for rights which it took. I suppose that if Texas were building a highway and a man's house stood in the way, it would be "necessary" to tear it down. Until today I had thought there could be no doubt that he would be entitled to just compensation. Yet the Fifth and Fourteenth Amendments protect his rights no more nor less than they do those of people to whom Texas was contractually obligated. Texas' "necessity" as seen by this Court is the mother of a regrettable judicial invention which I think has no place in our constitutional *535 law.[23] Our Constitution provides that property needed for public use, whether for schools or highways or any other public purpose, shall be paid for out of tax-raised funds fairly contributed by all the taxpayers, not just by a few purchasers of land who trusted the State not wisely but too well. It is not the happiest of days for me when one of our wealthiest States is permitted to enforce a law that breaks faith with those who contracted with it. Cf. Federal Power Comm'n v. Tuscarora Indian Nation, 362 U. S. 99, 124 (dissenting opinion).
I would affirm the judgment of the Court of Appeals.
NOTES
[1] The Act of 1895 provided in pertinent part:
"Sec. 11. If upon the first day of November of any year the interest due on any obligation remains unpaid, the Commissioner of the General Land Office shall endorse on such obligation `Land Forfeited,' and shall cause an entry to that effect to be made on the account kept with the purchaser, and thereupon said land shall thereby be forfeited to the State without the necessity of re-entry or judicial ascertainment, and shall revert to the particular fund to which it originally belonged, and be resold under the provisions of this act or any future law: . . . Provided, further, that nothing in this section contained shall be construed to inhibit the State from instituting such legal proceedings as may be necessary to enforce such forfeiture, or to recover the full amount of the interest and such penalties as may be due the State at the time such forfeiture occurred, or to protect any other right to such land, which suits may be instituted by the Attorney General or under his direction, in the proper court of the county in which the land lies or of the county to which such county is attached for judicial purposes: Provided, this section shall be printed on the back of receipt." Tex. Gen. Laws 1895, ch. 47.
[2] Art. 5326 now reads:
"If any portion of the interest on any sale should not be paid when due, the land shall be subject to forfeiture by the Commissioner entering on the wrapper containing the papers `Land Forfeited,' or words of similar import, with the date of such action and sign it officially, and thereupon the land and all payments shall be forfeited to the State, and the lands may be offered for sale on a subsequent sale date. In any case where lands have heretofore been forfeited or may hereafter be forfeited to the State for non-payment of interest, the purchasers, or their vendees, heirs or legal representatives, may have their claims re-instated on their written request by paying into the Treasury the full amount of interest due on such claim up to the date of re-instatement, provided that no rights of third persons may have intervened. The right to re-instate shall be limited to the last purchaser from the State or his vendees or their heirs or legal representatives. Such right must be exercised within five (5) years from the date of the forfeiture. . . . In all cases the original obligations and penalties shall thereby become as binding as if no forfeiture had ever occurred. If any purchaser shall die, his heirs or legal representatives shall have one (1) year in which to make payment after the first day of November next after such death, before the Commissioner shall forfeit the land belonging to such deceased purchaser; and should such forfeiture be made by the Commissioner within said time, upon proper proof of such death being made, such forfeiture shall be set aside, provided that no rights of third persons may have intervened. Nothing in this Article shall inhibit the State from instituting such legal proceedings as may be necessary to enforce such forfeiture, or to recover the full amount of the interest and such penalties as may be due the State at the time such forfeiture occurred, or to protect any other right to such land."
[3] The District Court's judgment does not explicitly refer to the 1941 statute, but the Court of Appeals interpreted that Act to be the basis of the judgment. We accept this interpretation.
[4] "Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: . . .
"(2) By appeal by a party relying on a State statute held by a court of appeals to be invalid as repugnant to the Constitution, treaties or laws of the United States, but such appeal shall preclude review by writ of certiorari at the instance of such appellant, and the review on appeal shall be restricted to the Federal questions presented . . . ."
[5] 28 U. S. C. § 2103 (1958 ed., Supp. V) reads:
"If an appeal to the Supreme Court is improvidently taken from the decision of the highest court of a State, or of a United States court of appeals, in a case where the proper mode of a review is by petition for certiorari, this alone shall not be ground for dismissal; but the papers whereon the appeal was taken shall be regarded and acted on as a petition for writ of certiorari and as if duly presented to the Supreme Court at the time the appeal was taken. Where in such a case there appears to be no reasonable ground for granting a petition for writ of certiorari it shall be competent for the Supreme Court to adjudge to the respondent reasonable damages for his delay, and single or double costs."
[6] The predecessor of § 1254 (1), § 240 (a) of the Act of February 13, 1925 (the Judges Act), was amended on the floor of the Senate to state that review by certiorari from the courts of appeals would carry the same scope of review "as if the cause had been brought there by unrestricted writ of error or appeal." The word "unrestricted" was added immediately before § 240 (b) (now § 1254 (2)) was introduced, and the sponsor of both amendments, Senator Cummins, explained that review by appeal as provided in that section would be limited "to the Federal question, and that it ought not to extend to the entire controversy that may be in the case," as he envisaged would be the case with certiorari review. See 66 Cong. Rec. 2919 (remarks of Senator Cummins).
[7] In Wilson v. Standefer, 184 U. S. 399, Texas sold land pursuant to the Act of 1879, which made it the duty of the State in case of default to proceed to enforce its rights by court action. The Texas courts allowed the State to proceed with forfeiture under the 1897 statute providing for forfeiture by endorsement on official documents rather than by court decree. Neither the Texas courts nor this Court read the 1879 statute as providing an exclusive remedy or as a promise by the State not to modify the remedy or provide another one in the event of default. Waggoner v. Flack, 188 U. S. 595, involved a contract for the sale of state school lands at a time when the existing statutes gave the State no remedy at all upon default in annual payments. This Court found no violation of the Contract Clause in the state proceeding to declare a forfeiture under the 1897 statute. Here again "[t]here was no promise or contract expressed in the statute that the State would not enlarge the remedy or grant another on account of the purchaser's violation of his contract, and we think no such contract is to be implied." 188 U. S., at 603. The principle of Wilson v. Standefer was held controlling, the Court seeing no difference in principle between the case where the State altered an existing remedy after the contract was entered into and the case where the State supplied the remedy where none existed when the contract was made. The third case came here from the California courts, Aikins v. Kingsbury, 247 U. S. 484. There the Court found no violation of the Contract Clause in the state proceeding declaring a forfeiture by nonjudicial action as permitted by a statute passed after the contract was made, the prior law requiring the State to proceed with judicial action with a right in the purchaser to redeem within 20 days after decree. Wilson and Waggoner were considered controlling authority.
[8] The state cases on this issue are unclear. In Fristoe v. Blum, 92 Tex. 76, 45 S. W. 998, the Texas Supreme Court held that the 1887 Act providing for forfeiture upon default in making payment of "any obligation" applied to contracts made before as well as after the enactment of the Act. Such a construction was not deemed to impair the obligation of contract, for the State had by common law the right as vendor, upon the purchaser's failure to perform his part of the contract, a right to rescind the contract of sale and resume control of the land. The statute giving the Commissioner authority to declare a forfeiture merely supplied a more effective way of enforcing the State's common-law right of rescission.
In regard to the right of reinstatement, Anderson v. Neighbors, 94 Tex. 236, 59 S. W. 543, and Davis v. Yates, 63 Tex. Civ. App. 6, 133 S. W. 281, held that intervening third-party rights must be so far perfected as to be vested in order to defeat reinstatement rights. Cruzan v. Walker, 119 Tex. 189, 26 S. W. 2d 908, and Freels v. Walker, 120 Tex. 291, 26 S. W. 2d 627, are of similar import. Hooks v. Kirby, 58 Tex. Civ. App. 335, 124 S. W. 156, dealt with the right of the purchaser of timber to purchase the land itself; it did not deal with reinstatement under the section here involved. Gulf Production Co. v. State, 231 S. W. 124 (Tex. Civ. App.), the principal support for the Court of Appeals decision, held that the legislature had not intended to defeat the right to reinstatement by reclassifying the land as mineral land, the sale of which then involved retention of mineral rights by the State. The Court in Gulf did indicate that it considered the right to reinstatement a vested right with which the State could not arbitrarily interfere. But it was not faced with a statute which actually attempted to modify this right, much less one which put a reasonable time limit upon that right. In Faulkner v. Lear, 258 S. W. 2d 147 (Tex. Civ. App.), a case involving a forfeiture under the 1941 statute, the Texas court said that the land contract, which was made prior to 1941, "could have been reinstated only in compliance with the statute . . . as amended in 1941." Id., at 149. No constitutional or state law difficulties were noted.
In addition to the State's common-law right of rescission, Fristoe v. Blum, supra, the forfeiture statute states that nothing in the forfeiture provision "shall be construed to inhibit the State from instituting such legal proceedings as may be necessary to enforce such forfeiture, or to recover the full amount of the interest and such penalties as may be due the State at the time such forfeiture occurred, or to protect any other right to such land." Tex. Gen. Laws 1895, ch. 47, § 11. This statutory language seems sufficiently broad to preserve, with notice to purchasers, the common-law right of rescission, which, unlike statutory forfeiture, was not subject to reinstatement.
[9] The provisions dealing with forfeiture, which is one of the State's remedies in case of breach, and reinstatement, which is the purchaser's remedy to cure his breach, both operate on the rights of a party after breach and thus concern the enforcement of the contract. In this sense they are remedial and the statute of repose challenged here is an alteration of remedy rather than obligation.
But decisions dating from Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, have not placed critical reliance on the distinction between obligation and remedy. At issue in Blaisdell was a statute enlarging the mortgagor's right by extending the time of redemption, a measure that the state court characterized as an impairment of the obligation of the mortgage contract. Id., at 420. Thus the question before this Court was whether this impairment contravened the contract clause. The Court in Blaisdell stated that "`Nothing can be more material to the obligation than the means of enforcement. . . . The ideas of validity and remedy are inseparable, and both are parts of the obligation, which is guaranteed by the Constitution.' " 290 U. S., at 430. While noting that a State's control over remedial processes is one justification for modification of the obligation of contract, id., at 430-431, the Court went on to note that the State possessed authority "to safeguard the vital interests of its people," id., at 434, and its "economic interests," id., at 437. "It does not matter that legislation appropriate to that end `has the result of modifying or abrogating contracts already in effect.' Stephenson v. Binford, 287 U. S. 251, 276." Id., at 434-435. Further the Court stressed that validity does not turn on whether the legislation "affects contracts incidentally, or directly or indirectly, but whether the legislation is addressed to a legitimate end and the measures taken are reasonable and appropriate to that end." Id., at 438.
In Veix v. Sixth Ward Building & Loan Association of Newark, 310 U. S. 32, the Court upheld a state statute which restricted the contractual rights of investors in a building and loan association to withdraw and recover by suit the amount of their investment. No attempt was made to classify the measure as remedial. Rather the Court noted that the contract was with a financial institution of major importance to the credit system of the State and held that the "obligation of the Association to respond to an application for withdrawal was subject to the paramount police power." Id., at 38. In upholding a statute disallowing a deficiency judgment where the value of the property bought by the mortgagee at a foreclosure sale equals the amount of the debt and interest in Honeyman v. Jacobs, 306 U. S. 539, the Court found the fact that the provision confined the creditor to securing a fair satisfaction of his debt determinative, notwithstanding that under the law in force when the contract was made the creditor could have recovered the difference between the price at the foreclosure sale and the amount of indebtedness. This holding was reaffirmed by a unanimous Court in Gelfert v. National City Bank, 313 U. S. 221, again without any regard to whether the measure was substantive or remedial. The Court held that the mortgagee's right under prior law to the advantages of a forced sale was not entitled to constitutional protection under the contract clause. Id., at 234. Similarly in East New York Savings Bank v. Hahn, 326 U. S. 230, no notice was taken of the remedy-obligation distinction. Rather the Court upheld a moratory statute in postdepression times suspending for the tenth year in succession the mortgagee's right of foreclosure on the ground that contracts are not constitutionally immune from impairment by state measures designed "to safeguard the vital interests of its people." Id., at 232.
[10] Texas Constitution, art. 7, § 2; Tex. Gen. & Spec. Laws 1935, ch. 312, § 2, Vernon's Ann. Civ. Stat., art. 5416.
"In order to perpetuate the dream of a universal system of free public education which was in the minds of most early Texans, the Constitution of 1876 provided that one-half of the Public Domain of the State, in addition to all funds, lands, and other property thereafter set apart for the support of the public schools, all the alternate sections of land reserved by the State out of grants made to railroads or to corporations, and all sums of money that may come to the State from the sale of any portion of the same, should constitute a perpetual school fund. The lands belonging to this fund were to be sold under such regulations as prescribed by law.
