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874 N.E.2d 916 (2007)
In re MARRIAGE OF Theresa A. JOYNT, Petitioner-Appellant, and
v.
Michael J. Joynt, Respondent-Appellee.
No. 3-06-0919.
Appellate Court of Illinois, Third District.
August 16, 2007.
*917 David M. Lynch, Lynch & Bloom, Peoria, for Theresa A. Joynt.
David H. McCarthy, Peoria, for Michael J. Joynt.
Presiding Justice LYTTON delivered the opinion of the court:
Plaintiff, Theresa Joynt, appeals the trial court's judgment dissolving her 12-year marriage to defendant, Michael Joynt. Theresa argues that the trial court erred in characterizing the retained earnings of a closely held corporation as non-marital property. Alternatively, she claims that the trial court's distribution of marital assets was inequitable. We affirm.
Theresa filed a petition for dissolution of marriage on August 20, 2004. At trial, the parties stipulated that Michael owned 41 shares of stock in Mississippi Value Stihl, Inc. (MVS), worth approximately $94,000 and that the stock was nonmarital property.
James Carey, an accountant for MVS, testified that the company was closely held and designated as a subchapter S corporation. Michael served as the company's president and owned 33% of the corporate stock. Michael's sister owned 19.4% of the stock, and Michael's father owned 47.6%. Carey testified that Michael's gross pay from the company, approximately $240,000 to $250,000 per year, was fair compensation in the industry. In 2004, Michael's total net income from the corporation after the payment of taxes was $162,545.
Carey stated that based on the company's balance sheet, the retained earnings of the business in 2004 were $3,750,929. Those earnings were held by MVS for future operating expenses. The company did not pay dividends to its stockholders from the retained earnings account. However, if the company chose to do so, it could pay retained earnings dividends through liquidation of the business or declaration of the corporate board of directors. Michael would not be able to receive a retained earnings dividend individually unless an equal dividend were paid to and agreed upon by a majority of the shareholders. Michael's 33% ownership in the corporation entitled him to one-third of the retained earnings. The estimated value of Michael's retained earnings ownership at the time of the trial was $1,250,309.
Carey further testified that Michael had a buyout contract with his father. The contract provided that, upon his father's death, Michael would become the majority stockholder of the company by purchasing his father's stock. At that time, as the majority shareholder, Michael would be able to determine distribution payments from the retained earnings without approval from the remaining shareholder.
Carey further testified that the retained earnings are not reported as an asset. He *918 explained that the corporation's stock would be an asset and "then the stock has to be valued." If you wanted to value the company's stock at book value, "in essence your [sic] valuing the retained earnings." Carey stated that a company's book value is the assets minus the debts, which equals the stockholders' equity.
The trial court concluded that the retained earnings of the closely held corporation should be classified as nonmarital property. In so doing, the court emphasized "this is not to suggest that under no circumstances would retained earnings of a nonmarital interest in a subchapter S corporation be classified as marital." The court noted that Michael was the president of the company and that the value of the retained earnings account had increased significantly in recent years. However, in reaching its determination in this case, the court placed "considerable weight on the significant amount of cash distributed by the company to its officers over the last three years versus the amount it has retained, along with the evidence in its entirety on the issue of control."
In addition to the division of property, the trial court ordered Michael to pay temporary maintenance and child support, and awarded Theresa approximately 60% of the marital estate.
ANALYSIS
I. Retained Earnings
On appeal, Theresa contends that the trial court erred in failing to classify Michael's interest in the retained earnings account of the closely held corporation as marital property.
Generally, we will not disturb a court's determination that an asset is nonmarital unless that finding is against the manifest weight of the evidence. In re Marriage of Hegge, 285 Ill.App.3d 138, 220 Ill.Dec. 853, 674 N.E.2d 124 (1996). However, that standard of review is based on the presumption that determining whether an asset is marital involves weighing the credibility of the witnesses. In re Marriage of Werries, 247 Ill.App.3d 639, 186 Ill.Dec. 747, 616 N.E.2d 1379 (1993). In this case, the parties have asked us to rule on the legal effect of certain facts. Those facts are not in dispute, and the witnesses' credibility is not an issue. Accordingly, our review is de novo. In re Marriage of Peters, 326 Ill.App.3d 364, 260 Ill.Dec. 169, 760 N.E.2d 586 (2001).
Whether retained earnings should be classified as marital property is an issue of first impression in Illinois. As noted by both parties, however, other states have generally held that retained earnings are nonmarital. Those jurisdictions have reached that conclusion based on the evaluation of two primary factors: (1) the nature and extent of the stock holdings, i.e., is a majority of the stock held by a single shareholder spouse with the power to distribute the retained earnings; and (2) to what extent are retained earnings considered in the value of the corporation. See 1 H. Gitlin, Gitlin on Divorce § 8-13(j), at 8-172.2 (3rd ed.2007).
In Allen v. Allen, 168 N.C.App. 368, 607 S.E.2d 331 (2005), the court concluded that the retained earnings in a subchapter S corporation in which the husband was a 25% shareholder was properly characterized as a nonmarital asset where the earnings were a component of the book value of the corporation. In In re Marriage of Robert, 652 N.W.2d 537 (Minn.App.2002), the court ruled that the wife's interest in a subchapter S corporation's retained earnings account was not a marital asset since the wife was a minority shareholder who did not have authority to distribute the earnings to herself or other shareholders and earnings were not attributable to her *919 entrepreneurial efforts during the marriage.
Other jurisdictions have also classified retained earnings accounts as nonmarital. See Swope v. Swope, 122 Idaho 296, 834 P.2d 298 (1992) (marital estate has no interest in retained earnings of corporation, the stock of which is held as separate property, unless the spouse stockholder has sufficient control of the corporation to be able to cause the earnings to be retained); In re Marriage of Hoffmann, 676 S.W.2d 817 (Mo.1984) (retained earnings of closely held corporation in which husband's ownership interest was 35% did not constitute marital property).
On the other hand, when a shareholder spouse has a majority of stock or otherwise has substantial influence over the decision to retain the net earnings or to disburse them in the form of cash dividends, courts have held that retained earnings are marital property. In Metz-Keener v. Keener, 215 Wis.2d 626, 573 N.W.2d 865 (1997), the court determined that the retained earnings fund of a corporation inherited by the wife was income separate from the corporation and should be included in the marital estate. The court reached that conclusion because the wife had "full ownership and possession of all the corporate shares and that she [was] the sole managing force behind the corporation." Metz-Keener, 573 N.W.2d at 869; see also Heineman v. Heineman, 768 S.W.2d 130 (Mo.App. W.D.1989) (retained earnings account in wife's previously unincorporated art studio corporation was marital property because wife was sole shareholder and earnings were retained in lieu of salary). Thus, if the shareholder spouse controls the corporate distribution, the retained earnings are marital property.
Here, MVS's retained earnings are nonmarital. The company's stock was held in unequal shares by three individuals. Michael possessed only a minority percentage of those shares and was not a controlling shareholder. As only one of three board members, he could not have unilaterally declared or withheld dividends.
Although Theresa acknowledges the opposing authority, she maintains that the retained earnings should be classified as a marital asset because they are not corporate assets but rather income available to the shareholder.
A subchapter S corporation is a pass-through entity utilized for federal tax purposes. See Metz, 215 Wis.2d 626, 573 N.W.2d 865. Unlike a subchapter C corporation, MVS does not pay corporate-level taxes on its income. Instead, the corporation's income is taxed directly to its shareholders based on their ownership of corporate stock, whether or not the income is actually distributed to the shareholders. See I.R.C. §§ 1361-1379 (2000) (defining and explaining subchapter S and subchapter C corporations). A subchapter S corporation monitors its retained corporate earnings using an account which is then used to determine each shareholder's basis for taxed but undistributed corporate income. However, retained earnings and profits of a subchapter S corporation are a corporate asset and remain the corporation's property until severed from the other corporate assets and distributed as dividends. See Robert, 652 N.W.2d at 543; Hoffmann, 676 S.W.2d at 827.
In this case, the retained earnings were part of the corporate assets. The expert witness testified that the earnings were held by the corporation to pay expenses. Although, under the pass-through provisions for subchapter S corporations, these undistributed earnings were taxed to Michael and Theresa as "income" on their individual income tax return, MVS paid the tax through year-end designated payments *920 made to Michael. Further, as the president of the company, Michael received a salary, plus biannual bonuses, as compensation for managing the daily operations. The only expert testimony found in the record indicates that Michael's compensation during the marriage was reasonable and fair for the services he provided.
While the trial court expressed its concern that MVS's retained earnings account may have been used to "shelter" marital income, the court found insufficient evidence to support that conclusion. See Speer v. Quinlan, 96 Idaho 119, 525 P.2d 314 (1974) (although shareholder spouse was president of closely held corporation, no evidence that corporate earnings were retained to defraud marital estate). We agree with the trial court's assessment of the record.
Because, Michael was unable to authorize a payment of the retained earnings as a dividend without shareholder approval and because the earnings were a corporate asset, we hold that the retained earnings account of the corporation is a nonmarital asset.
II. Division of Marital Assets
Alternatively, Theresa claims that the trial court abused its discretion in its division of marital assets.
The touchstone of whether apportionment of marital property was proper is whether it is equitable in nature; each case resting on its own facts. In re Marriage of Scoville, 233 Ill.App.3d 746, 174 Ill.Dec. 394, 598 N.E.2d 1026 (1992). An equitable division of property does not require mathematical equality. In re Marriage of Gentry, 188 Ill.App.3d 372, 135 Ill.Dec. 939, 544 N.E.2d 435 (1989). Section 503 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/101 et seq. 2004) lists certain factors to consider, including: (1) the value of the property assigned to each spouse; (2) the duration of the marriage; (3) the relevant economic circumstances of each spouse; (4) the age, health, station and occupation of each spouse; (5) the custodial provision for any children; and (6) the reasonable opportunity of each spouse for future acquisition of capital assets and income. 750 ILCS 5/503 (d) (West 2004). Absent an abuse of discretion, this court will not disturb the trial court's distribution of assets. In re Marriage of Kerber, 215 Ill.App.3d 248, 158 Ill.Dec. 717, 574 N.E.2d 830 (1991).
The court specifically considered Michael's ownership of substantial nonmarital assets and made its award of marital property at 60% to Theresa and 40% to Michael. In addition to the division of marital property, the trial court also awarded Theresa temporary maintenance, required Michael to maintain medical insurance coverage for her and the children, and ordered Michael to pay 75% of her uncovered medical expenses and 90% of the uncovered health related expenses for the children. The court adequately considered all the factors of section 503(d) in making its distribution of marital property, including the value of the nonmarital assets, Theresa's health, and her relative inability to acquire capital assets and income. In light of these factors, we find that the court did not abuse its discretion in awarding Theresa 60% of the marital estate.
CONCLUSION
The judgment of the circuit court of Peoria County is affirmed.
Affirmed.
CARTER and SCHMIDT, JJ., concurring.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-01-00059-CR
Mateo Guido, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
NO. 000249, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING
PER CURIAM
This is an appeal from a conviction for aggravated robbery. Sentence was imposed
on November 29, 2000. There was no motion for new trial. The deadline for perfecting appeal
was therefore December 31. See Tex. R. App. P. 26.2(a)(1). Notice of appeal was filed on
January 8, 2001. No extension of time for filing notice of appeal was requested. See Tex. R.
App. P. 26.3. We lack jurisdiction to dispose of the purported appeal in any manner other than
by dismissing it for want of jurisdiction. See Slaton v. State, 981 S.W. 2d 208 (Tex. Crim.
App.1998); Olivo v. State, 918 S.W.2d 519, 522-23 (Tex. Crim. App. 1996).
The appeal is dismissed.
Before Chief Justice Aboussie, Justices Yeakel and Patterson
Dismissed for Want of Jurisdiction
Filed: February 15, 2001
Do Not Publish
2
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FRANCES L. WAYMON FOX,
Plaintiff-Appellant,
v.
KATHY THOMASEEC, d/b/a Touch of
Grace Personal Home Care,
Owner/Director; WANDA SHEPHERD,
a/k/a Miss Smith, Kathy
Thomaseec's "SIC"; CARROL
WALTER WAYMON, Brother of
plaintiff; Uncle of Bill Waddell and
Rachell Waddell Addison; WILLIAM
No. 98-2800
ISAAC WADDELL, JR., a/k/a Bill,
Nephew of plaintiff; RACHEL ANN
WADDELL ADDISON, Niece of
plaintiff; MARGARET WADDELL, Wife
of William Waddell; LARRY NELSON,
Son of Margaret Waddell; SUSAN J.
HALL, Attorney at Law; DAVID
HALL, Husband and partner of
Attorney Susan Hall; CLINTON
WILBURN, Dr.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CA-98-376-5-H)
Submitted: April 27, 1999
Decided: May 18, 1999
Before WIDENER and WILKINS, Circuit Judges, and
HALL, Senior Circuit Judge.
Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.
_________________________________________________________________
COUNSEL
Frances L. Waymon Fox, Appellant Pro Se. Steven Craig Lawrence,
ANDERSON, BROADFOOT, JOHNSON & PITTMAN, Fayette-
ville, North Carolina; Carmen J. Battle, Fayetteville, North Carolina;
Susan J. Hall, Fayetteville, North Carolina; David Hall, Fayetteville,
North Carolina; Mark E. Anderson, PATTERSON, DILTHEY,
CLAY & BRYSON, Raleigh, North Carolina, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Frances Fox appeals an order of the district court dismissing this
action for lack of subject matter jurisdiction. Fox filed her action
under 28 U.S.C.A. § 1332(a)(1) (West 1993 & Supp. 1998), asserting
diversity of citizenship. As Fox did not bear her burden of establish-
ing complete diversity, we affirm the district court's order of dis-
missal. See Owen Equip. & Erection Co. v. Kroger , 437 U.S. 365, 377
(1978) (statute requires complete diversity and is strictly construed).
Fox also appeals the district court's order granting defendants'
request for costs and attorney's fees under Fed. R. Civ. P. 54(d). An
award of costs to the prevailing party is appropriate under Fed. R.
Civ. P. 54(d)(1). Under Fed. R. Civ. P. 54(d)(2)(B), a party requesting
attorney's fees must specify the statute, rule, or other ground that enti-
tles him to an award of the fees. The defendants in this case did not
so specify.
2
Under the American Rule, each party bears the costs of its own
attorneys, and attorney's fees are generally not a recoverable cost of
litigation unless a statute or agreement provides otherwise. Key
Tronic Corp. v. United States, 511 U.S. 809, 814-15 (1994). In diver-
sity cases, state law is ordinarily followed to determine whether fees
are recoverable. Culbertson v. Jno. McCall Coal Co., 495 F.2d 1403,
1405-06 (4th Cir. 1974). The general rule in North Carolina is that "a
successful litigant may not recover attorney's fees, whether as costs
or as an item of damages, unless such a recovery is expressly autho-
rized by statute." Stillwell Enters., Inc. v. Interstate Equip. Co., 266
S.E.2d 812, 814 (N.C. 1980). As the defendants cited to no statutory
authority to support their request for attorney's fees, we hold that the
district court erred in granting the requested fees. Because the defen-
dants' itemized costs appear to be mixed in with the fee charges, we
vacate the award and remand to the district court for further consider-
ation of an appropriate award of costs. We deny the requests for sanc-
tions against Fox on appeal. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED IN PART; VACATED AND REMANDED IN PART
3
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746 F.2d 1473
Self (Willard Lake)v.Taylor (Rockey), Henderson (Frank)
NO. 84-6354
United States Court of Appeals,fourth Circuit.
OCT 02, 1984
1
Appeal From: M.D.N.C.
2
DISMISSED.
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488 F.2d 1406
*dMoreno-Vallejov.U. S.
73-3661
UNITED STATES COURT OF APPEALS Fifth Circuit
1/24/74
1
S.D.Tex.
AFFIRMED
*
Summary Calendar case; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N
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172 F.3d 486
79 Fair Empl.Prac.Cas. (BNA) 859,75 Empl. Prac. Dec. P 45,840Denise MARKHAM, et al., Plaintiffs-Appellees,v.Francis E. WHITE, et al., Defendants-Appellants.
Nos. 97-3060, 97-3086.
United States Court of Appeals,Seventh Circuit.
Argued Sept. 17, 1998.Decided March 31, 1999.
George F. Galland, Jr., Miner, Barnhill & Galland, Chicago, IL, for Plaintiffs-Appellees in docket No. 97-3060.
Jeffrey I. Cummings (argued), Miner, Barnhill & Galland, Chicago, IL, Sarah Siskind, Miner, Barnhill & Galland, Amy F. Scarr, Madison, WI, for Plaintiffs-Appellees.
William H. Theis (argued), Shellow, Shellow & Glynn, Milwaukee, WI, for Defendants-Appellants.
Beth J. Kushner, Milwaukee, WI, for Defendant-Appellant in docket No. 97-3060.
David P. Schippers, Schippers & Bailey, Chicago, IL, for Defendants-Appellants in docket No. 97-3086.
Before POSNER, Chief Judge, and CUMMINGS and DIANE P. WOOD, Circuit Judges.
DIANE P. WOOD, Circuit Judge.
1
This is an interlocutory appeal from the district court's decision to deny qualified immunity to a group of agents from the Drug Enforcement Administration ("DEA") in a suit claiming that the agents created a sexually hostile environment for police officer trainees, in violation of the plaintiffs' right to equal protection. Although the agents attack that decision on a number of grounds, their principal argument is that they would not have known at the time either that their behavior amounted to sexual harassment, or that the plaintiffs' right to a harassment-free environment extended to settings like the training program the DEA was conducting. We agree with the district court, however, that the agents have not at this point satisfied the requirements for qualified immunity, and we affirm.
2
* Plaintiffs Denise Markham and Marion Morgan are police officers in the police department of the City of Madison, Wisconsin. They and many other police officers have attended training seminars conducted by the DEA that were geared to state and local narcotics officers. Among the instructors at those seminars were the five defendant DEA agents, Francis E. White, Melvin O. Schabilion, Michael Flanagan, Saul "Buddy" Weinstein, and Norbert Kuksta ("the agents"). In a complaint filed on behalf of a class of women trainees who attended these seminars, Markham and Morgan alleged that the agents created a sexually hostile atmosphere as they conducted the seminars, through acts like the following:
3
(1) beginning the seminar with the promise that male participants would go home that night and have aggressive sexual encounters with their wives;
4
(2) describing women in general as "bitches";
5
(3) interspersing instructional slides with pictures of nude or scantily clad women;
6
(4) referring in obscene terms to the United States Attorney General as a lesbian and as having a lesbian relationship with the First Lady;
7
(5) using sexual terms to describe law enforcement work, such as describing drug reconnaissance as "getting laid" or "getting her drunk and finding a hotel," talking about DEA agents getting "horny" if they were unable to kill people on a regular basis, talking regularly about male erections in terms such as "chubby," "woody," "johnson," and "pecker," among others;
8
(6) making sexual remarks to or about female participants, such as:
9
(a) one of the defendants, observing Markham prone on the rifle range, grabbing his genitals and yelling, "I'm getting a hard on," causing male participants to laugh;
10
(b) requesting the assistance of female participants during demonstrations because "[i]t's always more exciting to have a pretty girl here to look at";
11
(c) asking a female participant to turn sideways so that other participants could see her breasts;
12
(d) making repeated sexual references during demonstrations, such as asking a female participant to "use your hot little hands to get this reaction heated up"; and
13
(e) referring to female participants as "hon," "babe," "little girl," "blondie," and "sweet jeans."
14
The net result of this behavior, according to the complaint, was to create a hostile atmosphere at the training sessions that amounted to sexual harassment and a denial of equal protection. The women trainees brought their equal protection complaint as a Bivens action, see Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and they asserted a separate claim under 42 U.S.C. § 1985(3) for conspiracy to deny them equal protection. Because they were not DEA employees, they did not seek relief under Title VII.
15
In an earlier motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), the district court narrowed the case somewhat in ways not directly relevant here. Later, on January 28, 1997, the court certified under Federal Rule of Civil Procedure 23(b)(3) a class of women law enforcement personnel who since April 1993 have attended DEA training seminars at which the defendants taught and who were subject to the same type of behavior as the amended complaint described. On March 11, 1997, the agents filed their motions for summary judgment--Weinstein filed on his own, and the remaining defendants filed jointly. In support of his motion, Weinstein also filed a statement of the undisputed facts that he believed entitled him to summary judgment, as required by Local General Rule 12(M) of the Northern District of Illinois, and the other defendants adopted Weinstein's 12(M) statement.
16
The defendants' motions addressed both the merits of the plaintiffs' claims and the defense of qualified immunity. The district court did not address the merits, and except insofar as they are indirectly a part of the qualified immunity argument, they are not before us at this time. With respect to qualified immunity, the district court noted a number of problems with the defendants' motions. First, the briefs in support of the motions and Weinstein's Rule 12(M) statement addressed qualified immunity only with respect to the named plaintiffs, ignoring the fact that the court had by then certified the class and had explicitly instructed the defendants to respond to the entire case. Second, Weinstein's initial Rule 12(M) statement failed to include record citations to the facts on which he was relying, in violation of the rule. After the plaintiffs pointed out this shortcoming, Weinstein filed a revised 12(M) statement that included record citations, but that deleted many of the substantive paragraphs the first had contained.
17
The plaintiffs then filed their response as required by Local General Rule 12(N). In this statement, they noted where they disagreed with the defendants' alleged undisputed facts and they set forth the additional facts that they believed required the denial of summary judgment. They supported their Rule 12(N) statement with citations to affidavits from both the named plaintiffs and other class members that described their observations of the defendants' conduct at the DEA seminars. They also relied upon other materials, including documents that the defendants and the Department of Justice had produced during discovery.
18
The district court found that all of the defendants had implicitly adopted Weinstein's revised 12(M) statement, even though they had never expressly so indicated. Nevertheless, this did not provide much help to any of the defendants, because the district court found that even the revised statement was inadequate for purposes of the qualified immunity argument. In the judge's words:
19
Weinstein's Revised Local Rule 12(M) Statement consists of six numbered paragraphs (down from seventeen in the original) that identify the parties, establish this Court's jurisdiction and venue, and identify the particular DEA seminar attended by each of the named plaintiffs. Each of its paragraphs is supported only by a citation to the plaintiffs' amended complaint.
20
Where are the facts that entitle the defendants to summary judgment on the grounds of qualified immunity? There are none in the Local Rule 12(M) Statement. Although both briefs in support of the motions for summary judgment cite repeatedly to the deposition testimony of the named plaintiffs as to their experiences with the defendants at the seminars they attended, none of that evidence found its way into the Local Rule 12(M) Statement.
21
Stating that it was entitled under Seventh Circuit law to require strict compliance with Local Rule 12(M), the court concluded that this was reason enough to deny the defendants' motion for summary judgment based on qualified immunity.
22
The court also found the defendants' motion defective in that it challenged only the individual plaintiffs' claims, even though the class was certified, the court had instructed them to address the class claims, and they never sought leave to proceed as they did. Qualified immunity, the court noted, requires a fact-specific inquiry, and the facts that the plaintiffs presented on behalf of the absent class members went well beyond the facts the defendants addressed with respect to the named plaintiffs. Thus, the court concluded, the defendants had admitted the truth of the facts relating to the absent class members for summary judgment purposes, but they did not discuss how those facts affect their entitlement to qualified immunity.
23
Finally, the court found that the defendants had one argument for qualified immunity that it could reach on the merits, because it did not depend on the record. The agents argued that in 1994, when the named plaintiffs attended the DEA seminars, there was no clearly established constitutional right to be free of sexual harassment in a short-term training program (as opposed to the workplace, over a longer term). They also argued that no one would have realized that harassment outside the employer-employee context violated anyone's rights. The district court ruled that it was clear in 1993 and 1994 that male and female participants in a seminar like this one were entitled to equal treatment, and the fact that the parties did not stand in an employer-employee relationship was immaterial.
II
A. The Application of Local Rule 12(M)
24
We agree with the district court that the defendants' failure to support their motions for summary judgment with particular citations to the record doomed most of the grounds on which they might have supported their claim of qualified immunity. In this connection, we pause to note with distress that attorneys practicing before the district courts in our circuit all too frequently disregard the plain instructions in Rule 12(M) or its equivalents in other districts. See Waldridge v. American Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir.1994) (collecting cases where we have "repeatedly upheld the strict enforcement" of local summary judgment rules such as Rule 12); see also Bradley v. Work, 154 F.3d 704, 707-08 (7th Cir.1998); Dade v. Sherwin-Williams Co., 128 F.3d 1135, 1139 (7th Cir.1997); Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316-17 (7th Cir.1995); Little v. Cox's Supermarkets, 71 F.3d 637, 641 (7th Cir.1995). We reiterate here that rules structuring the summary judgment process, like Rules 12(M) and (N) in the Northern District of Illinois, serve an important function for the district court and the parties alike. They assist the court by organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side proposed to prove a disputed fact with admissible evidence. They assist the parties by imposing some discipline on the pretrial process and facilitating an early end to cases that do not require a full trial. We realize that the rules also impose a burden on the attorneys for the parties, but the kind of organization the rules require must occur sooner or later, and the system as a whole is better served if it happens sooner.
25
The district court correctly observed that it is entitled to require strict adherence to Local Rule 12(M). See Dade, 128 F.3d at 1139; Midwest Imports, 71 F.3d at 1316. This means that it was entitled to disregard references to depositions and other discovery materials that appeared only in the supporting brief, and to decide the motion based on the factual record outlined in the Rule 12(M) and (N) statements. The defendants' statement, as the district court pointed out, was barebones indeed. It identified the named plaintiffs, their employers, the basis of the district court's jurisdiction and venue, and the particular DEA seminar that each named plaintiff attended. It therefore necessarily conceded the full range of obnoxious behavior the plaintiffs alleged, both on their own behalf and on behalf of the class they represented.
26
Moreover, the district court properly demanded that the defendants' summary judgment motion should be considered with regard to the entire class. If the defendants believed that the absent class members could not state a claim, the defendants should have made a motion to decertify the class. To allow the defendants to separate out the named plaintiffs for the purpose of summary judgment effectively nullifies the class certification. Thus, the defendants' appeal can succeed at this point only if they were entitled to qualified immunity as a matter of law with respect to the class claims they faced.
B. Qualified Immunity
27
A defendant raising a claim of qualified immunity is not directly attacking the merits of a plaintiff's claim. Instead, she is making the more modest assertion that, in the circumstances presented, the price of public employment should not include liability for civil damages when the law is not clearly established. As the Supreme Court explained in the leading case of Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), if the law was not clear, no liability should result because "an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to 'know' that the law forbade conduct not previously identified as unlawful." Id. at 818, 102 S.Ct. 2727. We must therefore decide whether the law as it existed at the time of the training seminars (1993 and 1994) clearly established the basis for the plaintiffs' claims. See Nabozny v. Podlesny, 92 F.3d 446, 455 (7th Cir.1996).
28
The fact that arbitrary gender-based discrimination, including discrimination in an educational setting, violates the equal protection clause has been plain in this circuit for almost a decade and a half. In 1986, we held that sexual harassment constitutes sex discrimination in violation of the equal protection clause. Bohen v. City of East Chicago, Indiana, 799 F.2d 1180, 1185 (7th Cir.1986). Later, in Nabozny, we denied a qualified immunity defense in a case claiming that school officials had violated the plaintiff's right to equal protection through gender discrimination. Even though Nabozny itself was decided in 1996, and thus the result is not part of the background against which the present defendants operated, it contains a discussion of equal protection principles relevant to sex discrimination claims that is useful. It traced this component of the equal protection clause back to the Supreme Court's decisions in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975), and Mississippi University for Women v. Hogan, 458 U.S. 718, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982). See Nabozny, 92 F.3d at 455. As the Nabozny court found, those decisions established the principle that schools are required to give male and female students equivalent levels of protection. Id. at 456. Furthermore, this principle was sufficiently well established that it required the denial of the defendants' qualified immunity motion in the Nabozny case. Id.
29
When a case is brought against federal officials, the equal protection clause of the Fourteenth Amendment does not provide the theoretical basis of the claim. Instead, courts turn to the due process clause of the Fifth Amendment, which has been understood to incorporate equal protection principles from the time of Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), forward. See Davis v. Passman, 442 U.S. 228, 234, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (collecting cases where the Supreme Court "has held that the Due Process Clause of the Fifth Amendment forbids the Federal Government to deny equal protection of the laws"); see also San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 543 n. 21, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987); Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). Other courts have relied on the Fifth and Fourteenth Amendment due process clauses directly to condemn sex discrimination in the form of harassment, without mentioning equal protection principles. See Doe v. Taylor Independent School Dist., 15 F.3d 443 (5th Cir.1994) (en banc) (denying qualified immunity with respect to one defendant and granting it to another); Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir.1988) (holding that a federal official who was the director of a training program could be sued in his individual capacity under the due process clause of the Fifth Amendment). In our view, however, the pertinent question for purposes of qualified immunity is not whether the defendants could have cited the exact article, section, and clause of the Constitution that they were offending. It is instead the more practical question whether they would have understood that what they were doing violated the plaintiffs' rights.
30
Taking the facts as the defendants have conceded them to be, given their failure to file a more detailed 12(M) statement, we agree with the district court that they were not entitled to qualified immunity. First, as discussed above, it was well established by 1993 that the U.S. Constitution does not tolerate sex discrimination in an educational setting. Contrary to the defendants' argument, the fact that neither this court nor any other has ever dealt with a situation involving a short training seminar conducted for narcotics officers is of no moment. Under the doctrine of qualified immunity, "liability is not predicated upon the existence of a prior case that is directly on point." Nabozny, 92 F.3d at 456; see also McDonald v. Haskins, 966 F.2d 292, 293 (7th Cir.1992). In light of the law at the time, a reasonable government official in the defendants' shoes would have understood that the prohibition against sexual harassment extended to their training seminars.
31
Second, the conduct alleged by the plaintiffs constituted sexual harassment under the law as it was established in 1993. The defendants appear to believe that after the Supreme Court's later decision in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), sexual harassment is not possible unless there was either an explicit or implicit proposal of sexual activity. They are mistaken. Indeed, the Court said just the opposite in Oncale, when it commented that sexual harassment "typically involves explicit or implicit proposals of sexual activity," but that such proposals were not required to render conduct actionable. Id. at 1002. Instead, the Court said, "harassing conduct need not be motivated by sexual desire"; it may be "motivated by general hostility to the presence of women in the workplace." Id. A finder of fact could easily conclude that the comments here, which belittled women and suggested that they were solely of sexual interest, were motivated by just that kind of hostility to women in the training course.
32
Again relying on Oncale, as well as several decisions from this court, the defendants also argue that the language and conduct here were not sufficiently severe or pervasive to amount to sexual harassment. See also Baskerville v. Culligan Int'l Co., 50 F.3d 428, 431 (7th Cir.1995); Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir.1993); Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 534-35 (7th Cir.1993). Crotch-grabbing, they suggest, is so prevalent in today's society that it cannot be actionable, and vulgar language is omnipresent. We do not disagree that sexually explicit language and conduct is common, but the defendants' argument proves too much. Just because a television show may depict a sexual assault does not mean that instructors in a DEA program would henceforth be free to commit sexual assault on a trainee. The plaintiff in the Supreme Court's decision in Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), may well have heard the language and been exposed before to the kinds of images her harassers had used. But the Court's opinion makes it clear that it is one thing to know about these things in the abstract, and it is quite another to be the target on a more personal level. Id. at 21-23, 114 S.Ct. 367.
33
In addition, we must recall that we are simply addressing qualified immunity at this stage. A trier of fact may not believe that the defendants made some or all of the remarks in question. The defendants may at a proper time be able to supply enough context for certain remarks that, under Oncale's standards, it becomes clear that they were not the kind of harassment the law addresses. But a qualified immunity appeal is not the time to dispose of disputed issues of fact. Indeed, if an immunity determination depends on factual determinations, we do not even have jurisdiction to entertain it. See Johnson v. Jones, 515 U.S. 304, 307, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); Clash v. Beatty, 77 F.3d 1045, 1048 (7th Cir.1996). The reason that we have jurisdiction in this case is because the defendants were willing to stand on the record and argue that the harassment claims failed as a matter of law. We have concluded that they do not, and thus that immunity was properly denied at this stage.
34
We have considered the remaining arguments the defendants have offered, including their assertion that the plaintiffs never indicated that the actions were unwelcome and their suggestion that the remarks were offensive to everyone, not just women. The former claim is simply not true, on the record as it now exists: the named plaintiffs complained about the defendants' behavior in their course evaluations, and at least some absent class members complained in person to one of the defendants. The latter argument utterly ignores the misogynist or sexist nature of the alleged remarks. Only someone with no sense of the real world could think that male and female participants in the training session would perceive these comments in the same way.
35
At this point, therefore, we conclude that the district court correctly denied the defendants' motion for summary judgment based on qualified immunity, and we AFFIRM the judgment of that court.
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862 N.E.2d 233 (2007)
222 Ill.2d 606
308 Ill.Dec. 635
CUSHING
v.
GREYHOUND LINES, INC.
Nos. 103656, 103690.
Supreme Court of Illinois.
January Term, 2007.
Disposition of petition for leave to Appeal Denied.
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207 P.3d 702 (2008)
Sherry M. SKLAR, a qualified elector of the Town of Fountain Hills, Plaintiff/Appellee,
v.
TOWN OF FOUNTAIN HILLS; Beverly J. Bender; Jay Schlum; Dennis Contino; Cassie Hansen; Keith McMahan; Henry Leger; Mike Archambault; Ginny Dickey, Defendants/Appellees.
Save Our Small Town in Support of 2008-RF-001-01 and Save Our Small Town in Support of 2008-RF-002-02, Intervenors/Appellants.
No. 1 CA-CV 08-0519 EL.