.....
"Under these acts the Permanent Free School Fund has been granted more than 42,500,000 acres of land. The first sale of School Land was a 160-acre tract in Bowie County in 1874. Since 1905, the method of sale has been that of sealed competitive bidding, and most of the land making up this great endowment has now been sold and the sum of approximately $95,000,000 placed in the Permanent Free School Fund." Giles, History and Disposition of Texas Public Domain, 14-15 (1945).
[11] E. g., Tex. Gen. Laws 1895, ch. 47, § 9; Tex. Gen. Laws 1919, ch. 163, § 4. In 1941, the required down payment was increased from one-fortieth to one-fifth of the purchase price, and the amount of the annual payments was reduced from one-fortieth of the assessed price to one-fortieth of the unpaid balance. Tex. Gen. & Spec. Laws 1941, ch. 191, § 2, Vernon's Ann. Civ. Stat., art. 5312.
[12] E. g., Tex. Gen. & Spec. Laws 1941, ch. 191, § 1; Tex. Gen. & Spec. Laws 1951, ch. 59, § 1, Vernon's Ann. Civ. Stat., art. 5320a; Tex. Gen. & Spec. Laws 1961, ch. 399, § 1, Vernon's Ann. Civ. Stat., art. 5421c-9.
[13] Tex. Gen. Laws 1919, ch. 163, § 5, as amended by Tex. Gen. Laws 1925, ch. 130, § 3, Vernon's Ann. Civ. Stat., arts. 5306, 5311a.
[14] 1938-1940 Report of the Commissioner of the General Land Office 12 (hereafter cited as Rep.). See also Tex. Gen. Laws 1925, ch. 94; Tex. Gen. Laws 1926, ch. 25, § 1, Vernon's Ann. Civ. Stat., art. 5326a.
Under the Act of April 18, 1913, forfeiture for nonpayment of interest did not empower the Commissioner to put land on the market again until after lapse of specific period during which the forfeiting purchaser was given a right to repurchase the tract. Johnson v. Robison, 111 Tex. 438, 240 S. W. 300.
[15] "Under the Reappraisement Act of 1913, forfeiting owners were allowed to repurchase their land at the reappraised value set by a board, and the accumulated delinquent interest on forfeited contracts was ignored." 1938-1940 Rep. 12.
[16] Gulf Production Co. v. State, 231 S. W. 124 (Tex. Civ. App.).
[17] Tex. Gen. & Spec. Laws 1941, ch. 191, § 2, Vernon's Ann. Civ. Stat., art. 5312.
[18] Tex. Gen. Laws 1905, ch. 103, § 4; Tex. Gen. Laws 1919, ch. 163, § 6, Vernon's Ann. Civ. Stat., arts. 5313, 5314. Giraud v. Robison, 102 Tex. 488, 119 S. W. 1145.
[1] "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U. S. Const., Amend. I. See, e. g., Scales v. United States, 367 U. S. 203, 259 (dissenting opinion); In re Anastaplo, 366 U. S. 82, 97 (dissenting opinion); Konigsberg v. State Bar, 366 U. S. 36, 56 (dissenting opinion); Braden v. United States, 365 U. S. 431, 438 (dissenting opinion); Wilkinson v. United States, 365 U. S. 399, 415 (dissenting opinion); Barenblatt v. United States, 360 U. S. 109, 134 (dissenting opinion); Uphaus v. Wyman, 360 U. S. 72, 108 (dissenting opinion); Beauharnais v. Illinois, 343 U. S. 250, 267 (dissenting opinion).
[2] Tex. Gen. Laws 1895, ch. 47; Tex. Gen. Laws 1897, ch. 129, as amended, Vernon's Ann. Civ. Stat., art. 5326.
[3] Tex. Gen. Laws 1897, ch. 129, art. 4218f, as amended, Vernon's Ann. Civ. Stat., art. 5326.
[4] The tender was received by the Texas Land Commissioner five years and two days after the forfeiture. The record does not indicate when or how the tender was sent or presented.
[5] The contract price for the 620.65 acres involved in this case was $1.50 per acre. The Texas Legislature in 1955 sold it to El Paso for the fair market value to be appraised, "but no less than $6.50 per acre." Tex. Gen. & Spec. Laws 1955, ch. 278.
[6] Tex. Gen. & Spec. Laws 1941, ch. 191, § 3, as amended, Vernon's Ann. Civ. Stat., art. 5326.
[7] I cannot agree with the Court's dictum that the Texas cases on this point are unclear. I do not think they could be much clearer. In Gulf Production Co. v. State, 231 S. W. 124, 131, the Texas Court of Civil Appeals said:
"The provisions for reinstatement were in effect when Kidd purchased the land, and were embraced in the contract between the state and Kidd when the latter purchased, and neither Kidd nor the state could thereafter arbitrarily and without the consent of the other write into the contract any provision or condition varying, restricting, or enlarging the terms thereof."
The court also observed:
"The primary object of the state in placing its public domain upon the market was the securing of actual settlers on these lands. The revenues to be derived from sales was but a secondary consideration, a mere incident to the greater purpose of supplying homes to those who sought and lived in them in good faith. The wisdom of this policy of our forefathers has never been seriously questioned, and the provision for the reinstatement of sales forfeited was an expression of the spirit of that policy. It was right and just that those who had settled upon and improved the state's lands in response to the invitation of the state, and who had endured the hardships incident to such settlement, and the privations incident to such improvement, should be given an opportunity to retrieve their lands when forfeited by reason of temporary misfortunes and the consequent inability to meet their payments in strict compliance with their obligations. Forfeitures by statute or contract are not favored. They must be viewed with a cold and literal scrutiny, that the injury wrought may be held to the minimum. On the other hand, statutes or contracts designed to relieve from the rigors of forfeiture are looked upon warmly and construed liberally, so as to afford the maximum relief. And this reciprocal rule applies as well to the great state of Texas as to its humblest citizen." 231 S. W., at 131. Cf. State v. Walden, 325 S. W. 2d 705 (Tex. Civ. App.).
[8] Fletcher v. Peck also made clear that the Constitution forbids impairment of a contract whether the contract be executed or, as here, executory. 6 Cranch, at 136-137.
[9] 4 Wheat., at 200.
[10] See also, e. g., Honeyman v. Jacobs, 306 U. S. 539, 542, and cases there cited; Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 430, 434, and cases there cited at n. 13; Oshkosh Waterworks Co. v. Oshkosh, 187 U. S. 437, 439.
[11] 4 Wheat., at 197-198.
[12] The Blaisdell opinion said, 290 U. S., at 430:
"Chief Justice Marshall pointed out the distinction between obligation and remedy. Sturges v. Crowninshield, supra, p. 200. Said he: "The distinction between the obligation of a contract, and the remedy given by the legislature to enforce that obligation, has been taken at the bar, and exists in the nature of things. Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct.' And in Von Hoffman v. City of Quincy, supra, pp. 553, 554, the general statement above quoted was limited by the further observation that `It is competent for the States to change the form of the remedy, or to modify it otherwise, as they may see fit, provided no substantial right secured by the contract is thereby impaired. No attempt has been made to fix definitely the line between alterations of the remedy, which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights. Every case must be determined upon its own circumstances.' "
Later, in Honeyman v. Jacobs, 306 U. S. 539, 542, Chief Justice Hughes, the author of Blaisdell, quoted with approval the following language from the opinion which he had joined in Richmond Mortgage & Loan Corp. v. Wachovia Bank & Trust Co., 300 U. S. 124, 128:
"The legislature may modify, limit or alter the remedy for enforcement of a contract without impairing its obligation, but in so doing, it may not deny all remedy or so circumscribe the existing remedy with conditions and restrictions as seriously to impair the value of the right."
Chief Justice Hughes in the Jacobs case also referred to numerous past cases as having drawn this distinction, including among them Blaisdell. See 306 U. S., at 542. He concluded that "[t]he reasoning of this Court in Richmond Mortgage Corp. v. Wachovia Bank, supra, is applicable and governs our decision." 306 U. S., at 543.
[13] 290 U. S., at 439.
[14] Ibid.
[15] Id., at 440. Mr. Justice Brandeis in discussing Blaisdell the following year said that the statute in that case had been upheld because it had been found "to preserve substantially the right" of the mortgagee to obtain payment. Louisville Joint Stock Land Bank v. Radford, 295 U. S. 555, 581. See also id., at 597-598.
[16] One scholar who made a study of all the decisions of this Court concerning the Contract Clause had this to say about Blaisdell:
"The Blaisdell case, in the light of subsequent decisions, appears now to have decided merely the very narrow question of the validity of the particular statute under the specific circumstances there existing. So far as any general rule may be said to have emerged, it is merely an apparently limited extension of the principle that reasonable modification of the remedy, especially if adequate time is left for compliance, does not constitute an impairment of the obligation of contracts. If any advance has been made, it consists in that economic conditions may create an emergency in which a scrupulously drafted statute may call upon the police power to grant wide discretion to courts in extending temporary and conditional relief to debtors." Wright, The Contract Clause of the Constitution, 119.
Compare the following language of Mr. Justice Brandeis in Wright v. Vinton Branch, 300 U. S. 440, 469:
"[I]t is urged that the limitations here placed upon the enforcement of the mortgage are not merely a modification of the remedy recognized as permissible. Compare Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 434."
[17] I dissented in Wood v. Lovett, 313 U. S., at 372, because, as I there pointed out, I believed that the state law in that case, which protected purchasers of land against loss even though their titles were based only on quitclaim deeds, should have been upheld under Blaisdell. Even had my dissent prevailed, however, that case would not have supported the Court's holding in the case before us.
[18] None of the cases mentioned by the Court involved legislation by which a State attempted to repudiate its own contractual obligation without giving compensation, nor did any of them come near suggesting or implying that a State might do so. Honeyman v. Jacobs, 306 U. S. 539, in an opinion by Chief Justice Hughes, upheld a state statute providing that a mortgagee who bid at a foreclosure sale could not obtain a deficiency judgment if the value of the property equaled or exceeded the amount of the debt plus costs and interest; the Court said that the mortgagee under this law received all the compensation to which his contract entitled him, and that the statute "merely restricted the exercise of the contractual remedy . . . ." Id., at 544, quoting from Richmond Mortgage & Loan Corp. v. Wachovia Bank & Trust Co., 300 U. S. 124, 131. Veix v. Sixth Ward Building & Loan Assn., 310 U. S. 32, held only that by issuing shares of stock at a time when state law permitted shareholders to withdraw their shares in exchange for a cash refund a private company regulated by the State could not prevent the State from applying later general legislation forbidding shareholders to sue for the withdrawal value; this rule of course had been recognized in Blaisdell and in cases which it cited, e. g., Hudson County Water Co. v. McCarter, 209 U. S. 349, and Manigault v. Springs, 199 U. S. 473. Gelfert v. National City Bank, 313 U. S. 221, upheld a New York law which redefined fair market value of property purchased by mortgagees at foreclosure sales; again emphasizing that contracts between private persons could not prevent application of general regulatory laws, the Court held that this law was merely a regulation of the remedy, and did not affect any substantial right given by the contract, relying on Honeyman v. Jacobs, 306 U. S. 539; Richmond Mortgage & Loan Corp. v. Wachovia Bank & Trust Co., 300 U. S. 124; and Blaisdell. Faitoute Iron & Steel Co. v. City of Asbury Park, 316 U. S. 502, which upheld a law binding all the creditors of a municipal corporation to an adjustment of claims if 85% of them agreed, said simply that as a practical matter the law rather than impairing the creditors' contracts was necessary to keep them from becoming worthless. East New York Savings Bank v. Hahn, 326 U. S. 230, upheld a mortgage moratorium law much like that in Blaisdell; the Court pointed out that the law protected creditors from loss by requiring debtors to pay taxes, insurance, interest and installments on the principal, and again emphasized, citing Manigault v. Springs, supra, that private persons could not escape state economic regulatory legislation simply because they previously had entered contracts.
[19] See Part IV, pp. 533-535, infra.
[20] See, e. g., Rochin v. California, 342 U. S. 165, 174 (concurring opinion).
[21] Quoting Faitoute Iron & Steel Co. v. City of Asbury Park, 316 U. S. 502, 514, which in turn quoted Davis v. Mills, 194 U. S. 451, 457.
[22] See Gulf Production Co. v. State, 231 S. W. 124, 131 (Tex. Civ. App.), quoted n. 7, supra.