Court of Appeals of Arizona, Division 1, Department C.
November 25, 2008.
Review Denied December 4, 2008 and April 20, 2009.
*703 Gammage & Burnham PLC By Lisa T. Hauser, Gregory J. Gnepper, Heather J. Boysel, Phoenix, Attorneys for Intervenors/Appellants.
Shugart Thomson & Kilroy, PC By Thomas K. Irvine, Kelly J. Flood, Natalia A. Garrett, Phoenix, Attorneys for Plaintiff/Appellee.
WINTHROP, Presiding Judge.
¶ 1 In its referendum petitions seeking to invalidate a town's rezoning and development ordinances, did the voter-based sponsoring group fail to comply with the statutory mandate that the petitions identify the principal provisions of the challenged governmental acts? The superior court found the subject referendum petitions lacking in this regard and, in turn, misleading to potential petition signers. In this expedited appeal, we examine de novo the contested language in the petitions and find an inherent failure to comply with the statutory mandate. As more fully discussed below, we affirm the order of the superior court enjoining placement of the subject referendum petitions on any general or special election ballot.
BACKGROUND
¶ 2 In 2005 and 2006, the Town of Fountain Hills annexed and approved zoning for a 1276-acre parcel of land formerly known as the "State Trust Land." The zoning at that time permitted 1750 residential units on such parcels. On March 15, 2007, the Fountain Hills Investment Company, L.L.C., ("Developer") purchased the property at a public auction. Subsequently, Developer filed an application with the Town of Fountain Hills *704 to amend the Town's General Plan[1] and to rezone the 1276-acre parcel.[2] On May 15, 2008, at a public hearing, the Town Council of Fountain Hills approved both measures.[3]
¶ 3 On May 19, 2008, "Save Our Small Town" ("SOST"), a ballot measure committee, filed its Statement of Organization and applied for referendum serial numbers to refer Resolution No.2008-25 and Ordinance No. 08-12 to a ballot. SOST gathered signatures on its petitions and, on June 20, 2008, the Town Clerk certified that each referendum petition contained enough signatures to put these measures on hold pending a vote of the electors of the Town of Fountain Hills.
¶ 4 In June, Sherry Sklar ("Sklar"), a qualified elector in the Town, filed a complaint in the superior court against the Town of Fountain Hills. Sklar sought to invalidate both referenda and to enjoin the Town from placing either measure on the ballot. Sklar also requested that the court order the Town to appear and show cause why the Town should not be enjoined from placing the referendum on the ballot. SOST intervened as a defendant.
¶ 5 Sklar and SOST filed motions for summary judgment. Sklar argued that the court must strictly construe the requirements of Arizona Revised Statutes ("A.R.S.") section 19-101(A), citing Western Devcor, Inc. v. City of Scottsdale, 168 Ariz. 426, 814 P.2d 767 (1991), and that SOST's petitions were invalid because they were inaccurate, misleading, and did not contain descriptions of the principal provisions of the matters to be referred. Conversely, SOST argued that the court must broadly construe § 19-101(A), citing Sherrill v. City of Peoria, 189 Ariz. 537, 943 P.2d 1215 (1997), and that the descriptions on the referendum petitions were neither defective nor misleading. The superior court agreed with Sklar and enjoined the Town from placing the referendum on the ballot. Specifically, the superior court ruled that it must strictly construe § 19-101(A) and that the 100-word referendum descriptions provided by SOST in its signature petitions did not set forth the principal provisions of the General Plan Amendment and the corresponding ordinance as required by the statute. See Western Devcor, Inc., 168 Ariz. at 428-29, 814 P.2d at 769-70. The court therefore granted summary judgment in favor of Sklar. This timely expedited appeal followed.[4] We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) (2003) and 19-122(C) (2002). See also Perini Land & Dev. Co. v. Pima County, 170 Ariz. 380, 382, 825 P.2d 1, 3 (1992) (instructing parties to file referendum appeals in the court of appeals).
ANALYSIS
Standard of Review
¶ 6 SOST argues that the referendum petitions are valid because the petitions comply with the requirements of § 19-101(A). Because our review is limited to matters of statutory construction decided by the superior court, it is a question of law that we review de novo. Open Primary Elections Now v. Bayless, 193 Ariz. 43, 46, ¶ 9, 969 P.2d 649, 652 (1998).
¶ 7 In reviewing an order granting summary judgment, we must determine whether there is a genuine issue of disputed material fact and, if not, whether the superior court correctly applied the substantive law. See In re Estate of Johnson, 168 Ariz. 108, 109, 811 P.2d 360, 361 (App.1991). "In interpreting statutes, we look to the plain language as the most reliable indicator of meaning." Powers v. Carpenter, 203 Ariz. 116, 118, ¶ 9, 51 P.3d 338, 340 (2002); Calik v. Kongable, 195 Ariz. 496, 498, ¶ 10, 990 P.2d 1055, 1057 (1999). We will give effect to each sentence and word so that provisions are not rendered meaningless. Bilke v. State, 206 Ariz. 462, 464, ¶ 11, *705 80 P.3d 269, 271 (2003); State v. Superior Court (Kerr-McGee Corp.), 113 Ariz. 248, 249, 550 P.2d 626, 627 (1976). "With these principles in mind, we consider the text of 19-101(A) and the parties' arguments." Comm. for Pres. of Established Neighborhoods v. Riffel, 213 Ariz. 247, 250, ¶ 8, 141 P.3d 422, 425 (App.2006).
General Principles Concerning Referendum
¶ 8 As a preliminary matter, we briefly restate some general principles concerning analysis of challenges to referendum petitions. First, we are well aware of and respect the citizens' constitutional right to challenge a government's legislative actions by referring a duly enacted measure to the ballot for a vote. Ariz. Const. art. 4, pt. 1, § 1; Lawrence v. Jones, 199 Ariz. 446, 449, ¶ 7, 18 P.3d 1245, 1248 (App.2001) (stating that "[o]ur courts have also consistently recognized `Arizona's strong public policy favoring the initiative and referendum.'") (citing Western Devcor, Inc., 168 Ariz. at 428, 814 P.2d at 769). That right is subject to reasonable statutory regulation, see Cottonwood Development v. Foothills Area Coal. of Tucson, Inc., 134 Ariz. 46, 48, 653 P.2d 694, 696 (1982); accordingly, our legislature has, over the years, created and amended statutes governing the proper exercise of the right of referendum. See generally, A.R.S. § 19-101 et seq.
¶ 9 Our supreme court has consistently held that a referendum petition must "comply strictly with applicable constitutional and statutory provisions." Sherrill, 189 Ariz. at 540, 943 P.2d at 1218 (quoting Western Devcor, Inc., 168 Ariz. at 429, 814 P.2d at 770 (citing Cottonwood Dev., 134 Ariz. at 49, 653 P.2d at 697)). The reason for insisting on such strict, or "nearly perfect" compliance is that "referendum power allows [the] `minority to hold up the effective date of legislation which may well represent the wishes of the majority.'" Riffel, 213 Ariz. at 249, ¶ 6, 141 P.3d at 424 (quoting Western Devcor, Inc., supra, 168 Ariz. at 428-29, 814 P.2d at 769-70). Likewise, the court in Sherrill cautioned that courts must "resist the temptation to `improve upon' or try to `fix' otherwise clear statutory language in an effort to make it more useful or meaningful. Rather the responsibility to alter statutes that can be read only one way, as here, remains with the legislature." Sherrill, 189 Ariz. at 541, 943 P.2d at 1219.
¶ 10 At the same time, the Arizona legislature has expressly directed that
[t]he right of initiative and referendum shall be broadly construed. If there is doubt about requirements of ordinances, charters, statutes or the constitution concerning only the form and manner in which the power of an initiative or referendum should be exercised, these requirements shall be broadly construed, and the effect of a failure to comply with these requirements shall not destroy the presumption of validity of citizens' signatures, petitions of the initiated or referred measure, unless the ordinance, charter, statute or constitution expressly and explicitly makes any fatal departure from the terms of the law.
Sherrill, 189 Ariz. at 540-41, 943 P.2d at 1218-19, quoting from A.R.S. § 19-111 (Historical and Statutory Notes, Laws 1989, ch. 10, § 1).
¶ 11 In Lawrence v. Jones, this court attempted to harmonize the "broad construction" legislative directive found in § 19-111 with the existing case law mandating "strict construction." There, a landowner applied for and received approval to rezone his land. The landowner argued that the opponents' subsequent referendum petition was invalid because "the attachment of the zoning map to the petition was insufficient to meet the requirement of a `legal description' of the property pursuant to A.R.S. section 19-121(E)."[5]Lawrence, 199 Ariz. at 448, ¶ 3, 18 P.3d at 1247. In analyzing the threshold issue, we stated that "[i]n harmonizing these two standards, we believe that we may not excuse the failure to include a `legal description of the property' because it is strictly required by the [statute]. However, we must broadly construe the definition of that requirement *706 in determining whether compliance was achieved." Id. at 450, ¶ 9, 18 P.3d at 1249. Accordingly, we broadly construed the requirement that a referendum petition contain a "legal description" of the property and held that the inclusion of the zoning map satisfied the requirement. Id. at 452-53, ¶¶ 15-16, 18 P.3d at 1251-52. We reasoned that the map furthered the intent of the legislatureit assisted petition signers in learning about the parcel of land being rezoned. Id. at 452, ¶ 14, 18 P.3d at 1251.
A.R.S. § 19-101(A)
¶ 12 We now turn to the specific question and statutory provision at issue in this appeal: whether SOST's descriptions of Resolution No.2008-25 and Ordinance No. 08-12 in its signature petitions complied with the requirement that a referendum description contain the principal provisions of the challenged measure. Section 19-101(A) provides in relevant part:
The following shall be the form for referring to the people by referendum petition a measure or item, section or part of a measure enacted by the legislature, or by the legislative body of an incorporated city, town or county:
Referendum Description
(Insert a description of no more than one hundred words of the principal provisions of the measure sought to be referred.)
Notice: This is only a description of the measure sought to be referred prepared by the sponsor of the measure. It may not include every provision contained in the measure. Before signing, make sure the title and text of the measure are attached. You have the right to read or examine the title and text before signing. (Emphasis added.)
¶ 13 We first examine the plain language of the statute and will ascribe the plain meaning to its language unless the context suggests otherwise. Byers-Watts v. Parker, 199 Ariz. 466, 469, ¶ 10, 18 P.3d 1265, 1268 (App.2001). Subsection (A) requires the petition to include a 100-word "description of... the principal provisions of the measure sought to be referred." A.R.S. § 19-101(A) (emphasis added). The plain meaning of "principal" includes "most important, consequential, or influential," "chief," and "a matter or thing of primary importance." Merriam-Webster's Collegiate Dictionary 987 (11th ed. 2007); State v. Wise, 137 Ariz. 468, 470 n. 3, 671 P.2d 909, 911 n. 3 (1983) (explaining courts may reference dictionaries to glean ordinary meaning of words). See also Ariz. Coll. of the Bible, Inc. v. Dep't of Econ. Sec., 119 Ariz. 542, 544, 582 P.2d 188, 190 (App.1977) (defining "principal" as "chief, leading, most important or considerable; primary; original"), vacated on other grounds, Ariz. Coll. of the Bible, Inc. v. Dep't of Econ. Sec., 120 Ariz. 217, 585 P.2d 237 (1978); Belin v. U.S., 313 F.Supp. 715, 716 (M.D.Pa. 1970) (stating "[t]he word `principal' means `chief,' `main,' or `most important.'") (citation omitted). Applying these definitions, a plain reading of § 19-101(A) indicates that, within the restrictive confines of the respective 100-word limitation, the primary and most important provisions of the resolution and ordinance must be identified in each of SOST's respective referendum petitions.
¶ 14 SOST's description of Resolution No.2008-25 stated:
Save Our Small Town seeks to refer Fountain Hills Resolution No.2008-25, an amendment to the Town of Fountain Hills General Plan 2002, to the ballot for a vote. This Resolution changes the land uses on approximately 1276 acres (formerly known as State Trust Land) being developed in the northeast corner of the Town. It would change the character of Fountain Hills and impose major impacts on existing residents. Instead, the State Trust Land should be developed in an environmentally sensitive manner and in compliance with existing hillside protection and subdivision requirements.
Additionally, the description of Ordinance No. 08-12 stated:
Save Our Small Town seeks to refer Fountain Hills Ordinance No. 08-12, amending the Official Zoning Map of the Town of Fountain Hills, to the ballot for a vote. This Ordinance changes the zoning of 50 *707 parcels for approximately 1276 acres (formerly known as State Trust Land) being developed in the northeast corner of the Town. It would change the character of Fountain Hills and impose major impacts on existing residents. Instead, the State Trust Land should be developed in an environmentally sensitive manner and in compliance with our existing hillside protection and subdivision requirements.
¶ 15 Citing some of the cases briefly discussed above, SOST argues that the superior court should have broadly construed the description requirement of § 19-101(A), and found the descriptions provided to be acceptable. SOST also contends, in part, that its only obligation was to provide a copy of the subject legislation itself, citing the supreme court's opinion in Sherrill. At issue in Sherrill was a statute, A.R.S. § 19-121(E), that specifically required three items to be attached to referendum petitions involving zoning issues. Our supreme court stated that "[the] statute on its face require[d] no less and no more [be attached]." Sherrill, 189 Ariz. at 540, 943 P.2d at 1218. Extending this analysis to § 19-101(A), however, would ignore the explicit requirement found in that statute that a description of the principal provisions be included. As noted above, our principles of statutory construction do not allow such an approach, and we reject SOST's suggestion in that regard.
¶ 16 In the alternative, SOST argues that Sklar cannot mandate or otherwise control which provision of the subject acts is described in the petitions.[6] Further, applying principles of broad statutory construction, SOST contends the language utilized in the petition descriptions was acceptable. We disagree.
¶ 17 The superior court did not err in strictly construing SOST's compliance with § 19-101(A). Western Devcor, Inc.; Riffel, supra. Were we to adopt the relaxed standard urged by SOST, application of a broader standard would not further the clear legislative goal of providing petition signers with more or even adequate information. The purpose of the statute is to ensure that the public has immediate and full disclosure of the exact public action that may be reversed. See Cottonwood Dev., 134 Ariz. at 49, 653 P.2d at 697. The provisions of § 19-101(A) "obviously serve to ensure that petition signers are informed about the document they are signing and the measure being referred." Riffel, 213 Ariz. at 250, ¶ 13, 141 P.3d at 425. Here, the descriptions provided by SOST in the petitions merely describe the purported anticipated effect of the provisions, and fail to identify in any meaningful way any of the provisions of the challenged governmental acts, let alone the principal ones. We find SOST's descriptions were, at most, "uninformative" and "unhelpful." See Lawrence, 199 Ariz. at 452, ¶ 14, 18 P.3d at 1251.
¶ 18 In short, SOST's descriptions contain subjective opinions that do not describe any of the principal provisions. We accept for purposes of this appeal SOST's representations that its subjective opinions have factual support and do not reach the level of fraud; however, a referendum petition is not the appropriate place for the expression of such opinions. This type of partisan positioning should not begin until after a referendum is placed on the ballot.[7]
*708 ¶ 19 SOST also contends that its descriptions were not misleading. Specifically, it argues that a petition does not need to describe "every aspect" of a proposal, citing Kromko, 168 Ariz. at 60, 811 P.2d at 21. However, Kromko dealt with the legality of extraneous slogans on a proposed initiative petition. As previously noted, it is clear that courts treat initiatives and referenda differently: While the initiative power allows qualified electors to initiate and submit legislation to the voters, the referendum power is an "extraordinary power of a minority to temporarily suspend the actions of representatives chosen by the majority." Cottonwood Dev., 134 Ariz. at 48-49, 653 P.2d at 696-97.
¶ 20 Further, we do not believe that Kromko prevents us from finding that these descriptions are misleading. In Kromko, our supreme court found that the short titles utilized in the subject initiative petition accurately described at least one major aspect of the proposition. 168 Ariz. at 60, 811 P.2d at 21. Here, the petition descriptions employed by SOST do not substantially describe any provision of the measure to be referred.
¶ 21 Like the supreme court in Kromko, we too are mindful of the task faced by petition proponents and circulators, and we recognize that "few differences exist between the descriptive, oral `one-liner' a circulator may say to an elector passing by and the descriptive slogan printed on a petition signature sheet." Id. 168 Ariz. at 60, 811 P.2d at 21. Nevertheless, there are differences between the two. The insertion of "catch-word phrases ... to call attention to their specific cause" is not appropriate in a referendum petition's statutorily required description of the measure sought to be referred. See id.
¶ 22 SOST correctly states that it does not have to identify every provision in its 100-word description; indeed, § 19-101(A) requires the petition to provide notice to prospective signers that the description does not include every provision in the measure. However, this does not excuse SOST from failing to substantively describe any of the material provisions of the measures. Concluding that SOST's petitions comply with § 19-101(A) would "open the process to misleading information and even to mudslinging and partisan tactics." Kromko, 168 Ariz. at 59, 811 P.2d at 20 (quoting Haugland v. Meier, 335 N.W.2d 809, 811 (N.D.1983); Lips v. Meier, 336 N.W.2d 346, 347 (N.D.1983)). Accordingly, we affirm the superior court's judgment.[8]
Attorneys' Fees Request
¶ 23 Sklar requests attorneys' fees and costs pursuant to Rules 21(c) and 25 of the Arizona Rules of Civil Appellate Procedure, and A.R.S. §§ 12-341 (2003) and 12-349 (2003). Rule 21(c) of the Arizona Rules of Civil Appellate Procedure does not provide a substantive basis for costs and attorneys' fees. Rule 25 of the Arizona Rules of Civil Appellate Procedure provides for sanctions when an appeal "is frivolous or taken solely for the purpose of delay," and A.R.S. § 12-349 provides for costs and attorneys' fees when a claim is brought without substantial justification or for delay or harassment. We conclude that this appeal was not frivolous or otherwise unjustified and therefore deny recovery of costs and attorneys' fees based on these grounds. However, pursuant to A.R.S. § 12-341, we grant Sklar's costs incurred on appeal, upon her compliance with Rule 21 of the Arizona Rule of Civil Appellate Procedure. See Davis v. Agua Sierra Resources, L.L.C., 217 Ariz. 386, 397, ¶ 46, 174 P.3d 298, 309 (App.2008).
CONCURRING: PHILIP HALL, Judge, and ANN A. SCOTT TIMMER, Chief Judge.
NOTES
[1] Resolution No.2008-25.
[2] Ordinance No. 08-12.
[3] The Town Council at the same meeting also approved Resolution 2008-24, which authorized execution of a Development Agreement between the Town and Developer.
[4] Because the deadline has passed for placing these measures on the ballot, the Town of Fountain Hills and Sklar filed motions to dismiss the appeal based on the doctrines of laches and mootness; however, both motions were denied. They reassert these arguments in their answering briefs, and we again reject them.
[5] Section 19-121(E) provides, among other things, that a referendum petition shall "include a legal description of the property and any amendments made to the ordinance by the legislative body."
[6] Sklar argued below and the superior court found that "[n]ot stating that the amendment and the ordinance actually reduce the density of the land use makes the descriptions materially misleading." The superior court also expressed concern that signers might have the mistaken impression that objecting to the rezoning by signing the referendum petition may prevent development of the land. In that regard, the superior court noted that SOST's petitions expressly failed to mention that the land was previously approved to be developed with a maximum density of 1,750 dwelling units. On appeal, SOST argues that it was not required to describe the reduction in density for the subject parcel, arguing that such "downsizing" was only "illusory." In light of our resolution of the central issue on appeal, we need not further address this argument or the superior court's finding in this regard.
[7] Indeed, as recently reaffirmed by our supreme court in Wilhelm v. Brewer, 219 Ariz. 45, 192 P.3d 404 (2008), descriptors of ballot measures that contain "highly inflammatory language calculated to incite partisan rage" are to be avoided. Id. at 48, ¶ 15, 192 P.3d at 407 (quoting Kromko v. Superior Court, 168 Ariz. 51, 59, 811 P.2d 12, 20 (1991)).
[8] Although the parties raise additional arguments concerning the superior court's ruling, we also need not address these arguments based on our resolution of this matter on the above-described grounds.
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[Cite as State v. Townsend, 2012-Ohio-4400.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97733
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CHARLES T. TOWNSEND
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-554067
BEFORE: E. Gallagher, J., Celebrezze, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: September 27, 2012
ATTORNEY FOR APPELLANT
John T. Castele
614 West Superior Avenue
Suite 1310
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Nicole Ellis
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} Defendant-appellant, Charles Townsend, appeals from his conviction and
sentence rendered in the Cuyahoga County Court of Common Pleas. Townsend argues
that his conviction was against the manifest weight of the evidence and that he was
denied effective assistance of counsel. For the following reasons, we overrule both of
Townsend’s assignments of error and affirm his conviction.
{¶2} The facts of the instant case arise from events that occurred on July 18,
2011 in Cleveland, Ohio. L.C. Witherspoon testified that, on that date, he lived at
12407 Farringdon with three grandchildren and that shortly after leaving his home that
day, he received a call from a neighbor who told him that his oldest grandchild, N.S., had
come to the neighbor’s house to use the phone because Witherspoon’s home had been
entered. Witherspoon testified that he returned home to find broken windows, his home
ransacked and his television unplugged, moved away from the wall and placed on the
floor. He also stated that there was a crowbar left in the middle of the living room that
did not belong to him.
{¶3} N.S. testified that he was present when men broke into the home because
he was supposed to be attending school, but he was running late so he decided not to go.
N.S. testified that he heard a knock at the front door at around 9:00 AM, got out of bed
and went downstairs to see who was knocking. He testified that he saw two men whom
he did not recognize at the door, so he did not alert them to his presence and went back
upstairs to bed. He said he did so because he did not recognize the men and he was
startled but that shortly after going back upstairs, he heard glass breaking and went
downstairs to investigate, which is when he saw two men coming into the house through
a window. Upon seeing this, N.S. related that he ran out the front door of the house to
his neighbor’s house from where the neighbor called the police as well as the boy’s
grandfather. N.S. then stood in his neighbor’s front yard and watched his house. When
the police arrived, N.S. moved into his own driveway and he could see a man inside the
living room unhooking the TV. He then heard a window breaking on the side of the
house but he did not observe any associated activity.
{¶4} City of Cleveland patrol officer Terrence Smith testified that he and his
partner were the first on the scene. Smith stated he observed the side window of the
house being kicked out and saw Townsend exit through that window and flee from the
home. He testified that Townsend looked directly at him during the exit and that he
then ran to the backyard where he saw that Townsend had already been apprehended.
{¶5} Officer James Williams testified that he and his partner arrived at the scene
seconds after Smith and his partner. Williams testified that he was positioned at the rear
of the house when he saw the side window being kicked out and Townsend come
through the window, directly at him. He ordered Townsend to the ground and placed
him under arrest.
{¶6} On September 21, 2011, Townsend was indicted on charges of burglary,
theft with an elderly specification, possessing criminal tools, and criminal damaging.
Although counsel’s opening statement suggested that Townsend had an alibi, Townsend
did not testify at trial and presented no witnesses on his own behalf. The jury found
Townsend guilty of burglary, theft with an elderly specification and criminal damaging.
It is from these convictions that Townsend appeals.
{¶7} In his first assignment of error, Townsend argues that his convictions were
against the manifest weight of the evidence. For the reasons stated below, we disagree.
{¶8} When considering a manifest weight challenge, the court is concerned not
with the burden of production but rather the burden of persuasion. In State v. Jackson,
8th Dist. No. 86542, 2006-Ohio-1938, ¶ 29, it was stated:
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.
{¶9} Here, the state presented the testimony of N.S. who testified that he saw
two men breaking into his home, but that he did not see their faces. After the police were
called, he could see that the men were still in the home. The state also presented the
testimony of two police officers who saw Townsend kick out the window of the home
that was being burglarized, jump from that window and attempt to flee the scene running
towards one of the officers and that Townsend was apprehended 15 feet from the
window.
{¶10} Townsend asserts that this is not enough evidence to be persuasive. He
asserts that Officer Smith could not recall what color clothes Townsend was wearing that
day; no fingerprint or DNA evidence was found at the crime scene linking Townsend to
the burglary; N.S. could not identify the men who broke into his house; Officer Smith
did not save any of the broken glass he brushed off of Townsend after he was arrested
and that both officers lost eye contact with Townsend at some point between the window
being kicked out and Townsend being arrested.
{¶11} We find the state has met its burden of persuasion in this case. Two police
officers testified that they saw Townsend exit through a window of the house prior to his
apprehension and arrest. They identified him by his face, not by his clothing. The
police officers did not feel it was necessary to save the glass shards as they both
observed Townsend exit the house. The fact that N.S. could not identify Townsend is of
little consequence as he made no attempt to look at the men’s faces who were breaking
into his home — his only concern was fleeing from danger. Townsend had no
permission to be in the house and was seen fleeing the house by two officers. We find
nothing to show that the trier of fact clearly lost their way and that a miscarriage of
justice has occurred. State v. Jackson, 8th Dist. No. 86542, 2006-Ohio-1938, ¶ 29.
{¶12} For the reasons stated above, Townsend’s first assignment of error is
overruled.
{¶13} In his second assignment of error, Townsend argues his trial counsel
failed to provide effective assistance. Specifically, Townsend asserts that counsel
erred when he did not call any witnesses who would testify that he was arrested for being
in the wrong place at the wrong time. For the following reasons, we disagree.
{¶14} In order to prevail on a claim for ineffective assistance of counsel, the
defendant must show (1) that counsel’s performance was deficient, and (2) that the
deficient performance prejudiced the defense so as to deprive the defendant of a fair
trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Counsel’s
performance may be found to be deficient if counsel “made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland at 687. To establish prejudice, “the defendant must prove that there exists a
reasonable probability that, were it not for counsel’s errors, the result of the trial would
have been different.” Bradley at 143.
{¶15} In determining whether counsel’s performance fell below an objective
standard of reasonableness, “[j]udicial scrutiny of counsel’s performance must be highly
deferential.” Strickland at 689. Because of the difficulties inherent in determining
whether counsel rendered effective assistance in any given case, a strong presumption
exists that counsel’s conduct fell within the wide range of reasonable, professional
assistance. Id.
{¶16} This court has said, “[a]n attorney’s selection of which witnesses to call at
trial falls within the purview of trial tactics and generally will not constitute ineffective
assistance of counsel.” State v. Briscoe, 8th Dist. No. 77832, 2000 Ohio App. LEXIS
5505, *9. Furthermore this court asserts,
[s]trategic and tactical decisions will not form the basis of a claim of
ineffective assistance of counsel, even if there had been a better strategy
available to him. Errors of judgment regarding tactical matters do not
substantiate a claim of ineffective assistance of counsel. The decision of
whether to call witnesses is within the province of counsel’s trial tactics.
State v. McWhorter, 8th Dist. No. 87443, 2006-Ohio-5438, ¶ 54.
{¶17} Here, Townsend alleges that having his grandmother and girlfriend testify
as to why he was in the area at the time of the robbery would have aided his case. We
do not agree. This evidence is in no way exculpatory to the assertion he was burglarizing
a home. It is evidence that places him in the area of the crime committed, at the time the
crime was committed. There is nothing to suggest that Townsend was prejudiced in
some way by his counsel’s decision not to have his grandmother or girlfriend testify.
Two police officers saw Townsend break out of the home that was being burglarized.
Having his grandmother, girlfriend, or both, testify as to why he was in the area would
not have affected the weight of the officers’ testimony. The decision of Townsend’s
trial counsel to present no witness evidence cannot lend itself to an ineffective assistance
claim. Townsend was not prejudiced by his attorney’s decision not to present these
witnesses.
{¶18} Townsend’s second assignment of error is overruled.
{¶19} Townsend’s conviction is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said lower court to carry this
judgment into execution. The defendant’s conviction having been affirmed, any bail
pending appeal is terminated. Case remanded to the trial court for execution of
sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
KENNETH A. ROCCO, J., CONCUR
Appendix
Assignments of Error
“I. The defendant’s convictions were against the manifest weight of
the evidence.
II. The defendant was denied effective assistance of counsel.”
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Colorado Court of Appeals Opinions || September 10, 2015
Colorado Court of Appeals -- September 10, 2015
2015 COA 125. No. 14CA0458. Haney v. Colorado Department of Revenue, Division of Motor Vehicles.
Â
COLORADO COURT OF APPEALS
2015 COA 125
Court of Appeals No. 14CA0458
Adams County District Court No. 13CV31931
Honorable Robert W. Kiesnowski, Judge
Patrick Haney,
Plaintiff-Appellee,
v.
Colorado Department of Revenue, Division of Motor Vehicles, acting by and through its executive director, Barbara J. Brohl,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE BERGER
Taubman and Hawthorne, JJ., concur
OPINION PREVIOUSLY ANNOUNCED AS âNOT PUBLISHED PURSUANT TO C.A.R. 35(f)â ON JULY 7, 2015, IS NOW SELECTED FOR PUBLICATION
Announced September 10, 2015
Frechette Law Office, Franz P. Frechette, Nederland, Colorado, for Plaintiff-Appellee
Cynthia H. Coffman, Attorney General, Michael J. Axelrad, Assistant Attorney General, Denver, Colorado, for Defendant-Appellant
Â
¶1        Defendant, the Colorado Department of Revenue, Division of Motor Vehicles (Department), appeals the district court judgment reversing the Departmentâs order revoking the driverâs license of plaintiff, Patrick Haney.1 The Department contends that the record supports its determination that Haney refused to submit to the testing required by the express consent statute and that the district court erred in concluding otherwise. We reverse the district courtâs judgment and remand for reinstatement of the revocation order.
I. Background
¶2        Thornton police officer Kelly Wright stopped Haneyâs vehicle after she observed it weave and make a wide turn into a traffic lane that was not the lane closest to the curb, in violation of Colorado traffic laws. Upon contacting Haney, Officer Wright noticed he displayed indicia of possible intoxication including a strong odor of an alcoholic beverage, bloodshot watery eyes, slurred speech, and unsteady balance. Haney then failed to complete voluntary roadside maneuvers as a sober person would have.
¶3        Officer Wright then advised Haney of the express consent law and gave him the choice of taking a blood test, a breath test, or refusing testing. Instead of choosing one of those options, Haney told the officer that he wanted to speak to an attorney before choosing any test. In response, Officer Wright stated âokayâ and then transported Haney to the police department for processing.
¶4        Officer Wright testified that Haney had access to a phone and that he was booked and processed within an hour after the stop. During this period, Officer Wright issued Haney an âExpress Consent Affidavit and Notice of Revocationâ which indicated that he had refused testing by stating that he âwant[ed] to speak to a lawyer.â That document also contained âInformation Concerning Colorado Lawâ which provided, in pertinent part, âYou are not allowed to speak to an attorney prior to responding to the Officerâs request for test(s).â Haney signed the document.
¶5        ; Haney timely requested an administrative hearing. He did not appear or testify at the hearing but did appear through counsel, who cross-examined Officer Wright. Counsel argued that the revocation was improper because Haneyâs actions did not constitute a refusal of testing.
¶6        The hearing officer rejected Haneyâs argument. Noting that Haney was given the choice of a blood test, a breath test, or refusal, the hearing officer found that Haneyâs response âwas not, âI will take a blood test,â and it wasnât, âI will take a breath test.â His response was, âI want to speak to an attorney.â And thatâs not a choice of tests. That is a refusal.â
¶7        The hearing officer further noted:
I donât have any evidence that [Haney] was confused about his obligations or that he [did not know] what was required of him. And he was properly advised he had to take a blood or breath test, or itâd be considered a refusal and he did not choose a test. And therefore I do find it was a refusal. And there is no recantation of that refusal.
Based on these findings, the hearing officer sustained the revocation.
¶8        On review, the district court reversed. The court determined that when Haney indicated he wanted to speak to an attorney, Officer Wrightâs reply of âokayâ could have misled Haney to believe that he had such a right. The court noted that the lack of clarification from Officer Wright could have caused Haney to misunderstand the state of the law. The court also noted a lack of any other words or conduct from Haney indicating he was unwilling to take a test.
¶9        The court concluded that the hearing officerâs determination that Haney refused testing was âunsupported by the recordâ and relied on existing case law concerning officers misleading or creating confusion in drivers as to the right to an attorney.
¶10        The Department now appeals the district courtâs judgment.
II. Discussion
¶11        The Department contends that the district court substituted its own factual findings for those of the hearing officer and misapplied the supreme courtâs decision in Calvert v. State, Department of Revenue, 184 Colo. 214, 519 P.2d 341 (1974). We agree.
A. Standard of Review
¶12        Section 42-2-126(9)(b), C.R.S. 2014, governs judicial review of Department driverâs license revocation orders and provides that a reviewing court may reverse the Departmentâs determination only if it (1) exceeded its constitutional or statutory authority; (2) erroneously interpreted the law; (3) acted in an arbitrary and capricious manner; or (4) made a determination that is unsupported by the evidence in the record. See Hanson v. Colo. Depât of Revenue, 2012 COA 143, ¶13, affâd, 2014 CO 55; Baldwin v. Huber, 223 P.3d 150, 152 (Colo. App. 2009).
¶13        Determinations concerning witness credibility, evidentiary weight, and the resolution of any evidentiary conflicts are factual matters solely within the province of the hearing officer as the trier of fact. Baldwin, 223 P.3d at 152; see Charnes v. Lobato, 743 P.2d 27, 32-33 (Colo. 1987).
¶14        In reviewing the Departmentâs actions, we stand in the same position as the district court. See Hanson, ¶14; Fallon v. Colo. Depât of Revenue, 250 P.3d 691, 693 (Colo. App. 2010).
B. The Hearing Officer Could Properly Find on This Record
That Haney Refused Testing
1. Refusals Generally
¶15        Under the express consent statute, when an officer with probable cause requests and directs a driver to take a test, the driver is required to take, complete, and cooperate in the completion of the test. See § 42-4-1301.1(2)(a)(I), C.R.S. 2014; Gallion v. Colo. Depât of Revenue, 171 P.3d 217, 220 (Colo. 2007). If the driver âfails to take and complete, and to cooperate in the completing of, the test elected, the failure shall be deemed to be a refusal to submit to testing.â § 42-4-1301.1(2)(a)(II). Drivers are required to cooperate so that the test may be completed or a sample obtained within the statutory two-hour time frame. See Gallion, 171 P.3d at 220; see also § 42-4-1301.1(2)(a)(III).
¶16        In deciding whether a driver refused to submit to testing, âthe trier of fact should consider the driverâs words and other manifestations of willingness or unwillingness to take the test.â Gallion, 171 P.3d at 220 (internal quotation marks omitted). An objective standard applies to determine whether a driverâs statements or behavior constituted an outright refusal or a refusal by noncooperation. Id.
¶17        If a hearing officerâs finding on the refusal issue is based on application of the proper objective legal standards and resolution of conflicting inferences from the evidence, it is binding on review. See Poe v. Depât of Revenue, 859 P.2d 906, 908 (Colo. App. 1993).
¶18        A driver has no right under the express consent statute to confer with an attorney before deciding whether to consent to testing. See Drake v. Colo. Depât of Revenue, 674 P.2d 359, 361 (Colo. 1984) (decided under implied consent statute); Calvert, 184 Colo. at 217, 519 P.2d at 343 (same). Generally, if a driver does not submit to testing âbecause he wants to talk to his attorney before deciding whether to take the test, it is deemed a refusal as a matter of law.â Drake, 674 P.2d at 361; see Dikeman v. Charnes, 739 P.2d 870, 872 (Colo. App. 1987) (â[W]e hold that [the driverâs] request to speak to an attorney before taking a chemical test must be deemed a refusal as a matter of law.â).
2. Calvert Exception
¶19        In Calvert, the supreme court recognized an exception to the general rule that a driverâs request to speak with counsel before taking a test constitutes a refusal. In that case, police advised the driver of his Miranda rights, including his right to consult with an attorney. See Miranda v. Arizona, 384 U.S. 436 (1966). The driver refused to sign an implied consent advisement form and repeatedly asked to speak with his attorney. The Department deemed the driverâs conduct to be a refusal and revoked his license, and the district court affirmed the revocation. Calvert, 184 Colo. at 215, 519 P.2d at 342.
¶20        On judicial review, the driver maintained that he âhonestly believedâ the Miranda warnings he received âgave him the right to make a call before reaching his decision to submit to the testâ and, significantly, the supreme court noted that â[n]o evidence was introduced to the contrary.â Id. at 217, 519 P.2d at 343. The supreme court reversed the revocation and held that if police cause a driver to misunderstand the state of the law, the driver âcannot be held strictly accountable for his refusalâ of testing. Id. at 218, 519 P.2d at 343.
3. The District Court Erred in Relying on Calvert
¶21        In reversing the revocation order, the district court relied on Calvert and determined that Officer Wright âcould haveâ misled Haney to believe that he had the right to speak to counsel before deciding whether to take one of the prescribed tests and âcould haveâ caused Haney to misunderstand the law.
¶22        This case is distinguishable from Calvert in several respects. First, unlike the circumstances in Calvert, Haney had not yet received any advisement of his Miranda rights when he stated that he wanted to speak to an attorney. Consequently, Officer Wright could not have misled Haney or caused him to be confused through such an advisement. Second, in contrast to the driver in Calvert, Haney introduced no evidence at the hearing that he had been confused or misled about the law or his rights under the express consent statute. Indeed, this absence of evidence was central to the hearing officerâs decision.
¶23        Officer Wrightâs response of âokayâ to Haneyâs statement (not a question) that he wanted to speak to an attorney before choosing any test does not change our analysis. That response could simply have meant that Officer Wright was acknowledging that Haney had made the statement. In any event, Haney presented no evidence that he was, in fact, confused or misled.
¶24        In a different context, this court has held that when a criminal defendant is confused during a providency advisement based upon allegedly inconsistent statements between a written plea agreement and the courtâs oral advisement, the defendant must request clarification from the court, rather than assert, as a basis for postconviction relief, that he or she was confused at the providency hearing. People v. DiGuglielmo, 33 P.3d 1248, 1251 (Colo. App. 2001). Similarly, although Haney now asserts that he was confused by Officer Wrightâs response, his failure to request clarification indicates otherwise.
¶25        A driverâs assertion that he or she wants to speak with an attorney before deciding to take a test does not, standing alone, necessarily demonstrate the driver is confused or require affirmative action or clarification by police. Such a result would be inconsistent with the decisions holding that this conduct is generally deemed a refusal as a matter of law. See Drake, 674 P.2d at 361; Dikeman, 739 P.2d at 872. It would also expand the exception recognized by Calvert, which requires a showing that the driver was actually confused or misled. In light of that requirement, the district courtâs determination that Haney âcould haveâ been confused or misled was insufficient to trigger the exception described in Calvert.
¶26        Haneyâs statement that he wanted to speak to an attorney was susceptible of conflicting interpretations. It could have indicated he was confused about his options or the law. But, it also could have indicated he was stalling for time and thereby failing to cooperate with Officer Wrightâs request that he take a test. It was the hearing officerâs responsibility to weigh and resolve these conflicting inferences on the evidence presented. See Baldwin, 223 P.3d at 152.
¶27        On this record, the hearing officer could properly have found that Haneyâs statement indicated noncooperative refusal, particularly when combined with (1) the absence of evidence that Haney was actually confused or misled or that he later agreed to take a test, and (2) evidence that Haney later signed the âExpress Consent Affidavit and Notice of Revocationâ informing him that he was not allowed speak to an attorney before responding to a request for testing, and that his statement that he wanted to speak to a lawyer was being deemed a refusal.
¶28        Because the hearing officerâs ultimate finding that Haney refused testing was based on application of the proper legal standards and is supported by substantial evidence in the record as a whole, it is binding both on the district court and this court. See Poe, 859 P.2d at 908 (upholding hearing officerâs finding of refusal where conflicting inferences could be drawn concerning whether driverâs silence was manifestation of noncooperation and unwillingness to take test or, instead, physical inability to respond); Shumate v. Depât of Revenue, 781 P.2d 181, 182 (Colo. App. 1989) (upholding hearing officerâs finding of refusal where driver failed to give arresting officer affirmative response concerning which type of test he was willing to take).
¶29        For these reasons, the district court erred in reversing the Departmentâs order.
III. Conclusion
¶30        The judgment is reversed and the case is remanded with directions to reinstate the Departmentâs revocation order. JUDGE TAUBMAN and JUDGE HAWTHORNE concur.
1 This opinion was previously announced as ânot published pursuant to C.A.R. 35(f).â The Department then filed a motion to publish, and publication was approved pursuant to C.A.R. 35(f).
These opinions are not final. They may be modified, changed or withdrawn in accordance with Rules 40 and 49 of the Colorado Appellate Rules. Changes to or modifications of these opinions resulting from any action taken by the Court of Appeals or the Supreme Court are not incorporated here.
Colorado Court of Appeals Opinions || September 10, 2015
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565 F.2d 151
Hancock Paper Co.v.Champion International Corp.
No. 77-1105
United States Court of Appeals, Third Circuit
10/11/77
E.D.Pa., 424 F.Supp. 285
AFFIRMED
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471 N.W.2d 363 (1991)
STATE of Minnesota, Respondent (C4-90-1668), Appellant (C0-90-1991),
v.
Justin L. BAUER, Appellant (C4-90-1668), Respondent (C0-90-1991).
Nos. C4-90-1668, C0-90-1991.
Court of Appeals of Minnesota.
May 21, 1991.
Review Denied July 24, 1991.
*364 Hubert H. Humphrey, III, Atty. Gen., St. Paul, Alan L. Mitchell, St. Louis County Atty. and James B. Florey, Asst. County Atty., Virginia, for the State.
J. Carver Richards, III and Gordon C. Pineo, Virginia, for Justin L. Bauer.
Corey J. Ayling, McGrann, Shea, Franzen Carnival, Straughn & Lamb, Chtd. and Deborah M. Gilman, Minnesota Civ. Liberties Union, Minneapolis, for amicus Minnesota Civ. Liberties Union.
Considered and decided by KALITOWSKI, P.J., and SHORT and SCHULTZ[*], JJ.
OPINION
SHORT, Judge.
In these consolidated appeals, Justin Bauer challenges his conviction for aiding a suicide and his conviction and sentence for fetal (felony) homicide. The state challenges the downward departure on the homicide sentence. We affirm.
FACTS
Eighteen-year-old Rachelle Cazin died of a single gunshot wound to the head. Justin Bauer, then 17, was with Cazin when she died. At the time of her death, Cazin was pregnant with a six to six-and-one-half month old fetus. Bauer did not deny paternity, but testified he did not believe Cazin was pregnant. There was testimony at trial that Bauer made threats against Cazin because she was spreading rumors she was pregnant with his child. Bauer admitted he was angry with Cazin.
On April 9, Cazin asked Bauer to meet her in the woods near their home and to bring his gun. The couple met as planned and agreed to commit suicide together. Bauer testified Cazin put the gun in her mouth and he counted to three, but nothing happened. Bauer claims he then tried to talk Cazin out of shooting herself. As he walked away from her, he heard a gunshot. Bauer hid Cazin's body under a layer of brush, ran home, changed his clothes, unloaded the gun, threw the remaining shells outside and cleaned the gun.
*365 That evening, a priest in Mountain Iron, received an anonymous call. The caller said his girlfriend had committed suicide after he backed out of the suicide pact. He admitted to the priest that he had hidden the girl's body and was afraid no one would believe him. When police associated this call with Cazin's disappearance, they obtained a search warrant for Bauer's home. At first, Bauer told them Cazin had not shown up for the arranged meeting. When confronted with the call to the priest, Bauer admitted his involvement. He showed them the rifle in his bedroom, and led them to the scene where Cazin's body was located.
The jury found Bauer not guilty of second degree (intentional) murder and fetal homicide. He was found guilty of aiding a suicide and of felony fetal homicide. Six weeks after the trial, one of the jurors wrote a letter to Bauer, expressing her feeling that Bauer was not guilty of the felony fetal homicide charge. The trial court denied Bauer's motion for a post-trial examination. Pursuant to Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960).
The trial court gave notice of its intent to consider a downward durational departure on the felony fetal homicide conviction. The state opposed the departure, and argued for consecutive sentencing. The trial court sentenced Bauer to concurrent sentences of 24 months for aiding a suicide and 60 months for felony fetal homicide, approximately a 50 percent downward durational departure.
ISSUES
I. Do the fetal homicide statutes violate the establishment clause?
II. Was there sufficient evidence to satisfy the statutory elements of both offenses?
III. Are the verdicts legally inconsistent?
IV. Did the trial court abuse its discretion in denying a Schwartz hearing?
V. Was the 60-month sentence for felony fetal homicide an unwarranted downward departure or cruel and unusual punishment?
ANALYSIS
I.
Bauer concedes a number of constitutional challenges to the fetal homicide statutes were rejected in State v. Merrill, 450 N.W.2d 318 (Minn.1990), cert. denied, ___ U.S. ___, 110 S.Ct. 2633, 110 L.Ed.2d 653 (1990). However, he argues the statutes violate the establishment clause of the first amendment, an argument not raised in Merrill.
In order to survive an establishment clause challenge, a statute: (1) must have a secular legislative purpose; (2) must have a principal or primary effect which neither advances nor inhibits religion; and (3) must not foster excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). Bauer's argument focuses on the first factor, the asserted absence of any secular purpose.
The fetal homicide statutes were enacted, as the supreme court surmised in Merrill, 450 N.W.2d at 324, in response to a 1985 case in which the supreme court adhered to the common law meaning of "human being," as used in Minnesota's homicide statutes, and declined to extend those laws to feticide. See State v. Soto, 378 N.W.2d 625, 630 (Minn.1985). The purpose of the fetal homicide statutes, therefore, is to rectify a perceived gap in the criminal code. That this is a secular purpose seems clear from a reading of Justice Steven's dissent in Webster v. Reproductive Health Servs., 492 U.S. 490, ___ - ___, 109 S.Ct. 3040, 3082-85, 106 L.Ed.2d 410 (1989), comparing a Missouri statutory preamble that life begins at conception to amendments to "tort, property, and criminal laws." As our supreme court implicitly recognized in Merrill and Soto, the state has the ability to criminalize behavior affecting unborn children.
The imposition of criminal liability is generally a secular matter, and prohibiting the termination of a pregnancy was not necessarily *366 done to serve a religious purpose. Moreover, a law may satisfy the "secular purpose" test even though it may be motivated in part by a religious purpose. See Wallace v. Jaffree, 472 U.S. 38, 56, 105 S.Ct. 2479, 2489, 86 L.Ed.2d 29 (1985). Bauer has not shown that the severity of the Minnesota statutes, noted in Merrill, 450 N.W.2d at 321, infects its purpose, making it non-secular in intent.
II.
A person is guilty of aiding a suicide if that person "intentionally advises, encourages, or assists another in taking the other's own life." Minn.Stat. § 609.215, subd. 1 (1988). The statute is similar to the accomplice liability statute, which provides that an accomplice may escape criminal liability if he "abandons [the criminal] purpose and makes a reasonable effort to prevent the commission of the crime prior to its commission." Minn.Stat. § 609.05, subd. 3 (1988). The statute requires more than a subjective abandonment of purpose.
Bauer argues there was sufficient evidence to show he abandoned his participation in Cazin's suicide. We disagree. While Bauer testified he tried to persuade Cazin not to shoot herself and initiated an attempt to get the gun away from her, there was contradictory evidence. We cannot retry the facts and it is the exclusive function of the jury to weigh the credibility of witnesses. See State v. Bias, 419 N.W.2d 480, 484 (Minn.1988). The record demonstrates (a) hours before Cazin's death, Bauer threatened to kill Cazin with his gun, (b) Cazin told a school counselor and nurse that she feared Bauer might harm her, (c) Bauer supplied the gun and ammunition, (d) Bauer loaded the gun, (e) Bauer told a priest that he planned the suicide pact, (f) Bauer hid the body, and (g) Bauer told conflicting stories about the day's events when confronted by relatives and the police. When this evidence is viewed in a light most favorable to the jury's verdict, there is sufficient evidence to support the verdict on aiding a suicide.
Bauer also challenges the state's proof of causation on the fetal homicide offense. Bauer was convicted of
caus[ing] the death of an unborn child, without intent to effect the death of any unborn child or person, while committing or attempting to commit a felony offense.
Minn.Stat. § 609.2662(2) (1988). Expert testimony established that the fetus died from asphyxiation caused by cessation of blood flow from its mother. This death was certainly a foreseeable consequence of her suicide. Although Bauer testified he did not know Cazin was pregnant, there was much evidence from which the jury could have inferred otherwise. Nor are we persuaded Cazin's decision to commit suicide was an intervening independent force. In State v. Schaub, 231 Minn. 512, 517, 44 N.W.2d 61, 64 (1950), the court held a manslaughter conviction could be upheld if the defendant's act was the "proximate cause [of death] without the intervention of an efficient independent force in which defendant did not participate or which he could not reasonably have foreseen." Cazin's suicide was not an "intervening cause," as Bauer argues, because he participated in it and could reasonably have foreseen it. See id. at 517, 44 N.W.2d at 64. An accomplice can be guilty of felony murder even though his accomplice commits an intentional act which more proximately causes the death. See State v. Combs, 292 Minn. 317, 318-21, 195 N.W.2d 176, 177-79 (1972) (accomplice in armed robbery was guilty of felony murder although the other robber fired the fatal shot).
The amicus Minnesota Civil Liberties Union argues the legislative exemption of the mother from fetal homicide liability bars Bauer's conviction. However, the mother is exempted from criminal liability by a statutory exemption no broader than its express terms. The fetal homicide statutes exclude the pregnant woman from liability. Minn.Stat. § 609.266(b) (1988). However, the rationale of that exclusion is to exclude abortion from the statutes and not to justify the suicide of the pregnant woman or to bar liability of the woman's accomplice if she succeeds.
*367 A "justification" negates a criminal offense because it excuses the criminality of the act. See, e.g., State v. Boyce, 284 Minn. 242, 255-60, 170 N.W.2d 104, 112-15 (1969). Suicide was a common law crime in England, but as a policy matter and for practical reasons is not criminalized in most states. See 2 W. LaFave & A. Scott, Substantive Criminal Law § 7.8 (1986). However, the absence of deterrent effect against the suicide, whether successful or unsuccessful, has not prevented the criminalization of assisting suicide. The act is not a "justifiable" taking of life such that a justification defense extends to the suicide's accomplice. Although Cazin could not have been prosecuted for any homicide or assault on the fetus had she survived, this is purely a statutory immunity which does not extend to Bauer.
III.
Bauer argues the jury's verdicts finding him guilty of aiding a suicide and of felony fetal homicide are legally inconsistent. We disagree. A jury's verdicts are legally inconsistent only if a necessary element of each offense is subject to conflicting findings. State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). Here, Bauer suggests the element that Cazin intended her own death is inconsistent with the causation element of felony fetal homicide. However, the argument that Cazin's suicide was an intervening cause breaking the chain of required causation between Bauer's acts and the fetus' death has been rejected above. The verdicts are legally consistent.
IV.
To obtain a Schwartz hearing inquiring into the jury's conduct, a defendant must show actual misconduct resulting in prejudice or present a claim of outside influence or extraneous information. See State v. Hicks, 432 N.W.2d 487, 490 (Minn.App.1988), pet. for rev. denied (Minn. Jan. 26, 1989); State v. Fitzgerald, 382 N.W.2d 892, 896 (Minn.App.1986), pet. for rev. denied (Minn. Apr. 24, 1986); see also Minn.R.Evid. 606(b). The juror's letter and statements do not indicate any extraneous influence and fail to establish any misconduct. Those statements reveal only the juror's second thoughts and possible misunderstanding of the instructions, and are thus not a sufficient basis to order a Schwartz hearing.
V.
The trial court imposed a 24-month presumptive sentence for aiding a suicide (an assigned severity level VII offense) and a concurrent 60-month sentence for felony fetal homicide, a 50 percent downward departure. The trial court cited the "type of conduct involved" in aiding a suicide as compared to other felonies involved in felony homicide charges, and stated the 60-month sentence was more "proportionate" to the severity of the offense. The trial court questioned whether the guidelines commission or legislature anticipated the causation problem presented by using aiding a suicide as an underlying felony for felony murder.
We find no causation problem with applying the felony murder rule to these facts. However, the trial court was well within its discretion in finding Bauer's conduct less serious than the typical felony murder (or feticide) offense. Moreover, the legislature enacted a separate statute for fetal homicide in the course of a less serious felony. See Minn.Stat. § 609.268, subd. 1 (1988). Bauer could have been charged under this statute, which clearly includes an underlying felony of aiding a suicide, and which provides a less severe range of punishment. See id. (up to 15 years); cf. Minn. Stat. § 609.2662 (up to 40 years). In 1987, the presumptive sentence for this offense was 54 months, six months less than the sentence Bauer received. The trial court in its discretion found aiding a suicide less serious than the conduct typically involved in a felony murder (or feticide) offense. See generally State v. Back, 341 N.W.2d 273, 276 (Minn.1983). For example, aiding a suicide, although an intentional offense, relies heavily on the suicide's own resolve to commit the criminal act. Cf. Minn.Sent. Guidelines II.D.2.a.(2) (defendant's minor or passive role may be considered in mitigation).
*368 Bauer's argument that the sentence is cruel and unusual punishment in violation of the eighth amendment is without merit. Such a claim has been recognized when the sentence is mandatory, or a mandatory minimum. See e.g. Sumner v. Shuman, 483 U.S. 66, 75-78, 107 S.Ct. 2716, 2722-23, 97 L.Ed.2d 56 (1987) (mandatory death penalty statute violates the eighth amendment); cf. State v. Walker, 306 Minn. 105, 111, 235 N.W.2d 810, 814-15 (1975), cert. denied, 426 U.S. 950, 96 S.Ct. 3172, 49 L.Ed.2d 1187 (1976) (mandatory minimum 25-year sentence before parole for first-degree murder was not cruel and unusual punishment). Bauer, however, was sentenced under the guidelines scheme of determinate sentencing proportional to the severity of the offense. The trial court granted him a downward durational departure based on offense severity. We cannot substitute our judgment for the legislative determination that aiding a suicide should be a criminal offense ranked at the felony level.
DECISION
The fetal homicide statutes do not violate the establishment clause. The evidence is sufficient to sustain the verdicts, which are not inconsistent. The trial court did not abuse its discretion in denying a Schwartz hearing or in sentencing Bauer.
Affirmed.
NOTES
[*] Acting as judge of the Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 2.
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J-A09045-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GERALD S. LEPRE :
:
Appellant : No. 1612 WDA 2017
Appeal from the Order Entered October 25, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-SA-0000914-2017
BEFORE: BOWES, J., DUBOW, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED MAY 09, 2018
Gerald S. Lepre (Appellant) appeals pro se from the judgment of
sentence imposed after the trial court convicted him of the summary offense
of disorderly conduct.1 We affirm.
On August 4, 2017, Appellant entered the Allegheny County Family
Court. He was accompanying his co-worker, Jessica Weiss, who was attending
a protection from abuse hearing. Allegheny County Deputy Sheriff Anthony
Fratto testified that while Appellant was in the security line, Deputy Fratto
discovered Appellant had Suboxone that was not in a prescription bottle, but
was contained in manufacturer’s “tin foil type” packaging. N.T., 10/25/17, at
4. Appellant did not have the required proof of prescription, and when
____________________________________________
1 18 Pa.C.S.A. § 5503.
J-A09045-18
questioned about it, he became boisterous, argumentative, and used
profanity. Id. at 5. Because there were many people in the security line,
Deputy Fratto asked Appellant to go to the sheriffs’ office to discuss the
situation, but Appellant continued acting angrily, calling the officers names
and using profanity. Once inside the sheriffs’ office, Appellant “kept going off
on” the officers and was thus taken to the “bullpen,” where “he continued to
swear and be argumentative with the deputies.” Id. In the bullpen, Appellant
kicked the door continuously until authorities took him to the courthouse jail.
Id.
The Commonwealth charged Appellant with possession of a controlled
substance and disorderly conduct. Subsequently, the Commonwealth
withdrew the possession of a controlled substance charge. The Magisterial
District Judge found Appellant guilty of disorderly conduct and imposed fines
and costs of $300.
Appellant appealed to the Court of Common Pleas, where a trial de novo
was held on October 25, 2017. Appellant appeared pro se. The
Commonwealth presented one witness, Deputy Fratto, who testified to the
above facts. Appellant called Ms. Weiss, who testified that when the sheriffs
discovered Appellant’s Suboxone, Appellant told them they could call his
doctor to verify his prescription, but one sheriff said, “I’m sorry, we don’t do
that.” Id. at 7. Ms. Weiss denied that Appellant was boisterous or loud or
used profanity. She said Appellant was not even talking to the sheriffs, but
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J-A09045-18
instead was talking calmly to her. The sheriffs then led Appellant through a
glass door to ask him questions, and Ms. Weiss went to her court hearing
alone. Id. at 8. After the hearing, Ms. Weiss returned to the security line
area, where an officer informed her that Appellant was taken to jail, and Ms.
Weiss left.
Appellant testified in his own defense and provided the following account
of events. The sheriffs found his prescription for Suboxone, and he
“explain[ed] to them nicely that it was a legal prescription” and asked them
to call his doctor to verify. Id. at 14, 16. The sheriffs nevertheless took him
to their office and closed the door, “and that’s when the confrontation took
place.” Id. at 18. Appellant explained that he was upset because he had a
legal prescription, claimed the sheriffs’ “main incentive was to take [him] to
jail,” and admitted that he said “this is screwed up” and “what, you guys don’t
have nothing better to do.” Id. at 17, 19. Appellant argued that because he
said these things “behind a locked door,” the Commonwealth failed to
establish that his conduct occurred in a public space. Id. at 19.
The trial court found Appellant guilty of disorderly conduct. The court
specifically found that Deputy Fratto was credible, Appellant was not credible,
and that Appellant’s disorderly conduct occurred in the public “rotunda area,”
of the courthouse. Id. at 22. On the same day, the court imposed a sentence
of $300 in fines and costs.
Appellant filed a timely post-trial motion, and the trial court held a
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J-A09045-18
hearing on October 31, 2017. Appellant, again appearing pro se, first argued
that the testimony that he possessed Suboxone was inflammatory, as the
Commonwealth had withdrawn the charge of possession of a controlled
substance. N.T., 10/31/17, at 4. The trial court responded that this testimony
had no bearing on its finding him guilty of disorderly conduct, and instead it
relied on Deputy Fratto’s testimony relating to Appellant’s “profanity, yelling,
disagreeable conduct, [and] holding up the [security] line.” Id. Appellant
again argued that his conduct did not occur in a public place, but the trial court
reiterated that it based the disorderly conduct conviction on his behavior in
the courthouse security line, emphasizing that it found the deputy sheriff’s
testimony credible. Appellant pointed out the trial court was essentially
discrediting his evidence, and the court explained it had properly made
credibility determinations. The court denied Appellant’s motion, and Appellant
filed a timely notice of appeal.
The trial court issued a Pa.R.A.P. 1925(b) order directing Appellant to
“file of record and serve on the court a Concise Statement of the Errors
Complained of on the Appeal no later than 21 days.” Order, 11/6/17
(emphasis added). The date November 6, 2017 appears next to the signature
line, but the order does not bear a “filed” stamp showing the date of filing,
nor does the order appear on the copy of the docket that is included in the
record. The docket was printed on October 26, 2017 — the day after the trial
de novo — and the guilty verdict is the final entry. However, we note the first
-4-
J-A09045-18
page of the record is a one-page index, which acts as a table of contents, and
the index states that the order was filed on November 8, 2017.
On November 17, 2017, Appellant filed a Rule 1925(b) statement; it
bears a court “filed” stamp showing the November 17, 2017 date, which was
within 21 days of both November 6 and November 8, 2017. On December 13,
2017, however, the court issued an opinion stating that Appellant failed to file
a Rule 1925(b) statement and all of his issues were waived. See
Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) (“[I]n order to preserve
their claims for appellate review, [a]ppellants must comply whenever the trial
court orders them to file a Statement of Matters Complained of on Appeal
pursuant to Rule 1925.”).
Preliminarily, we consider the trial court’s assertion that all of Appellant’s
issues are waived for failure to file a Rule 1925(b) statement. As stated above,
the certified record includes a Rule 1925(b) statement, which is stamped by
the clerk of courts as “filed” on November 17, 2017. Accordingly, it is possible
that although Appellant filed the statement with the clerk of courts, he did not
serve a copy on the trial court, as required by the Rule 1925(b) order and Rule
1925(b) itself. See Pa.R.A.P. 1925(b)(1) (“Appellant shall file of record the
Statement and concurrently shall serve the judge. Filing of record and service
on the judge shall be in person or by mail as provided in Pa.R.A.P. 121(a)[.]”).
Generally, the failure to serve a copy of a court-ordered Rule 1925(b)
statement on the trial court results in waiver. See Forest Highlands Cmty.
-5-
J-A09045-18
Ass’n v. Hammer, 879 A.2d 223, 229 (Pa. Super. 2004).
However, our Supreme Court has stated:
[F]or an appellant to be subject to waiver for failing to file a timely
1925(b) statement . . . the clerk of courts has a mandatory duty
to furnish copies of the order to each party or their attorney. In
reaching this conclusion, we relied on Pa.R.Crim.P. 114 . . . , which
sets forth the obligations of the clerk of courts as follows:
Upon receipt of an order from a judge, the clerk of courts
shall immediately docket the order and record in the docket
the date it was made. The clerk shall forthwith furnish a
copy of the order, by mail or personal delivery, to each party
or attorney, and shall record in the docket the time and
manner thereof.
[Pa.R.Crim.P. 114(A)(1). T]he word “shall” in Rule 114 [is]
mandatory [and] leaves no question that the clerk’s obligations
are not discretionary.
Commonwealth v. Hess, 810 A.2d 1249, 1252-53 (Pa. 2002) (emphasis
added). In Hess, our Supreme Court held that the appellant’s untimely Rule
1925(b) statement did not result in waiver where, inter alia, the trial docket
did not indicate the date and manner of service of the court’s Rule 1925(b)
order in violation of Pa.R.Crim.P. 114. Id. at 1254-55.
As stated above, the trial court issued a Pa.R.A.P. 1925(b) order that
was dated November 6, 2017 (although the index states it was filed on
November 8th). The bottom of the order states:
cc: [Appellant’s name and address]
[Commonwealth attorney’s name and address]
Order, 11/6/17. In the absence of any docket entry for the order or certificate
of service, the record simply does not indicate the date or manner of service
-6-
J-A09045-18
of the order, as required by Rule 114. See Pa.R.Crim.P. 114. We thus decline
to find waiver on the basis that the trial court did not receive a copy of the
Rule 1925(b) statement. See Hess, 810 A.2d at 1254-55. Accordingly, we
proceed to address the merits of Appellant’s issues.
Appellant presents three issues for our review:
[1.] Whether sufficient evidence existed to sustain the charge of
disorderly conduct when:
A. The alleged conduct complained of didn’t occur in a public
forum; &
B. The alleged conduct complained of served a legitimate
purpose?
[2.] Whether the corpus delicti of disorderly conduct was met?
[3.] Whether the trial court committed error, abused its discretion
and violated constitutional rights when it admitted inflammatory
evidence over repeated objection when its prejudicial effect did
not outweigh its probative value?
Appellant’s Brief at 4.
In his first issue, Appellant argues that the evidence was insufficient to
support a conviction of disorderly conduct. Appellant concedes that Deputy
Fratto testified that the disorderly conduct occurred in the public rotunda area
of the courthouse, but points to his own evidence — his and Ms. Weiss’s
testimony — that the conduct occurred in the sheriffs’ office that was not open
to the public. Appellant additionally avers that his alleged disorderly conduct
served a legitimate purpose: defending “himself and his innocence as Deputy
Fratto encroached on his freedom of action and movement by making an
-7-
J-A09045-18
arrest — without any investigation” as to whether he had a valid prescription.
Appellant’s Brief at 11-12.
Despite Appellant’s characterization of his issue as a challenge to the
sufficiency of the evidence, his argument goes to the weight of the evidence.2
See Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super. 2014)
(“[A] true weight of the evidence challenge concedes that sufficient evidence
exists to sustain the verdict but questions which evidence is to be believed.”).
Our review of a trial court’s ruling on a weight claim is limited to whether the
court abused its discretion. Id. at 758.
It is well established that this Court is precluded from reweighing
the evidence and substituting our credibility determination for that
of the fact-finder. . . . “[T]he weight of the evidence is exclusively
for the finder of fact who is free to believe all, part, or none of the
evidence and to determine the credibility of the witnesses[.”]
Id. (citations omitted). Disorderly conduct is defined in part as follows:
(a) Offense defined.—A person is guilty of disorderly conduct
if, with intent to cause public inconvenience, annoyance or alarm,
or recklessly creating a risk thereof, he:
* * *
(2) makes unreasonable noise; [or]
(3) uses obscene language, or makes an obscene gesture[.]
____________________________________________
2 Appellant preserved a weight of the evidence claim by raising it at the post-
trial hearing. See Pa.R.Crim.P. 607(A)(3) (a claim that the verdict was
against the weight of the evidence shall be raised with the trial judge in a
motion for a new trial in a post-sentence motion); N.T., 10/31/17, at 9
(“[E]ssentially, you discredited any evidence that I put on[.]”).
-8-
J-A09045-18
18 Pa.C.S.A. § 5503(a)(2), (3). “Under the statute, whether a defendant’s
words or acts rise to the level of disorderly conduct hinges upon whether they
cause or unjustifiably risk a public disturbance.” Commonwealth v.
Fedorek, 946 A.2d 93, 100 (Pa. 2008).
In finding Appellant guilty of disorderly conduct, the trial court credited
Deputy Fratto’s testimony that while Appellant was in the security line of the
courthouse, he yelled, used profanity, and behaved with “disagreeable
conduct.” N.T., 10/25/17, at 22; N.T., 10/31/17, at 6. The court concluded
that Appellant “became boisterous, argumentative and used profanity. The
behavior continued as [Appellant] was led into the Sheriff’s Office, and
persisted when he was taken to the bullpen and the jail.” Trial Court Opinion,
12/13/17, at 1. To succeed, Appellant’s argument would require this Court to
disregard the trial court’s credibility determinations and reweigh the testimony
in his favor. This we cannot do. See Thompson, 106 A.3d at 758.
Appellant’s additional argument — that he had a legitimate purpose for his
behavior — is waived, as he presented no such claim before the trial court.
See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”). Thus, Appellant’s first issue
is meritless.
Appellant’s second issue is whether “[t]he corpus delecti of disorderly
conduct has not been met.” Appellant’s Brief at 12. He claims that Deputy
Fratto “testif[ied] on behalf of other officer[s] and the public who allegedly
-9-
J-A09045-18
witnessed the act,” but the Commonwealth did not present any other
witnesses whom Appellant could cross-examine. Id. at 13. Appellant claims
he thus was unable to “confront [Deputy Fratto’s] hearsay evidence.” Id.
Appellant’s reliance on the corpus delecti rule is misplaced. “The corpus
delicti rule begins with the proposition that a criminal conviction may not be
based upon the extra-judicial confession of the accused unless it is
corroborated by independent evidence establishing the corpus delicti” — “the
body of the crime.” Commonwealth v. Chambliss, 847 A.2d 115, 119 (Pa.