[23] The Court's opinion bears an uncanny resemblance to one I once said I feared might be rendered some day if this Court continued to decide cases by "balancing." See Black, The Bill of Rights, 35 N. Y. U. L. Rev. 865, 877-878, reprinted in Cahn ed., The Great Rights, 57-59. I there said, evidently too optimistically, "Of course, I would not decide this case this way nor do I think any other judge would so decide it today."
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U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201600133
_________________________
UNITED STATES OF AMERICA
Appellee
v.
WILLIAM A. SHIELDS III
Aviation Boatswain’s Mate (Equipment) Third Class (E-4),
U.S. Navy
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Commander Heather Partridge, JAGC, USN.
Convening Authority: Commanding Officer, USS HARRY S.
TRUMAN (CVN 75).
Staff Judge Advocate’s Recommendation: Lieutenant Commander
Ryan M. Anderson, JAGC, USN.
For Appellant: Lieutenant R. Andrew Austria, JAGC, USN.
For Appellee: Lieutenant Commander Justin C. Henderson, JAGC,
USN; Captain Sean M. Monks, USMC.
_________________________
Decided 31 January 2018
_________________________
Before H UTCHISON , F ULTON , and S AYEGH , Appellate Military Judges
_________________________
PUBLISHED OPINION OF THE COURT
________________________
HUTCHISON, Senior Judge:
A special court-martial composed of members with enlisted
representation convicted the appellant, contrary to his pleas, of two
specifications of violating the Navy’s sexual harassment instruction, and two
specifications of abusive sexual contact, in violation of Articles 92 and 120,
United States v. Shields-RECON, No. 201600133
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892 and 920 (2012).1
The convening authority (CA) approved the adjudged sentence of a bad-
conduct discharge.2
In an opinion issued on 27 June 2017, we set aside the guilty findings for
both abusive sexual contact specifications, set aside the sentence, and
affirmed the appellant’s convictions for violating a general order—the Navy’s
sexual harassment instruction. On 27 July 2017, the appellant filed a
combined Motion to Attach, Motion for Reconsideration, Motion to File
Supplemental Assignment of Error, and Motion for Leave to File. The
common theme in each of the appellant’s motions was that the general order
he was convicted of violating, SECNAVINST 5300.26D issued on 3 January
2006, was not in effect on the date alleged in each of the appellant’s Article
92, UCMJ, specifications by virtue of a self-canceling provision within
SECNAVINST 5215.1E, issued on 28 October 2014. On 31 October 2017, we
granted the appellant’s request for reconsideration, and specified two
additional issues related to the appellant’s Supplemental Assignment of
Error.3 Upon reconsideration, we withdraw our 27 June 2017 opinion and
issue this opinion in its place.
The appellant alleges four assignments of error (AOE), and as noted
above, we specified two additional issues upon reconsideration. For ease of
reading, the AOEs and specified issues are numbered consecutively:4 (1) the
military judge committed plain error when she instructed the members on
reasonable doubt; (2) the military judge erred in denying the appellant’s
motion to dismiss Charge II, Specification 3, which fails to state an offense;
(3) the abusive sexual contact in Charge II, Specification 3, is factually and
legally insufficient; (4) in light of United States v. Hills, 75 M.J. 350 (C.A.A.F.
2016), the military judge’s admission of charged sexual misconduct pursuant
to MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 413, SUPPLEMENT TO
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), and subsequent
instructions violated the appellant’s due process rights; (5) the revision and
self-canceling provisions of paragraph 4.e of SECNAVINST 5215.1E applied
1 The members acquitted the appellant of an additional sexual harassment
specification, and four additional abusive sexual contact specifications.
2 Commander, Naval Air Force Atlantic took action on the sentence pursuant to
RULE FOR COURTS-MARTIAL 1107(a), MANUAL FOR COURTS-MARTIAL (2012 ed.)
following a request from the CA after USS HARRY S. TRUMAN deployed.
3 “Whether Specifications 1 and 2 of Charge I fail to state an offense in light of
the self-canceling provisions contained in SECNAVINST 5215.1E and OPNAVINST
5215.17A.” Appellant’s Motion to Attach; Motion for Reconsideration; Motion to File
Supplemental Assignment of Error; and Motion for Leave to File of 27 Jul 17 at 4.
4 We have renumbered the AOEs.
2
United States v. Shields-RECON, No. 201600133
to SECNAVINST 5300.26D of 3 Jan 2006, despite no clear declaration in
SECNAVINST 5215.1E canceling, exempting, or otherwise addressing then-
existing SECNAV directives that had reached their “7-year anniversary”; and
(6) SECNAVINST 5300.26D of 3 Jan 2006 was not under “revision” as
defined in SECNAVINST 5215.1E at any time during the period from 28
October 2014 through 30 June 2015.
Having been resolved by our superior court,5 we summarily reject the first
AOE. United States v. Clifton, 35 M.J. 79 (C.M.A. 1992). Regarding the
second and third AOEs, we find that the military judge did not err in denying
the appellant’s motion to dismiss, and that the specification is factually and
legally sufficient. Regarding the fifth AOE, we conclude that SECNAVINST
5300.26D had not been cancelled and was, therefore, a valid lawful order.6
However, we find merit in the fourth AOE, conclude that the error was not
harmless beyond a reasonable doubt, and take corrective action in our
decretal paragraph.
I. BACKGROUND
The appellant served with Airman (AN) BH and Airman Recruit (AR) KC
aboard USS HARRY S. TRUMAN (CVN 75). While underway during June
2015, the appellant made repeated sexual advances towards both AN BH and
AR KC: talking about their bodies, their relationships, his sexual desires, and
trying to kiss them.
At trial, AN BH testified that on one occasion, the appellant approached
her in a lounge area while she was sitting in a rolling chair with her feet up.
The appellant grabbed her left hand and placed it on his “[c]rotch area.”7 AR
KC testified that the appellant approached her, began talking with her, and
then “grabbed [her] belt and pulled [her] toward him, and asked [her] if [she]
would give in yet [sic] to him.”8 AR KC further testified that she was wearing
her coveralls uniform, and that the appellant pulled her towards him by her
belt buckle with “a lot” of force.9 AR KC told the appellant “no,” grabbed his
hand, took it off of her, and walked away.
5 See United States v. McClour, 76 M.J. 23 (C.A.A.F. 2017) (finding no no error in
the use of the same challenged instruction).
6 This conclusion renders moot the sixth AOE.
7 Record at 430.
8 Id. at 480. When asked again what comment the appellant made when he
pulled on her belt, AR KC responded, “[c]an I have her yet,” which she understood to
mean that the appellant “wanted to get with [her].” Id.
9 Id.
3
United States v. Shields-RECON, No. 201600133
Following the presentation of evidence, the civilian defense counsel made
a motion, pursuant to RULE FOR COURTS-MARTIAL (R.C.M.) 917, MANUAL FOR
COURTS-MARTIAL (2012 ed.), for a not guilty finding for Charge II,
Specification 3, arguing that it failed to state an offense.10 The military judge
denied the motion, finding that “person to person physical contact” was not
required and that the offense charged in the specification—“pulling her body
close to his body by her belt buckle”—was sufficient to state an offense.11
Before closing arguments, and consistent with an earlier MIL. R. EVID.
413 ruling permitting the use of charged sexual misconduct as propensity
evidence for other charged sexual misconduct, the military judge instructed
the members:
If you determine, by a preponderance of the evidence, that a
charged offense from Specifications 1 through 6 of Charge II
occurred, even if you’re not convinced beyond a reasonable
doubt that the accused is guilty of that offense, you may,
nonetheless, then consider the evidence of that offense for its
bearing on any other matter to which it is relevant only in
relation to Specifications 1 through 6 of Charge II.
You may consider the evidence of such other charged acts of
sexual assault for their tendency, if any, to show the accused’s
propensity or predisposition to engage in abusive sexual
contact.12
The military judge took judicial notice that SECNAVINST 5300.26D of 3
January 2006, the Navy’s sexual harassment instruction, was a lawful
general regulation; the appellant’s civilian defense counsel (CDC)
affirmatively indicated he had “no objections.”13 Consequently, the military
judged instructed the members: “As a matter of law, the regulation in this
case, as described in the specification, is a lawful general regulation . . . it
applies to [the appellant] even if he was unaware of its existence.”14
10 The civilian defense counsel originally styled his motion as a motion for a
“directed verdict,” arguing that because there had been no contact, the motion should
be granted. Id. at 581. The trial counsel clarified, and the defense counsel conceded,
that he understood the argument to really be that the specification did not allege an
offense.
11 Record at 583.
12 Id. at 616-17.
13 Id. at 250-51 (“MJ: Does the defense have any objection to . . . Appellate
Exhibit XXXI, which is the Request for Judicial Notice of the SECNAV instruction?
CDC: No, Your Honor. No objections.”).
14 Id. at 600.
4
United States v. Shields-RECON, No. 201600133
II. DISCUSSION
A. Failure to state an offense
Charge II, Specification 3, alleged the appellant committed abusive sexual
contact upon AR KC by:
grabbing her belt buckle with his hand, pulling her body close
to his body, and stating “are you going to let me in yet,” or
words to that effect, by causing bodily harm to her, to wit:
grabbing her belt buckle and pulling her body.15
The appellant avers that because the specification does not “plead with
specificity which body part of [AR KC], either directly or through the clothing,
that [the appellant] had touched[,]” it does not state an offense.16 We
disagree.
Whether a charge and specification state an offense is a question of law
that we review de novo. United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F.
2006). A specification states an offense if it alleges, either expressly or by
implication, every element of the offense, so as to give the accused notice and
protection against double jeopardy. Id. (citing United States v. Dear, 40 M.J.
196, 197 (C.M.A. 1994)); see also R.C.M. 307(c)(3)).17 When a specification
does not expressly allege an element of the intended offense, appellate courts
must determine whether the element was necessarily implied. United States
v. Fosler, 70 M.J. 225, 230 (C.A.A.F. 2011). “[W]hen the charge and
specification are first challenged at trial, we read the wording more narrowly
and will only adopt interpretations that hew closely to the plain text.” Id.
(citation omitted). Although “[t]he interpretation of a specification in such
a manner as to find an element was alleged by necessary implication is
disfavored[,]” the “law still remains that there is no error when a
specification necessarily implies all the elements of an offense.” United
States v. Hunt, 71 M.J. 538, 538-39 (N-M. Ct. Crim. App. 2012) (en banc)
(citing United States v. Ballan, 71 M.J. 28, 33 (C.A.A.F. 2012)).
15 Charge Sheet.
16 Appellant’s Brief of 7 Oct 2016, at 19 (emphasis in original).
17 See also United States v. Fosler, 70 M.J. 225, 229 (C.A.A.F. 2011) (finding plead
charges are sufficient if they “‘first, contain[] the elements of the offense charged and
fairly inform[] a defendant of the charge against which he must defend, and, second,
enable[] him to plead an acquittal or conviction in bar of future prosecutions for the
same offense.’”) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974))
(alterations in original) (additional citations omitted).
5
United States v. Shields-RECON, No. 201600133
The pertinent elements of Article 120(d), UCMJ, abusive sexual contact,
as incorporated from Article 120(b)(1)(B), UCMJ,18 are: (1) that the appellant
committed a sexual contact upon AR KC, and (2) that he did so by causing
bodily harm to AR KC. In pertinent part, sexual contact is:
(A) touching or causing another person to touch, either directly
or through the clothing, the genitalia, anus, groin, breast, inner
thigh, or buttocks of any person, with the intent to abuse,
humiliate, or degrade any person; or (B) any touching, or
causing another person to touch, either directly or through the
clothing, any body part of any person, if done with an intent to
arouse or gratify the sexual desires of any person[.]
Article 120(g)(2), UCMJ.
We are satisfied that the specification alleges either expressly or by
implication every element of abusive sexual contact. “Touching” in the
context of Article 120, UCMJ, “means that contact was made either by an
object or by a body part.” United States v. Schloff, 74 M.J. 312, 314 (C.A.A.F.
2015). In Schloff, the Court of Appeals for the Armed Forces (CAAF)
concluded that a medical provider’s use of a stethoscope to perform an
unnecessary breast exam on a patient constituted abusive sexual contact,
despite no actual body-to-body contact. The CAAF recognized that “object-to-
body contact is not excluded from the scope of Article 120(g)(2), UCMJ[.]” Id.
Likewise, the definition of bodily harm, in Article 120(g)(3), UCMJ, provides
clear notice that the touching must be offensive and includes nonconsensual
sexual contact.