Super. 2004). Appellant does reference a confession — and the record does
not reveal any — allegedly made by Appellant and presented at trial. To the
extent we review Appellant’s claim as a challenge to the admission of hearsay,
the factual premise of his argument is mistaken. Deputy Fratto did not, as
Appellant contends, testify to what another individual said. See Pa.R.E. 801
(“‘Hearsay’ means a statement that (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers in evidence to
prove the truth of the matter asserted in the statement”). Instead, the officer
testified that he attempted to question Appellant about the Suboxone, but
Appellant “became very boisterous, very argumentative, [and] used some
profanity.” N.T., 10/25/17, at 5. This second issue does not warrant relief.
In his final issue, Appellant asserts that the trial court erred in allowing
evidence that he possessed a controlled substance, Suboxone. He emphasizes
that the Commonwealth withdrew its charge of possession of a controlled
- 10 -
J-A09045-18
substance, and contends the evidence had no relevance and was unfairly
prejudicial.
“Questions concerning the admissibility of evidence are within ‘the
sound discretion of the trial court, and its discretion will not be reversed absent
a clear abuse of discretion.’” Thompson, 106 A.3d at 754. “Evidence that is
not relevant is not admissible.” Pa.R.E. 402. “[R]elevant evidence may . . .
be excluded ‘if its probative value is outweighed by the danger of unfair
prejudice[.’]” Commonwealth v. Owens, 929 A.2d 1187, 1190 (Pa. Super.
2007).
The evidence that Appellant possessed Suboxone was relevant to the
charge of disorderly conduct, as it explained why Deputy Fratto questioned
Appellant and why Appellant was, by his own admission, upset. N.T.,
10/25/17, at 19 (“I was pretty upset because it was a legal prescription.”).
There was no evidence that Appellant possessed it illegally; Appellant
repeatedly testified that he had a valid prescription. In any event, Appellant
was not prejudiced because, as the trial court repeatedly stated on the record,
the fact that Appellant possessed Suboxone had no bearing on the court’s
finding that Appellant’s disruptive and profanity-laden behavior constituted
disorderly conduct. N.T., 10/31/17, at 6-7. This issue also lacks merit.
In sum, as we conclude that all of Appellant’s claims are meritless, we
affirm the judgment of sentence.
Judgment of sentence affirmed.
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J-A09045-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/2018
- 12 -
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220 Miss. 577 (1954)
71 So.2d 304
59 Adv. S. 26
McCOY
v.
CORNISH LUMBER CO.
No. 39094.
Supreme Court of Mississippi.
April 5, 1954.
*578 Nate S. Williamson, Lester F. Williamson, Donald W. Williamson, Meridian; Morse & Morse, Poplarville, for appellant.
Lyle V. Corey, Snow & Covington, Meridian, for appellee.
*579 ETHRIDGE, J.
The issue is whether appellee, an employer, failed to secure the payment of workmen's compensation to his employee, appellant's intestate, at the time of injury. We hold that appellee failed to comply with this requirement of the act, and that appellant therefore has a right to bring this suit at law for damages.
Appellant, Floyd McCoy, in his own behalf and for the use and benefit of his wife and children, brought this suit in the Circuit Court of Lauderdale County against W.H. Cornish, doing business as Cornish Lumber Company, appellee, asking damages for the death of appellant's son, Frank McCoy, Jr. The declaration alleged that appellee in his business employed more than eight regular workmen or employees and he was required by the Mississippi Workmen's Compensation Act to carry workmen's compensation insurance, but that he had failed to secure the payment of compensation to his employees; and that in accordance with the election allowed appellant by Section 5 of the Act, appellant was suing at common law for damages resulting from appellee's alleged negligence. The declaration charged that on October 29, 1952, Frank McCoy, Jr. was an employee of appellee and was riding upon appellee's truck, which appellee knew was in a dangerous and defective mechanical condition; that the gas tank was in such defective condition that the gasoline leaked out of it and as a result thereof the truck caught on fire and burned appellant's son, which burns resulted in his death and were received within the scope and course of his employment; that appellee knew, or by *580 the exercise of reasonable care, should have known of this dangerous and defective condition.
The defendant's answer incorporated in it two special pleas: (1) Under Section 5 of the Workmen's Compensation Act, the exclusive remedy of plaintiff is under that act, of which plaintiff elected to take the benefits by presenting to and accepting the payment by defendant of the funeral bill of Frank McCoy, Jr.; and defendant has at all times and now stands ready to fulfill his obligations under the act. (2) Plaintiff's exclusive remedy is under the compensation statute. Defendant qualified as an employer under the act by procuring in May, 1952, a compensation insurance policy and filing it with the commission. The insurance company later attempted to cancel the policy, but defendant had by such actions elected to settle claims under the compensation act. These pleas incorporated in them a motion to dismiss the suit. Plaintiff filed a replication, denying that defendant had secured the payment of compensation as required by the act, and averring that the defendant's insurance was cancelled in September, 1952, and that he did not secure any other coverage until November, 1952, after the death of Frank McCoy, Jr.
In the hearing on appellee's special defenses, Cornish admitted that he employed around 38 persons and that he was subject to the provisions of the Workmen's Compensation Act. Deceased was his employee, and his injuries and death arose out of and in the course of his employment. In May, 1952, appellee purchased a compensation insurance policy from Employees' Mutual of Warsaw, but in September, 1952, that insurance carrier cancelled its policy. Cornish testified that he then "called several others, finally got insurance after this accident happened" with another company, which in turn cancelled its policy on his operations on April 6, 1953. The compensation policy which appellee purchased in May, 1952, would have been in effect when appellant's *581 son was killed if the carrier had not cancelled it a month before. Appellee had paid his premium on the Employees' Mutual policy and had filed notice of it with the Workmen's Compensation Commission. He said that he was proceeding on the same basis as though he had a policy, even though Employees' Mutual had cancelled its coverage. Cornish testified that he was paying other workmen injured on their jobs the same benefits as those provided by the compensation act, and that the other man who was injured on the same occasion had been paid standard compensation benefits. He stated that appellant brought him the deceased's funeral bill, which he paid directly to the funeral home; that appellant and his wife went to the office of appellant's lawyer, Lyle Corey, who advised them what they were entitled to under the act, but appellant told Corey that he was not ready to settle the claim yet. Appellee admitted that after his compensation policy with Employees' Mutual was cancelled in September, 1952, he did not obtain and file with the commission another policy until November, 1952, after the accident. He also admitted that during that time he did not apply to the commission to qualify as a self-insuror, and that the commission did not grant him an exemption. Appellee does not claim that he applied for an assigned risk policy. He said that he tried with several different companies to get insurance and was turned down, but that he finally obtained a compensation policy in November, 1952. He admitted that he did not have an insurance policy in effect between September and November, 1952 and he knew then that he did not have it.
Cornish never did advise appellant how much he would be willing to pay and there was no agreement as to any amount. Cornish advised appellant that he did not have compensation insurance, but that he would do all that the compensation law required, and that he was ready, able and willing to comply with that act.
*582 There was introduced into the record a letter from the Workmen's Compensation Commission stating that Cornish's coverage was cancelled in September, 1952, and that he did not secure any other coverage until November, 1952, and an affidavit by the secretary of the commission stating that the commission's records reflect that appellee had not secured compensation insurance coverage on October 29, 1952.
The trial court stated that it "believes that the workmen's compensation act applies in this case and that the plaintiff does not have the right at this time to proceed under a common law action for negligence." The final order adjudicated that appellee's special defenses "are in complete bar of the cause of action," that appellee had secured compensation coverage under the act "to the extent and under such circumstances that the remedy of the plaintiff" is under the compensation act exclusively, and that the present suit at law for damages for negligence is not permissible. Hence the circuit court dismissed appellant's suit.
Appellant argues that the lower court was in error because under Section 5 of the Workmen's Compensation Act, being Code of 1942, Section 6998-05, appellee had failed to secure payment of compensation, and, therefore, appellant had an option to sue at law for damages. This statute provides as follows:
"Exclusiveness of liability. The liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next-of-kin, and anyone otherwise entitled to recover damages at common law or otherwise from such employer on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this act, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this act, *583 or to maintain an action at law for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee."
On the other hand, appellee contends that he complied with Section 5 when in May, 1952, he secured a compensation insurance policy with Employees' Mutual, made application to the commission, and filed the policy with it. This policy was not cancelled at his request nor by his consent, and if there had been no cancellation, its term would have extended past the date of the accident. Appellee had thereby elected to operate under the act, he says, and the cancellation of the policy did not affect his status as being under it. Immediately when appellee was advised of the cancellation, he attempted to obtain another policy and had difficulty doing so, but within a little over thirty days from its cancellation he got one. Appellee says that he at all times acted in good faith, which is the criterion, and that an employer should have a reasonable period within which to find another insurance carrier; nor did the commission offer to assign appellee's risk. In brief, appellee's argument is that he at all times acted in good faith, that in May, 1952, he assumed the status of an employer covered and protected by the act, and that under the circumstances the slightly more than thirty-days interval during which he had no compensation insurance was not an unreasonable period of lapsed coverage.
(Hn 1) The Workmen's Compensation Act does not make good faith the test in determining whether an employee can sue at common law. Section 5 states that "if an employer fails to secure payment of compensation as required by this act," the employee may elect to maintain an action at law for damages. The undisputed facts are *584 that appellee had no compensation insurance when the accident occurred, and had had none for almost a month. Nor does appellee claim that he applied to the commission for a policy under the assigned risk plan, as provided in Code Section 6998-56 and Rule 6 of the commission, nor that he obtained such a policy. And he did not attempt to qualify as a self-insurer under Section 6998-38, and Rule 7 of the commission.
Code Section 6998-39, implemented by commission Rule 5, provides in part: "... No such policy shall be cancelled within the policy period until a notice in writing shall be given to the commission and to the assured, fixing the date on which it is proposed to cancel it, or declaring that the company does not intend to renew the policy upon expiration date, such notices to be served personally or by registered mail on the commission at its office in Jackson, and upon the assured. No such cancellation shall be effective until thirty (30) days after the service of such notice, unless the employer has obtained other insurance coverage, in which case such policy shall be deemed cancelled as of the effective date of such other insurance, whether or not such notice has been given."
In other words, an insurance carrier cannot effectively cancel a compensation policy until thirty days after the serving of notice in writing on the commission and the assured. This provision creates a reasonable period within which the employer can obtain other insurance, particularly when considered in the light of the availability under the act of the self-insurer and the assigned risk plans. Nor does appellee make any claim that Employees' Mutual failed to give him proper notice of the intent to cancel its policy. In the absence of such evidence, we must assume that Section 6998-39 was complied with, and if that be true, more than sixty days from the time of notice transpired before appellee obtained another insurance policy, and during this period he did *585 not attempt to qualify as a self-insurer, and did not obtain a compensation policy under the assigned risk plan.
The condition provided by Section 5 of the act as a condition precedent to a suit at law, the failure of the employer to secure payment of compensation as required by the act, is plain and unambiguous. It is entirely reasonable when considered in the light of other relevant provisions of the statute as discussed above. (Hn 2) The requirement that the employer must secure payment of compensation means that he must have in effect an insurance policy complying with the workmen's compensation act, or must qualify as a self-insurer. See also Section 3 of the act which permits exempted employers to come under it "by insuring," posting notice, and notifying the commission. An exercise of the right to bring a suit at law for failure of an employer to so secure payment of compensation has been uniformly upheld. 58 Am. Jur., Workmen's Compensation, Sec. 56; 71 C.J., Workmen's Compensation, Sec. 1503; 1 Schneider, Workmen's Compensation (3rd Ed. 1941), Sec. 92, p. 231; 2 Larson, Workmen's Compensation Law (1952), p. 443-448, 146-152; Horovitz, Workmen's Compensation (1944), p. 318-319; Anno., 21 A.L.R. 1428; Anno., 117 A.L.R. 515.
In Talge Mahogany Co. v. Burrows, 191 Ind. 167, 130 N.E. 865 (1921), an employer who had purchased compensation insurance under the act, but had allowed the insurance which it had procured to lapse and terminate, and had not filed an application for permission to carry its own insurance, was held subject to an action at law for damages for an injury to an employee. In Coffin v. Bloodworth, 82 P.2d 953 (Calif. App. 1938), it was held that an employer who failed to secure insurance or commission consent to self-insure was subject to a suit for damages sustained by the employee, although the employer had paid the employee's medical bills and wages during disability. The California Act contained a phrase *586 similar to that in the Mississippi Act, "secure the payment of compensation." Compare Akin v. Shelton, 175 Okla. 536, 53 Pac.2d 661 (1936); Samuels v. Munson Steamship Line, 63 F.2d 861 (C.C.A. 5th, 1933); Stanton v. Ruthbell Coal Co., 34 S.E.2d 257 (W. Va. 1945); Jones v. Brink, 39 So.2d 791 (Fla. 1949); Schneider, Some Practicable Problems Under the Mississippi Workmen's Compensation Act, 20 Miss. L.J. 154, 160 (1949).
The test is not whether the employer is willing and able to pay compensation under the act, but whether he has complied with Section 5 by in fact securing payment of compensation in one of the permissible methods under the act. The word "secure" in Section 5 has a considerably more restricted meaning than simply being willing in good faith to pay compensation. If an employer could take out compensation insurance at one time and so notify the commission, and by such action create for himself a status limiting his liability only as provided in the act, irrespective of whether he has secured the payment of compensation when the employee is injured, then the provisions for securing compensation to injured employees would be substantially nullified. Nor does an employer's bona fide desire to pay in accord with the act constitute a substitution for compliance with the plain mandate of the statute. It is undisputed that appellant's son received an injury arising out of and in the course of his employment by appellee, that appellee did not have compensation insurance on the date of the injury and death, and that he had not qualified as a self-insurer and had not applied for coverage under the assigned risk plan. Hence appellee failed to secure the payment of compensation as required by the act. And under Section 5, appellant had the right to elect to maintain an action at law for damages. *587 The case will therefore be reversed and remanded for further proceedings consistent with this opinion.
Reversed and remanded.
All justices concur, except McGehee, C.J., and Gillespie, J., who took no part.
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849 F.2d 955
Summersgill DARDAR, et al., Plaintiffs-Appellants,v.LAFOURCHE REALTY CO., INC., et al., Defendants,Col. Eugene S. Witherspoon, et al., Defendants-Appellees.
No. 87-3629.
United States Court of Appeals,Fifth Circuit.
July 18, 1988.
Michael Osborne, Osborne & McComiskey, New Orleans, La., for plaintiffs-appellants.
Kai David Midboe, Baton Rouge, La., for State of La.
Dirk Snell, Carl Strass, Environmental Def. Sect., Land & Natural Resources Div., Robert L. Klarquist, Washington, D.C., John P. Volz, U.S. Atty., New Orleans, La., for Federal.
William R. Pitts, New Orleans, La., for Lafourche Realty Co.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before CLARK, Chief Judge, GOLDBERG and GARWOOD, Circuit Judges.
GOLDBERG, Circuit Judge:
1
Plaintiff-Appellants, small boat fishermen of the Louisiana bayou country (the "Fishermen"), brought suit under The Administrative Procedures Act, 5 U.S.C. Sec. 701 et seq., to challenge permits, granted by the Army Corps of Engineers (the "Corps"), allowing Lafourche Realty Co. ("Lafourche Realty") to erect barriers on its own property, which effectively barred Appellants from their traditional fishing grounds. In the district court, the Fishermen demonstrated that the Corps had failed to consider possible public rights of access when it decided to grant the permits. The district court found that the Corps' decision to grant the permits was "arbitrary and capricious," and issued an injunction ordering the Corps to engage in additional fact-finding. The Fishermen now appeal the district court's denial of their motion for interim attorney's fees.
2
Because this is not an appeal from a final order, we do not have subject matter jurisdiction. We therefore dismiss this appeal, without prejudice to a renewed application for fees at the close of the suit on the merits. See, e.g., Baker v. Bowen, 839 F.2d 1075 (5th Cir.1988).1
I. Facts
3
Since 1921, Lafourche Realty has owned a tract of land east of Bayou Lafourche. In 1948, Lafourche Realty's oil and gas lessee obtained a permit from the Corps to dredge and construct the Tidewater Canal, a six-mile canal connecting Lafourche Realty's property to Bayou Lafourche. Since that time, Lafourche Realty has constructed an extensive network of artificial canals on its property known as the Tidewater Canal System.
4
In 1983 Lafourche Realty applied to the Corps for an additional permit to erect fences at the entrances to the Tidewater Canal System. Lafourche Realty sought to restrict access to the canal system in order to prevent vandalism, poaching, and erosion of their land.
5
In an unfortunate example of agency decision making,2 the Corps granted the requested permits. Lafourche Realty then installed the fences, thereby excluding all unauthorized traffic from the canal system. Small boat fishermen, barred from their traditional fishing grounds brought this suit.3
6
After trial, the district court found the Corps' decision to be "arbitrary and capricious." The court found that the Corps had based its decision on inadequate fact-finding procedures and an inadequate record. As the district court noted, "The administrative record [was] devoid of evidence that the Corps researched the facts to support its conclusion. There is no suggestion that historical, geographical, or top[o]graphical data were compiled or studied to determine whether The Tidewater System obstructed or diverted natural navigable waterways."4 Without invalidating the permits, the court ordered the Corps to engage in fact-finding procedures, to determine whether the Tidewater Canal System obstructed or diverted preexisting natural navigable waterways.
7
The Corps immediately sought review of the district court's order. The Fishermen moved for dismissal of the appeal. A panel of this court, in an unreported decision, held that the order was injunctive in nature and therefore constituted an appealable interlocutory order under 28 U.S.C. Sec. 1292(a)(1). Notwithstanding this decision, the Corps voluntarily dismissed its appeal. The Fishermen then submitted a motion seeking attorney's fees. The district court denied fees without reasons. The Fishermen now appeal that denial of interim fees.
II. Discussion
8
Federal Circuit Courts only have jurisdiction over three types of appeals: (1) final orders, 28 U.S.C. Sec. 1291; (2) certain specific types of interlocutory appeals, such as those where injunctive relief is involved, 28 U.S.C. Sec. 1292(a)(1); and (3) appeal where the district court has certified the question as final pursuant to Federal Rule 54(b), 28 U.S.C. Sec. 1292(b).
9
A denial of attorney's fees, however, is not injunctive or within any of the specific exceptions stated in Sec. 1292, nor has the district court certified the question. We therefore must determine whether the denial of attorney's fees in this case constitutes a final order.
10
Denials and awards of attorney's fees may be appealed separately as final orders after a final determination of liability on the merits.5 Where, however, the case has yet to be heard on the merits,6 or the amount and or propriety of the attorney's fees themselves have not yet been decided,7 an award or denial is not yet final and is therefore unappealable as a strictly final order. Here, the district court had not yet disposed of the merits at the time appeal was taken, and consequently neither the propriety nor the amount of attorney's fees have been determined with finality. This case instead involves a request for interim attorney's fees during the pendency of the case.
11
Section 1291 is not limited exclusively to orders which dispose of entire cases. There is a small class of orders, which finally determine issues separate from the merits of the case, which have been deemed appealable as collateral orders. Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). To be appealable under the Cohen doctrine, an order must meet three requirements. The order "must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978).
12
Whether an order fits within the Cohen doctrine necessarily turns on the facts of the specific case, and different cases in different circuits have reached differing results.8 Not all of the cases can be easily reconciled, many because they were decided prior to Coopers & Lybrand, and many because the court has not examined all three prongs of the test articulated in that case.9
13
Courts applying the test have generally found attorney's fee awards sufficiently separate from the merits of the case to be deemed collateral. White v. New Hampshire Dept. of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982). But see, Holmes v. J. Ray McDermott & Co., 682 F.2d 1143 (5th Cir.1982) (where attorney's fees are inseparable from the merits, they are not collateral and therefore not appealable). The appealability of an award turns, therefore, upon whether the award is conclusively determined, and whether it will be reviewable on appeal from a final judgment.
14
Two cases in the Second Circuit demonstrate the structure of the analysis. Their differing results demonstrate the focus on conclusiveness and reviewability. In Hastings v. Maine-Endwell Central School District, 676 F.2d 893 (2d Cir.1982), the Second Circuit held an order granting interim attorney's fees to be separate and distinct from the merits of the action. They concluded, however that the award in that case would be reviewable after final judgment and held the order unappealable. Later, in McGill v. Secretary of Health & Human Services, 712 F.2d 28 (2d Cir.1983), the same court concluded that, in a case involving a request for fees in a dispute over social security benefits, an award of attorney's fees was appealable because review might prove unavailable after remand to the agency. They stated "if plaintiff is awarded the benefits at the administrative level or chooses not to seek review of a denial of benefits, there will be no further judicial proceedings on which to base a later appeal." Id. at 29; cf. Cheng v. GAF Corp., 713 F.2d 886 (2d Cir.1983).10
15
In this circuit as well, reviewability and conclusiveness have proven dispositive. Furthermore, we apply the three prong test more stringently than the Second Circuit. In Ruiz v. Estelle, 609 F.2d 118 (5th Cir.1980), a class action brought to reform the Texas prison system, we applied the three prong test to determine whether an order awarding attorney's fees fit within the "collateral order" exception to the final order requirement. There, the district court made an interim award of fees to an attorney who was withdrawing from the case. The State of Texas sought to appeal. Judge Rubin noted that, "Because the order is presently not yet final in the sense that it disposes of the litigation, we ... have authority to consider an appeal from it only if jurisdiction could be established under the collateral order doctrine, which treats certain rulings made pendente lite as final orders." Id. at 118.
16
Judge Rubin examined the history of the "collateral order doctrine" and noted that the exception should not be allowed to swallow the rule, saying:
17
After [its] birth the Cohen doctrine, spawned by a desire to avoid the rigidity of the final judgment rule and nurtured by the maternal tendency of appellate courts to protect youthful litigation from early trauma, grew to a strapping youth that threatened to master the statute of its genesis. Many appellate decisions pointed toward the destruction of a genuine finality rule, to be supplanted by "an ad hoc balancing of the needs and perils of review on a case by case basis." 15 C. Wright, A. Miller, E. Cooper, Federal Practice and Procedure Sec. 3913, at 524 (1976). However, appellate courts have recently evidenced a tendency toward less interlocutory cossetting ...
18
Id. at 119. Judge Rubin pointed to the three prong test articulated by the Supreme Court in Coopers and Lybrand as the authoritative hemming in of the Cohen doctrine, and applied it carefully.
19
The panel recognized that the order granting attorney's fees was neither conclusive nor unreviewable, noting that it
20
was manifestly subject to later reconsideration by the Court. Counsel in whose favor the award was made has now returned to the litigation and participated in the trial on the merits. All of the parties agree that at least some components of the award are subject to reconsideration on determination of the merits.... Moreover, all of the issues affecting the propriety of the award may appropriately be reviewed after the final judgment is rendered.
21
Id. Accordingly the court dismissed the appeal.11
22
Applying the three prong test to the facts of this case, we find the order denying attorney's fees distinct from the merits of the case. However, we fail to see how a denial of interim fees is conclusive. Though the district court denied fees in the interim, the propriety and amount of fees will again be open for consideration. If at the close of the case on the merits, or after appeal from the district court, plaintiffs prevail, they will be entitled to compensation "for all time spent in federal court on the prevailing issues both before and after remand." Baker v. Bowen, 839 F.2d 1075 (5th Cir.1988). Indeed, even if the court had awarded fees, the propriety and amount of fees would have remained open until the end of the case on the merits.12 Finally, after a truly final order, appellate review of any prior attorney's fee determination will be available. The district court's denial of fees is therefore neither conclusive, nor unreviewable.
23
The district court in this case has not attempted to certify the question under Rule 54(b). As such, Ruiz controls and the appeal is DISMISSED.
1
Since oral argument the district court has considered the augmented record created by the Corps and has let the permits stand. Nothing we say today has any bearing on whether the district court's order requiring additional factfinding, taken alone, qualifies Appellants as prevailing parties and entitles Appellants to fees for work done prior to the remand, or on whether the position of the government was substantially justified
2
The Corps mailed notice of the permit application to interested parties. The Corps received numerous letters of protest but lost or destroyed many of them, thereby omitting them from the administrative record. In addition, the Corps made no independent investigation of any possible public right of access to the Tidewater Canal System. Instead, it relied primarily on an opinion issued by the Louisiana Attorney General in a "similar matter."
3
The State of Louisiana joined the lawsuit as well, raising issues similar to those of the private plaintiffs
4
In Vaughn v. Vermilion, 444 U.S. 206, 100 S.Ct. 399, 62 L.Ed.2d 365 (1979), the Supreme Court held open the possibility that "[I]f a private citizen on his privately held real property and with private funds creates a system of artificial navigable waterways, in part by means of erosion or destruction of a pre-existing natural navigable waterway, the artificial waterway [might become] part of the navigable waterways of the United States, subject to the use of all citizens." The Supreme Court also left open the possibility that such a "navigational servitude" might be created under Louisiana law. Id. at 208-209, 100 S.Ct. at 400-401
5
See, e.g., Texas State Teacher's Ass'n v. Garland Independent School Dist., 837 F.2d 190 (5th Cir.1988); Leroy v. City of Houston, 831 F.2d 576 (5th Cir.1987)
6
Ruiz v. Estelle, 609 F.2d 118 (5th Cir.1980); Norwood v. Harrison, 563 F.2d 722 (5th Cir.1977)
7
Williams v. Ezell, 531 F.2d 1261 (5th Cir.1976)
8
Awards of interim attorney's fees have been held appealable under the collateral order exception in Angoff v. Goldfine, 270 F.2d 185 (1st Cir.1959); Seigal v. Merrick, 619 F.2d 160 (2d Cir.1980); Cheng v. GAF Corp., 713 F.2d 886 (2nd Cir.1983); Lowe v. Pate Stevedoring Co., 595 F.2d 256 (5th Cir.1979); Memphis Sheraton Corp. v. Kirkley, 614 F.2d 131 (6th Cir.1980); Swanson v. American Consumer Industries, Inc., 517 F.2d 555 (7th Cir.1975); Obin v. International Asso. of Machinists & Aerospace Workers, 651 F.2d 574 (8th Cir.1981); United States v. Baker, 603 F.2d 759 (9th Cir.1979). Awards of attorney's fees have been held not within the collateral order exception and unappealable in Hastings v. Maine-Endwell Cent. School Dist., 676 F.2d 893 (2nd Cir.1982); Alart Associates, Inc. v. Aptaker, 402 F.2d 779 (2nd Cir.1968); Eastern Maico Distributors, Inc. v. Maico-Fahrzeugfabrik, G.m.b.H., 658 F.2d 944 (3rd Cir.1981); In re Underwriters at Lloyd's, 666 F.2d 55 (4th Cir.1981); Ruiz v. Estelle, 609 F.2d 118 (5th Cir.1980); Pflocks v. Firestone Tire & Rubber Co., 634 F.2d 1215 (9th Cir.1980). Denials of interim attorney's fees have been held appealable under the collateral order exception in Sprague v. Ticonic Nat. Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939); Trustees v. Greenough, 105 U.S. (15 Otto) 527, 26 L.Ed. 1157 (1882) (pre section 1291 case); United States Steel Corp. v. United Mine Workers, 456 F.2d 483 (3rd Cir.1972); Preston v. United States, 284 F.2d 514 (9th Cir.1960); In re Derickson, 640 F.2d 946 (9th Cir.1981). Finally, denials of interim attorney's fees have been held outside the collateral order exception in Yakowicz v. Pennsylvania, 683 F.2d 778 (3rd Cir.1982)
9
For example, the law of the Third Circuit is unclear. In Yakowicz v. Pennsylvania, 683 F.2d 778 (3rd Cir.1982), the court held that denial of interim attorney's fees did not fit within the Cohen doctrine, while in Brown v. Secretary of Health & Human Services, 747 F.2d 878 (3d Cir.1984), the same court allowed an appeal from denial of an interim fee award without examining its own jurisdiction. See note 11
10
Dissenting in Cheng, Judge Timbers argued that the order awarding interim fees in that case was neither conclusive nor unreviewable on appeal. Some of the arguments raised apply equally to McGill. We take no position on this dispute, or on whether the court in McGill actually had jurisdiction. We cite these cases only to demonstrate that the dispositive questions are whether a given order is in fact conclusive and unreviewable
11
In Lowe v. Pate Stevedoring, 595 F.2d 256 (5th Cir.1979), a panel of this court allowed a ruling on attorney's fees to be appealed at the close of the damage portion of a case, but while the equitable portion was still pending. The court did not cite Coopers & Lybrand, and did not apply the three prong test. They did find the award distinct from the merits of the case, and conclusive, pointing out that plaintiff had prevailed, and that additional fees would not be forthcoming from the equitable portion of the case. The court did not, however, examine whether the order would be insulated from review on appeal. For that factor we must take the panel at its word. See note 9
More recently, the only denials of interim attorney's fees which have been successfully appealed have been certified as final by the district court under Rule 54(b) and appealed pursuant to 28 U.S.C. Sec. 1292(b). See Young v. Pierce, 822 F.2d 1376 (5th Cir.1987). Indeed, in Sidag Aktiengesellschaft v. Smoked Foods Products, 813 F.2d 81 (5th Cir.1987), where certification was ineffective, we dismissed the appeal.
12
In this circuit, a plaintiff is considered a prevailing party for attorney's fees purposes, only if he or she prevails on "the central issue[,] by acquiring the primary relief sought." Texas State Teachers Ass'n v. Garland Independent School District, 837 F.2d 190, 192 (5th Cir.1988); see also, id. at 195 (Goldberg, J. dissenting). Until a final decision on the merits, it is impossible to tell whether plaintiff has achieved the primary relief sought. In other circuits where plaintiffs are entitled to fees if they "succeed on any significant issue in the litigation which achieves some of the benefit the parties sought in bringing the suit." Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978), an award or denial of interim fees is somewhat more conclusive. In this circuit, however the question remains open until the end of the lawsuit
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365 Mich. 613 (1962)
113 N.W.2d 901
CANDLER
v.
WALLACE CANDLER, INC.
Docket No. 26, Calendar No. 48,689.
Supreme Court of Michigan.
Decided March 16, 1962.
*615 R. Lee Williams, for plaintiff.
Edgar W. Pugh and Harry J. Cohen (Travis, Warren & Nayer, of counsel), for defendants.
CARR, J.
In November, 1956, Wheaton Forsyth Candler instituted a suit for divorce in the circuit court of Oakland county against Margery Fisher Candler. The defendant filed answer and cross-bill, asking in the latter pleading that the court issue an injunction restraining the plaintiff and cross-defendant from molesting or interfering in any manner with cross-plaintiff and the minor child of the parties whose temporary custody had, by prior order, been granted to Mrs. Candler. The injunction further restrained cross-defendant "from selling, assigning, encumbering, hypothecating, mortgaging, concealing, giving away, or in any manner disposing of any of the properties and assets of either or both of the parties hereto."
Service of said injunction was made on Mr. Candler and on the defendants in the present suit with the exception of the Manufacturers National Bank. Thereafter, under date of June 19, 1957, Mr. Candler sought to borrow the sum of $3,500 from said bank, depositing as collateral 360 shares of stock that he owned in defendant Wallace Candler, Inc. In connection with the transaction the said corporation entered into a written agreement to pay the note *616 and redeem the stock if Mr. Candler defaulted in that respect. The instrument in question was executed on behalf of the corporation by defendant Louise Donaldson, also known as Louise Candler, who was the mother of Wheaton F. Candler.
Subsequent to the transaction in question, and on August 31, 1957, Wheaton F. Candler was killed in an airplane accident and his widow was appointed administratrix of his estate. Acting in such capacity she instituted the present suit in equity, alleging in her bill of complaint that Mr. Candler, in pledging the stock referred to as collateral for the loan from the Manufacturers National Bank, acted in direct violation of the injunction issued by the Oakland county circuit court, and that Wallace Candler, Inc., through its representatives, particularly Mrs. Louise Donaldson, conspired with him to commit such violation and aided and abetted him in so doing by executing the agreement above mentioned. It was plaintiff's theory, as set forth in her pleading, that the acts of the decedent Wheaton F. Candler, Wallace Candler, Inc., and defendant Louise Donaldson, were unlawful and resulted in the perpetration of a fraud on the court as well as on the plaintiff individually and as administratrix of the estate. It was specifically alleged:
"That because of the acts and the situation arising therefrom as hereinbefore set forth, the said estate stands to be deprived of a valuable asset as represented by the 360 shares of stock in Wallace Candler, Inc., to the great detriment and damage of your plaintiff and all those interested in said estate including the creditors thereof; further, that your plaintiff is informed and does believe that the said stock represents an interest in the said Wallace Candler, Inc. in excess of $15,000."
The Manufacturers National Bank filed answer alleging in effect that it had no knowledge of the *617 existence of the injunction, service of which admittedly was not made on it. The other defendants by their answers denied the right of plaintiff to seek the equitable relief prayed in her bill of complaint which was that said defendants be required by decree of the court of equity to discharge the encumbrance on the stock pledged by Mr. Candler in his lifetime and to deliver possession thereof to plaintiff as a part of the assets of the estate. Following the hearing in circuit court the suit was dismissed as to the Manufacturers National Bank for the reason advanced in its answer, and decree was entered against Wallace Candler, Inc., in accordance with the prayer of the bill of complaint, it being adjudged therein that said defendant redeem the stock and turn it over to plaintiff free and clear of any encumbrance. From such decree Wallace Candler, Inc., and Louise Donaldson, also known as Louise Candler, have appealed.
The primary question involved in the case is whether plaintiff, as administratrix of the estate of Wheaton Forsyth Candler, is entitled to seek equitable relief for the benefit of said estate, the creditors thereof, and the heirs of decedent. Counsel for plaintiff in his brief has stated such question in the following form:
"Does a conspiracy enabling a decedent, during his lifetime, to violate an injunction, give rise to an actionable fraud for which the administratrix of decedent's estate may seek relief from the court for the benefit of creditors and heirs?"
Necessarily involved is the purpose for which the injunction was issued. Bearing in mind the nature of the case pending in the circuit court of Oakland county, it is apparent that the circuit judge granting the injunction on the application of Mrs. Candler had in mind the protection of her possible rights with *618 reference to the property of the husband in the event of the granting of a decree of divorce with settlement of property interests. Such protection was deemed to require the maintenance of the situation existing at the time of the issuance of the injunction, insofar as possible, to the end that an equitable result with reference to such interests might be reached if a divorce was subsequently granted to either party. The death of Mr. Candler during the pendency of the action disposed of the suit.
Counsel for plaintiff cites and relies on Beith v. Porter, 119 Mich 365 (75 Am St Rep 402), and White v. Wadhams, 211 Mich 658. In the first case cited the plaintiff, who was a judgment creditor of Jonathan Porter, filed suit in equity to reach land claimed to have been purchased and paid for by the debtor but as to which title was taken in the name of the debtor's wife. Following the death of the debtor during the pendency of the suit the bill of complaint was dismissed. This Court affirmed the dismissal on the ground that no lien existed in favor of the plaintiff. The discussion in the opinion with reference to fraudulent conveyances and the duty of an administrator with reference thereto when there is a deficiency of assets in the estate is scarcely applicable to the facts in the instant case. We are not dealing here with a conveyance made by a debtor to defraud his creditors but, rather, with a situation in which it is urged that the violation of an injunction granted to a party litigant for a specific purpose authorizes the administratrix of the estate of the violator of such injunction to maintain an action for the possible benefit of creditors and heirs.
In White v. Wadhams, supra, an injunction was issued in a suit for partnership accounting in order to protect the rights of the plaintiff. Said injunction was violated by defendants, one of whom had not been served but who knew of the injunction. Suit *619 was dismissed as to a third defendant not shown to have had any knowledge of the writ. It will be noted that the plaintiff in the case, who sought the enforcement of the decree, together with an adjudication that defendants were guilty of contempt of court for violating the injunction, was the individual whose rights the injunction sought to protect. What appears to be the general rule in cases of this nature is set forth in 43 CJS, Injunctions § 207, p 938, as follows:
"Transfers and contracts or agreements in violation of an injunction are invalid as to complainant or those claiming under him, and may be set aside except as against an innocent third person or when it appears on final hearing that there was no ground for granting the injunction.
"However, it has been held that a conveyance made in violation of an injunction is not void or inoperative as to anyone except those for whose benefit the injunction was granted, and not as to them where they consented to the making of the conveyance without the dissolution of the injunction. A contract or conveyance in violation of an injunction is valid as against the party making it."
In accordance with the foregoing statement is Herman Bros. v. Sartor, 107 Tenn 235, 237 (63 SW 1120), where it was said:
"We are unable to perceive how an injunction, sued out by Wright, can inure to the benefit of the present complainants. They were strangers to the Wright bill, and their bill, moreover, was not filed until after Wright's debt had been paid. The fact that the conveyance was made by Sartor and wife to Cozart, before the injunction was dissolved, was a matter of which Wright alone could complain. But as already stated Wright was paid and he consented that the conveyance might be made."
*620 In accord with the general rule pertaining to the matter is Cohan v. Shibley, 289 P 169, in which the district court of appeal, first district, division 1, California, summarized the decisions in that State and elsewhere in the following language:
"It is the rule in California, as in other jurisdictions, that an injunction operates strictly in personam (Berger v. Superior Court of Sacramento County, 175 Cal 719 [167 P 143, 15 ALR 373]; Cherokee Nation v. Georgia, 30 US [5 Pet] 1 [8 L ed 25]; Fleckenstein Brothers' Co. v. Fleckenstein, 66 NJ Eq 252 [57 A 1025]; Armstrong v. Kinsell, 164 NC 125 [80 SE 235]; 32 CJ, Injunctions, § 69, p 83; Spelling, Injunctions, § 1), and not against the property (Schmaltz v. York Manfg. Co., 204 Pa 1 [53 A 522, 59 LRA 907, 93 Am St Rep 782].); and while transfers and agreements in violation thereof are invalid as to the complainant or those claiming under him, except as to innocent third persons, and may be set aside (Powell v. Bank of Lemoore, 125 Cal 468 [58 P 83]; Springfield Marine and Fire Ins. Co. v. Peck, 102 Ill 265; Union Trust Co. v. Southern Inland Navigation Co., 130 US 565 [9 S Ct 606, 32 L ed 1043]), it is the rule that the rights of persons not parties to the action are not affected thereby (Moulton v. Parks, 64 Cal 166 [30 P 613]; Harvey v. Smith, 179 Mass 592 [61 NE 217]), except to the extent that certain classes, such as agents, servants, attorneys, aiders, and abettors, and persons represented in the suit may by their acts render themselves amenable to punishment for its violation. Berger v. Superior Court of Sacramento County, supra; Rigas v. Livingston, 178 NY 20 (70 NE 107)."
The circuit court of appeals of the eighth circuit in In re Nevitt, 117 F 448, 458, pointed out the distinction between criminal and civil contempts, saying as to the latter class:
"The parties chiefly in interest in their conduct and prosecution are the individuals whose private *621 rights and remedies they were instituted to protect or enforce."
Among other cases of like import is Standard Roller Bearing Co. v. Hess-Bright Manfg. Co. (DC Del), 264 F 516, which involved an alleged violation of an injunction, issued in the course of receivership proceedings, restraining transactions by a corporation for whom receivers had been appointed. Notwithstanding the injunction a contract was made under which operations were carried on, apparently with beneficial results to the corporation, for some period of time. In commenting on the situation presented, it was said (p 525):
"Did the injunction make the contract void as to the plaintiff? I find no well-settled doctrine that an act done in violation of an injunction is a complete nullity. On the contrary, the usual remedy for breach of an injunction is by proceedings against the offending party for an attachment for contempt, and where the violation has taken the form of a transference of the subject-matter of the litigation, creating an incumbrance against it, entering into a contract affecting it, or delivering possession of it to another, the person guilty of such violation may be required to restore the status to purge himself of the contempt. 2 High on Injunctions (4th ed), §§ 1449, 1461; Murphey v. Harker, 115 Ga 77 (41 SE 585); Ashby v. Ashby, 62 NJ Eq 618 (50 A 473). But the restoration in such cases is not to vindicate the authority of the court, but is for the benefit of the party at whose instance the injunction was granted. Declaring a contract made in violation of an injunction void, which is merely a means of restoring the status, is not for the protection of the court, and therefore required by public policy, but is for the benefit of the person injured by the forbidden act. Such a remedy is civil in its nature, and is obtained upon proceedings instituted by private individuals, and not by the court in the interest of *622 the general public. Thompson v. Pennsylvania R. Co., 48 NJ Eq 105 (21 A 182); Ashby v. Ashby, supra."
Plaintiffs' bill of complaint attacking the validity of said agreement was dismissed and the order entered was affirmed by the circuit court of appeals of the third circuit in Standard Roller Bearing Co. v. Hess-Bright Manfg. Co., 275 F 916.
We think the foregoing decisions indicate clearly the generally accepted principle applicable in cases of the nature of the controversy now before us, and should be regarded as controlling. As before pointed out, the injunction issued by the circuit court of Oakland county was not designed for the protection of Mr. Candler, his estate, his creditors, or his heirs. Rather, its purpose was to protect the cross-plaintiff in the divorce suit. It is obvious that the cross-defendant in that proceeding could not have questioned in his lifetime the action that he took in violation of the injunction. Neither is his estate in position to do so. The authority of the administratrix must be determined accordingly and without reference to the fact that, acting in her individual capacity, she procured the granting of the injunction. We are not here dealing with a conveyance allegedly made for the purpose of defrauding creditors. The purpose for which the injunction was granted is the controlling feature in the case. While not of major significance it may be noted that the rights of creditors will not necessarily be affected by the disposition made. The guardian ad litem appointed by the probate court of Wayne county for a minor child of decedent testified that at the time of the hearing the estate was solvent and that certain claims presented against it were being contested.
*623 Counsel for plaintiff has directed attention to the decision of the circuit court of appeals of the sixth circuit in the case of Candler v. Donaldson, 272 F2d 374. It appears that Mr. Candler had an insurance policy in the Mutual Benefit Life Insurance Company during the pendency of the divorce proceedings. He undertook to change the beneficiary thereof from his wife to his mother. A controversy having arisen with reference to the change in said policy, the insurer filed a bill of interpleader. The appellate court sustained the claim of Mrs. Candler that the transfer was prohibited by the injunction of the circuit court of Oakland county, as well as by prior order that directed Mr. Candler to continue in force during the pendency of the divorce suit all life insurance policies pending a final adjudication of the cause. The decision did not involve the controlling issue in the case at bar. Mrs. Candler was presenting her rights in her individual capacity and the controversy was strictly one as to whether she or the mother of the insured should receive the amount payable under the policy.
The conclusion that plaintiff, as administratrix of the estate of Wheaton Forsyth Candler, is not entitled to maintain the present suit renders unnecessary a discussion of other questions raised by counsel on oral argument and in their briefs. A decree will enter in this Court dismissing the case, with costs to appellants.
DETHMERS, C.J., and KELLY, BLACK, KAVANAGH, SOURIS, OTIS M. SMITH, and ADAMS, JJ., concurred.
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210 P.3d 733 (2007)
HODGE (JAMES)
v.
STATE.
No. 47342.
Supreme Court of Nevada.
September 11, 2007.
Decision without published opinion. Affirmed.
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-391-CR
BURTON CHILDERS APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
------------
MEMORANDUM OPINION
(footnote: 1)
------------
I. Introduction
A jury found Appellant Burton Childers guilty of failure to comply with sex offender registration requirements and assessed punishment at twenty years’ incarceration.
(footnote: 2) In two points, Childers argues that the evidence is legally and factually insufficient to sustain the guilty verdict. We will affirm.
II. Background
In 1998, Childers was convicted of three counts of indecency with his six-year-old daughter and sentenced to prison. Childers was released on December 19, 2001. Upon release, Childers signed a prerelease notification form verifying that he had been informed that he was subject to a lifetime recurring ninety-day verification requirement under Texas’ sex offender registration program. Department of Public Safety records that were introduced at trial show that Childers reported to the Sanger Police Department roughly every ninety days from his release until late January, 2004. On February 6, 2004, less than two weeks after his last verification in Sanger, Texas, the record reflects that Childers began reporting to the Denton Police Department that he lived in Denton, Texas. The DPS records reflect that Childers no longer reported consistently every ninety days. Instead, the DPS records reveal that Childers sometimes reported for verification within weeks of his previous verification and sometimes he reported at intervals greater than ninety days.
(footnote: 3)
Denton Police Department Investigator Scott Miller testified that he was placed in charge of sex offender registration in January, 2006. Miller said that the first time he personally registered Childers was January 24, 2006. Miller stated that less than a month later, on February 21, 2006,
(footnote: 4) Childers updated his registration information—reporting an address change. Miller testified that when a registrant reports an address change, the ninety-day reporting period is reset and registrants are required to verify their information again ninety days from the time they make any address change. Childers updated his address again on April 5, 2006. Miller said that on this date, per the department’s policy, Childers was given a blue card bearing the April 5, 2006 date and was informed that his next verification would be ninety days from that date. Miller testified that Childers failed to verify within the required time and a warrant was issued for Childers’s arrest. Childers was arrested on July 19, 2006. Miller testified that he had no doubt that Childers knew when he was required to report. Denton police officer David Bearden also testified that a registrant who had registered multiple times in Denton should be familiar with Denton’s registration process.
Childers testified that he was familiar with the registration and verification process. Childers stated that he knew he was required to verify his registration within seven days of July 4, 2006. He also said that he had attempted to verify his registration around July 4, 2006, on “two or three” occasions. But Childers also testified that he generally attempted to verify his information before the 19th of every third month because that was “based on when I got out of jail, o[f] prison, I got out [on] the 19th.” The jury found Childers guilty. This appeal followed.
III. Violation of Sex Offender Registration Statute
In two points, Childers argues that the evidence was legally and factually insufficient to prove that he intentionally, knowingly, or recklessly failed to comply with his ninety-day registration requirement.
In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the prosecution in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia
, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Clayton v. State
, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Under this standard, the jury’s inference of intent is afforded more deference than the evidence supporting proof of conduct.
Margraves v. State
, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Circumstantial evidence of a defendant’s guilty knowledge is not “required to meet the same rigorous criteria for sufficiency as circumstantial proof of other offensive elements.”
Id
. (quoting
Brown v. State
, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995)). In determining the legal sufficiency of the evidence to show an appellant’s intent, and faced with a record that supports conflicting inferences, we “must presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflict in favor of the prosecution, and must defer to that resolution.”
Matson v. State
, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party.
Watson v. State
, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006);
Drichas v. State
, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the fact-finder’s determination is clearly wrong and manifestly unjust or whether conflicting evidence so greatly outweighs the evidence supporting the conviction that the fact-finder’s determination is manifestly unjust.
Watson
, 204 S.W.3d at 414–15, 417;
Johnson v. State
, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground, we must determine, with some objective basis in the record, that the great weight and preponderance of all the evidence, though legally sufficient, contradicts the verdict.
Watson
, 204 S.W.3d at 417.
In determining whether the evidence is factually insufficient to support a conviction that is nevertheless supported by legally sufficient evidence, it is not enough that this court “harbor a subjective level of reasonable doubt to overturn [the] conviction.”
Id
. We cannot conclude that a conviction is clearly wrong or manifestly unjust simply because we would have decided differently than the jury or because we disagree with the jury’s resolution of a conflict in the evidence.
Id
. We may not simply substitute our judgment for the fact-finder’s.
Johnson
, 23 S.W.3d at 12;
Cain v. State
, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless the record clearly reveals that a different result is appropriate, we must defer to the jury’s determination of the weight to be given contradictory testimonial evidence because resolution of the conflict “often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered.”
Johnson
, 23 S.W.3d at 8. Thus, we must give due deference to the fact-finder’s determinations, “particularly those determinations concerning the weight and credibility of the evidence.”
Id
. at 9.
An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant’s complaint on appeal.
Sims v. State
, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Moreover, an opinion reversing and remanding on factual insufficiency grounds must detail all the evidence and clearly state why the finding in question is factually insufficient and under which ground.
Goodman v. State
, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001);
Johnson
, 23 S.W.3d at 7.
In Texas, persons with multiple reportable convictions for sexually violent offenses are required to register as sex offenders.
See
Tex. Code Crim. Proc. Ann. arts. 62.001(5)–(6) (Vernon Supp. 2008), 62.058(a), 62.102(a) (Vernon 2006). Texas Code of Criminal Procedure Chapter 62 creates the offense of failure to comply with registration requirements in the following terms: “A person commits an offense if the person is required to register and fails to comply with any requirement of this chapter.” Tex. Code Crim. Proc. Ann. art. 62.102(a). Chapter 62 generally describes persons subject to registration under the chapter as follows: “A person who has a reportable conviction . . . shall register, or if the person is a person for whom registration is completed under this chapter, verify registration . . . with the local law enforcement authority” in the municipality or county “where the person resides or intends to reside for more than seven days.”
Id
. art. 62.051(a) (Vernon 2006);
see id
. art. 62.001(5) (Vernon Supp. 2008). Chapter 62 specifically requires that:
A person subject to registration under this chapter who has for a sexually violent offense been convicted two or more times . . . shall report to the local law enforcement authority . . . not less than once in each 90-day period following the date the person first registered under this chapter to verify the information in the registration form maintained by the authority for that person.
Id
. art. 62.058(a).
For purposes of Code of Criminal Procedure Article 62.058, “a person complies with a requirement that the person register within a 90-day period following a date if the person registers at any time on or after the 83rd day following that date but before the 98th day after that date.”
Id
.
Although the sex offender registration statute does not expressly require proof of a mental state for prosecution of a failure to properly maintain registration, the indictment in this case alleged that Childers “intentionally, knowingly, or recklessly” failed to register. Texas courts which have reviewed other convictions under Chapter 62 for sufficiency have treated the
mens rea
requirement in the indictments or charges as going to the actual knowledge of the defendant’s duty to register.
See, e.g.
,
Rodriguez v. State
, 45 S.W.3d 685, 688 (Tex. App.—Fort Worth 2001)
aff'd
, 93 S.W.3d 60 (Tex. Crim. App. 2002);
White v. State
, 988 S.W.2d 277, 279–80 (Tex. App.—Texarkana 1999, no pet.);
see also
Moore v. State
, 38 S.W.3d 232, 235 (Tex. App.—Texarkana 2001, pet. ref’d) (example of failure-to-register indictment without
mens rea
requirement).
The evidence at trial showed that Childers verified his registration information on April 5, 2006, and that, given the ninety-day requirement plus the seven-day grace period, he needed to report again before July 11, 2006.
(footnote: 5) By July 17—the date alleged in the indictment—Childers, admittedly, had not verified his registration. Childers claims, however, that he did not know of the July 11, 2006 verification requirement because he claims that his appearance on April 5, 2006, was for an address change and not a ninety-day verification. He also claims that the blue card given to him by Miller on April 5 failed to inform him that his verification requirement had been reset by the change in address. Further, Childers argues that he expected (and he testified as such) that his next required registration would fall on the 19th of the month—a date consistent with a three month interval based on his release from prison on December 19, 2001. Thus, Childers argues, the State did not prove that he “intentionally, knowingly, or recklessly” violated the law. We disagree.
Childers’s claim that the evidence is insufficient to prove that he “intentionally, knowingly, or recklessly” failed to register is belied by his own testimony that he had registered properly over the past six years and that he made attempts to register prior to July 11, multiple times “around the 4th or 5th (of July).” He also testified that he had always kept up with his registration, and that the only time he had failed to do so during the previous six years was, “just this one time (referring to his failure to verify his registration on July 11, 2006.).” Additionally, Miller testified that he informed Childers his ninety-day period had been reset with the address change and Bearden testified that—given the number of times Childers had verified registration in Denton—Childers was familiar with the verification procedures.
After reviewing the evidence in the light most favorable to the verdict, we hold that the jury could have rationally found beyond a reasonable doubt that Childers intentionally, knowingly, or recklessly failed to register under Chapter 62.
See
Clayton
, 235 S.W.3d at 778.
Furthermore, we hold that the evidence contrary to Childers’s conviction is not so greatly outweighed by the evidence supporting the conviction that the jury’s determination was manifestly unjust.
See
Watson
, 204 S.W.3d at 414–15, 417
. We overrule both of Childers’s points.
IV. Conclusion
Having overruled both of Childers points, we affirm the trial court’s judgment.
DIXON W. HOLMAN
JUSTICE
PANEL: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
DO NOT PUBLISH
Tex. R. App. P.
47.2(b)
DELIVERED: October 9, 2008
FOOTNOTES
1:See
Tex. R. App. P. 47.4.
2:See
Tex. Code Crim. Proc. Ann. art. 62.102(a)(3) (Vernon 2006).
3: Childers explains in his brief that two of the intervals that are greater than ninety days were the result of him being incarcerated on unrelated charges. The date in the indictment indicates the offense underlying this appeal concerns a failure to verify “on or about the 17th of July, 2006.” Childers does not argue here, nor did he at trial, that he was incarcerated during July 2006.
4:The DPS record actually shows that Childers verified his information on February 20, 2006.
5:Miller testified that ninety days from the April 5 address change would have been July 5, 2006. Bearden said that ninety days from April 5, 2006, would have been July 4, 2006. This court has counted the days and finds that ninety days from the April 5 address change would be July 4. Given the seven-day grace period, Childers would have been required to verify his registration no later than July 11, 2006. It is important to note that the warrant was not issued until July 17, 2006. Thus, even if Miller’s misstatement of July 5, 2006, was correct, Childers still would have been required to verify his registration no later than July 12, 2006.
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765 F.2d 150
Steinman, By and Through Steinmanv.U.S.
84-6138
United States Court of Appeals,Ninth Circuit.
6/7/85
1
S.D.Cal.
AFFIRMED
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J-S38008-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALISON K. HILL
Appellant No. 2137 MDA 2014
Appeal from the Judgment of Sentence Entered on November 20, 2014
In the Court of Common Pleas of Perry County
Criminal Division at No.: CP-50-CR-0000428-2008
BEFORE: WECHT, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY WECHT, J.: FILED JULY 20, 2015
Allison K. Hill appeals the judgement of sentence that was entered on
November 20, 2014, following revocation of her probationary sentence for
two counts of forgery,1 and after being re-sentenced to two to five years’
imprisonment on each count, with both sentences running concurrent with
each other. We affirm.
The trial court summarized the relevant factual and procedural history
of this case as follows:
On July 15, 2009, [Hill] entered a guilty plea to two (2) counts of
Forgery, Felonies of the Third Degree, in violation of Title 18
§ 4101(a)(2). The [c]ourt sentenced [Hill] to five (5) years of
probation with the Perry County Probation Department. [Hill]
was further ordered at that time to submit to a Drug and Alcohol
Evaluation and to follow all recommendations resulting from that
____________________________________________
1
18 Pa.C.S. § 4101(a)(2).
J-S38008-15
evaluation. On that same date, [Hill] [] entered a guilty plea in
another case docketed at CR 185 of 2009, to one (1) count of
Criminal Attempt, Access Device Fraud, a Felony of the Third
Degree, in violation of Title 18 § 901(a) and § 4106. The [c]ourt
sentenced [Hill] in that case to two (2) years Probation.
On June 12, 2012, Perry County Probation issued a detainer
after [Hill] received new charges in Cumberland County. On
March 20, 2013, the [c]ourt re-sentenced [Hill] to the State
Intermediate Punishment Program (“SIP”) under docket CR 185
of 2009. On December 30, 2013, [Hill] was expelled from the
Program after she signed out of her outpatient treatment center,
Promise Place, and failed to return. As a result, the [c]ourt held
a SIP revocation hearing and on July 28, 2014, re-sentenced
[Hill] to nine (9) to twenty-three (23) months incarceration
under docket CR 185 of 2009. Due to [Hill’s] incarceration since
December 2013, [Hill] was released on July 28, 2014. On
November 4, 2014, another detainer was issued after [Hill]
admitted to drug usage and failed to appear for appointments
with her Probation Officer.
* * *
In this case, on July 15, 2009, [Hill] signed the Rules and
Regulations and Conditions Governing Adult Probation as
witnessed by her Probation Officer, Michelle Orris. The Gagnon
II[2] Petition, filed November 19, 2014, indicates that [Hill]
violated No. 4 of these Rules and Regulations, requiring that she
not indulge in the use, sale, or distribution of narcotics o[r]
drugs of any form. On September 15, 2014, [Hill] admitted that
she was using drugs to her Supervising Probation Officer in
Cumberland County. [Hill] indicated that for the past month she
was using 1-2 heroin bags a day. [Hill] further admitted to her
Probation Officer in Dauphin County that she had been using 25-
30 bags since August of 2014. At the Violation Hearing on
November 20, 2014, [Hill’s] Probation Officer, Michelle Orris also
indicated that these admissions were only one month after
[Hill’s] release from her previous re-sentence. Finally, when
[Hill] was detained by Perry County Probation on November 4,
2014, her drug test was positive for 753 [ng]/ml of heroin, as
well as 75 [ng]/ml Buprennorphine.
____________________________________________
2
See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
-2-
J-S38008-15
The Gagnon II Petition further averred that [Hill] also violated
No. 1 of the Rules, Regulations and Conditions of Probation
requiring that she report to her Probation Officer when directed
and that she be available for visits any time or any place. [Hill’s]
Cumberland County Probation Officer informed Perry County
Probation that she was unable to locate [Hill] after directing that
she enter drug treatment on September 15, 2014. Probation
Officer Janette Medvidovich made several attempts to contact
[Hill] to no avail. While Officer Medvidovich was able to speak
with [Hill’s] mother on two occasions and informed her that [Hill]
must report to Perry County Probation, [Hill] still refused to
contact the Office. [Hill] was not located until she appeared for
an appointment with Dauphin County Probation on November 4,
2014.
Trial Court Opinion (“T.C.O.”), 2/26/2015, pages 1, 3, and 4 (unpaginated).
Because of this, Hill was found to have violated the terms and conditions of
her probationary sentence on November 20, 2014. Her probationary
sentence was revoked by the trial court and she was re-sentenced to two to
five years of incarceration in a state correctional institution. The court
ordered this sentence to run concurrently with the sentence at CR 185 of
2009. Hill received credit for time served from November 4, 2014. Hill did
not file a post-sentence motion.
Hill filed a timely notice of appeal. By order dated December 22,
2014, the trial court directed that she file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On January 19,
2015, Hill filed her concise statement, alleging that the trial court abused its
discretion in re-sentencing Hill to a prison term, rather than providing her
with the opportunity to receive drug rehabilitation or to serve her sentence
in local jail. Brief for Hill at 21. Additionally, she avers that, because her
-3-
J-S38008-15
probation violations are less egregious than receiving new charges, her new
sentence was harsh and excessive. Id. at 22.
Hill raises the following issue for our consideration:
1. Did the trial court abuse its discretion in re-sentencing the
defendant to an incarcerative state correctional institution
sentence of minimum two (2) years, maximum five (5) years
on two counts of Forgery, Felonies of the Third Degree?
Brief for Hill at 7.
Our standard for reviewing the discretionary aspects of a sentence is
as follows:
In general, the imposition of sentence following the revocation of
probation is vested within the sound discretion of the trial court,
which, absent an abuse of that discretion, will not be disturbed
on appeal.
Commonwealth v. Edwards, 71 A.3d 323, 327 (Pa. Super. 2013). Hill
argues that the trial court abused its discretion by imposing a high-end
standard range sentence in a state prison. By imposing such a sentence, Hill
cannot receive local drug treatment rehabilitation. According to Hill, the
result was an excessive sentence, in light of the fact that the violations of
the terms of her probation were technical in nature, such as not checking in
with her probation officer, and are not based upon new charges. Therefore,
she argues that the result was an abuse of the court’s discretion. Brief for
Hill at 18.
Hill’s argument challenges the discretionary aspects of her sentence.
Hill is not entitled as of right to a review of such challenge. Before we have
-4-
J-S38008-15
jurisdiction over such a claim, an appellant must satisfy the following
protocol:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code, 42 Pa.C.S. § 9781(b).
Commonwealth v. Levy, 83 A.3d 457, 467 (Pa. Super. 2013). Hill has
filed a timely notice of appeal and has included in her brief a Rule 2119(f)
statement. However, Hill did not preserve her discretionary aspects of
sentence challenges, either at her re-sentencing or in a post-sentence
motion.
The sentencing judge explained to Hill that she had ten days from
November 20, 2014, to file any post-sentence motions. Notes of Testimony
(“N.T.”), 11/20/2014, at 13. At the resentencing hearing, Hill did not raise
the argument that she now presents to this Court. Nor did she file a post-
sentence motion raising the issue. Consequently, Hill has waived her
challenges to the discretionary aspects of her sentence, and thus has failed
to invoke our jurisdiction over such claims. See Commonwealth v.
McAfee, 849 A.2d 270, 275 (Pa. Super. 2004). (“Issues challenging the
discretionary aspects of sentence must be raised in a post-sentence motion
or by presenting the claim to the trial court during the sentencing
proceedings.”); Pa.R.A.P. 302(a) (“Issues not raised in the lower court are
-5-
J-S38008-15
waived and cannot be raised for the first time on appeal.”). Consequently,
we will not review the merits of Hill’s claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2015
-6-
| {
"pile_set_name": "FreeLaw"
} |
548 So.2d 547 (1988)
Anthony Ray HINTON
v.
STATE.
6 Div. 225.
Court of Criminal Appeals of Alabama.
June 14, 1988.
Rehearing Denied August 23, 1988.
*549 Sheldon Perhacs, Birmingham, for appellant.
Don Siegelman, Atty. Gen., and Martha Gail Ingram and William D. Little, Asst. Attys. Gen., for appellee.
*550 TAYLOR, Judge.
Anthony Ray Hinton was convicted of the capital murders of John Davidson and Thomas Wayne Vason, in violation of § 13A-5-40(a)(2), Code of Alabama 1975, and was sentenced to death by electrocution for each conviction. Five issues are raised on appeal.
The two robbery-homicides which are the basis for the charges, which were brought under separate indictments, occurred on separate dates. The first robbery-homicide occurred on February 23, 1985, at Mrs. Winner's fried chicken restaurant, located at 737 29th Street, South, in Birmingham. This restaurant is approximately two and one-half blocks from the Red Mountain Expressway. Shortly after midnight on the morning of February 24, 1985, Thomas Elliott, an exterminator, arrived at Mrs. Winner's. Finding the door unlocked, Mr. Elliott entered the restaurant and called out. Mr. Elliott saw a light on in the back of the restaurant and headed toward it. Next to the cooler he found John Davidson, the restaurant's assistant manager, lying in a pool of blood. Mr. Davidson had been shot and was bleeding very badly. Mr. Davidson's false teeth were on the floor of the cooler. Blood was all over the door of the cooler. Mr. Elliott immediately called the 911 emergency number and summoned the Birmingham Police Department, as well as the rescue facilities of the Birmingham Fire Department, to the restaurant.
After assistance had been summoned, Mr. Davidson got up and started walking around the restaurant, but was unresponsive to Mr. Elliott's presence. Because he was frightened, Mr. Elliott went outside the restaurant to await the arrival of the paramedics. Moments later, the police and paramedics arrived, almost simultaneously. The paramedics administered emergency treatment to Mr. Davidson, then transported him to Medical Center East Hospital.
While the paramedics were attending Mr. Davidson, the police began their investigation of the incident. In the course of their investigation, the police determined that there was no sign of forced entry into the restaurant. However, the top of the safe was off and the safe was empty. A review of the restaurant's business records revealed that $2,100 was missing from the safe. No fingerprints were found at the scene. Mr. Davidson's truck was parked outside the restaurant and his wallet was on the front seat of the truck. Based on their investigation, the police concluded that Mr. Davidson, who had been alone in the restaurant, was accosted by an unknown gunman as he left the restaurant, forced to re-enter the restaurant, open the safe, and give the armed robber the cash contents of the restaurant's safe, and was then directed into the restaurant's cooler and shot twice in the head by the unknown robber.
Meanwhile, the victim, Mr. Davidson, was undergoing extensive surgery at Medical Center East, but to no avail; he died on February 25, 1985. During the course of the surgery, a .38 caliber bullet was removed from Mr. Davidson's head. This projectile was subsequently turned over to the Alabama Department of Forensic Sciences for its examination. Dr. Robert Brissie, chief coroner of Jefferson County, performed the autopsy on the victim. His examination revealed that Mr. Davidson suffered two gunshot wounds to the head. One bullet penetrated beneath his right eye and the other bullet entered approximately seven inches from the top of his head. Both wounds were to the right side of Mr. Davidson's face. It was Dr. Brissie's opinion that Mr. Davidson died as a result of gunshot wounds to his head. During the course of the autopsy, the second bullet was removed from the victim's head and turned over to the Department of Forensic Sciences for examination.
The second robbery-homicide occurred on July 1, 1985, at the Captain D's restaurant in Woodlawn, in the eastern section of Birmingham. This restaurant is located two to two and one-half blocks from the interchange of Interstate Highways 20 and 59. Earnest Horn left his job at Captain D's on the night of July 1, 1985, around 11:30 p.m., leaving the assistant manager, Thomas Wayne Vason, alone in the restaurant *551 counting the money taken in that day and preparing to call in his report of the day's sales to the Shoney's regional office. (Captain D's restaurants are a subsidiary of the Shoney's restaurant chain.) When Mr. Horn left the restaurant the alarm system was plugged into the phone. At approximately 12:45 a.m. on July 2, 1985, Mr. Vason called in his sales total to the regional office, then left the restaurant.
At 7:45 a.m. on July 2, 1985, Reuben Valdez, manager of the Captain D's in Woodlawn, arrived at the restaurant in preparation for the day's opening. He noticed Mr. Vason's car, but at the time thought nothing of it. Mr. Valdez entered the restaurant and saw that the safe was open. He then saw Mr. Vason's body lying in the cooler. Mr. Vason had been shot and appeared dead to Mr. Valdez. The police were immediately summoned. Mr. Valdez then called the area supervisor of Shoney's to report the crimes. Birmingham police officers first arrived at approximately 7:50 a.m. Additional investigators arrived shortly thereafter. Police found on the floor next to the open safe a piece of paper on which was written the combination to the safe. Mr. Vason's wallet was also found nearby on the desk; it contained $165 in bills of various denominations. A review of the business records revealed that $650 was missing from the safe. Additionally, the telephone alarm system was unplugged. There was, again, no sign of forced entry into the restaurant. The side kitchen door to the restaurant, the one nearest to the safe (on which a smudged fingerprint was found), could be opened only from the inside or the outside with a key. Mr. Vason's keys were found in the kitchen area. Based on their investigation, the police concluded that Mr. Vason, upon leaving the restaurant, was accosted by an unknown gunman and forced to re-enter the restaurant, open the safe, and give the armed robber the cash contents of the restaurant's safe, and then was directed into the restaurant's cooler and fatally shot twice in the head by the unknown robber.
Dr. Pat Garceau, a medical examiner in the Jefferson County Coroner's Office, determined that Mr. Vason was dead at the scene of the crime. Dr. Garceau's autopsy of the victim revealed that Mr. Vason had suffered two gunshot wounds to the head. One gunshot wound entered the right cheek of Mr. Vason, and the other entered one and one-half inches from the top of his head. Further testing performed on the victim by Dr. Garceau determined the time of death to be between 12:30 a.m. and 2:30 a.m. on July 2, 1985. It was Dr. Garceau's opinion that Mr. Vason's death was the result of a gunshot wound which penetrated his brain.