The specification at issue here pleads the offensive acts—grabbing AR
KC’s belt buckle and pulling her body—resulting in bodily harm. The clear
implication of grabbing someone by the belt and pulling them is that the belt
necessarily made contact with the waist, hips, or back. That the specification
does not specifically list the body parts the belt touched when the appellant
grabbed and pulled on the buckle is of no import, because “[a] specification is
sufficient so long as [the elements] may be found by reasonable construction
of other language in the challenged specification.” United States v. Russell, 47
M.J. 412, 413 (C.A.A.F. 1998) (citations and internal quotation marks
18 Article 120(d), UCMJ, states: “Any person subject to this chapter who commits
or causes sexual contact upon or by another person, if to do so would violate
subsection (b) (sexual assault) had the sexual contact been a sexual act, is guilty of
abusive sexual contact and shall be punished as a court-martial may direct.”
Consequently, we incorporate the elements of Article 120(b)(1)(B), UCMJ, for this
abusive sexual contact offense.
6
United States v. Shields-RECON, No. 201600133
omitted) (second alteration in original).19 Given a “reasonable construction” of
the specification’s language, and the common understanding of where on the
body, and in what manner, a belt is worn, the appellant had notice of which
body parts he touched. Moreover, the language in the specification “are you
going to let me in yet” implies the appellant’s contact was done with the
intent to arouse or gratify his or AR KC’s sexual desires.20 Therefore,
although we read the specification narrowly, we conclude that the language
put the appellant on notice and protected him from a subsequent prosecution
for the same offense.
B. Factual and legal sufficiency
The test for legal sufficiency is “whether, considering the evidence in the
light most favorable to the prosecution, any reasonable fact-finder could have
found all the essential elements beyond a reasonable doubt.” United States v.
Day, 66 M.J. 172, 173-74 (C.A.A.F. 2008) (citing United States v. Turner, 25
M.J. 324, 324 (C.M.A. 1987)). In applying this test, “we are bound to draw
every reasonable inference from the evidence of record in favor of the
prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001)
(citations omitted).
The test for factual sufficiency is whether “after weighing all the evidence
in the record of trial and recognizing that we did not see or hear the
witnesses as did the trial court, this court is convinced of the appellant’s guilt
beyond a reasonable doubt.” United States v. Rankin, 63 M.J. 552, 557 (N-M.
Ct. Crim. App. 2006) (citing Turner, 25 M.J. at 325; Art. 66(c), UCMJ), aff’d
on other grounds, 64 M.J. 348 (C.A.A.F. 2007). In conducting this unique
appellate role, we take “a fresh, impartial look at the evidence,” applying
“neither a presumption of innocence nor a presumption of guilt” to “make
[our] own independent determination as to whether the evidence constitutes
proof of each required element beyond a reasonable doubt.” United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
After carefully reviewing the record of trial and considering all of the
evidence in a light most favorable to the prosecution, we are convinced that a
reasonable factfinder could have found the appellant committed abusive
sexual contact against AR KC and AN BH. Furthermore, weighing all the
19 In Russell, stating in the specification that an officer “wrongfully” possessed
child pornography was sufficient to imply the element of “knowledge” under 18
U.S.C. § 2252(a). 47 M.J. at 412. See also Crafter, 64 M.J. at 210, 212 (finding that
stating a prison guard accepted money “for” an inmate to meet with his girlfriend
was sufficient to imply the “intent to influence or induce an official act” required for
a bribery specification).
20 Charge Sheet.
7
United States v. Shields-RECON, No. 201600133
evidence in the record of trial and making allowances for not having
personally observed the witnesses, we are convinced beyond a reasonable
doubt of the appellant’s guilt.21
C. Propensity instruction
The appellant faced six specifications of abusive sexual contact against
four different women. In addition to the two specifications involving AN BH
and AR KC, for which he was convicted, the appellant was also charged with
an additional abusive sexual contact specification involving each Sailor
during June 2015, and two abusive sexual contact specifications against two
other Sailors when he was temporarily assigned to USS DWIGHT D.
EISENHOWER (CVN 69) in July 2012.
Consistent with the state of the law at that time, the military judge found
evidence of each alleged abusive sexual contact admissible as propensity
evidence for the other alleged abusive sexual contacts. Consequently, and
without objection, the military judge instructed the members that if they
found, by a preponderance of the evidence, that any of the charged abusive
sexual contacts occurred, then they could consider that evidence to show the
appellant’s “propensity or predisposition to engage in abusive sexual
contact.”22
In Hills, the CAAF held that using evidence of charged sexual misconduct
as propensity evidence relevant to other charged sexual misconduct is
inconsistent with an accused’s right to presumed innocence. 75 M.J. at 357.
Applying Hills to this case, it is clear that the military judge erred. Where an
instructional error rises to a constitutional dimension, we review the error to
determine if it was harmless beyond a reasonable doubt. United States v.
Kreutzer, 61 M.J. 293, 298 (C.A.A.F. 2005). A constitutional error is harmless
if “it appears ‘beyond a reasonable doubt if the error complained of did not
contribute to the verdict obtained.’” United States v. McDonald, 57 M.J. 18,
20 (C.A.A.F. 2002) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).
In other words, “[t]he government must prove there was no reasonable
possibility that the error contributed to [the] verdict.” United States v. Hukill,
76 M.J. 219, 222 (C.A.A.F. 2017) (citations omitted). That is not to say,
however, that the members must be wholly unaware of the instructions at
issue, but rather that the instructions—later found to be erroneous—were
“unimportant in relation to everything else the [members] considered[.]”
United States v. Moran, 65 M.J. 178, 187 (C.A.A.F. 2007) (citation and
internal quotation marks omitted).
21 Clifton, 35 M.J. at 79.
22 Record at 617.
8
United States v. Shields-RECON, No. 201600133
The members acquitted the appellant on four of the six abusive sexual
contact specifications, including all those stemming from his 2012
assignment to USS DWIGHT D. EISENHOWER. However, evidence
supporting the two specifications for which he was convicted, while factually
sufficient, was not overwhelming. There was no confession, physical evidence,
or eyewitnesses (other than the two victims), and the defense presented
evidence that the appellant had a friendly, playful relationship with both AN
BH and AR KC.
In the government’s rebuttal argument, the trial counsel emphasized the
propensity evidence:
If you believe that any one of these sexual contacts were proved
more likely than not—so that’s different than beyond a
reasonable doubt.
It basically means 51 percent. It’s more likely that it
happened than didn’t happen. If you think that any one of
those was proven more likely than not, you can use that in
deliberating about the other ones, and that means that you can
look at each abusive sexual contact that we’ve proven more
likely than not and make a determination about whether or not
[the appellant] is somebody who’s more likely to touch
somebody in a sexual way.
You can use that. You can use the abusive sexual contact
charges in your deliberations of the other charges. . . . You can
use that to say that [the appellant] is somebody who touches
people in a sexual way; is more likely to have done it than
somebody who isn’t so predisposed. You can do that.23
Although the members were not convinced beyond a reasonable doubt
that the accused committed each abusive sexual contact charged, there is a
reasonable possibility they “bootstrap[ed] their ultimate determination of the
accused’s guilt” with respect to the offenses against AN BH and AR KC for
which he was convicted, “using the preponderance of the evidence burden of
proof with respect” to the offenses of which he was acquitted. Hills, 75 M.J. at
357. While it is certainly possible for members to convict an accused based
solely upon the testimony of his accusers, in order to sustain that conviction
upon review in light of the instructional error, we must be convinced beyond
a reasonable doubt “that the erroneous propensity instruction played no role”
in the conviction. United States v. Guardado, 77 M.J. 90, slip op. at * 12
(C.A.A.F. 2017). In short, and based upon this record, we are not convinced
23 Id. at 661.
9
United States v. Shields-RECON, No. 201600133
that the members considered this evidence “unimportant in relation to
everything else[.]” Moran, 65 M.J. at 187. So, although we find the
appellant’s convictions for abusive sexual contact to be both legally and
factually sufficient, we are not convinced beyond reasonable doubt that the
instructional error did not contribute to those convictions.
D. Sexual harassment instruction
The appellant contends that Specifications 1 and 2 of Charge I, alleging
that he violated SECNAVINST 5300.26D, fail to state offenses because a
subsequent directive issued by the Secretary of the Navy cancelled the sexual
harassment instruction. The Secretary of the Navy Directives Policy,
SECNAVINST 5215.1E of 28 October 2014, “sets forth policy and
responsibilities for developing and maintaining directives from the Secretary
of the Navy (SECNAV).” Specifically, the appellant argues that paragraph 4.e
of SECNAVINST 5215.1E operates to cancel SECNAVINST 5300.26D.
Paragraph 4.e states:
All SECNAVINSTs and SECNAV manuals shall be reviewed
beginning on the second anniversary of the document’s
effective date and every 2 years thereafter to ensure necessity,
currency, and consistency with Department of Defense (DoD)
policy, existing law, and statutory authorities. Directives
reaching a 6-year anniversary without reissuance may be
certified as current for an additional year. After 6 years, the
directive shall be revised. Extensions beyond the 6-year
anniversary date must be requested through the Department of
the Navy/Assistant for Administration (DON/AA) and approved
by SECNAV. Directives reaching the 7-year anniversary that
are not in the revision process are self-canceling on that date
and continued use requires a full revision to the next available
point number.
The appellant contends that the self-cancelling language of paragraph 4.e of
SECNAVINST 5215.1E immediately and automatically cancelled then-
existing instructions that were over seven years old—such as SECNAVINST
5300.26D. We disagree.
As we noted supra, a specification states an offense if it alleges, either
expressly or by implication, every element of the offense, so as to give the
accused notice and protection against double jeopardy. Crafter, 64 M.J. at
211. The elements for violation of a lawful general order or regulation, under
Article 92, UCMJ are:
(a) That there was in effect a certain lawful general
order or regulation;
10
United States v. Shields-RECON, No. 201600133
(b) That the accused had a duty to obey it; and
(c) That the accused violated or failed to obey the order
or regulation.24
The specifications at issue here each allege that, “from on or about 22 May
2015 until on or about 30 June 2015,” the appellant “violate[d] a lawful
general order, to wit: Paragraph 7(a)(1), SECNAVINST 5300.26D, dated 3
January 2006 by wrongfully sexually harassing” AN BH and AR KC,
respectively.25 These specification fairly placed the appellant on notice and
allege every element of the offense. The appellant contends, however, that the
specifications “fail to state an offense because SECNAVINST 5300.26D was
not in effect at the time of the alleged misconduct. Violations of Article 92,
UCMJ require a valid order.”26
The government avers that the appellant waived appellate review
concerning the validity of the order when he consented to the trial judge
taking judicial notice of SECNAVINST 5300.26D. In this case we need not
decide whether the appellant waived this issue because, mindful of our
plenary review mandate under Article 66(c), UCMJ, we determine that the
plain language of SECNAVINST 5215.1E did not cancel SECNAVINST
5300.26D. See United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016) (“CCAs
have an affirmative obligation to ensure that the findings and sentence in
each . . . case are correct in law and fact . . . and should be approved” and “are
required to assess the entire record to determine whether to leave an
accused’s waiver intact, or to correct the error”) (citations and internal
quotation marks omitted).
Construction of a regulation, such as SECNAVINST 5215.1E, is a
question of law, which we review de novo. United States v. Estrada, 69 M.J.
45, 47 (C.A.A.F. 2010); United States v. United States v. McCollum, 58 M.J.
323, 340 (C.A.A.F. 2003). “In interpreting regulations, we apply the general
rules of statutory construction.” Estrada, 69 M.J. at 47 (citing United States
v. Custis, 65 M.J. 366, 370 (C.A.A.F. 2007)) (additional citation omitted).
“Statutory construction begins with a look at the plain language of a rule.”
United States v. Rodriguez, 67 M.J. 110, 115 (C.A.A.F. 2009) (citation
omitted).
24 MANUAL FOR COURTS-MARTIAL (MCM), UNITED STATES (2012 ed.), Part IV, ¶
16b(1).
25 Charge Sheet.
26 Appellant’s Motion to Attach; Motion for Reconsideration; Motion to File
Supplemental Assignment of Error; and Motion for Leave to File at 8.
11
United States v. Shields-RECON, No. 201600133
The first sentence of paragraph 4.e directs that SECNAV directives shall
be reviewed on the second anniversary of their effective date and every two
years thereafter. Clearly this language is prospective; the direction to review
an instruction on its second anniversary cannot apply to instructions that are
already more than two years old. Paragraph 4.e then states that directives
“reaching” the six-year anniversary may be certified as current for another
year, but “shall be revised” and those directives “reaching” the seven-year
anniversary, not in the revision process are “self-canceling.” The “use of a
verb tense is significant in construing [regulations].” United States v. Wilson,
503 U.S. 329, 333 (1992) (citations omitted). Here, the use of the present
participle “reaching”—as opposed to the past tense/past participle “reached”
or even the perfect participle “having reached”—when read in conjunction
with the clearly prospective opening sentence of paragraph 4.e makes clear
that SECNAVINST 5215.1E is concerned with “developing and maintaining
[SECNAV] directives” going forward and not with canceling current, seven-
year old instructions.27 See Laube v. Allen, 506 F. Supp. 2d 969, 980 (M.D.