During the course of the autopsy, two .38 caliber bullets were recovered from the body of Mr. Vason. Both bullets were turned over to the Department of Forensic Sciences for its examination. The .38 caliber bullets which were recovered from the bodies of Mr. Davidson and Mr. Vason were later examined by firearms experts in the Department of Forensic Sciences to determine if they had been fired from the same weapon. Examination by these experts revealed that the bullets taken from the head of Mr. Davidson and the bullets recovered from the head of Mr. Vason were fired from the same weapon. Further similarities were present, in that both victims had been shot twice in the head, and both victims, at some time during the course of the robbery, were placed in the walk-in cooler of the restaurant. Moreover, during the investigation of both robberies, fingerprint technicians examined areas of the restaurant and were unable to find any latent fingerprints which could lead to the arrest of a suspect. Thus, without any further leads, the police department's investigation was at a standstill.
Later in the month of July, however, Birmingham police investigators working on these cases got their first big break. On July 25, 1985, Sidney Smotherman, who was a night manager of Quincy's Family Steak House restaurant in Bessemer, survived a robbery which fit the pattern of the Mrs. Winner's and Captain D's robbery-homicides. Mr. Smotherman told Bessemer police he was working the night shift at Quincy's in Bessemer on July 24, 1985. *552 Quincy's is located approximately four to five blocks from Interstate 59. Upon closing, however, several employees who were on the clean-up detail that night exited the building at the same time as Mr. Smotherman, approximately 12:14 a.m. on July 25, 1985. Mr. Smotherman got into his 1985 silver Pontiac Fiero and drove to the nearby Food World. Two other employees of Quincy's also stopped by Food World after work to pick up some items before going home for the night. One of the employees noticed a "strange looking guy" inside the store. The man seemed strange because he was not shopping and kept putting his hand up to his face in an apparent attempt to hide his face. This strange man did not make a purchase, but instead followed Mr. Smotherman outside the store. The receipt from Mr. Smotherman's purchases showed that Mr. Smotherman exited Food World at 12:26 a.m. on July 25, 1985.
After leaving Food World, Mr. Smotherman got into his car and began driving home. He had gone less than a mile down the road, when his car was bumped from the rear while he was stopped at a traffic light. Mr. Smotherman and the other driver, whom he identified as the defendant, got out of their cars to survey the damage. Having satisfied himself that there ws no damage to his car, Mr. Smotherman got back into his car and prepared to drive off, but was prevented from doing so when the other man pulled a gun on him. The gunman ordered Mr. Smotherman to get into the front seat of the gunman's car, a large, dark-colored, mid-70's model. After parking Mr. Smotherman's car, the gunman walked back to his car carrying the gun and a white shirt or towel in his hand. He told Mr. Smotherman that he had been waiting for him and that he had to be in Atlanta in three hours.
The gunman then drove to Quincy's, pointed his gun at Mr. Smotherman, and told him they were going inside. Mr. Smotherman was ordered to get the gunman everything out of the safe except the pennies. After he had all the money, the gunman asked Mr. Smotherman where the cooler was located. Mr. Smotherman was then instructed to enter the cooler. Remembering from news accounts of the Mrs. Winner's and Captain D's robbery-homicides that the managers had been killed inside the coolers, Mr. Smotherman realized that this could be the same person and very likely he was going to be killed. He requested that the gunman put him in the storage room where the canned goods and vegetables were kept, as it was not as cold in that room. The gunman agreed to Mr. Smotherman's request and ordered him into the storeroom. As Mr. Smotherman walked into the room, he turned and saw the gunman pointing a pistol at his head. He ducked and threw his hands up just as two shots were being fired. As he was falling, he kicked the door shut, and as it closed it locked automatically, thus preventing the robber from coming into the room. One of the bullets hit Mr. Smotherman in the finger and then grazed his head. After waiting about ten minutes, Mr. Smotherman left the storeroom, went next door to the Motel 6, and called the police. Mr. Smotherman was taken to the hospital for treatment. While medical personnel were examining and treating Mr. Smotherman's injuries, they discovered that one of the bullets fired at him by the robber had ricocheted off of something and fallen into his shirt pocket. This bullet, along with the bullet recovered from the storeroom, was turned over to the Department of Forensic Sciences for its examination. Upon examination, it was determined by the forensic experts that these two bullets were fired from the same weapon that had fired the bullets which caused the deaths of John Davidson and Thomas Wayne Vason.
Police investigators could not lift any fingerprints from Mr. Smotherman's car or from inside the restaurant. Mr. Smotherman was, however, able to provide police with a detailed description of the robber and assisted in constructing a composite drawing of the suspect. On July 30, 1985, Mr. Smotherman was shown a photographic array, and within a few seconds he picked up the defendant's photograph and stated, "This is him." At trial Mr. Smotherman identified the defendant as the gunman who robbed and then shot him. Mr. *553 Smotherman's co-worker also identified the defendant Anthony Ray Hinton as the "strange" man he had seen in Food World just minutes before the robbery/shooting.
Police investigators also discovered that approximately two weeks before the Quincy's robbery, the defendant had approached Reginald White, an employee of Quincy's in Bessemer, in Hoover at the location of his second job. Mr. White had not seen the defendant in some four years. At the time they had last seen each other, the defendant was a frequent patron of Quincy's. The defendant asked Mr. White if he was still working at Quincy's. Mr. White replied, "yes." The defendant also asked if "Mr. Don" was the manager. Mr. White replied no, that the Quincy's in Bessemer had a new manager who had just bought a new Fiero. The defendant also inquired as to what time the restaurant closed.
On July 31, 1985, Sergeant Clyde Amberson of the Jefferson County Sheriff's Department went to the defendant's home in Walker county. Sergeant Amberson was accompanied by an investigator from the Walker County District Attorney's Office. The defendant was informed that they had a warrant for his arrest, placed him under arrest on a robbery charge, and informed him of his Miranda rights. The defendant gave permission for his car and his bedroom to be searched. No incriminating evidence was found in either place. Sergeant Amberson asked defendant's mother if she had a gun in the house. She answered affirmatively. However, when she opened the kitchen drawer to get the gun, it was gone. She then went into the back bedroom and returned with a pistol. Mrs. Hinton gave the officers the gun and two bullets taken from the gun.
The gun given to police investigators by the defendant's mother, a .38 caliber Smith & Wesson pistol, was turned over to the State Department of Forensic Sciences for its examination. As has been previously stated, two bullets were fired at each of the three victims involved in the aforementioned robberies. Each of these bullets was recovered and turned over to the Department of Forensic Sciences for examination. Expert examination of these bullets established that all six of the bullets were fired through the same weapon. The gun recovered at the defendant's home was test-fired by these same forensic experts and it was determined that this was the weapon through which all of the bullets recovered from these three robbery investigations were fired. The defendant was then arrested and charged with capital murder in the deaths of John Davidson and Thomas Wayne Vason.
The defendant maintained that at the time of the Quincy's robbery he was at his job at the Bruno's warehouse in Ensley, and at trial he presented testimony to that effect. Further testimony was presented by the defendant himself, who denied any involvement with any of the three incidents. The defense also called expert witness Andrew Payne, a consulting engineer with some expertise in firearms identification. Mr. Payne stated that he examined each of the bullets recovered from the three incidents and the weapon recovered from the defendant's home. It was his conclusion that no determination could be made that the bullets had been fired from that weapon.
I
The defendant first contends that the trial court committed reversible error by consolidating the two cases for trial, and then by not granting his motion to sever made at the conclusion of the trial.
Rule 15.3 of our Rules of Criminal Procedure states the following with respect to the joinder or consolidation of offenses:
"(a) Joinder. Two or more offenses may be jointed in an indictment, information, or complaint, if they:
"(i) are of the same or similar character; or
"(ii) are based on the same conduct or are otherwise connected in their commission; or
"(iii) are alleged to have been part of a common scheme or plan.
"Offenses shall not be joined in the same count of an indictment or information. Felonies and misdemeanors may be *554 joined in separate counts of the same indictment or information.
"(b) Consolidation. If a defendant has been charged in separate indictments, informations, or complaints, the court, on its own initiative or on motion of either party, may, not later than seven days prior to trial, order that the charges be tried together if the offenses could have been joined in a single indictment, information, or complaint. Proceedings thereafter shall be the same as if the prosecution initially had been under a single indictment, information, or complaint. However, the court shall not order that the offenses be tried together without first providing the defendant and the prosecutor an opportunity to be heard."
Our rule on joinder and consolidation of criminal offenses is similar to Rule 8(a) of the Federal Rules of Criminal Procedure. Langham v. State, 494 So.2d 910, 915 (Ala.Cr.App.1986). Rule 8(a), Fed.R.Crim.P., provides in pertinent part as follows:
"Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same acts or transactions connected together or constituting parts of a common scheme or plan."
Additionally, Rule 13, Fed.R.Crim.P., states that "The court may order two or more indictments ... to be tried together if the offenses ... could have been joined in a single indictment." Because this state's joinder rules are based on the federal joinder rules, we have, in effect, adopted these federal rules. It is settled law in this state that when the legislature adopts a federal statute, it also adopts the construction which the federal courts have placed on that statute. Ex parte Huguley Water System, 282 Ala. 633, 213 So.2d 799, 804 (1968). See also Committee Comment to Rule 1, Ala.R.Civ.P.
Clearly, joinder of two classes of offenses of the same or similar character is correct. United States v. Cartwright, 632 F.2d 1290, 1293-94 (5th Cir.1980); Crawford v. State, 485 So.2d 391, 394 (Ala.Cr.App.1986). Joinder of offenses is also correct where the counts so joined refer to the same type of offenses occurring over a relatively short period of time, and the evidence as to each count overlaps. United States v. Shearer, 606 F.2d 819, 820 (8th Cir.1979). Moreover, the rule permitting joinder is not limited to crimes of the "same" character, but also covers those of "similar character," which means nearly corresponding, resembling in many respects, or having a general likeness. United States v. Werner, 620 F.2d 922, 926 (2d Cir.1980). See also 2 LaFave and Israel, Criminal Procedure § 17.1(a), (b) (1984).
Our examination of the evidence in the case at bar convinces us that consolidation of these offenses was correct. Both of these crimes were of the same or similar character, that is, they were robberies of fast food restaurants and murders of the night managers. Both crimes took place generally in the same part of Birmingham. Both crimes were committed at restaurants located near a major expressway or interstate. Both crimes occurred late at night when the night managers were alone at the restaurant. Both crimes were committed by someone who waited until the night manager closed the restaurant and left the building, and who then forced the night manager to unlock the restaurants, thus leaving no sign of a forced entry. Both crimes were committed by someone who was cunning enough to leave no fingerprints. Both crimes were committed by someone who was after large amounts of cash, such as those found in the restaurants' safes, and who left the victims' wallets untouched. Both crimes were committed by someone who forced the night managers into the restaurants' coolers and then shot the managers twice in the head to kill them. Finally, both crimes were committed with the same .38 caliber gun. It is obvious that the defendant had a common plan, which was to rob fast food restaurants, put the manager in the cooler and then kill him, thus leaving no witnesses and no fingerprints from which he could be *555 identified. Indeed, as we have stated in Crawford v. State, supra, 485 So.2d at 394, "the case at bar is a `classic case' for joinder."
We must now consider, however, if the consolidation of these two cases, while proper, was so prejudicial as to deprive the defendant of a fair trial.
The grounds for severance of consolidated indictments are stated in Rule 15.3(d), A.R.Crim.P.Temp., which provides as follows:
"(d) Severance grounds. If the court finds that by a joinder of offenses in an indictment, information, or complaint, or by consolidation for trial, as provided in this rule, a defendant or the state may be prejudiced to the extent that a fair trial cannot be afforded, the court shall order an election or separate trials of counts or charges or provide whatever other relief justice may require. Without a finding of prejudice, however, the court may, with the agreement of the parties, order an election or separate trials of counts or charges."
This rule is again taken from the Federal Rules of Criminal Procedure. Rule 14 of those rules states in pertinent part: "If it appears that a defendant ... is prejudiced by a joinder of offenses ... the court may order separate trials ... or grant whatever other relief justice requires."
The burden of proof is on the defendant to demonstrate specific and compelling prejudice which the trial court cannot protect against and which causes him to receive an unfair trial. United States v. Butera, 677 F.2d 1376, 1385 (11th Cir.1982), cert. denied, 459 U.S. 1108, 103 S.Ct. 735, 74 L.Ed.2d 958 (1983). It is only the most compelling prejudice, against which the trial court will not be able to afford protection, that will be sufficient to show the court abused its discretion in not granting a severance. United States v. Perez, 489 F.2d 51, 65 (5th Cir.1973), cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974). Moreover, a defendant seeking to overturn a denial of severance must demonstrate specific prejudice which resulted from the denial. United States v. Walker, 456 F.2d 1037, 1039 (5th Cir.1972). A mere showing of some prejudice is insufficient. United States v. Wilson, 657 F.2d 755, 765 (5th Cir.1981), cert. denied, 455 U.S. 951, 102 S.Ct. 1456, 71 L.Ed.2d 667 (1982); United States v. Staller, 616 F.2d 1284, 1294 (5th Cir.), cert. denied, 449 U.S. 869, 101 S.Ct. 207, 66 L.Ed.2d 89 (1980).
"With respect to prejudice of the defendant, it is [generally] likely to fall into one of three categories: `(1) he may become embarrassed or confounded in presenting separate defenses; (2) the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime or crimes charged; or (3) the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately it would not so find.'"
2 LaFave and Israel, supra, Criminal Procedure at § 17.1(c). However, the existence of alleged prejudice from consolidation of indictments for trial is dependent upon particular facts and circumstances of each case and must be weighed against the interests of trial convenience and economy of judicial and prosecutorial resources. United States v. Werner, supra, 620 F.2d at 928; Smith v. United States, 357 F.2d 486, 489 (5th Cir.1966); Glanton v. State, 474 So.2d 154, 155 (Ala.Cr.App.1984), rev'd on other grounds, 474 So.2d 156 (Ala.1985).
As the defendant's defense to both charges was the same, i.e., mistaken identity, there was no chance that he could have become embarrassed or confounded by presenting separate defenses. Moreover, where, as in the instant case, the nature of the offenses or of the evidence is not of such a character or is not so complicated that a jury could not reasonably be expected to separate the indictments and to evaluate the evidence properly and individually on each separate charge, the severance motion is due to be denied. United States v. Harris, 458 F.2d 670, 673 (5th Cir.), cert. denied, 409 U.S. 888, 93 S.Ct. 195, 34 L.Ed.2d 145 (1972). Neither does *556 mere speculation that the jury will not follow the instructions of the trial court with respect to compartmentalizing the evidence justify a severance. United States v. Borish, 452 F.Supp. 518, 524 (E.D.Pa.1978). Nor is severance justified on the grounds that the jury will cumulate evidence introduced on all counts unless prejudice flowing from consolidation of the indictments is clearly beyond the curative powers of cautionary instructions by the trial court. United States v. Morrow, 537 F.2d 120, 136 (5th Cir.1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977).
In the instant case we find that the defendant has failed to demonstrate the requisite specific and compelling prejudice as a result of the joint trial of the two indictments, especially in light of the fact that had these two cases been tried separately, in each trial evidence of the other charged crime would have been admissible under the plan, design, scheme, or system and identity exception to the general exclusionary rule. Nicks v. State, 521 So.2d 1018, 1025-28 (Ala.Cr.App.1987), aff'd, 521 So.2d 1035 (Ala.1988). Therefore, as identity would have been at issue in each crime, evidence of the other charged crime would have been admissible to shed light on the identity of the perpetrator of the charged crime. We note that the defendant's contention that evidence of the other charged crime would not have been admissible because his identity was "not established without dispute" in either case must fail because a defendant's involvement or guilt of other crimes unrelated to the crime charged need not be proved beyond a reasonable doubt for such to be admissible. Smith v. State, 401 So.2d 185 (Ala.Cr.App.), cert. denied, 401 So.2d 187 (Ala.1981). Accord, United States v. Mitchell, 666 F.2d 1385, 1389 (11th Cir.), cert. denied, 457 U.S. 1124, 102 S.Ct. 2943, 73 L.Ed.2d 1340 (1982).
Furthermore, even if the evidence of the other charged crime could not be admitted because defendant's identity as the perpetrator was based on circumstantial evidence in both, it would have become admissible as soon as the State introduced evidence of the third (and non-charged) crimethe Quincy's incident. While we are well aware of the general exclusionary rule preventing the introduction of evidence of crimes not charged in the indictment, C. Gamble, McElroy's Alabama Evidence § 69.01(1) (3d ed. 1977), there is no question that the Quincy's incident would be admissible in a trial for either the Mrs. Winner's or the Captain D's crime whether these cases were tried together or separately. Nicks v. State, supra, 521 So.2d at 1025-28. The law is quite clear that the evidence of the Quincy's incident and the defendant's commission thereof would have been admissible in either case under the plan, design, scheme, or system and identity exceptions to the general exclusionary rule. "Evidence of the accused's commission of another crime is admissible if such evidence, considered with other evidence in the case, warrants a finding that both the now-charged crime[s] and such other crime were committed in keeping with or pursuant to a single plan, design, scheme, or system, whether narrow or broad in scope." McElroy's, supra, at § 69.01(6). The identity exception "contemplates the situation where the now-charged crime[s] was committed in a novel and peculiar manner and that the state is allowed to show that the accused has committed other similar offenses, in the same novel and peculiar manner, in order to show him to be the perpetrator of the now-charged crime[s]." McElroy's, supra, at § 69.01(8).
In the instant case, there are certain similarities in the charged crimes and the subsequent robbery-attempted murder. All three were committed in the Birmingham area at fast food restaurants that were near a major expressway or interstate. Each incident had the same modus operandi. They all occurred late at night when only the night manager was in the restaurant. The robber waited outside the building until the night manager closed the restaurant and exited the building, and then forced the night manager to unlock the restaurant, leaving no sign of a forced entry. No fingerprints were left at any of the restaurants. In each incident the manager, after opening the restaurant's safe *557 and giving the robber the cash inside, was ordered into the restaurant's cooler to be shot twice in the head with a .38 caliber pistol. The same pistol was used in all three incidents and it was recovered at the defendant's residence.
Admittedly, there is one major difference between the now-charged crime and the Quincy's incident, i.e., the night manager of Quincy's survived the incident and was able to identify the defendant as the robber. This was due, however, to the quick thinking of the manager and no small amount of "just plain luck" on the part of Mr. Smotherman, the Quincy's manager. Thus, the evidence pertaining to the Quincy's crime was clearly relevant to the now-charged crimes.
Because of the similarities between the three incidents, evidence of the Quincy's crime was admissible to identify the defendant as the person who committed the robbery-homicides at Captain D's and Mrs. Winner's. Therefore, regardless of whether the Captain D's and Mrs. Winner's incidents were tried separately or together, the Quincy's incident was admissible into evidence. Then, there is no question that if there had been separate trials, as soon as the Quincy's evidence was admitted, the evidence of the other crime (either Captain D's or Mrs. Winner's) would have been admissible under the aforementioned exceptions to the exclusionary rule. Thus, the fact that these two incidents were tried together in no way prejudiced the defendant. Drew v. United States, 331 F.2d 85, 90 (D.C.Cir.1964). Therefore, the trial court was correct in first consolidating these offenses for trial, and later in denying defendant's request for severance.
II
Issues two and three of the defendant's brief relate to whether the State's failure to introduce into evidence the test bullets used by expert witnesses David Higgins and Lawden Yates in their analysis of the six bullets involved in the case at bar constituted reversible error.
We initially note that defense counsel's objections during the testimony of these two witnesses were inadequate to preserve error. During the testimony of Higgins, defense counsel's only objection was "We object. May I see something?" Because specific objections are necessary to preserve error, this general objection preserved nothing for our review. Meadows v. State, 473 So.2d 582, 587 (Ala.Cr.App.1985); Campbell v. State, 449 So.2d 1272, 1273 (Ala.Cr.App.1984); Smoot v. State, 381 So.2d 668, 671 (Ala.Cr.App.1980). The defendant does assert in his brief that an off-the-record discussion took place during which he objected to the State's failure to introduce the test bullets. This discussion, however, does not appear in the record and, therefore, is not before this court, as this court's review is limited to matters of record. Fuller v. State, 472 So.2d 452, 454 (Ala.Cr.App.1985); Moore v. State, 457 So.2d 981, 989 (Ala.Cr.App.1984), cert. denied, 470 U.S. 1053, 105 S.Ct. 1757, 84 L.Ed.2d 820 (1985); Hollins v. State, 415 So.2d 1249, 1252 (Ala.Cr.App.1982). Likewise, during the testimony of Lawden Yates, no objection was made as to the State's failure to introduce the test bullets. The only objection made during Yates's testimony was one which alleged hearsay. Such an objection does not preserve this issue for our review, as a specific objection waives all grounds not specified. Murray v. State, 494 So.2d 891, 893 (Ala.Cr.App.1986); Breedlove v. State, 482 So.2d 1277, 1282 (Ala.Cr.App.1985); Moore v. State, 474 So.2d 190, 196 (Ala.Cr.App.1985). Thus, this issue was not preserved at trial.
However, defendant's failure to preserve this issue, "while weighing against defendant as to any possible claim of prejudice, serves as no impediment to our scope of review pursuant to the `plain error' mandate in death penalty cases." Ex parte Bush, 431 So.2d 563, 565 (Ala.), cert. denied, 464 U.S. 865, 104 S.Ct. 200, 78 L.Ed.2d 175 (1983). Therefore, we must now consider whether the State's failure to introduce the test bullets into evidence constituted "plain error." Our Supreme Court has adopted federal case law defining plain error, holding that "[p]lain error only arises if the error is so obvious that the *558 failure to notice it would seriously affect the fairness or integrity of the judicial proceedings." Ex parte Womack, 435 So.2d 766, 769 (Ala.), cert. denied, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 367 (1983). See also Ex parte Harrell, 470 So.2d 1309, 1313 (Ala.), cert. denied, 474 U.S. 935, 106 S.Ct. 269, 88 L.Ed.2d 276 (1985).
Our review of the record convinces us that the failure to introduce the test bullets into evidence did not seriously affect the fairness of the proceedings against defendant. Indeed, we are reluctant to even consider that this could constitute error of any sort. The two test bullets were simply a tool used by the expert witnesses in analyzing the pieces of evidence (six bullets and a pistol) he was asked to examine. These bullets were not evidence in the case but, rather, were only an aid used in examining the evidence, just as is a microscope. The two test bullets would have been admissible, but it is not error that they were not offered.
Moreover, introduction of the test bullets into evidence would not have aided the jury's deliberations in any way. The markings on the bullets could only be seen with the aid of a comparison microscope, and not with the naked eye. Even if these bullets had been admitted into evidence and taken by the jury into the jury room, the jurors could have seen nothing but a bullet. They could not have seen the markings on either the test bullets or the six bullets in evidence, much less made any comparisons between them. This was clearly a matter for firearms experts and, thus, the jury had to rely upon the experts' findings. We note that both the State and defense expert witnesses had access to these test bullets when making their findings. Therefore, we find that the defense was in no way harmed because the jurors did not actually handle the test bullets. Thus, no "plain error" occurred because these test bullets were not introduced into evidence.
III
The defendant next contends that the evidence adduced at trial was insufficient to support his convictions for capital murder. Specifically, Hinton contends that the State failed to present any direct evidence which linked him to the murders of John Davidson and Thomas Wayne Vason.
We first note that the mere fact that evidence is of a circumstantial nature does not make it deficient; circumstantial evidence is entitled to the same weight as direct evidence, provided it points to the guilt of the accused. Linzy v. State, 455 So.2d 260, 262 (Ala.Cr.App.1984). The test of the sufficiency of circumstantial evidence is not whether the possibility exists that someone other than the accused committed the crime, but rather whether the evidence excluded every reasonable hypothesis but that of the accused's guilt. Cumbo v. State, 368 So.2d 871, 874 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). Viewing the State's evidence presented to the jury, which is set out above, under the principles enunciated in Cumbo, supra, we find that when viewed in the light most favorable to the prosecution, it was sufficient to allow the jury to reasonably find that the evidence excluded every reasonable hypothesis except that of the defendant's guilt. The State's evidence established the following: Two robbery-murders and one robbery-attempted murder were committed in the Birmingham area. All three incidents had the same modus operandi. The same weapon was used in each incident. The weapon identified by experts in firearms identification as the one through which the bullets recovered during the police investigation of these three incidents were fired was given to a police investigator by the defendant's mother, and was a weapon to which the defendant had access. Moreover, the victim in the robbery-attempted murder incident positively identified the defendant as the individual who forced him at gunpoint to re-enter Quincy's, open the safe, and give him all the money and who then pointed a weapon at his head and fired twice. Clearly, the evidence was inconsistent with any reasonable theory of innocence. Indeed, all material circumstances in the evidence point to the defendant's guilt. Thus, we find that the evidence presented at trial *559 was sufficient to sustain the defendant's conviction.
IV
The defendant further contends that notwithstanding the current state of the law with respect to the admissibility of polygraph examination results, he should have been permitted to introduce both at the guilt phase and the sentencing phase of his trial the results of his polygraph examination which tended to indicate that he had nothing to do with either of the murders.
The law in Alabama with regard to the admission of polygraph evidence is as follows:
"[T]he results of polygraph examinations are, in general, inadmissible in Alabama. Stewart v. State, 398 So.2d 369 (Ala.Cr.App.1981). They are admissible, however, upon stipulation of the parties, subject to certain conditions which relate to the accused's knowledge of his rights thereunder and the trial court's discretion relating to the conduct of the test itself. See Wynn v. State, 423 So.2d 294, 299-300 (Ala.Cr.App.1982). Nothing in that case, however, nor in any other Alabama case to which we have been cited, requires the prosecutor's consent to an offer of the accused to stipulate to the admission of the results of the accused's polygraph examination. As yet, Alabama has not adopted the premise of Wisconsin that such tests have achieved such a degree of reliability and scientific recognition `that their unconditional rejection is no longer appropriate.' McMorris, [v. Israel] 643 F.2d [458] at 465 [(7th Cir.1981)]."
Ex parte Clements, 447 So.2d 695, 698 (Ala.1984). In the instant case the prosecutor refused to stipulate to the admission of the results of a polygraph examination performed on the defendant. Under Alabama law, he was perfectly within his rights to so refuse. Therefore, the trial court correctly refused to admit these test results into evidence during the guilt phase of defendant's trial.
The question of whether the results of a polygraph examination may be admitted into evidence during the sentencing phase of a defendant's bifurcated trial, however, is one of first impression in this State. We note that this issue was raised, but not addressed by this court, in Tarver v. State, 500 So.2d 1232 (Ala.Cr.App.), aff'd, 500 So.2d 1256 (Ala.1986), cert. denied, 482 U.S. 920, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987).
The admissibility of evidence in a capital sentence proceeding under this state's 1981 murder statute is controlled by § 13A-5-45(d), Code of Alabama 1975, which provides as follows:
"Any evidence which has probative value and is relevant to sentence shall be received at the sentence hearing regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the state of Alabama." (Emphasis added.)
After much deliberation, we find the results of a polygraph test to be neither probative nor relevant in the instant case.
The results of a polygraph test have no probative value for two reasons. First, polygraph test results are not probative because the premise on which polygraph examinations are based, i.e., that a machine can reflect whether a person's responses are deceptive, has not been sufficiently established. Ex parte Dolvin, 391 So.2d 677, 679 (Ala.1980); Wynn v. State, 423 So.2d 294, 296 (Ala.Cr.App.1982). In other words, because polygraph examinations cannot reliably prove what they are supposed to prove, testimony regarding the results of those tests is not probative and is therefore due to be excluded under § 13A-5-45(d). Second, polygraph test results are not probative because the admission of these test results tends to distort the truth-finding process. While we in the legal community are well aware of the lack of established reliability of polygraph examinations, members of a jury may not be so well informed. As this court has recognized, *560 there is a danger that the jury will be over-awed by the opinion of a polygraph examiner. Wynn v. State, supra, 423 So.2d at 297-99. Therefore, the uncritical acceptance of polygraph results tends to induce a jury to reject other evidence which is in fact more reliable.
Accordingly, the courts of several other jurisdictions have held that the results of polygraph examinations are not admissible in capital sentence proceedings. Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295, 297-98 (1985); People v. Szabo, 94 Ill.2d 327, 68 Ill.Dec. 935, 952, 447 N.E.2d 193, 210 (1983), affirmed on remand, 113 Ill.2d 83, 100 Ill.Dec. 726, 497 N.E.2d 995 (1986), cert. denied, 479 U.S. 1101, 107 S.Ct. 1330, 94 L.Ed.2d 181 (1987); State v. Copeland, 278 S.C. 572, 300 S.E.2d 63, 69, cert. denied, 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed.2d 367 (1983). See also State v. Craig, 308 N.C. 446, 302 S.E.2d 740, 749, cert. denied, 464 U.S. 908, 104 S.Ct. 263, 78 L.Ed.2d 247 (1983) (request by convicted defendant to take polygraph examination correctly refused because such a request has no relevance to question before jury at sentencing stage of trial). Thus, for the reasons cited above, this court finds the results of polygraph examinations non-probative and therefore inadmissible in the defendant's capital sentencing proceedings.
Neither do we find the results of a polygraph examination material to the issues considered at the sentencing hearing. Here, the polygraph test results indicated that the defendant did not commit the crimes for which he had already been convicted. In a sentencing hearing, however, the jury considers only evidence of aggravating and mitigating circumstances, and not questions of guilt or innocence.
There is but one aggravating circumstance to which polygraph evidence could relate in this case; i.e., that the capital offense occurred while the defendant was engaged in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery. § 13A-5-49(4), Code of Alabama 1975. Although the defendant could argue that the results of his polygraph examination tended to disprove this aggravating circumstance because the results showed that the defendant committed no crime at all, such an argument would be futile in light of § 13A-5-45(e), Code of Alabama 1975, which reads as follows:
"At the sentence hearing the state shall have the burden of proving beyond a reasonable doubt the existence of any aggravating circumstances. Provided, however, any aggravating circumstance which the verdict convicting the defendant establishes was proven beyond a reasonable doubt at trial shall be considered as proven beyond a reasonable doubt for purposes of the sentence hearing." (Emphasis added.)
Since the aforementioned aggravating circumstance had already been conclusively established by the verdict finding defendant guilty of two counts of robbery-homicide, admission of the results of defendant's polygraph examination would have served no useful purpose here.
Nor would the results of the polygraph examination be relevant to the sentencing proceeding as a nonstatutory mitigating circumstance. The scope of nonstatutory mitigating circumstances is set out in § 13A-5-52, Code of Alabama 1975, which provides as follows:
"In addition to the mitigating circumstances specified in section 13A-5-51, mitigating circumstances shall include any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant offers as a basis for a sentence of life imprisonment without parole instead of death, and any other relevant mitigating circumstance which the defendant offers as a basis for a sentence of life imprisonment without parole instead of death."
We interpret this section to limit mitigating evidence to that which assumes that the defendant committed the crime for which he was convicted. If not, the sentence hearing could turn into a relitigation of the trial on guilt, effectively nullifying § 13A-5-45(e). This court therefore finds that polygraph results which indicate that the defendant is not guilty of the crime for *561 which he is being sentenced are not relevant to either aggravating or mitigating circumstances and thus are inadmissible in a sentencing proceeding under § 13A-5-45(d).
Moreover, our decision with regard to this issue does not violate the rule of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). In Lockett, the Supreme Court, reviewing the constitutionality of an Ohio capital statute which limited the manner in which a defendant's background and character could be considered in sentencing, concluded that the sentencing authority in a capital case could not be precluded from considering as a mitigating factor any aspect of a defendant's character or any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. 438 U.S. at 604, 98 S.Ct. at 2964. However, that Court made clear in a footnote to the opinion the extent of its holding, stating as follows:
"Nothing in this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant's character, prior record, or the circumstances of his offense."
Id. at n. 12. This footnote, with its use of the phrase "his offense," clearly indicates that Lockett was not intended to be, nor should it be interpreted as, an open door to a relitigation of the issues already decided by the jury's verdict. Under Lockett, therefore, the results of polygraph examinations which, like those in the instant case, suggest that the defendant was not guilty of the crime for which he has already been convicted may be excluded as irrelevant to the issue of his sentence. Furthermore, as recognized by the Eleventh Circuit Court of Appeals in the case of Thompson v. Wainwright, 787 F.2d 1447, 1457-58 (11th Cir.1986) cert. denied, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1987), while Lockett entitles a capital defendant to introduce any relevant evidence at the sentence hearing, it does not require that a state abandon its rules of evidence as to the competency of that evidence. Therefore, it also stands to reason that Lockett does not require states to disregard their exclusionary rules based on the non-probative and misleading nature of testimony. As discussed above, the results of polygraph examinations are not probative because polygraph examinations have not been shown to accurately detect deception, and are misleading because juries often assume that they are conclusive.
We do note that one jurisdiction has indicated that Lockett requires the admission in capital sentence proceedings of polygraph results which reflect on the circumstances of the crime. State v. Bartholomew, 101 Wash.2d 631, 683 P.2d 1079, 1088-89 (1984). The holding in Bartholomew, however, is based on an incomplete reading of Lockett, as the Supreme Court of Washington cited only the textual language in Lockett, while omitting what we view as the equally important footnote. Moreover, Bartholomew is factually distinguishable from the case at bar. In Bartholomew, the polygraph results at issue were not the defendant's, but those of a key prosecution witness who had testified at the guilt phase that he was present at the crime but did not participate. The polygraph results suggested that the witness had been lying about the degree of his involvement in the crime. Unlike in the instant case, this evidence did not necessarily tend to absolve the defendant of guilt, but rather suggested that he was not acting alone, a factor which might properly be considered as a mitigating circumstance.
Therefore, based on the reasons stated above, we decline to create an exception to the general rule prohibiting the admission of polygraph results, except by stipulation of the parties, in the sentencing phase of bifurcated trials for the same reason that such evidence is generally inadmissibleits questionable reliability for scientific accuracy.
V
As required by Beck v. State, 396 So.2d 645 (Ala.1980), and § 13A-5-53, Code of Alabama 1975, we have reviewed this case for any error involving the conviction and the propriety of the death sentence.
*562 We have searched the entire record for any plain error or defect which might have adversely affected the defendant's substantial rights and have found none. A.R.A.P., Rule 45A.
There has been no argument made by the defendant that the death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor, and there is no evidence to support any such contention.
Our review of the sentence proceedings reveals that the trial court's findings concerning the aggravating and mitigating circumstances are supported by the evidence. The trial court found the existence of only one aggravating circumstance: that the capital offenses were committed while the defendant was engaged in the commission of a robbery, § 13A-5-49(4). Also, included in the trial court's findings, but not considered as an aggravating circumstance, was the fact that the defendant had been convicted of three prior felony offenses and was on parole at the time of the commission of these offenses. This failure to consider this finding as an aggravating circumstance was erroneous, as we have held in Tarver v. State, 500 So.2d 1232, 1250-51 (Ala.Cr.App.), aff'd, 500 So.2d 1256 (Ala.1986), cert. denied, 482 U.S. 920, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987), that the aggravating circumstance that the defendant was under a sentence of imprisonment at the time of the crime is present when a defendant is on parole. However, such error was harmless as the omission of this aggravating circumstance in no way injuriously affected the substantial rights of the defendant. A.R.A.P., Rule 45A. The trial court found the existence of no mitigating circumstances. This finding was also supported by the evidence.
Our independent weighing of the aggravating and mitigating circumstances convinces this court of the propriety of the death sentence.
Moreover, we are convinced that the death sentence is neither excessive nor disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Indeed, fully two-thirds of Alabama death sentences have been imposed on defendants convicted of capital murder arising out of robbery-homicides. Beck v. State, supra, 396 So.2d at 654 n. 5; see also, e.g., Bell v. State, 475 So.2d 601 (Ala.Cr.App.1984), aff'd, 475 So.2d 609 (Ala.1985), cert. denied, 474 U.S. 1038, 106 S.Ct. 607, 88 L.Ed.2d 585 (1985); Jones v. State, 456 So.2d 366 (Ala.Cr.App.1983), aff'd, 456 So.2d 380 (Ala.1984), cert. denied, 470 U.S. 1062, 105 S.Ct. 1779, 84 L.Ed.2d 838 (1985). The judgment of the trial court is therefore due to be affirmed.
AFFIRMED.
All the Judges concur.
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485 So.2d 1217 (1986)
Luis D. BLANCO
v.
STATE.
4 Div. 522.
Court of Criminal Appeals of Alabama.
January 7, 1986.
Rehearing Denied February 12, 1986.
Certiorari Denied March 31, 1986.
*1218 John M. Gruenewald, Dothan, for appellant.
Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appellee.
Alabama Supreme Court 85-583.
TAYLOR, Judge.
Sometime during the Fourth of July holiday, 1984, the Coleman Business Equipment Company in Dothan was burglarized. The burglar apparently entered the building through an exhaust fan in the store's cleaning room. Ted Bridges, the vice-president of the company, was the first person to arrive at the store on the morning of July 5, 1984. Upon entering the cleaning room he noticed that the blades on the exhaust fan had been twisted inward, creating an opening large enough for a person to crawl through. Greasy, black, handprints were clearly discernible a few feet from the fan. Similar prints were found on a filing cabinet in another room. After discovering that money was missing from the store's petty cash box and that several small pieces of office equipment were gone, Bridges contacted the Dothan police. Sergeant Jackie Mendheim, who was sent to investigate the burglary, lifted several palm prints from the ink stained filing cabinet. He also took various pieces of paper that the burglar had apparently thrown from the petty cash box and placed them in a plastic bag. These items were later sent to the Fingerprint Division of the Alabama Bureau of Investigation for analysis. Later, it was discovered that the appellant's fingerprints matched those taken from the scene of the crime. The appellant was tried in the Circuit Court of Houston County and found guilty of burglary in the third degree. He now appeals.
I
The appellant contends that the state failed to establish a proper chain of custody prior to the introduction of exhibits 3 through 11. State exhibits 3 through 7 consisted of various receipts and other papers found lying next to the petty cash box. The latent fingerprints taken by Sergeant Mendheim from the burglarized filing cabinet were denominated as state exhibits 8 and 9. State exhibits 10 and 11 were palm prints taken from the appellant at the time of his arrest. Sergeant Mendheim testified that exhibits 3 through 9 were constantly in his care and custody from the time he obtained them from the crime scene until the time he sealed them in a manila envelope. Mendheim stated that he addressed the envelope to Gloria Walters, an employee with the Latent Print Unit of the A.B.I., and later gave the envelope to his secretary to mail.
Gloria Walters testified that she received a sealed envelope from Sergeant Mendheim containing the items denominated at trial as state exhibits 3 through 9. She stated that these items were thereafter constantly within her care, custody and control until she placed the items in an envelope, sealed the envelope, and mailed it to Sergeant Mendheim. Upon examining the exhibits at trial, Walters stated that they were in substantially the same condition as when she had mailed them.
Sergeant Mendheim, during his earlier testimony, stated that a few days after sending the evidence to Ms. Walters, he received a sealed envelope from her containing those same items. The envelope was placed in a wire basket in his office along with other incoming mail. According to Mendheim, exhibits 3 through 9 were in substantially the same condition as when he had sent them to Walters for analysis. Sergeant Mendheim stated that he thereafter placed the items in his personal file and returned the file to the police filing cabinet. Although Mendheim said that other officers had access to the filing cabinet, he examined exhibits 3 through 9 at trial and found that they were in the same condition *1219 as when he originally placed them in the file.
The appellant maintains that this cause should be reversed due to three "breaks" in the chain of custody. First, he contends that a fatal break occurred because the state failed to establish that the envelope containing exhibits 3 through 9 was ever mailed. A similar break in the chain of custody occurred, argues the appellant, because no one testified that the envelope that was placed in Sergeant Mendheim's wire basket was actually received from the post office.
The purpose for requiring that chain of custody be established is to show a reasonable probability that there has been no tampering with an item of evidence. Gwin v. State, 425 So.2d 500 (Ala.Cr.App. 1982). The chain of custody need not be proven to an absolute certainty. Sims v. State, 428 So.2d 162 (Ala.Cr.App.1982). Taking the appellant's argument to its logical extent would necessitate calling each and every postal employee who handled the envelope. Such a procedure is not practical and is not necessary to insure the integrity of the evidence. The manila envelope was sealed before it was given to the secretary to be mailed. We believe that Ms. Walters' testimony that she received a sealed envelope containing the very items that Sergeant Mendheim placed in the envelope was sufficient to establish the authenticity of the evidence. Even assuming, arguendo, that a break in the chain of custody occurred due to the failure of the secretary to testify that she mailed the envelope, such a break would not warrant reversal. A minor break in the chain of custody goes only to weight and not admissibility. United States v. Clark, 732 F.2d 1536 (11th Cir.1984) (failure of evidence custodian to testify that he received package in mail goes to weight and not admissibility); Sims v. State, 428 So.2d 162 (Ala.Cr.App.1982) (failure of lab employee to testify that he accepted pistol allegedly used in crime and that he later gave the gun to lab analyst held not to warrant reversal).
The appellant also contends that the integrity of the evidence was compromised because it was placed in an unlocked filing cabinet to which several police officers had access. Ms. Walters had already performed her fingerprint comparison before the objects were left unattended in the police filing cabinet. In reviewing the sufficiency of the chain of custody in drug cases, this court has stated that "the law is concerned with tracing the integrity of the substance only up through the completion of the analysis." Congo v. State, 409 So.2d 475, 479 (Ala.Cr.App.1982). Likewise, we are concerned here with establishing the integrity of the evidence up through the fingerprint analysis and comparison. This analysis was made before the items were placed in the filing cabinet. Any alteration or substitution of the items after Ms. Walters finished her analysis and comparison would, therefore, have been immaterial. Congo v. State, 409 So.2d 475, 479 (Ala.Cr.App.1982). Moreover, Sergeant Mendheim testified that exhibits 3 through 7 were in substantially the same condition as when he originally placed them in the filing cabinet.
The appellant also contends that state exhibits 10 and 11, palmprints of the appellant taken at the time he was arrested, were not properly accounted for by the state. Isaiah Savage, an employee of the Dothan Police Department, testified that he took the appellant's prints and placed them in a wire basket, along with the fingerprint cards of other individuals arrested that day. The appellant's name was written on the upper left portion of the card. Savage stated that it was usual procedure to give the cards to Diane Britt to mail to the Fingerprint Division of the A.B.I., although he had no independent recollection of these particular cards. Walters testified that she received exhibits 10 and 11 and compared them to the prints found on exhibits 3 through 9. An employee of the A.B.I. later mailed exhibits 10 and 11 back to the Dothan Police Department.
The appellant contends that a break in the chain of custody occurred because Britt *1220 failed to testify that she mailed the fingerprint cards. For the reasons previously stated, such a contention has no merit. See, United States v. Clark, 732 F.2d 1536 (11th Cir.1984). The appellant also maintains that exhibits 10 and 11 were not properly accounted for because they were placed in a basket with the fingerprint cards of several other persons. Numerous police officers, it is alleged, had access to the fingerprint cards during the time the cards were in the basket. Although the ideal practice would be for one person to maintain exclusive and constant control of the fingerprint cards, these rules are made for practical people who deal with such evidence as part of day to day routine. The chain of custody requirements aim at a "reasonable probability" that there has been no tampering; they are not intended as an obstacle course or a walk through a legalistic mine field.
"To warrant the reception of an object in evidence against an objection that an unbroken chain of custody has not been shown, it is not necessary that it be proved to an absolute certainty, but only to a reasonable probability, that the object is the same as, and not substantially different from, the object as it existed at the commencement of the chain." Sexton v. State, 346 So.2d 1177, 1180 (Ala. Cr.App.), cert. denied, 346 So.2d 1180 (Ala.1977).
Here, the appellant's name was placed upon each of the fingerprint cards immediately after the prints were taken. Mr. Savage also testified that after making the prints he signed the cards. After examining the fingerprint cards at trial, Savage stated that the signature on each of the cards was his and that the cards appeared to be in substantially the same condition as when he had placed them in the wire basket. This procedure establishes, to a reasonable probability, that the cards were not altered or substituted.
II
The appellant also maintains that there was insufficient evidence to sustain his conviction. He argues that the mere presence of his fingerprints inside the burglarized establishment does not establish his guilt beyond a reasonable doubt. In support of his position, he cites our recent decision in Blackmon v. State, 462 So.2d 1045 (Ala.Cr. App.1985). In Blackmon, a man carrying a sawed-off shotgun entered a Dothan bank and walked up to one of the bank tellers. He informed the teller that he was robbing the bank and demanded that she give him money. The robber then placed a cardboard box on the counter, which he claimed contained a bomb. Appellant Blackmon's fingerprint was later found on this cardboard box. Although the evidence showed that Blackmon was not the man who committed the robbery, he was later charged with aiding and abetting the robber. The sole evidence connecting Blackmon with the crime was his fingerprint on the box. In reversing Blackmon's conviction, we stated:
"Clearly, the mere presence of the appellant's fingerprint on the box does not necessarily lead to the conclusion that the appellant `aided and abetted' in this robbery. Cardboard boxes are very common and frequently handled by many persons, including shipping, for various purposes. It is certainly reasonable to assume that the cardboard box was innocently handled by the appellant some time before it came into the robber's actual possession." Blackmon, 462 So.2d at 1047.
The present case is, however, factually distinct from Blackmon and similar cases cited by the appellant. The appellant's fingerprints were not found on an easily transportable item such as a cardboard box. Rather, his fingerprints were found at a place where he had no legitimate reason to be and on things which he could not have innocently handled. Considering the evidence in the light most favorable to the state, it was sufficient to support the jury's verdict of guilt beyond a reasonable doubt.
AFFIRMED.
All the Judges concur.
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58 F.3d 636w
CC Port, Ltd.v.Davis-Penn Mort.
NO. 94-60831
United States Court of Appeals,Fifth Circuit.
June 01, 1995
NOTE: THE COURT HAS WITHDRAWN THIS OPINION
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933 F.2d 1130
TRAY-WRAP, INC., Plaintiff-Appellant,v.HOMESTEAD TOMATO PACKING CO., INC., Defendant-Appellee.
Nos. 947, 948, Dockets 90-7836, 90-7838.
United States Court of Appeals,Second Circuit.
Motion for Attorney's Fees Submitted April 15, 1991.Decided May 24, 1991.
Linda Strumpf, Bayside, N.Y., submitted papers for plaintiff-appellant.
Mitchell H. Stabbe, Holland & Knight, Washington, D.C., submitted papers for defendant-appellee.
Before LUMBARD, NEWMAN and ALTIMARI, Circuit Judges.
JON O. NEWMAN, Circuit Judge:
1
This is a motion seeking appellate attorney's fees and expenses in connection with an appellee's successful effort to secure affirmance of a District Court judgment that affirmed two reparation awards entered by the Secretary of Agriculture pursuant to the Perishable Agricultural Commodities Act of 1930, as amended, 7 U.S.C. Sec. 499a et seq. (1988). The awards were entered to compensate appellee Homestead Tomato Packing Co., Inc. ("Homestead") for a portion of the unpaid purchase price of two truckloads of tomatoes sold to appellant Tray-Wrap, Inc. ("Tray-Wrap"). The Secretary determined that, though the tomatoes were damaged, Homestead was responsible for only part of the damage, and that Tray-Wrap owed Homestead approximately $7,800, including interest. The Act explicitly authorizes an award of fees and expenses to the prevailing party at the administrative level, id. Sec. 499g(a), and also provides that, upon appeal to a district court, a prevailing appellee "shall be allowed a reasonable attorney's fee," id. Sec. 499g(c). In this case, the District Court affirmed the Secretary's orders and awarded an attorney's fee of $17,572.23, plus expenses. We affirmed by summary order. No. 90-7836, 930 F.2d 909 (2d Cir.1991).
2
Though the statute is not explicit in providing for attorney's fees for successfully defending a district court judgment in a court of appeals, we think the statutory objectives of the Act would be impaired if such fees were not awarded. Congress was obviously aware that the amounts awarded in these reparation matters are often small. A special administrative procedure has been established for claims of $15,000 or less. See 7 C.F.R. Sec. 47.20 (1991). Having provided that a party successfully defending a Secretary's order in a district court must receive an attorney's fee, Congress must have expected that party to maintain his recovery undiminished by an attorney's fee in the event that he prevails in the court of appeals. If the fee is limited to the district court, those who lose at that level have an opportunity to extract a settlement of the district court judgment by threatening to oblige the judgment creditor to incur the fees and expenses of an appeal. We do not think Congress intended that result in these matters.
3
The motion of appellee to require appellant to pay an appellate attorney's fee of $12,569.11 and expenses of $860.79 is granted.
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91 F.3d 140
Nationwide Mutual Insurance Co.v.Berryman Products, Inc.
NO. 95-10694
United States Court of Appeals,Fifth Circuit.
June 13, 1996
1
Appeal From: N.D.Tex., No. 4:95-CV-055-A, 183 B.R. 463
2
AFFIRMED.
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570 So.2d 1263 (1990)
Ex parte State of Alabama.
Re Randolph Eugene POOL[1]
v.
STATE.
No. 89-865.
Supreme Court of Alabama.
August 17, 1990.
Rehearing Denied November 2, 1990.
*1264 Don Siegelman, Atty. Gen., and Joseph G.L. Marston, Asst. Atty. Gen., for petitioner.
Michael D. Cook, Lanett, for respondent.
MADDOX, Justice.
Randolph Eugene Pool was convicted of the unlawful possession of a controlled substance, namely marihuana. The Court of Criminal Appeals reversed his conviction upon the holding that the indictment failed to properly charge him with an offense.[2] We affirm.
The facts of this case are set out in detail in the opinion of the Court of Criminal Appeals and do not need to be repeated here. That court held that charging Pool with a violation of Ala.Code 1975, § 13A-12-212 (unlawful possession of a controlled substance), was improper because §§ 13A-12-213 and -214 are more specific statutes dealing exclusively with marijuana and that Pool should have been indicted under one of those statutes.
After going through a detailed analysis of these three statutes and applying general rules of statutory construction, the Court of Criminal Appeals reasoned that if "possession of marijuana were to be included within § 13A-12-212, then §§ 13A-12-213 and -214 would serve no purpose." Pool v. State, 570 So.2d 1260, 1262 (Ala.Cr. App.1990). The State argues that the proper construction of these three statutes would be to allow the State to choose among the three the one under which it intended to prosecute. The State argues that it can choose to prosecute a person found with a small amount of marihuana (such as Pool) for either a misdemeanor (possession for personal use) or a felony (possession of a controlled substance), even though § 13A-12-213 defines felony possession of marihuana (possession of marihuana for other than personal use or for personal use after a previous conviction for unlawful possession for personal use).
Section 13A-1-6 sets forth the general rule of construction that the courts of this state are to use in interpreting penal laws. "All provisions of this title shall be construed according to the fair import of their terms to promote justice and to effect the objects of law, including the purposes stated in section 13A-1-3." One of the purposes stated in § 13A-1-3 is "(4) To differentiate on reasonable grounds between serious and minor offenses and to prescribe proportionate penalties for each."
After reviewing the analysis of these statutes by the Court of Criminal Appeals, using the rule of construction set forth in § 13A-1-6, we conclude that the Court of Criminal Appeals properly construed these statutes. Interpreting them the way the State urges would mean that *1265 § 13A-12-214, unlawful possession of marihuana in the second degree (a Class A misdemeanor), could always be elevated into a felony offense because the State could choose to prosecute the same conduct under § 13A-12-212. The language of § 13A-12-214 makes it clear that the legislature intended to make possession of marihuana for personal use a misdemeanor and not a misdemeanor or a felony at the State's discretion. If we have misperceived the legislative intent, the legislature can amend the statutes to make them clearer.
For the above stated reasons, the judgment of the Court of Criminal Appeals is affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
NOTES
[1] The defendant's last name has been spelled in the various documents in the record as "Poole" and as "Pool." There is no issue as to the defendant's identity. Because he was indicted under the name "Pool" and because that is the name used in the opinion of the Court of Criminal Appeals, we will also refer to the defendant as "Pool."
[2] The State argues that the Court of Criminal Appeals erred in reaching the issue of whether the indictment properly charged Pool because, it argues, Pool did not object to the indictment except in a tardy motion and the trial judge never saw or ruled upon that motion. The record shows otherwise. Petitioner's motion was brought to the trial judge's attention at a motion hearing prior to opening arguments; the State never made any objection based on a contention that this motion was "late"; the trial judge and both attorneys discussed this motion and the issues it raised, and their discussion took up 17 pages of the transcript. Thereafter, the trial judge clearly ruled that he was going to allow the State to proceed under § 13A-12-212. The State's argument on this point is not well taken.
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123 P.3d 1122 (2005)
211 Ariz. 485
MARICOPA-STANFIELD IRRIGATION & DRAINAGE DISTRICT, an Arizona municipal corporation; Central Arizona Irrigation and Drainage District, an Arizona municipal corporation; and approximately two hundred landowners, Petitioners,
v.
The Honorable Kelly Marie ROBERTSON, Judge of the Superior Court of the State of Arizona, in and for the County of Pinal, Respondent, and
John E. Smith, et al., Respondents-Real Parties in Interest.
No. CV-04-0385-SA.
Supreme Court of Arizona, En Banc.
November 30, 2005.
*1123 Miller, LaSota & Peters, P.L.C. by Donald M. Peters, Susan A. Cannata, Phoenix, Attorneys for Maricopa-Stanfield Irrigation & Drainage District.
Salmon, Lewis & Weldon, P.L.C., by Mark A. McGinnis, M. Byron Lewis, Richard N. Morrison, Phoenix, Attorneys for Central Arizona Irrigation & Drainage District.
Sacks Tierney, P.A. by Marvin S. Cohen, Scottsdale, Attorneys for Approximately Two Hundred Landowners.
Renaud, Cook, Drury, Mesaros, P.A. by J. Gordon Cook, Denise J. Henslee, Phoenix, Attorneys for John E. Smith, et al.
W. Patrick Schiffer, Chief Counsel, Ryan A. Smith, Deputy Counsel, Maxine M. Becker, Deputy Counsel, Phoenix, Attorneys for Amicus Curiae Arizona Department of Water Resources.
Engelman Berger, P.C. by William H. Anger, Phoenix, Attorneys for Amici Curiae Cities of Chandler, Glendale, Goodyear, Mesa, Peoria and Scottsdale.
Jane D. Alfano, Frederic L. Beeson, Phoenix, Attorneys for Amici Curiae Salt River Valley Water Users' Association and Salt River Project Agricultural Improvement and Power District.
Curtis, Goodwin, Sullivan, Udall & Schwab, P.L.C., by Larry K. Udall, Phoenix, Attorneys for Amici Curiae Hohokam Irrigation & Drainage District and San Carlos Irrigation & Drainage District.
Somach, Simmons & Dunn by Robert B. Hoffman, Sacramento, CA, Attorneys for Amicus Curiae Central Arizona Water Conservation District.
Rodney B. Lewis, General Counsel, Chandler, Attorney for Amicus Curiae Gila River Indian Community.
Michael G. Rankin, City Attorney, Christopher E. Avery, Principal Assistant City Attorney, Tucson, Attorneys for Amicus Curiae City of Tucson.
David P. Frank, Attorney General, Tohono O'Odham Nation, Sells, and Quigley & Whitehill, P.L.C. by Daniel J. Quigley, Tucson, Attorneys for Amicus Curiae Tohono O'Odham Nation.
OPINION
BALES, Justice.
I.
¶ 1 The issue presented is whether agricultural landowners have vested rights to certain irrigation water from the Central Arizona Project ("CAP"). The water is the subject of a master contract between the United States and the Central Arizona Water Conservation District ("CAWCD") and related subcontracts between these entities and the two petitioner irrigation districts. The landowners are not parties to these agreements. Because we hold that the landowners do not have vested rights to the CAP water *1124 in question, we vacate the trial court's contrary ruling and remand this case for entry of judgment in favor of the districts.
II.
¶ 2 This litigation arose because the irrigation districts contemplate entering into a water rights settlement that would relinquish their rights to CAP water under their subcontracts with the United States and the CAWCD.
¶ 3 The districts are Arizona municipal corporations governed by boards of directors who in turn are elected by landowners within a district's boundaries. Ariz.Rev.Stat. ("A.R.S.") §§ 48-2901, -2922, -2978 (2005). Irrigation districts are specifically authorized to enter into contracts with the United States for the delivery, distribution, or apportionment of water for the lands of the district. A.R.S. § 48-3092.
¶ 4 The districts have faced more than a decade of financial turmoil stemming from the high cost of repaying the United States for constructing the CAP to distribute irrigation water from the Colorado River. The proposed settlement would allow the districts to obtain debt relief in exchange for relinquishing their rights to CAP water under the subcontracts; they also would be able to purchase CAP water through 2030 under new agreements.
¶ 5 By a majority vote, landowners within each district approved the proposed relinquishment of rights to CAP water under the subcontracts. Some dissenting landowners ("landowners") filed two lawsuits, one against the districts and one against the CAWCD, alleging that they had vested rights to CAP water that could not be abrogated without their consent.
¶ 6 The suit against the CAWCD was removed to the United States District Court, which later dismissed it for failure to state a claim. The Ninth Circuit Court of Appeals affirmed this ruling. Smith v. Cent. Ariz. Water Conservation Dist., 418 F.3d 1028 (9th Cir.2005).
¶ 7 The suit against the districts proceeded in the superior court. The trial court granted partial summary judgment in favor of the landowners, holding that they have vested rights to the CAP water governed by the subcontracts and that the districts may not alter those rights without the landowners' consent. This petition for special action followed.[1]
¶ 8 Because the trial court's decision is of statewide importance and the districts have no "equally plain, speedy, and adequate remedy by appeal," this Court accepted jurisdiction. Ariz. R.P. Spec. Act. 1(a), 4(a); see also Bledsoe v. Goodfarb, 170 Ariz. 256, 257, 823 P.2d 1264, 1266 (1991) (granting special action relief when legal issue affected water organizations statewide). We have jurisdiction pursuant to Article 6, Section 5(3), of the Arizona Constitution.
III.
¶ 9 Three federal reclamation laws provide the statutory backdrop to this case. In 1902, Congress passed the Reclamation Act, 32 Stat. 388, to establish water reclamation projects in the western United States. In 1928, Congress passed the Boulder Canyon Project Act, 45 Stat. 1057, which provided for the construction of Hoover Dam and authorized the Secretary of the Interior ("Secretary") to contract for the storage and delivery of Colorado River water. Finally, in 1968, Congress passed the Colorado River Basin Project Act, 82 Stat. 885, which provided for the construction and operation of the CAP. As a result, states and water users operate under a somewhat complicated system of intertwining federal statutes.
¶ 10 Critical to our analysis is the relationship between section 8 of the Reclamation Act and section 5 of the Boulder Canyon Project Act.[2] Under section 8 of the Reclamation Act, the Secretary generally must *1125 comply with state law in "the control, appropriation, use, or distribution of water" through a federal reclamation project. 43 U.S.C. § 383 (2000). Rights to water acquired under the Reclamation Act are appurtenant to the land irrigated and are measured by beneficial use. 43 U.S.C. § 372.
¶ 11 Section 5 of the Boulder Canyon Project Act ("BCPA"), in contrast, authorizes the Secretary to contract for the storage and delivery of water from its projects for irrigation and domestic uses. 43 U.S.C. § 617d. The statute expressly declares that "[n]o person shall have or be entitled to have the use" of such water except by a contract with the Secretary. Id. Section 5 of the BCPA does not mention state law and thus is in tension with the directive in section 8 of the Reclamation Act that state law shall control the recognition of water rights.
¶ 12 The United States Supreme Court addressed the relationship between these two statutes in Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963). Arizona had sued in 1952 to resolve the allocation of Colorado River water among the states in the river's lower basin. The Court held that Congress, in enacting the BCPA, "create[d] its own comprehensive scheme for the apportionment among California, Arizona, and Nevada of the Lower Basin's share of the mainstream waters of the Colorado River...." Id. at 565, 83 S.Ct. 1468.
¶ 13 The Court also clarified the respective roles of state and federal law in controlling rights to water from the lower Colorado. For federal reclamation projects in general, section 8 of the Reclamation Act requires the Secretary to follow state law regarding the control, use, or appropriation of water. The Court, however, expressly rejected the argument that state law controlled the distribution of water subject to the BCPA. Id. at 580-81, 584-86, 83 S.Ct. 1468. Instead, the BCPA vests the Secretary with the power, "through his § 5 contracts, both to carry out the allocation of the waters of the main Colorado River among the Lower Basin States and to decide which users within each State would get water." Id. at 580, 83 S.Ct. 1468.
¶ 14 In its subsequent decree, the Court reaffirmed the distinctive nature of Colorado River distribution and the need for secretarial contracts. Arizona v. California, 376 U.S. 340, 84 S.Ct. 755, 11 L.Ed.2d 757 (1964). The decree noted that, unless used for a federal reservation:
[M]ainstream water shall be released or delivered to water users ... in Arizona, California, and Nevada only pursuant to valid contracts therefor made with such users by the Secretary of the Interior, pursuant to Section 5 of the Boulder Canyon Project Act or any other applicable federal statute[.]
Id. at 343, 84 S.Ct. 755.
¶ 15 Against this legal background, Congress in 1968 passed the Colorado River Basin Project Act ("CAP Act"), which, among other things, created the CAP. In so doing, Congress carefully avoided unsettling the BCPA, stating that, unless otherwise provided, nothing in the CAP Act was to "be construed to alter, amend, repeal, modify, or be in conflict with the provisions of the" former. 43 U.S.C. § 1551(a). The CAP Act also vests the Secretary with broad authority to administer the CAP. See Maricopa-Stanfield Irrigation & Drainage Dist. v. United States, 158 F.3d 428, 438 n. 18 (9th Cir.1998) ("The Secretary's generous measure of discretion survived the Colorado River Basin Project Act...."); Cent. Ariz. Irrigation & Drainage Dist. v. Lujan, 764 F.Supp. 582, 589 (D.Ariz.1991) (noting the Secretary's administrative power over the CAP).
¶ 16 Congress further specified how water users would contract with the Secretary. 43 U.S.C. § 1524(b)(1). The CAP Act outlines a step-by-step process under which the Secretary could contract with a state political subdivision for the repayment of CAP construction costs and the distribution of water. Id. The state subdivision would, in turn, make CAP water available to "users" within its boundaries through subcontracts. Id. The terms and conditions of the subcontracts were to be subject to the Secretary's approval and the United States could insist that it be included as a party. Id.
¶ 17 With the CAP on its way to realization, the Secretary in 1972 entered into the *1126 "master contract" with the CAWCD.[3] Under this contract, as amended in 1988, the United States agreed to construct and operate the CAP water delivery system in exchange for repayment of part of the attendant costs. Delivery of CAP water was not guaranteed, but instead was subject to availability and the Secretary's determination of the amount of Colorado River water to release for the CAP.
¶ 18 The United States and the CAWCD, in turn, entered into subcontracts with the districts, the "users" under the statutory scheme. Consistent with the master contract, the districts agreed that CAP water could be made available for irrigation only on lands with a "recent irrigation history," and groundwater pumping within each district's service area would be reduced by the amount of CAP water received under the subcontract. The master contract and the subcontracts were validated in state court proceedings intended to confirm that the agreements were properly entered into and binding on the CAWCD and the districts. Each district also entered into a "9(d) contract" to repay the United States the costs of constructing irrigation distribution systems within the district's service area.
¶ 19 Both the master contract and the subcontracts contemplated that CAP water would be delivered by the districts to agricultural landowners for irrigation. After the validation proceedings, each district entered into two agreements with its respective landowners. These agreements, a memorandum of understanding followed by a water service agreement, provide for the distribution of water through canals and other works constructed by and financed through the districts. The landowners, in turn, agreed to pay taxes and service fees and also agreed to convey to the districts their rights to use certain irrigation wells that were subject to grandfathered groundwater rights under state law.
¶ 20 The memoranda and the water service agreements did not guarantee the landowners access to CAP water; they instead allowed the districts to deliver irrigation water without specifying its source. The parties, however, expected that the districts would deliver, and the landowners would pay for, CAP water under the water service agreements.
¶ 21 After the CAP was completed, the districts were unable to meet their financial obligations to the CAWCD under the subcontracts. Facing financial collapse, the districts entered into ten-year interim agreements with the CAWCD to obtain water at steeply reduced prices. This water is called "excess" because it is water left unused by other CAP users. See Robert Jerome Glennon, Coattails of the Past: Using and Financing the Central Arizona Project, 27 Ariz. St. L.J. 677, 682-88 (1995) (discussing problems of CAP financing and underutilization).
¶ 22 The financial pressure remained, and, in 2002, the districts agreed to a proposal under which they would relinquish their rights to CAP water under the subcontracts. In return, the districts would obtain debt relief and could enter new interim agreements to purchase water through 2030. These provisions are part of a comprehensive water settlement authorized by the Arizona Water Settlements Act, Pub.L. No. 108-451, 118 Stat. 3478 (2004).
¶ 23 Each district's board of directors approved the proposed settlement. By a majority vote, the landowners in each district approved the proposed relinquishment of subcontract rights to CAP water. Landowners dissenting from this result pursued litigation in state and federal court.
IV.
¶ 24 In granting partial summary judgment, the trial court held that the landowners have vested rights to receive CAP water (1) pursuant to the Reclamation Act of 1902 or (2) because they are third-party beneficiaries of the subcontracts between the districts, the CAWCD, and the United *1127 States. Neither determination can be sustained.
A.
¶ 25 The trial court read Arizona v. California to hold that the BCPA supplements existing reclamation law. Section 8 of the Reclamation Act, as noted above, provides that water rights obtained under the act "shall be appurtenant to the land irrigated...." 43 U.S.C. § 372. The trial court concluded that, under the water service agreements, the landowners are "contractually vested" with rights to CAP water appurtenant to their land and these rights would be infringed if the districts modified or relinquished the subcontracts.
¶ 26 This reasoning misapprehends the relationship between section 5 of the BCPA and section 8 of the Reclamation Act. Under the BCPA and Arizona v. California, entitlement to CAP water depends on a contract with the Secretary. As the Supreme Court has explained:
In Arizona v. California, we held that the [BCPA] vested in the Secretary the power to contract for project water deliveries independent of the direction of § 8 of the Reclamation Act to proceed in accordance with state law and of the admonition of § 18 of the [BCPA] not to interfere with state law.
Bryant v. Yellen, 447 U.S. 352, 370, 100 S.Ct. 2232, 65 L.Ed.2d 184 (1980).[4]
¶ 27 In holding that the landowners could obtain a vested right to CAP water under section 8 of the Reclamation Act absent a contract with the Secretary, the trial court misread Arizona v. California and its resulting decree. A contract with the Secretary is required to establish a right to water from the Lower Colorado River. The landowners lack such a contract.