Ala. 2007) (“[A] present participle . . . denotes action that is continuing or
progressing, as distinct from . . . a perfect participle that denotes completion”)
(citing John B. Opdycke, Harper’s English Grammar, 141 (rev. ed. 1966);
Morse v. Servicemaster Global Holdings, Inc., 2012 U.S. Dist. LEXIS 144691,
at *15 (N.D. Cal. Oct. 4, 2012) (Use of the present participle “arising” in an
arbitration agreement made clear that the agreement applied to claims that
may arise going forward, not claims that have already accrued).
The Secretary of the Navy could have explicitly cancelled then-existing
seven-year-old instructions, but chose not to do so. Rather, the plain language
of SECNAVINST 5215.1E and its use of the present participle verb tense
convinces us that it only applied prospectively and did not cancel instructions
such as SECNAVINST 5300.26D that had already reached their seventh
anniversary by the time of SECNAVINST 5215.1E’s publication. Thus,
SECNAVINST 5300.26D was a valid general regulation at the time of the
appellant’s offenses.
Finally, our conclusion that SECNAVINST 5300.26D was a valid
instruction during the time of the appellant’s offenses also renders moot the
appellant’s contention that he received ineffective assistance of counsel when
his CDC failed to object to the military judge’s taking judicial notice of
SECNAVINST 5300.26D.28 Since the instruction was valid, we find neither
deficient performance in the counsel’s failure to object nor any prejudice,
27 SECNAVINST 5215.1E at ¶ 1.
28 See Appellant’s Reply to Appellee’s Answer to Show Cause Order of 17 Oct 17
at 7 (“Should this Court apply waiver, then it must also determine whether [the
appellant’s] counsel were ineffective”).
12
United States v. Shields-RECON, No. 201600133
since there is no “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 694 (1984).
III. CONCLUSION
The guilty findings to Charge II, Specifications 2 and 3, and the sentence
are set aside. The remaining findings are affirmed. The record is returned to
the Judge Advocate General for remand to an appropriate CA with a
rehearing authorized on Charge II, Specifications 2 and 3, and the sentence—
or on the sentence alone.
Judge FULTON and Judge SAYEGH concur.
For the Court
R.H. TROIDL
Clerk of Court
13
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675 F.2d 30
WESTWAY COFFEE CORPORATION, Plaintiff-Appellee,v.M. V. NETUNO, her engines, boilers, etc.andAppeal of COMPANHIA DE NAVEGACAO MARITIMA NETUMAR, Defendant.
No. 716, Docket 81-7741.
United States Court of Appeals,Second Circuit.
Argued Feb. 11, 1982.Decided March 18, 1982.
Michael J. Carcich, New York City (Cichanowicz & Callan, New York City, on the brief), for defendant-appellant.
John E. Cone, Jr., New York City (Theodore S. Cunningham and Bigham, Englar, Jones & Houston, New York City, on the brief), for plaintiff-appellee.
Before TIMBERS, NEWMAN and WINTER, Circuit Judges.
NEWMAN, Circuit Judge:
1
Defendant-appellant Companhia De Navegacao Maritima Netumar ("Netumar") appeals from a judgment of the District Court, 528 F.Supp. 113, for the Southern District of New York (Leonard B. Sand, Judge) in favor of plaintiff Westway Coffee Corporation ("Westway") in this admiralty action for partial non-delivery of coffee transported from Brazil to New York. Despite Netumar's contention that it did not cause the loss, we conclude that the District Court was entitled to find that Netumar is responsible to Westway for the loss, and we therefore affirm.
2
Westway (the consignee) ordered 1710 cartons of coffee from Dominium, S.A. of Sao Paulo, Brazil (the shipper). Dominium loaded the 1710 cartons into cargo containers under the supervision of the Brazilian Coffee Institute, a government agency whose officer certified that he had personally inspected and counted the cartons going into the containers. Dominium, which had determined the weight of the coffee, sealed and padlocked the containers. The containers were then driven from Sao Paulo to the port of Santos, where they were stored in a customs bonded warehouse prior to loading onto the M.V. Netuno, a vessel owned by Netumar (the carrier). When weighed upon their arrival at the warehouse, the containers had the same weight as when they left Sao Paulo. Netumar does not claim to have reweighed the containers when they were then loaded on board the vessel. Netumar issued an onboard bill of lading listing the gross weight of the containers filled with coffee (76,608 kilos) and the quantity of cartons within them (1710). The bill of lading was also marked "Said to Contain (STC)," "Shipper's Load and Count," and "Contents of Packages Are Shipper's Declaration." Two or three days after the Netuno's arrival in New York, the padlocked and sealed containers were opened, revealing a shortage of 419 cartons or approximately 20 tons of coffee.
3
Westway duly notified Netumar of the claimed shortage. Westway had previously received a sight draft for the purchase price drawn on Westway by Dominium, accompanied by the bill of lading. After reviewing the bill of lading, Westway authorized its bank to pay the sight draft when it became due. The draft was paid four months later.
4
Under the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. §§ 1300-1315 (1976), a consignee establishes a prima facie case for recovery from a carrier by proving (1) delivery of the goods to the carrier in good condition and (2) outturn by the carrier in damaged condition. Caemint Food, Inc. v. Brasileiro, 647 F.2d 347, 352 (2d Cir. 1981); Vana Trading Co. v. S.S. "Mette Skou," 556 F.2d 100, 104 (2d Cir.), cert. denied, 434 U.S. 892, 98 S.Ct. 267, 54 L.Ed.2d 177 (1977); Demsey & Associates, Inc. v. S.S. Sea Star, 461 F.2d 1009, 1014 (2d Cir. 1972). When the consignee proves its prima facie case, the burden shifts to the carrier to show that the loss or damage falls within one of the COGSA exceptions set forth in 46 U.S.C. § 1304(2) (1976). Vana Trading Co. v. S.S. "Mette Skou," supra, 556 F.2d at 105.
5
We consider first whether Westway has met the first requirement for establishing a prima facie case for recovery: receipt of the coffee by Netumar in good condition. Under COGSA § 3(4), 46 U.S.C. § 1303(4) (1976),1 the bill of lading issued by Netumar constitutes prima facie evidence2 that coffee of the weight indicated on the bill of lading was received by Netumar from the shipper. Spanish American Skin Co. v. The Ferngulf, 242 F.2d 551 (2d Cir. 1957); cf. Maddow Co. v. S.S. Liberty Exporter, 569 F.2d 1183, 1185 (2d Cir. 1978). It has long been established that the weight listed on a bill of lading is prima facie proof of receipt by the carrier of that weight regardless of attempted reservations like "said to weigh," "shipper's load and count," and "contents of packages are shipper's declaration." Portland Fish Co. v. States Steamship Co., 510 F.2d 628, 633 & n.15 (9th Cir. 1974); Spanish American Skin Co. v. The Ferngulf, supra, 242 F.2d at 553-54; American Trading Co. v. The Harry Culbreath, 187 F.2d 310, 313 (2d Cir. 1951); Woodhouse Drake & Carey, Inc. v. S.S. "Hellenic Challenger," 472 F.Supp. 31, 33-34 (S.D.N.Y.1979). It is true that under the explicit wording of 46 U.S.C. § 1303(3)(c) (1976) as well as that of the bill of lading itself, a clean bill of lading attesting to the "apparent order and condition of the goods" will not constitute a prima facie showing of the absence of concealed, internal conditions that were not "apparent" to the external observer. Compare Caemint Food, Inc. v. Brasileiro, supra, 647 F.2d at 352 (moldy corned beef), and The Niel Maersk, 91 F.2d 932 (2d Cir.) (decayed sardine meal), cert. denied, 302 U.S. 753, 58 S.Ct. 281, 82 L.Ed. 582 (1937), with The Carso, 53 F.2d 374, 377 (2d Cir.) (stains from maggot-infested cheese must have been observable to ship's officers), cert. denied, 284 U.S. 679, 52 S.Ct. 140, 76 L.Ed. 574 (1931). But there is no similar limitation in COGSA regarding the recording of weights in bills of lading. Once the carrier lists the weight of the goods (which normally will be readily verifiable by the carrier), he represents that he has no reasonable ground for suspecting that the weight of the goods actually received varies from the listed weight and that he has reasonable means of checking the weight, 46 U.S.C. § 1303(3)(c) (1976). This is enough for a prima facie showing of receipt of the listed weight. 46 U.S.C. § 1303(4) (1976). As Netumar has not adduced sufficient evidence to rebut this prima facie showing,3 it was not error for the District Court to find that Westway had proved the weight of the containers on receipt by Netumar to be 76,708 kilos.
6
Regarding the second requirement for establishment of a prima facie case for recovery from Netumar, it is uncontroverted that the quantity of cartons of coffee at outturn was deficient. Netumar suggests that this does not rule out the possibility that the reduced number of cartons in the containers were "weighted" in some fashion, prior to receipt by Netumar, so as to conceal the shortfall in quantity of cartons. If this were true, there would be no variation in weight at outturn from that in the bill of lading. However, there was no evidence of the presence of weights or weighty substances, other than coffee, in the containers. We recognize that Westway's proof of missing cartons does not conclusively rule out hypothetical possibilities like that posed by Netumar, but nonetheless the District Court did not err in concluding that Westway had proved that it was more likely than not that there was a shortfall in weight at outturn.4 Westway's proof regarding the weight of the coffee at delivery and outturn established a prima facie case for recovery from Netumar.5
7
We agree with the District Court that Netumar's general security measures on its vessel do not satisfy its burden of proof for establishing any defense that might be available under COGSA's catchall exception, 46 U.S.C. § 1304(2)(q) (1976). Finally, Westway was under no obligation to mitigate its damages once it found out about the missing coffee by stopping payment on the sight draft from Dominium that it had accepted. Cf. Cummins Sales & Service, Inc. v. London & Overseas Insurance Co., 476 F.2d 498, 501 (5th Cir.), cert. denied, 414 U.S. 1003, 94 S.Ct. 359, 38 L.Ed.2d 239 (1973); The Carso, 43 F.2d 736, 745 (S.D.N.Y.1930), aff'd in part, rev'd in part on other grounds, 53 F.2d 374 (2d Cir.), cert. denied, 284 U.S. 679, 52 S.Ct. 140, 76 L.Ed. 574 (1931). A consignee need not subject itself to the risk of a lawsuit by the shipper for non-payment when COGSA permits it to recover from the carrier for non-delivery. If the shipper is nonetheless at fault, the carrier, having issued what it later determines to be an incorrect bill of lading, may recover from the shipper. 46 U.S.C. § 1303(5) (1976). Netumar's remaining contentions are without merit. We express no views regarding the merits of Netumar's claim against the shipper.
8
Judgment affirmed.
1
COGSA § 3(3), (4), 46 U.S.C. § 1303(3), (4) (1976) provides:
(3) After receiving the goods into his charge the carrier ... shall, on demand of the shipper, issue to the shipper a bill of lading showing among other things-
(b) Either the number of packages or pieces, or the quantity or weight, as the case may be, as furnished in writing by the shipper.
(c) The apparent order and condition of the goods: Provided, That no carrier ... shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received, or which he has had no reasonable means of checking.
(4) Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with ... this section....
2
The unfortunate reappearance of the "prima facie " terminology referring to the first of two components of plaintiff's claim (delivery of the goods to the carrier in good condition) should not be confused with the overall "prima facie" case for recovery that plaintiff is seeking to establish by proof of both components
3
We need not decide whether Netumar is in any event estopped from offering evidence to rebut the prima facie showing of receipt of the listed weight, established by the bill of lading (on which Westway, the consignee, relied). See Portland Fish Co. v. States Steamship Co., supra; Demsey & Associates, Inc. v. S.S. Sea Star, supra, 461 F.2d at 1015; The Carso, supra
4
Had Netumar weighed the containers at loading and listed that weight on the bill of lading, and then weighed them again at unloading and found the same weight, it would have a defensible position at least as to a claimed shortage of weight
5
Because Westway has made out a prima facie case for recovery by establishing a discrepancy in the weight of the coffee at delivery and outturn, we need not consider whether a prima facie case could also be established by proof of a discrepancy in the quantity of cartons of coffee at delivery and outturn
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193 Ga. App. 814 (1989)
389 S.E.2d 339
LASOYA
v.
SUNAY.
A89A1344.
Court of Appeals of Georgia.
Decided October 31, 1989.
Rehearing Denied December 5, 1989.
Thomas E. Maddox, Jr., for appellant.
Smith, Shaw, Maddox, Davidson & Graham, C. Wade Monk II, for appellee.
POPE, Judge.
Plaintiff Lasoya appeals from the trial court's order granting defendant Sunay's motion for summary judgment on plaintiff's medical malpractice claim.
The record shows that plaintiff had been experiencing a variety of gynecological problems for several months after the birth of her daughter. Plaintiff was treated for these problems by Dr. Pezzin, a general practitioner. However, plaintiff's problems persisted and a pelvic ultrasound was performed which revealed a mass in plaintiff's pelvic region. Defendant, a surgeon, performed an exploratory operation on plaintiff on September 28, 1981. Dr. Pezzin acted as his assistant during the procedure. During the surgery defendant discovered that plaintiff's right fallopian tube was very much enlarged and inflamed, that the mass observed on the ultrasound was a cyst or abscess between the tube and the uterus and that plaintiff's left tube was also enlarged and inflamed but not to the extent of her right tube. Defendant also noticed a bluish-colored lesion on the left tube. Defendant removed the right tube and cyst. However, pursuant to Pezzin's advice that the left tube should not be removed if at all possible, because to do so would render plaintiff sterile, defendant left the left tube intact except for obtaining a biopsy of the suspicious-looking area. The subsequent pathologist's report revealed focal endometriosis. According to plaintiff's affidavit, defendant informed plaintiff following the surgery that it was very unlikely that plaintiff could ever become pregnant because of the diseased condition of her remaining tube. Defendant testified in his deposition that he explained to plaintiff that he had removed her right tube and taken a biopsy of the lesion on her left tube, but that he did not discuss with her the possibility of her having children in the future, although he was of the opinion that it was unlikely that she would be able to conceive *815 because of the condition of her remaining fallopian tube. Defendant last saw the plaintiff on October 2, 1981, and had no further contact with her once she was released from the hospital.
Plaintiff visited Dr. Pezzin in the latter part of 1983, complaining that she had been unable to become pregnant despite efforts to the contrary. Dr. Pezzin expressed to plaintiff his doubts as to her ability to conceive "because of the endometriosis, and what [he] saw at the surgery," but nevertheless suggested that plaintiff consult a gynecologist and undergo a procedure known as a hysterosalpingogram, which would help determine the condition of plaintiff's remaining fallopian tube. However, shortly after her visit to Dr. Pezzin, plaintiff ended her relationship with her then boyfriend, and, no longer desiring to become pregnant, did not pursue the recommendations of Dr. Pezzin.
Plaintiff apparently did not attempt to become pregnant again until the latter part of 1985. When she was again unable to conceive, she consulted Dr. Sanders, a gynecologist, on December 2, 1986. She did not return to see Dr. Sanders until March 26, 1987, at which time she informed him that she wanted the test first suggested by Dr. Pezzin in December 1983. Dr. Sanders performed the test on April 3, 1987, and discovered a blockage in plaintiff's remaining tube.
Plaintiff filed the present action on November 7, 1987, contending that defendant negligently performed the biopsy of her left tube, which caused the subsequent blocking of the tube and her resulting sterility. Plaintiff also contended that defendant misrepresented to her that she was sterile because of the diseased condition of her tube, and not, as she contends, as the result of the negligently performed biopsy. The trial court granted defendant's motion for summary judgment, finding that the applicable statute of limitation had expired. We affirm.
1. The statute of limitation relevant to this action is OCGA § 9-3-71 as amended July 1, 1985. See Hunter v. Johnson, 259 Ga. 21 (376 SE2d 371) (1989). Subsection (a) of that section permits a medical malpractice action to be filed within two years after the resulting death or injury arising from the alleged negligent or wrongful act or omission. Subsection (b) provides, however, that "[n]otwithstanding subsection (a) of this Code section, in no event may an action for medical malpractice be brought more that five years after the date on which the negligent or wrongful act or omission occurred." Consequently, plaintiff's action, having been filed more than five years after the alleged negligent act, would be precluded by the statute of repose codified in OCGA § 9-3-71 (b). However, in applying this section, we have previously held that "the statute of ultimate repose should not be applied to relieve a defendant of liability for injuries which occurred during the period of liability, but which were concealed from the patient by the defendant's own fraud." Hill v. Fordham, 186 Ga. *816 App. 354, 358 (367 SE2d 128) (1988). "Fraud sufficient to toll the statute must be actual rather than constructive, except when there exists a confidential relationship between the parties, such as that between physician and patient. Where persons sustain toward another a relation of trust and confidence, their silence when they ought to speak ... is as much a fraud in law as an actual affirmative false representation. The question of the existence of such fraud, and the related question of the patient's exercise of diligence in discovering the injury and the fraudulent concealment, are ordinarily for jury determination." (Citations and punctuation omitted.) Shved v. Daly, 174 Ga. App. 209, 210 (329 SE2d 536) (1985).
Plaintiff contends that defendant should have known that performing the biopsy of the lesion on her tube in the manner in which he did, to wit, removing one centimeter of the tube and invading the "lumen" of the tube, would render her sterile and that, therefore, his representations to her that her inability to conceive was due to the diseased condition of the tube constituted a fraudulent concealment of her true condition. Defendant testified that he did not intend to invade the lumen of the tube, and that he did not know that he had done so at the time of surgery. The pathologist's report on which plaintiff relies to support her claim of fraud shows only that "1 cm length of Fallopian tube" was removed.
"`One of the elements of fraud is that defendant know that the representation is false. (Cits.) There is nothing in the record to reflect that (defendant) knew at any time that the treatment or opinion given by him was in error, nor is there any evidence that (defendant) fraudulently withheld such information from the patient.' [Cit.]" Cannon v. Smith, 187 Ga. App. 434, 436 (370 SE2d 529) (1988). See also Hendrix v. Schrecengost, 183 Ga. App. 201, 202 (358 SE2d 486) (1987). Here the record supports the defendant's contention that at the time he last saw plaintiff in October 1981, he believed, based on the condition of plaintiff's fallopian tube, that she would be unable to conceive and that he had no knowledge to suggest that he had done anything during the surgical procedure that would render plaintiff sterile. Although defendant also testified in his deposition that he did not intend to invade the lumen of the tube, such testimony only raises an inference of negligence, not of fraud. See Shved v. Daly, supra at 211. "`If facts do exist which would toll the statute of (limitation [or repose], plaintiff) has the burden of setting forth and supporting these facts, (cit.)' [Cit.]. We find the defendant has pierced plaintiff's mere allegation of fraud and is entitled to summary judgment." Hendrix v. Schrecengost, supra at 203. See also Rowell v. McCue, 188 Ga. App. 528 (373 SE2d 243) (1988).
2. "Even if evidence of fraud exists, the statute of limitation [or repose] is not tolled when the plaintiff knew all facts necessary to *817 show malpractice before the running of the period of limitation. [Cit.]" Hendrix v. Schrecengost, supra at 203. Here the plaintiff by her own testimony knew "something was wrong" in December 1983, and was advised at that time by Dr. Pezzin to seek further medical treatment in order that her condition could be more precisely diagnosed. However, plaintiff ignored that advice and did not seek further consultation until December of 1986, over five years after she was last seen by the defendant. "The statute of limitation [or repose] is not tolled where `(t)here is nothing in the record to suggest that (plaintiff) was prevented from learning of (the doctor's) alleged negligence....' Shved v. Daly, supra at 211." Hendrix v. Schrecengost, supra at 203. See also Cannon v. Smith, supra at 437; Beaver v. Steinichen, 182 Ga. App. 303 (355 SE2d 698) (1987); Bray v. Dixon, 176 Ga. App. 895, 898 (338 SE2d 872) (1985).
Judgment affirmed. Banke, P. J., and Sognier, J., concur.
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368 F.Supp.2d 909 (2005)
Leticia CERVANTES DE HERNANDEZ, Petitioner,
v.
Michael CHERTOFF, et al., Respondent.
No. 05-C-347.
United States District Court, E.D. Wisconsin.
May 9, 2005.
*910 Godfrey Y. Muwonge, Godfrey Y. Muwonge's Law Office, Milwaukee, WI, for Plaintiff.
Nora Sheehan Barry, United States Department of Justice, Office of the U.S. Attorney, Milwaukee, WI, Bernard R Vash, Kenosha County Corporation Counsel, Kenosha, WI, for Defendants.
DECISION AND ORDER
RANDA, Chief Judge.
Four days ago, this Court dismissed a petition for a writ of habeas corpus, temporary restraining order, injunction, and declaratory judgment filed by Leticia Cervantes de Hernandez ("Cervantes de Hernandez"). The Court concluded that it lacked jurisdiction to entertain the merits of her habeas corpus petition. Similarly, the Court concluded that it lacked jurisdiction to grant her a stay of deportation. See 8 U.S.C. § 1252(g); Sharif ex rel Sharif v. Ashcroft, 280 F.3d 786 (7th Cir.2002).
Faced with the imminent threat of deportation, Cervantes de Hernandez quickly filed a notice of appeal. Surprisingly, she also asked this Court to stay her deportation pending review of her appeal by the Seventh Circuit. This request is perplexing since the Court has already concluded that it has no jurisdiction to stay her deportation. That conclusion has not changed.
Cervantes de Hernandez also cites no law in her motion. Perhaps she is invoking Federal Rule of Appellate Procedure 8, which allows the district court to order certain relief while a case is appealed. *911 Among the types of relief the district court may order are "a stay of the judgment or order of a district court pending appeal," Fed. R.App. P. 8(a)(1)(A), and "an order suspending, modifying, restoring, or granting an injunction while an appeal is pending," Fed. R.App. P. 8(a)(1)(C). Cervantes de Hernandez is not asking for those forms of relief, however. She is not asking this Court to stay its own judgment or order (which would be an unusual feat, at any rate, since the Court determined it had no jurisdiction). She is not asking for an injunction either. See Hor v. Gonzales, 400 F.3d 482, 484 (7th Cir.2005) (distinguishing "stays" and "injunctions"). Instead, she is asking the Court to actively interfere with the determination of another government body specifically with an executive agency determination by granting a stay of deportation. Federal Rule of Appellate Procedure 8 does not give the Court authority to take such action.
Perhaps Cervantes de Hernandez has in mind Federal Rule of Appellate Procedure 23. Federal Rule of Appellate Procedure 23 permits this Court to order that a prisoner continue in the custody from which she seeks relief while the Court's decision not to release her is under review. Fed. R.App. P. 23(b). But, again, there is a problem: the Court has not ordered that Cervantes de Hernandez continue in custody. In fact, the Court has determined that it has no jurisdiction to order that she be released from custody, likewise the Court does not have the power to order her to continue in custody.
Rule 23 also orders, however, that:
pending review of a decision in a habeas corpus proceeding commenced before a court, justice, or judge of the United States for the release of a prisoner, the person having custody of a prisoner must not transfer custody to another unless.... the court, justice, or judge rendering the decision under review [authorizes it].
Fed. R.App. P. 23(a). Of course, it would be curious for Cervantes de Hernandez to invoke this provision. It is a default rule that prevents her custodian from transferring custody without permission from this Court (and no one has sought that permission); it requires no action on her part. No one has briefed how this rule is impacted by the immigration statutes (that deprive the Court of jurisdiction in the first place), either.
None of those issues will be visited by this Court, however. The Court has already explained that it has no jurisdiction to grant a stay of deportation because 8 U.S.C. § 1252(g) prohibits courts from hearing "any cause or claim by ... any alien arising from the decision or action by the Attorney General to ... execute removal orders against any alien" and Sharif explains that "[a] request for a stay of removal `arises from' the Attorney General's decision ... to execute a removal order" and, therefore, may not be entertained by any court. Id. at 787. Cervantes de Hernandez has not told the Court why she believes, just days after receiving the Court's opinion, the Court suddenly has jurisdiction to grant a stay of deportation.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY ORDERED THAT:
Cervantes de Hernandez's Emergency Motion for Stay of Deportation [Docket No. 21] is DENIED.
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263 Ga. 529 (1993)
436 S.E.2d 4
ZANT
v.
PITTS; and vice versa.
S93A1151, S93X1159.
Supreme Court of Georgia.
Decided October 25, 1993.
Reconsideration Denied November 19, 1993.
Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, C. A. Benjamin Woolf, Assistant Attorney General, for appellant.
Brian Mendelsohn, Mayer, Brown & Platt, Mitchell D. Raup, for appellee.
FLETCHER, Justice.
Pitts was convicted of murder and other crimes and sentenced to death. His conviction and death sentence were affirmed on direct appeal in Pitts v. State, 259 Ga. 745 (386 SE2d 351) (1989). Pitts thereafter filed a petition for habeas corpus raising a number of issues, including ineffectiveness of counsel. The habeas court found that trial counsel were generally effective, but that they were ineffective for failing to introduce evidence that Pitts might be mentally retarded, even though recently enacted OCGA § 17-7-131 provided that a guilty-but-mentally-retarded defendant could not be sentenced to death. The habeas court issued a "limited Writ of Habeas Corpus" to allow Pitts to present the issue of mental retardation to a jury, following the procedure set out in Fleming v. Zant, 259 Ga. 687 (386 SE2d 339) (1989).
The habeas court found as a fact that at the time of trial, Pitts' attorneys "had at their disposal" the results of mental examinations conducted by two "qualified experts from Central State Hospital" which showed that Pitts had an IQ of 70 and was "mildly mentally retarded." The court found further that trial counsel failed to present this evidence because they erroneously believed they could take advantage of OCGA § 17-7-131 only with a defendant whose IQ was below 55. See Stripling v. State, 261 Ga. 1, 4 (3) (401 SE2d 500) (1991).
Given these facts, which are not clearly erroneous, we agree with the habeas court's legal conclusion that trial counsel were ineffective[1] for failing to pursue a possible verdict of guilty but mentally retarded. See Bowley v. State, 261 Ga. 278 (4) (404 SE2d 97) (1991).
Although the Fleming procedure is by the terms of the Fleming opinion available to defendants tried before the effective date of OCGA § 17-7-131, that does not mean, as the state argues, that it is unavailable to defendants tried after the effective date of that Code section, where the defendant alleges his trial counsel were ineffective *530 for failing to present evidence of mental retardation.
If, after a full evidentiary hearing on the issue of retardation, a jury finds Pitts to be mentally retarded, his death sentence will be vacated and he will be sentenced to life imprisonment. Fleming v. Zant, supra at 691. If, on the other hand, a jury finds he is not mentally retarded, the conviction and death sentence may then stand.
We find no error in the habeas court's factual or legal conclusions, or the remedy fashioned by the court.
Judgment affirmed. All the Justices concur.
NOTES
[1] The habeas court properly applied the standard set forth in Strickland v. Washington, 466 U. S. 668, 695-696 (104 SC 2052, 80 LE2d 674) (1984), and found that counsels' action fell below an objective standard of reasonableness and that there was a reasonable probability that Pitts suffered prejudice as a result of counsels' action.
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The Attorney General of Texas
December 31, 1982
MARK WHITE
Attorney General
Honorable Britt Plunk opinion NO. ~~-584
Supreme Court Building
P. 0. BOX 12546
Hardin County Attorney
Austin, TX. 78711. 2548 P. 0. Box 516 Re: Duty of County Attorney
512/475-2501 Kountze, Texas 77625 to report collection and dis-
Telex 9101874-1367 bursement of funds collected
Telecooier 5121475-0268 pursuant to article 53.08 of
the Code of Criminal Procedure
1607 Main St., Suite 1400
Dallas, TX. 75201-4709 Dear Mr. Plunk:
2141742.8944
You have requested our opinion regarding the duty of a county
4824 Alberta Ave.. Suite 160
attorney to report the collection and disbursement of funds collected
El Paso, TX. 79905.2793 pursuant to article 53.08 of the Code of Criminal Procedure. That
9151533.3484 statute provides, in pertinent part:
(a) A county attorney... may collect a fee if
1220 Dallas Ave.. Suite 202
Houston, TX. 77002.8986
his office collects and processes a check or
713/650-0666 similar sight order if the check or similar sight
order:
806 Broadway. Suite 312
(1) has been issued or passed in a manner
Lubbock, TX. 79401.3479
806~747.5238
which makes the issuance or passing an offense....
. . ..
4309 N. Tenth, Suite S
McAllen, TX. 78501-1885
(e) Fees collected under this article shall be
5121682-4547
deposited in the county treasury in a special fund
to be administered by the county attorney....
200 Main Plaza, Suite 400 Expenditures from this fund shall be at the sole
San Antonio. TX. 782052797 discretion of the attorney, and may be used only
5121225-4191
to defray the salaries and expenses of the
prosecutor's office, but in no event may the
An EqualOpportunityi county attorney... supplement his or her own
Affirmative Action Employer salary from this fund. Nothing in this Act shall
be construed to decrease the total salaries,
expenses, and allowances which a prosecuting
attorney's office is receiving at the time this
Act takes effect.
You ask whether any of the following reporting statutes are
applicable to funds collected pursuant to article 53.08:
p. 2168
Honorable Britt Plunk - Page 2 (m-584)
,Whenever a district or county attorney has
collected money for the State or for any county,
he shall within thirty days after receiving the
same, pay it into the treasury of the State or of
the county in which it belongs, after deducting
therefrom and retaining the commissions allowed
him thereon by law. (Emphasis added).
V.T.C.S. art. 335. Language in article 335 which authorized the
county attorney to retain commissions was repealed by the enactment of
provisions establishing the officers' salary fund. Tex. Const. art.
XVI, 961; V.T.C.S. art. 3912k, 85.
On or before the last day of August of each
year, each district or county attorney shall file
in the office of the Comptroller or of the county
treasurer, as the case may be, a sworn account of
all money received by him by virtue of his office
during the preceding year, payable into the State
or county treasury.
V.T.C.S. art. 337.
The district attorney of each district shall,
at each term of the district court for each county
in his district, make a report to the county
clerk, of all moneys received by him since the
last term of the district court for such county
for the use of such county. Each county attorney
shall make a similar report to the said clerk at
the end of each month. (Emphasis added).
V.T.C.S. art. 1620.
Each district, county and precinct officer
shall keep a correct statement of all fees earned
by him and all sums coming into his hands as
deposits for costs, together with all trust funds
placed in the registry of the court, fees of
office and commissions in a book or in books to be
provided him for that purpose, in which the
officer, at the time when such deposits are made
or such fees and commissions are earned and when
any or all of such funds shall come into his
hands, shall enter the same; and it shall be the
duty of the county auditor in counties having a
county auditor to annually examine the books and
accounts of such officers and to report his
findings to the next succeeding grand jury or
p. 2169
. .
Honorable Britt Plunk - Page 3 (MW-584)
district court. In counties having no county
auditor, it shall be the duty of the
Commissioners' Court to make the examination of
said books and accounts or have the same made and
to make report to the grand jury as hereinabove
provided. (Emphasis added).
V.T.C.S. art. 3896.
All officers charged by law with collecting
money in the name or for the use of the State
shall report in writing under oath to the
respective district courts of their several
counties, on the first day of each term, the
amounts of money that have come to their hands
since the last term of their respective courts
aforesaid.
Code Crim. Proc. art. 1001.
Article 337 is clearly applicable to the funds about which you
inquire: they constitute "money received by [the county attorney] by
virtue of his office [and] payable into the State or county treasury."
They also constitute "fees earned by" the county attorney for purposes
of article 3896. Articles 335 and 1620, as well as article 1001 of
the Code of Criminal Procedure, are applicable if article 53.08 funds
are collected "for the State or for any county," (article 335), "for
the use of such county," (article 1620), or "in the name or for the
use of the State," (article 1001).
In Attorney General Opinion MW-188 (1980). we said that article
1656a. V.T.C.S., which authorizes a county auditor to prescribe
accounting procedures, is applicable to funds collected under article
53.08. The opinion emphasized the fact that article 53.08 accords to
the prosecuting attorney "a limited statutory discretion to determine
the purpose for which expenditures from the fund are to be made." It
does remove these funds from the statutory reach of the county
auditor.
Likewise, we believe that, although article 53.08 permits a
county attorney to determine, within certain limitations, the purposes
for which the funds may be expended, it does not convert them into
non-public funds. Indeed, the statute specifies that the funds may be
used "only to defray the salaries and expenses of the prosecutor's
office," inarguably a public purpose. Cf. Attorney General Opinion
MW-439 (1982). Funds collected by a publicagency and used for public
purposes are clearly public funds. See Texas Pharmaceutical Ass'n v.
Dooley, 90 S.W.2d 328 (Tex. Civ. App. - Austin 1936, no writ). We
conclude that such funds are collected for the use of the state and
p. 2170
Honorable Britt Plunk - Page 4 (m-584)
county, and as a result, that articles 335, 1620, and 1001 are
applicable thereto. Thus, a county attorney is required to report the
collection and disbursement of all funds collected pursuant to article
53.08 of the Code of Criminal Procedure, in accordance with the
directives of articles 335, 337, 1620 and 3896, V.T.C.S., and article
1001 of the Code of Criminal Procedure.
SUMMARY
A county attorney is required to report the
collection and disbursement of all funds collected
pursuant to article 53.08 of the Code of Criminal
Procedure, in accordance with the directives of
articles 335, 337, 1620 and 3896, V.T.C.S., and
article 1001 of the Code of Criminal Procedure.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
David Harris
Jim Moellinger
Bruce Youngblood
p. 2171
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73 Mich. App. 126 (1977)
250 N.W.2d 572
PEOPLE
v.
SLATE
Docket No. 24804.
Michigan Court of Appeals.
Decided January 5, 1977.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training & Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people.
Robert E. Slameka, for defendant.
Before: D.F. WALSH, P.J., and R.B. BURNS and O.B. BIVINS, JR.,[*] JJ.
O.B. BIVINS, JR., J.
Defendant Slate, along with codefendants Hunter and Thomas, was charged *128 with receiving and concealing stolen property, the value of which exceeded $100, contrary to MCLA 750.535; MSA 28.803. All three codefendants were charged in the same information. Codefendants Hunter and Thomas only were also charged with armed robbery in a separate information. The trial court, pursuant to a motion by the prosecutor, granted a joinder of the informations for trial over the objection of defendant Slate. On June 11, 1975, the jury convicted defendant Slate and codefendant Thomas of the receiving and concealing charge. Defendant Slate, on July 9, 1975, was sentenced to a prison term of 40 to 60 months. Defendant Slate now appeals as of right.
The evidence adduced at trial showed the following chain of events:
On October 2, 1974, an armed robbery of the Shifrin-Willens Jewelry Store located at 2028 East Eight Mile Road, Detroit, took place.
Witness Macaulay, a sales employee at the jewelry store, was working in the store on the day of the hold-up.
Her manager asked her to wait on two gentlemen who were standing by the diamond case. The two men asked her if she could show them a few diamonds, and she showed them some men's diamond rings. After she showed them the rings, she put them back into the case, and the two men asked to see more diamond cuts. She told Mr. Robinson, the manager of the store, to assist the two men. The two men thereafter left the store.
About 20 minutes later, the two men again entered the jewelry store. Defendant Thomas had a shotgun in his hands and was pointing it towards witness Macaulay, demanding that she give him the case filled with diamonds. She placed the diamonds in a brown bag; the items included *129 men's diamond rings, ladies' diamond rings, engagement rings, and wedding rings.
The two men then demanded the money in the cash register. The money was placed in a bag by defendant Thomas. At this time defendant Hunter had a pistol in his hand. The two defendants then left the store.
The store manager immediately called the police, and they arrived at the store just minutes later. Detroit Police Officers Robert Edge and Greg Woods obtained a description of the hold-up men and of the merchandise stolen.
On October 4th, two days after the robbery, several witnesses identified defendant Hunter during a photographic display and during a line-up.
On October 4th, Sergeant John Fabian of the Detroit Police Department obtained a search warrant for the address of 5731 Charles, in that city, to enter the premises and search for diamond rings, money, and weapons used in the robbery.
After obtaining the warrant, Fabian, with additional personnel, proceeded to the address to execute the warrant. Fabian drove past the house on Charles and observed no activity at the house, no cars in the driveway and none in front of the house. He then drove around the block and informed the other police officers about this condition.
The police officers then proceeded towards the house to execute the warrant with Sergeant Fabian in the lead car. This time he observed three men standing alongside a car (1974 Thunderbird) which was parked in front of the house. As he got closer to the parked car, he observed one of the men walk to the rear of the car. He parked his car face-to-face with the parked T-Bird. Sergeant Fabian and the other officers then exited their car. *130 As Sergeant Fabian approached the two men who were standing alongside of the car, he observed both of these men taking objects out of their pockets and throwing these objects to the ground. At trial, he identified defendants Hunter and Thomas as being the two men.
Defendants Hunter and Thomas were ordered to put their hands on the car, and they complied with this request. Sergeant Fabian retrieved the objects from the ground and put them in his pockets. The thrown items consisted of ladies' rings, watches and men's rings.
Sergeant Fabian then went to the rear of the T-Bird where the trunk was open; defendant Slate was standing directly behind the trunk. Slate was leaning into the trunk and was reaching into it. The T-Bird was owned by defendant Slate.
While at the back of the car, Sergeant Fabian noticed an open athletic bag with clothing inside. There were several ladies' rings and ring sets lying on top of the clothing with store tags on them. The tags were similar to store tags which he had seen at the jewelry store and described as those taken in the robbery. A more complete search resulted in his finding other diamond jewelry items inside the athletic bag.
After Sergeant Fabian retrieved the jewelry from the trunk, the three defendants were all placed under arrest.
A custodial search was made of all three arrested defendants by Sergeant Fabian. The sum of $433 was taken from defendant Thomas; a wristwatch was also found underneath his socks along with some rings in his pockets.
Defendant Slate now appeals from his jury conviction of receiving and concealing stolen property of the value of over $100, and raises several claims *131 of error. We find only one issue merits extended discussion. We find no merit in the other assignments of error.
Defendant claims that the trial court reversibly erred in granting the prosecutor's motion to join the armed robbery charges against Hunter and Thomas with the charges of receiving and concealing stolen property against Hunter, Thomas, and himself in one trial upon the joined informations over his objection. Defendant argues that said joinder of the two separate informations prejudiced him in that it enabled the prosecutor to improperly argue to the jury by inference that he was also involved in the uncharged commission of the armed robbery. He maintains that the joinder operated to deny him a fair trial and was prejudicial to him.
The people contend, on the other hand, that the joinder of the informations was not prejudicial to defendant-appellant.
Defendant's contentions are dual in nature. First, he claims that the improper joinder permitted the prosecutor to draw inferences unfavorable to him which were not based on the evidence properly before the jury on the charged receiving and concealing stolen property offense. Second, he asserts that said joinder of charges resulted in the jury hearing "conflicting" defenses from defendants Hunter and Thomas in relation to their armed robbery charges. We disagree.
Under Michigan law, the practice of joint trials and consolidation of actions is clearly approved in general. Cf., MCLA 768.5; MSA 28.1028; GCR 1963, 505.1.
The fact that persons are indicted or informed against separately does not bar their being tried jointly in criminal cases. People v Schram, 378 *132 Mich 145; 142 NW2d 662 (1966). The decision to join separate charges against multiple defendants for the same criminal offense is discretionary with the trial court, and that discretionary decision will not be disturbed on appeal absent a showing of clear abuse, and resulting prejudice to the defendant. People v Clark, 57 Mich App 339, 341-342; 225 NW2d 758 (1975), People v Hurst, 396 Mich 1, 6; 238 NW2d 6 (1976); cf., MCLA 769.26; MSA 28.1096. Thus, in the absence of an affirmative showing that a joint trial prejudiced substantial rights of a defendant, the discretionary exercise of the trial court in allowing joinder will not be set aside on appeal.
It would appear, however, that the precise factual situation involved in the case at bench in relation to the joinder issue presented has not been dealt with in any prior Michigan appellate decision. We are here concerned with the joinder for trial purposes of three defendants, all of whom have had one common charge placed against them, but where only two of the three defendants have a separate and additional charge to confront.
A recent decision by another panel of this Court, however, is of significant assistance in facilitating the proper resolution of this joinder question. In People v Billingslea, 70 Mich App 371; 246 NW2d 4 (1976), lv den, 398 Mich 808 (1976), the defendant and a codefendant were charged under separate informations with delivery of heroin, and both were convicted of said charge in a joint jury trial. The codefendant was also separately tried in the same trial for a separate delivery charge arising out of a totally distinct and unrelated transaction. On appeal, the defendant contended that his joint trial with the codefendant under these circumstances deprived him of his due process right to a *133 fair trial. This Court agreed and found reversible error and inherent prejudice in such joinder. (70 Mich App at 375.) The critical concern and factually crucial circumstance in that case were that the codefendant was tried in the joint trial with the defendant for an "entirely separate incident". (70 Mich App at 372.)
The case at bench is clearly distinguishable from the factual backdrop of the Billingslea case. In this case all three defendants had one common charge, with two of the three also having been charged and tried for a separate offense. We would distinguish the Billingslea result here because we believe that the additional armed robbery charge in the instant case did not arise out of an "entirely separate incident". We acknowledge, as did the Court in Billingslea, supra, that there does not presently exist any other specific legal authority in Michigan to deal with the precise factual setting presented here. However, in accord with the Billingslea panel, we would similarly accept the guidelines and reasoning of Rule 8(b), Federal Rules of Criminal Procedure, 18 USCA, and the several Federal criminal case decisions which have construed and applied said rule to factual settings similar to the one presented here. (70 Mich App at 373, and citations.)
Upon our analysis of the various case authorities cited in Billingslea, supra, we would conclude that the charges involved in the case at bench were not only "connected", but in fact, and, based on the trial proofs, were shown to be "substantially connected".
The instant case involves both the joinder of parties and of offenses. This Court recognizes that certain competing considerations arise under said circumstances and require that every case of a like *134 nature must be analyzed and resolved according to its particular facts. Thus, a balancing procedure is appropriate. On the one hand, there is a possibility of prejudice to a defendant from such joinder; on the other hand, there is the possibility of benefit to the courts, the public, and to the administration of justice from such joinder. Cf., King v United States, 355 F2d 700, 704 (CA 1, 1966). Of course, as the degree of "inter-connectedness" between the joined parties and offenses increases, the balance should tip in the direction of the propriety of such joinder.
In the case at bench, the application of these legal rules to the facts persuades this Court that there was present a significant overlapping of issues and evidence at the trial below in relation to the two charges of robbery armed and receiving and concealing stolen property. There was certainly substantial and significant "inter-connectedness" between the parties-defendant, the trial proofs, and the factual and legal bases of the crimes charged. In fact, it can reasonably be inferred from the evidence presented at trial that the two charges constituted a "series of events" within the meaning of the relevant Federal joinder rule (Rule 8[b]), the reasoning of which has been adopted and approved by this Court in the Billingslea case. (70 Mich App at 373); cf., United States v Gentile, 495 F2d 626, 630 (CA 5, 1974), where the Court stated:
"But when the facts underlying each offense are so closely connected that proof of such facts is necessary to establish each offense, joinder of defendants and offenses is proper. For example, if one person is charged with theft of goods * * * and a second person is charged with receiving goods that were stolen * * *, the two offenders may be joined for trial because the *135 facts that must be established to support a violation of each offense are basically the same. They form a series of acts or transactions. See Kitchell v United States, 354 F2d 715 (CA 1, 1965), cert den, 384 US 1011; 86 S Ct 1970; 16 L Ed 2d 1032 (1966); Moore, Federal Practice, ¶ 8.06[2], 8-32 (1965). In this situation joinder of both offenses for trial fulfills the purpose underlying the rule because it avoids duplication of time and effort of both the prosecution and the courts and minimizes the prejudice to the defendants. The government has to prove and the court must listen to the evidence supporting the offenses only once, and the defendants are not prejudiced because essentially the same proof must be established with regard to each defendant whether or not they are jointly or severally tried."
In the instant case, we are presented with an initial stealing (robbery) of goods by two defendants and subsequently a receiving and concealing of said stolen goods by all three defendants. The same stolen jewelry, or evidence relating thereto, which was necessarily involved in the robbery armed charges was also necessarily involved in the receiving and concealing charges. This would have been true even if the charges had not been jointly tried. That is to say, if defendant Slate had been tried separately on the receiving and concealing charge alone in accord with his joinder objection, the prosecution would have still been required to introduce the same evidence in regard to proving the necessary element that said property had been stolen. See People v Kyllonen, 66 Mich App 467, 471; 239 NW2d 410 (1976), and citations. Moreover, the prosecution could have, although not required so to do, shown in such subsequent separate trial that defendants Hunter and Thomas had been convicted of having stolen said jewelry. See MCLA 750.536; MSA 28.804; People v Green, 246 Mich 65, 67; 224 NW 383 (1929). Thus, the same or *136 necessarily similar evidence and proofs could properly have been placed against defendant Slate in a separate trial as were actually placed into evidence here at the complained of joint trial. Cf., Clark and Marshall, Crimes (6th ed), § 12.38, pp 861, 862; MCLA 768.27; MSA 28.1050. Under such circumstances, we are not persuaded by defendant Slate that he was prejudiced by the joinder which actually took place. Billingslea, supra, 70 Mich App at 374, fn 2; see also: People v Tobey, 60 Mich App 420, 426; 231 NW2d 403 (1975), People v James Watkins, 60 Mich App 565, 568; 231 NW2d 434 (1975), People v Scott, 61 Mich App 91, 95; 232 NW2d 315 (1975).
We would note that the instant case involves a particular factual setting and may itself be distinguishable on that basis. We are concerned here with a breed of criminal transaction involving the "two-phased pattern" of an initial theft of property and the subsequent receipt thereof by another party or parties. Defendant Slate was such a party on the facts of this case. The joinder of parties and offenses was proper; the trial court did not clearly abuse its discretion in allowing such joinder under the circumstances presented. Cf., MCLA 767.75; MSA 28.1015. We would also suggest to bench and bar, in regard to the proper resolution of the same or similar issues in the future, that reference be made to the American Bar Association Standards relating to Joinder and Severance (Approved Draft, 1968), §§ 1.1, 1.2 and Commentary, pp 10-17. We would also point out the existence of several charging-related statutes which deal specially with the crime of receiving and concealing stolen property and its relationship to other kindred felonies such as burglary, larceny, robbery, embezzlement, and obtaining money or property by *137 false pretenses. See MCLA 767.62-767.69; MSA 28.1002-28.1009, and see especially, MCLA 767.67; MSA 28.1007, which permits receivers of stolen property to be charged with "substantive felonies" in the same charging document even where the "principal felon" is not included therein, implying that joinder of such parties in one charging document is statutorily permitted.
We also believe that the legal principles stated by our Supreme Court in People v Johns, 336 Mich 617, 622, 623; 59 NW2d 20 (1953), in relation to the propriety of the joinder of offenses or counts in a single information against one defendant are relevant in terms of analogy to the proper resolution of the related issues occurring in cases similar to the one before us which involve the joinder of both offenses and parties-defendant. Thus, under the Johns rationale, joinder must not result in the denial of any substantial rights of the defendant nor in any prejudice to his defense. (336 Mich at 622.) We find the reasoning of the Court in Johns, supra, at 623, albeit in a different, but related context, to be instructive and of benefit in analyzing joinder questions such as are presented here:
"`[A]nd in the exercise of this discretion the court will not be governed simply by the question whether several different offenses in point of law are charged and intended to be proved; but mainly, as a general rule, by the consideration whether the trial of these several offenses would involve the proof of substantially different transactions, and thereby tend to confuse the defendant in his defense, or deprive him of any substantial right. And therefore where the several offenses charged, though distinct in point of law, yet spring out of substantially the same transaction, or are so connected in their facts as to make substantially parts of the same transaction, or connected series of facts, the defendant can not be prejudiced in his defense by the *138 joinder, and the court will neither quash nor compel an election. Such would seem to be the principle of the general rule to be deduced from the cases. People v McKinney, 10 Mich 54, 95 [1862], as quoted with approval in People v Larco [331 Mich 420; 49 NW 358 (1951)] supra.'" (Emphasis added.) Cf., People v Andrus, 331 Mich 535, 540-542; 50 NW2d 310 (1951).
We additionally find that defendant Slate's allegations of prejudice to him resulting from his claim of conflicting defenses in relation to codefendant Hunter, and to statements made at trial by counsel for said codefendant, to be without legal merit based upon an analysis of the trial record. Again, we would note that Michigan law establishes both by statute (MCLA 768.5; MSA 28.1028), and by case law "a strong policy in favor of joint trials", and that for a defendant to sustain a claim of abuse of discretion by a trial court in allowing joinder over the defendant's objection, the defendant must make "an affirmative showing of prejudice to [his] substantial rights". People v Carroll, 396 Mich 408, 414; 240 NW2d 722 (1976), citing Schram, supra. We find that defendant Slate has not made any such showing in relation to either his primary or secondary joinder assignments of error.
So saying, we therefore affirm the conviction and sentence of defendant-appellant Slate in this cause.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-30894
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
ASHLEY SUTHERLAND
Defendant-Appellant.
****************************************************************
No. 96-30907
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
FRANK VISCONTI
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Louisiana
(95-CR-341-I)
August 8, 1997
Before REYNALDO G. GARZA, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
AFFIRMED. See Local Rule 47.6.
*
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.
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