¶ 28 The landowners also argue that, once they received CAP water distributed by the districts under the interim agreements, section 8 of the Reclamation Act entitled them to continue to receive such water from the districts. This argument cannot succeed. Neither the landowners nor the United States was a party to the interim agreements, so those agreements cannot provide the contract necessary for the landowners to establish a right to CAP water.[5]
¶ 29 The landowners also cite Supreme Court cases dealing with rights to reclamation project water in settings other than the Lower Colorado River Basin. See, e.g., Ickes v. Fox, 300 U.S. 82, 94-95, 57 S.Ct. 412, 81 L.Ed. 525 (1937) (dealing with the Yakima River Project). The landowners argue that, despite Arizona v. California, state water law should apply to create vested rights to CAP irrigation water once a reclamation project is built, a contract is issued, and the water is beneficially applied.
¶ 30 On this point, the landowners principally rely on California v. United States, 438 U.S. 645, 98 S.Ct. 2985, 57 L.Ed.2d 1018 (1978), which concerned a reclamation project in California's Central Valley. There the Court held that, under section 8 of the Reclamation Act, state law governs the control, use, and distribution of water through a federal reclamation project unless state law conflicts with a clear congressional directive. Id. at 674-75, 98 S.Ct. 2985.
¶ 31 In so ruling, however, the Court reaffirmed that different rules apply to the Colorado River. The Court specifically noted that in Arizona v. California, it had "concluded that because of the unique size and multistate scope of the [Boulder Canyon] Project, Congress did not intend the States to interfere with the Secretary's power to determine with whom and on what terms water contracts would be made." Id. at 674, 98 S.Ct. 2985.
*1128 ¶ 32 The trial court's ruling that the landowners have a vested "right to perpetual use of the CAP water that is appurtenant to their land" conflicts with section 5 of the BCPA and Arizona v. California. Neither section 8 of the Reclamation Act nor the landowners' water service agreements with the districts can substitute for a contract with the Secretary to create a vested right to CAP water.
B.
¶ 33 The landowners attempt to overcome the fact that they are not parties to a contract with the Secretary by arguing that they are third-party beneficiaries of the subcontracts between the Secretary, the CAWCD, and the districts. A third-party beneficiary is a non-party who has the right to enforce a contract. Restatement (Second) of Contracts § 304 (1979).
¶ 34 The trial court should not have entertained the third-party beneficiary argument at all because the landowners had already litigated and lost the same issue in federal court. Principles of issue preclusion bar the relitigation in state court of the landowners' status as third-party beneficiaries to the subcontracts.
¶ 35 After the landowners filed this suit against the districts in the Pinal County Superior Court in 2001, they filed a separate suit in the same court against the CAWCD in 2003. The CAWCD removed the second suit to the district court. In September 2003, the district court dismissed the suit against the CAWCD on the grounds that the landowners were not third-party beneficiaries of either the master contract or the subcontracts. While an appeal was pending in the Ninth Circuit in the CAWCD case, the landowners argued in their state court suit against the districts that they were third-party beneficiaries of the subcontracts. The trial court accepted this argument in its November 2004 ruling without addressing the effect of the district court's prior ruling to the contrary.
¶ 36 The district court's ruling dismissing the suit against the CAWCD was a judgment for purposes of issue preclusion, even though an appeal was pending. Robi v. Five Platters, Inc., 838 F.2d 318, 327 (9th Cir.1988) (pending appeal does not alter preclusive effect of district court judgment). The trial court, before reaching the merits, therefore should have considered whether the district court's judgment barred the landowners from relitigating their status as third-party beneficiaries.
¶ 37 Federal law determines the preclusive effect of a federal court judgment in state court. Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 507, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001) ("[W]e have long held that States cannot give [federal] judgments merely whatever effect they would give their own judgments, but must accord them the effect that this Court prescribes."); Restatement (Second) of Judgments ("Restatement") § 87 (1982) ("Federal law determines the effects under the rules of res judicata of a judgment of a federal court.").
¶ 38 Applying federal law to determine the preclusive effect of federal judgments helps maintain "the integrity of federal judicial power and the coherence of the federalist judicial system." Watkins v. Resorts Int'l Hotel & Casino, 124 N.J. 398, 591 A.2d 592, 598 (N.J.1991); see also Restatement § 87 cmt. a (noting that principle of finality of judgments is implicit in authority given federal courts under Articles I and III of the Constitution). Employing federal law also follows logically from the premise that preclusion is a "consequence of the procedures of the issuing court." Watkins, 591 A.2d at 598. This approach parallels the rule, expressed in the Full Faith and Credit Act, 28 U.S.C. § 1738, that federal courts will refer to state law in determining the preclusive effect of a state court judgment. See Marrese v. Am. Acad. of Ortho. Surgeons, 470 U.S. 373, 380-81, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985).
¶ 39 The Supreme Court has long recognized the defensive use of issue preclusion. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). Under this doctrine, a plaintiff and its privies are barred from relitigating issues already settled in one case against a defendant party in another case. Id. at 329, 99 S.Ct. 645. The party asserting the bar must show that *1129 (1) the issue was litigated to a conclusion in a prior action, (2) the issue of fact or law was necessary to the prior judgment, and (3) the party against whom preclusion is raised was a party or privy to a party to the first case. Allen v. McCurry, 449 U.S. 90, 94-95, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). Each of these requirements is met here.
¶ 40 The landowners litigated their third-party beneficiary status to a conclusion in the federal litigation against the CAWCD. They argued before the district court that they were third-party beneficiaries of the master contract and the subcontracts, and the district court's dismissal of their case for failure to state a claim constituted a judgment on the merits. See Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 399 n. 3, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981).
¶ 41 Determining the landowners' third party status was essential to the federal court judgment. The district court held that the landowners had failed to state a claim because they were not third-party beneficiaries. Applying de novo review, the Ninth Circuit agreed, noting that the master contract and the subcontracts did not reflect any clear intent to recognize the landowners as intended beneficiaries entitled to enforce the agreements as third parties. Smith, 418 F.3d at 1038.[6]
¶ 42 Finally, the landowners in this state court litigation were parties or privy to parties in the federal litigation. The lead plaintiffs and counsel for all plaintiffs are the same in each action. Although the record reflects that some landowner plaintiffs were added to this action who were not also parties to the suit against the CAWCD in federal court, this fact does not alter our conclusion that issue preclusion should apply. See Petit v. City of Chicago, 766 F.Supp. 607, 613 (N.D.Ill.1991) (applying issue preclusion where plaintiffs added parties in subsequent action in attempt to avoid preclusion).
¶ 43 The interests of any new landowner plaintiffs regarding the third party issue were identical to those of the overlapping plaintiffs in the two actions. There is no question that the new landowner plaintiffs had notice of the ongoing federal litigation and that their interests were adequately represented. Moreover, the landowners have not argued a lack of privity among the plaintiffs, and accordingly "any argument of that nature is deemed waived." See Thornton v. City of St. Helens, 425 F.3d 1158, 1166 (9th Cir.2005) (applying Oregon law of issue preclusion).
¶ 44 In attempting to avoid issue preclusion, the landowners instead rely on section 29 of the Restatement, which identifies various circumstances that allow a party to relitigate a previously determined issue. Because federal courts have looked to the Restatement in determining the preclusive effect of federal judgments, we will consider the landowners' arguments that certain exceptions identified in section 29 apply here. See Montana v. United States, 440 U.S. 147, 162-64, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979) (citing drafts of the Restatement in determining whether to apply exceptions to the rule of preclusion).
¶ 45 The landowners first assert that treating the third party issue as conclusively determined would be "incompatible with an applicable scheme of administering the remedies in the actions involved," Restatement § 29(1), because it would frustrate the state legislature's purpose in creating Arizona irrigation districts to benefit their landowner members.
¶ 46 This argument is unconvincing. Section 29(1) of the Restatement applies when a remedial scheme limits the effect to be given to a prior determination of an issue. Id. cmt. *1130 c. An example would be "a statute provid[ing] that a determination is limited to the action in which it is made or ... [is] only prima facie evidence of the facts involved...." Id. The landowners do not identify any remedial scheme that would limit the preclusive effect of the federal court judgment.
¶ 47 We also do not believe that according preclusive effect to the prior federal judgment would somehow frustrate the purpose of Arizona's legislation creating irrigation districts. Nothing in the state legislation suggests any intent to make individual landowners the third-party beneficiaries of an irrigation district's contracts, either in general or with the Secretary concerning CAP water.
¶ 48 The landowners next argue that preclusion should not apply under section 29(5) of the Restatement because the prior determination may have been affected by relationships among the parties to the first action that are not present in the subsequent action. This exception applies when circumstances distinctive to the first proceeding might have influenced the outcome and the issue "could reasonably have been resolved otherwise if those circumstances were absent." Id. cmt. g. The landowners have not identified anything regarding the federal court proceedings that would invoke this exception.
¶ 49 Citing section 29(6) of the Restatement, the landowners also argue that they should be allowed to relitigate their third-party status because the federal court did not base its ruling on state law. Section 29(6) is inapposite because it applies when treating an issue as conclusively determined would either complicate the determination of issues in the subsequent action or prejudice the interests of another party who has not yet had his day in court. Id. cmt. h.
¶ 50 Moreover, the landowners are mistaken in arguing that state law should determine if they are third-party beneficiaries. Federal, not state law, controls the construction of contracts entered by the United States pursuant to a federal statute. United States v. Seckinger, 397 U.S. 203, 209-10, 90 S.Ct. 880, 25 L.Ed.2d 224 (1970); Klamath Water Users Protective Ass'n v. Patterson, 204 F.3d 1206, 1210 (9th Cir.1999).
¶ 51 The landowners finally argue that they should be allowed to relitigate their status as third-party beneficiaries so that their opportunity to "obtain[] reconsideration of the legal rule upon which it was based" is not "inappropriately foreclose[d]," Restatement § 29(7), or because "[o]ther compelling circumstances make it appropriate...." Id. § 29(8). The landowners sought reconsideration of the district court's legal determination of their third-party status when they appealed to the Ninth Circuit. That the landowners were disappointed with the outcome in the federal courts is not sufficient reason to allow them to relitigate the issue in state court under Restatement section 29(7).
¶ 52 Nor have the landowners identified "compelling circumstances" that would justify relitigation under section 29(8) of the Restatement. This exception applies when a prior determination is discovered to have been plainly wrong, new evidence has become available that could likely lead to a different result, or other compelling circumstances show good reason for allowing a party to relitigate an issue. Id. cmt. j & reporter's note.
¶ 53 The landowners assert that the irrigation districts were created for their benefit and that only the landowners have the "right" to use CAP water on district lands. The subcontracts do not, however, recognize any entitlement on the part of individual landowners to CAP water and they do not express any intent to afford enforceable rights to non-parties who might ultimately apply the water for irrigation purposes.[7]
¶ 54 The landowners did enter contracts with the districts for the delivery of irrigation *1131 water, namely, the memoranda of understanding and the subsequent water service agreements. These agreements, however, do not include the Secretary as a party and they do not modify the master contract or the subcontracts. They also do not purport to give the landowners any vested right to CAP water. The water service agreements, with slight variations among the districts, provide that the districts will deliver "irrigation water" without specifying its source as CAP water; the same agreements declare that the right to receive water from the districts will be appurtenant to the land, but this provision also does not identify CAP water.
¶ 55 With regard to landowner water rights, the water service agreements instead provide that the landowners retain the "exclusive right" to convert grandfathered groundwater irrigation rights to certain non-irrigation water rights and that, if they do so, they may regain the wells on their lands for use solely for municipal and industrial purposes. This provision stands in marked contrast to the subcontracts, which are distinctly silent about any "rights" of individual landowners to acquire or use CAP water upon the conversion of their land from agricultural use.
¶ 56 In sum, the landowners have not identified compelling circumstances that would justify allowing them to relitigate their status as third-party beneficiaries. The federal court determination that they are not third-party beneficiaries of either the subcontracts or the master contract controls in this litigation. See Smith, 418 F.3d at 1036-38.
V.
¶ 57 Because the landowners cannot establish an entitlement to CAP water absent a contract with the Secretary, and because they are not third-party beneficiaries to either the subcontracts or the master contract, the trial court erred in ruling that they have a vested right to CAP water. Our holding does not address what other rights, if any, the landowners may have under the agreements to which they are parties, such as any grandfathered irrigation rights or rights to use wells located on their lands for non-agricultural purposes.
¶ 58 This action for declaratory relief turns on the landowners' alleged vested right to CAP water. Because the landowners have no vested right to CAP water, the districts are entitled to summary judgment dismissing the second amended complaint. We vacate the trial court's order granting partial summary judgment in favor of the landowners, grant the districts' request pursuant to A.R.S. § 12-341.01 for an award of attorneys' fees incurred in this special action, and remand this case to the trial court for further proceedings consistent with this opinion, including the determination of any request for an award of fees incurred in the trial court.
CONCURRING: RUTH V. McGREGOR, Chief Justice, REBECCA WHITE BERCH, Vice Chief Justice, MICHAEL D. RYAN, and ANDREW D. HURWITZ, Justices.
NOTES
[1] In 2003, the trial court ordered the plaintiff landowners to serve all other landowners in each district. About 200 of these other landowners supported the districts in opposing the plaintiffs' claims and joined in the petition for special action.
[2] The Reclamation Act and the Boulder Canyon Project Act are codified, respectively, at 43 U.S.C. §§ 372, 383 and 43 U.S.C. § 617d.
[3] The CAWCD is a multi-county district created pursuant to state law for the purpose of contracting with the Secretary for CAP water. A.R.S. § 48-3703. Its boundaries are coextensive with Maricopa, Pima, and Pinal counties, exclusive of Indian lands within these counties. See Cent. Ariz. Water Conservation Dist. v. United States, 32 F.Supp.2d 1117, 1121 (D.Ariz.1998).
[4] Bryant held that a 1926 amendment to the Reclamation Act limiting irrigation deliveries to 160 acres under single ownership could not apply to present perfected rights recognized in the BCPA. 447 U.S. at 355-56, 100 S.Ct. 2232. Like Arizona v. California, Bryant refused to apply the general Reclamation Act to limit specific provisions of the BCPA. Id. at 368-69, 100 S.Ct. 2232.
[5] The districts also argue that they have never purchased CAP water under the subcontracts because it is too expensive, so the landowners could not have acquired any rights to such water as a result of having applied it for beneficial use. We need not address this issue, given our holding that a contract with the Secretary is necessary to establish an entitlement to CAP water.
[6] The Ninth Circuit has recognized that its case law regarding the status of irrigators as third-party beneficiaries may be at odds with H.F. Allen Orchards v. United States, 749 F.2d 1571, 1576 (Fed.Cir.1984), which stated that members of an irrigation district could sue as third-party beneficiaries to enforce a consent decree entered by the district on their behalf. See Orff v. United States, 358 F.3d 1137, 1147 n. 5 (9th Cir.2004). The Supreme Court affirmed the Ninth Circuit's ruling in Orff without reaching the third-party beneficiary issue. Orff v. United States, ___ U.S. ___, 125 S.Ct. 2606, 162 L.Ed.2d 544 (2005). H.F. Allen is not persuasive here, because it did not involve Colorado River water governed by the BCPA and its remarks on third-party beneficiary status were unnecessary to its decision. See 749 F.2d at 1576.
[7] For this reason, if we were to reach the merits, we would agree with the Ninth Circuit that the landowners are not third-party beneficiaries entitled to enforce the master contract or the subcontracts. See Klamath, 204 F.3d at 1210-12 (holding that third-party beneficiary status does not result merely because a government contract operates to benefit identified non-parties; evidence of a clear intent to confer such status is required).
| {
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USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
_________________________
No. 96-2122
SETH BERNER,
Plaintiff, Appellant,
v.
JUDGE THOMAS E. DELAHANTY, II,
Defendant, Appellee.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
___________________
_________________________
Before
Selya, Circuit Judge,
_____________
Aldrich and Campbell, Senior Circuit Judges.
_____________________
_________________________
Seth Berner, pro se.
___________
Peter J. Brann, Assistant Attorney General, with whom Andrew
______________ ______
Ketterer, Attorney General, and Thomas D. Warren, State
________ ___________________
Solicitor, were on brief, for appellee.
_________________________
October 28, 1997
_________________________
SELYA, Circuit Judge. Attorney Seth Berner claims
SELYA, Circuit Judge.
______________
that lawyers have an absolute right, protected by the First
Amendment, to wear political buttons in the courtroom as long as
the buttons do not disrupt judicial proceedings. We reject that
proposition and affirm the district court's dismissal of Berner's
action for declaratory and injunctive relief.
I. BACKGROUND
I. BACKGROUND
The facts, drawn from the plaintiff's verified
complaint and construed in his favor, see Dartmouth Review v.
___ _________________
Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989), can be
__________________
recounted readily. The defendant, Thomas E. Delahanty, II, is an
associate justice of the Maine Superior Court. On October 31,
1995, Berner was seated in the gallery of Judge Delahanty's
courtroom, waiting for his turn to appear before the court.
Berner wore a circular button pinned to his lapel. The button
was approximately two inches in diameter and bore the words "No
"No
on 1 - Maine Won't Discriminate." This legend expressed
on 1 - Maine Won't Discriminate."
opposition to a statewide referendum that Maine voters were
scheduled to consider during the November election.1 Neither the
pin nor its message were related to Berner's business before the
court.
At some point during the day's proceedings, Judge
Delahanty called Berner to the bench. The following exchange
took place:
____________________
1The referendum sought to prohibit the passage of laws that
condemned discrimination on the basis of sexual orientation. It
had been the subject of heated debate.
2
THE COURT: Mr. Berner . . . Can you remove
THE COURT:
_________
the political pen [sic] while you're in the
courtroom?
ATTORNEY BERNER: Your Honor, what happened
ATTORNEY BERNER:
_______________
to my right to political speech?
THE COURT: Not in the courtroom. We don't
THE COURT:
_________
take sides.
ATTORNEY BERNER: I want the record to
ATTORNEY BERNER:
________________
reflect that I don't think there's any
authority for that.
THE COURT: The courtroom is not that may
THE COURT:
_________
be, but the courtroom is not a political
forum.
ATTORNEY BERNER: Your honor, I want the
ATTORNEY BERNER
________________
record to reflect that I object to that.
Reasonably believing that he would be held in contempt if he did
not comply with the court's order, Berner removed the button.
During a chambers conference later that day, the judge told
Berner that he planned to perpetuate the prohibition against
lawyers wearing political buttons in his courtroom unless and
until he was overruled by a higher authority.
Berner took refuge in the United States District Court,
where he sought declaratory and injunctive relief pursuant to 42
U.S.C. 1983 (1994). His rifle-shot complaint contained a
single claim: that the button ban violated the First Amendment.
In support of this claim Berner alleged that his button had not
caused any disruption of the ongoing proceedings and that Judge
Delahanty "routinely permitted the wearing in his courtroom of
other ornamentation supporting causes, such as crucifixes and
insignia for armed forces or fraternal orders."
A flurry of motions ensued. The district court denied
3
Berner's motion for a preliminary injunction, finding an
insufficient likelihood of success on the merits. The court then
addressed the defendant's motions to dismiss the action for lack
of standing and failure to state an actionable claim. The court
finessed the former by assuming, without deciding, that Berner
had standing to sue. See Berner v. Delahanty, 937 F. Supp. 62,
___ ______ _________
62 (D. Me. 1996).
Turning to the legal sufficiency of the complaint, the
court held that the controlling legal standard was the forum-
specific analysis of Cornelius v. NAACP Legal Defense and Educ.
_________ ______________________________
Fund, Inc., 473 U.S. 788, 800 (1985) (discussing varying levels
___________
of scrutiny applicable to governmental restrictions on speech in
different fora). See Berner, 937 F. Supp. at 63. Because the
___ ______
parties "agree[d] that the state courtroom is a nonpublic forum,"
Judge Carter found, consistent with Cornelius, that the decision
_________
to limit the wearing of political buttons "need only be: (1)
reasonable in light of the purpose which the court serves and (2)
viewpoint neutral." Id. Building on this premise, the judge
___
concluded that the restriction on political paraphernalia was a
reasonable attempt to "shield the courtroom from the inevitable
appearance of politicization," and that there was "no indication
that [Judge Delahanty] intended to discourage one viewpoint and
advance another." Id. Since he perceived the button ban to be a
___
"reasonable viewpoint-neutral restriction," Judge Carter ruled
that the complaint stated no claim upon which relief could be
granted. Id.
___
4
On appeal, Berner assails the district court's
analysis. He maintains that the court placed undue emphasis on
Cornelius; that it erred in gauging the reasonableness of the
_________
ban; and, finally, that it failed to give appropriate weight to
the defendant's tolerance of persons wearing other politically-
tinged ornamentation.
II. SCOPE OF REVIEW
II. SCOPE OF REVIEW
We evaluate de novo a district court's dismissal of an
action for failure to state a cognizable claim. See Aulson v.
___ ______
Blanchard, 83 F.3d 1, 3 (1st Cir. 1996). In assaying such a
_________
dismissal, the appellate court, like the court that preceded it,
must assume that the factual averments of the complaint are true
and must draw all plausible inferences in the plaintiff's favor.
See Leatherman v. Tarrant Cty. Narcotics Intell. & Coord. Unit,
___ __________ ______________________________________________
507 U.S. 163, 164 (1993); Dartmouth Review, 889 F.2d at 16.
________________
In this case, the district court gracefully sidestepped
the standing inquiry, preferring instead a pas de deux directly
____________
with the merits of the complaint. While we recognize the
occasional availability of such a terpsichorean course, see,
___
e.g., United States v. Stoller, 78 F.3d 710, 715 (1st Cir. 1996)
____ _____________ _______
(explaining that a court may bypass a difficult jurisdictional
question and instead dispose of the case on the merits if doing
so favors the party challenging the court's jurisdiction); see
___
also Rojas v. Fitch, ___ F.3d ___, ___ (1st Cir. 1997) [No. 96-
____ _____ _____
2328, slip op. at 7] (employing Stoller principle to sidestep an
_______
inquiry into standing), in this appellate lambada we are
5
reluctant to follow suit. Standing is a threshold issue in every
federal case and goes directly to a court's power to entertain an
action. See Warth v. Seldin, 422 U.S. 490, 498 (1975); New
___ _____ ______ ___
Hampshire Right to Life Political Action Comm. v. Gardner, 99
_________________________________________________ _______
F.3d 8, 12 (1st Cir. 1996). Moreover, the general rule is that a
court should first confirm the existence of rudiments such as
jurisdiction and standing before tackling the merits of a
controverted case. The exception discussed in Stoller is exactly
_______
that an exception, which, in light of the danger that an
ensuing decision on the merits might be rendered sterile by the
tribunal's lack of authority to resolve the case, should be used
sparingly. Resort should not be made to the exception where, as
here, no substantial doubt attaches to the threshold issue.
Hence, we choose to confront and resolve the standing question
before proceeding to the merits.2
III. STANDING
III. STANDING
The criteria for standing are well-rehearsed. To
establish that a dispute qualifies as an Article III "case" or
"controversy," enabling it to obtain a federal court audience,
____________________
2Shortly after the district court dismissed Berner's suit,
Congress amended 42 U.S.C. 1983 to provide "that in any action
brought against a judicial officer for an act or omission taken
in such officer's judicial capacity, injunctive relief shall not
be granted unless a declaratory decree was violated or
declaratory relief was unavailable." Pub. L. 104-317, 309(c),
110 Stat. 3853 (1996). Judge Delahanty presumably because
Berner's complaint seeks declaratory as well as injunctive
redress neither moved for dismissal of the appeal nor raised
the amendment as an alternate ground for affirming the judgment.
Under the circumstances, it would serve no useful purpose for us
to set sail, uninvited, on these uncharted waters.
6
the party seeking to invoke federal jurisdiction must first
demonstrate that
(1) he or she personally has suffered some
actual or threatened injury as a result of
the challenged conduct; (2) the injury can
fairly be traced to that conduct; and (3) the
injury likely will be redressed by a
favorable decision from the court.
New Hampshire Right to Life, 99 F.3d at 13. We hasten to add,
____________________________
however, that the Court has placed a special gloss on cases in
which a party seeks exclusively injunctive or declaratory relief.
In such purlieus, standing inheres only if the complainant can
show that he has suffered (or has been threatened with) "an
invasion of a legally protected interest which is . . . concrete
and particularized," Lujan v. Defenders of Wildlife, 504 U.S.
_____ ______________________
555, 560 (1992), together with "a sufficient likelihood that he
will again be wronged in a similar way," City of Los Angeles v.
___________________
Lyons, 461 U.S. 95, 111 (1983). In other words, the complainant
_____
must establish that the feared harm is "actual or imminent, not
conjectural or hypothetical." Lujan, 504 U.S. at 460 (citations
_____
and internal quotation marks omitted). It bears noting that the
imminence concept, while admittedly far reaching, is bounded by
its Article III purpose: "to ensure that the alleged injury is
not too speculative." Id. at 564 n.2.
___
In addition to these benchmarks of constitutional
sufficiency, standing doctrine "also embraces prudential concerns
regarding the proper exercise of federal jurisdiction." United
______
States v. AVX Corp., 962 F.2d 108, 114 (1st Cir. 1992). Under
______ __________
this rubric, courts generally insist that every complainant's tub
7
rest on its own bottom. See id. (stating that a plaintiff
___ ___
ordinarily cannot sue to assert the rights of third parties).
When the First Amendment is in play, however, the Court has
relaxed the prudential limitations on standing to ameliorate the
risk of washing away free speech protections. See Secretary of
___ ____________
State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 956 (1984).
____________ ____________________
Hence, when freedom of expression is at stake:
Litigants . . . are permitted to challenge a
[policy] not because their own rights of free
expression are violated, but because of a
judicial prediction or assumption that the
[policy's] very existence may cause others
not before the court to refrain from
constitutionally protected speech or
expression.
Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).
_________ ________
Against this backdrop, Judge Delahanty strives to
persuade us that, even if Berner has standing to challenge the
button ban as a past violation of his First Amendment rights
(say, by a suit for money damages), he has no standing to seek
declaratory and injunctive relief because there is no reasonable
likelihood that he will again face similar harm. We are not
convinced.
Berner is a member of the Maine bar and a full-time
practicing lawyer who regularly handles litigation. Born in
1956, much of his career apparently lies ahead of him. Moreover,
Maine is not California. The superior court is the principal
statewide court of general jurisdiction, see Me. Rev. Stat. Ann.
___
tit. 4, 105 (West 1989), and its business is handled by a total
of only 16 active judges. The law of averages strongly suggests
8
that vocational demands will bring Berner before each and all of
these judges in the months and years to come.
To cinch matters, the parties remain philosophically on
a collision course. Berner's passion for political pins has not
waned, and he has vowed that, when once again afforded the
opportunity, he would not hesitate, but for Judge Delahanty's
stated policy, to wear a political button in the jurist's
courtroom. The judge, too, remains steadfast in his
determination to prohibit attorneys from sporting such pins in
his bailiwick.
On balance, the combination of facts reflected by the
record persuades us that Berner faces a realistic risk of future
exposure to the challenged policy. Such a risk is sufficient to
satisfy not only the standing requirements that Article III
imposes, but also the prudential concerns that sometimes trouble
courts. See DuBois v. United States Dep't of Agric., 102 F.3d
___ ______ ______________________________
1273, 1283 (1st Cir. 1996); see also American Postal Workers v.
___ ____ ________________________
Frank, 968 F.2d 1373, 1377 (1st Cir. 1992) (elucidating doctrinal
_____
parameters of Lyons).
_____
In any event, Berner alleges that the button ban
constitutes a threat not only to his own right to political
speech but also to the rights of "other citizens." Thus, even if
these particular parties' paths were not likely to cross again,
Berner might well be able to invoke the federal courts'
jurisdiction to seek equitable relief based on the "judicial
prediction" that the policy may chill the general exercise of
9
free speech. Broadrick, 413 U.S. at 612. Judge Delahanty's
_________
prohibition apparently applies to every court officer, and we are
not so struthious as to hide our eyes from the probability that,
as a result of such a policy, other attorneys will refrain from
expressing opinions by wearing political paraphernalia when
appearing before this judge. In itself, this can be a
sufficiently concrete and particularized injury to First
Amendment protections to ground a claim of standing. See
___
Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 392-
________ ________________________________
93 (1988).
IV. THE MERITS
IV. THE MERITS
In attempting to ascertain whether the district court
erred in granting the defendant's motion to dismiss the action
for failure to state a claim, Fed. R. Civ. P. 12(b)(6), we must
assume that the complaint's factual averments are true and
determine from that coign of vantage whether the pleading
encompasses any set of facts that would entitle the plaintiff to
relief. See Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49,
___ _______________ __________________
52 (1st Cir. 1990) (explaining that an affirmance of a Rule
12(b)(6) dismissal is appropriate "only if it clearly appears,
according to the facts alleged, that the plaintiff cannot recover
on any viable theory"). Although this standard is diaphanous, it
is not a virtual mirage. To survive a motion to dismiss, a
complaint must set forth "factual allegations, either direct or
inferential, respecting each material element necessary to
sustain recovery under some actionable legal theory." Gooley v.
______
10
Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988). It is,
________________
moreover, settled that in judging the adequacy of a plaintiff's
allegations, "bald assertions, periphrastic circumlocutions,
unsubstantiated conclusions, [and] outright vituperation" carry
no weight. Correa-Martinez, 903 F.2d at 52.
_______________
These rules of pleading and practice cannot be applied
in a vacuum. Thus, to evaluate properly the sufficiency of
Berner's complaint, we first construct a template that comprises
the averments necessary to state a claim for violation of the
First Amendment in this context. We then proceed to measure the
facts that Berner alleges in his complaint3 against this template
to ascertain whether those facts, if proven, suffice to establish
an entitlement to relief.
A. The First Amendment Framework.
A. The First Amendment Framework.
_____________________________
It is axiomatic that not every limitation on freedom of
expression insults the First Amendment. A curtailment of speech
violates the Free Speech Clause only if the restricted expression
is, in fact, constitutionally protected, see Chaplinsky v. New
___ __________ ___
Hampshire, 315 U.S. 568, 571-72 (1942), and if the government's
_________
justification for the restriction is inadequate, see
___
____________________
3Rule 12(b)(6) provides in pertinent part that if, on a
motion to dismiss, "matters outside the pleadings are presented
to and not excluded by the court, the motion shall be treated as
one for summary judgment and disposed of as provided in Rule 56."
Here, the parties submitted affidavits subsequent to the filing
of the complaint, but the district court apparently did not rest
its decision in any way on these materials (and, thus,
effectively excluded them). This course of action lay within the
court's discretion, see Garita Hotel Ltd. Partnership, Etc. v.
___ _____________________________________
Ponce Fed. Bank, 958 F.2d 15, 18-19 (1st Cir. 1992), and we guide
_______________
our analysis accordingly.
11
International Soc'y for Krishna Consciousness v. Lee, 505 U.S.
_______________________________________________ ___
672, 678 (1992).4
In Cornelius, the Court articulated a three-tiered,
_________
forum-based test for determining when the government's interest
in limiting particular property to its intended purpose outweighs
the interests of those who wish to use the property for
expressive purposes:
[S]peakers can be excluded from a public
forum only when the exclusion is necessary to
serve a compelling state interest and the
exclusion is narrowly drawn to achieve that
interest. Similarly, when the Government has
intentionally designated a place or means of
communication as a public forum speakers
cannot be excluded without a compelling
governmental interest. Access to a nonpublic
forum, however, can be restricted as long as
the restrictions are reasonable and [are] not
an effort to suppress expression merely
because public officials oppose the speaker's
view.
Cornelius, 473 U.S. at 800 (citations and internal quotation
_________
marks omitted); accord Perry Educ. Ass'n v. Perry Local
______ ___________________ ____________
Educators' Ass'n, 460 U.S. 37, 45-46 (1983). Thus, when a
_________________
plaintiff seeks to launch a First Amendment challenge addressed
to a policy or practice that restricts expressive activity on
public property, he must plead facts sufficient to show (1) that
the government has burdened a protected form of speech, and (2)
that the restriction is unreasonable (which, in a nonpublic
____________________
4The adequacy of the government's justification is measured
on a sliding scale. Generally speaking, the nature of the forum
in which the speech is restricted dictates the level of scrutiny
required. See International Soc'y for Krishna Consciousness, 505
___ _____________________________________________
U.S. at 678-79; United States v. Kokinda, 497 U.S. 720, 726-27
_____________ _______
(1990).
12
forum, may involve showing that the restriction is biased, and,
in public or limited public fora, may involve showing that it is
not narrowly drawn to further a compelling state interest).
The appeal before us arises in a slightly awkward
posture. Ordinarily, a complaint, standing alone, will not
provide a suitable vehicle for evaluating the adequacy of the
government's justification for restricting speech. In some
instances, however, the government's rationale is either clearly
stated in the restriction itself or plain from even a cursory
examination of the restriction. If the justification is apparent
and is plausible on its face, a complainant who hopes to survive
a motion to dismiss must do more than suggest conclusorily that
the state has an improper or insufficient motivation. Rather,
the complainant must allege facts that, if proven, would support,
directly or by fair inference, a finding that the state's
justification falls short of the applicable legal standard.
B. The Sufficiency of the Complaint.
B. The Sufficiency of the Complaint.
________________________________
We turn now to the sufficiency of the instant
complaint. As to the nature of the speech, we conclude that the
complaint adequately alleges infringement of a constitutionally
protected form of expression the plaintiff's right to advocate
a particular political position by wearing an emblem. See Board
___ _____
of Airport Commissioners v. Jews for Jesus, 482 U.S. 569, 576
_________________________ ______________
(1987); Tinker v. Des Moines Indep. Community School Dist., 393
______ __________________________________________
U.S. 503, 505 (1969). Such political expression is typical of
the broad spectrum of symbolic acts that the Free Speech Clause
13
of the First Amendment is designed to protect.
Berner does not fare as well when the spotlight shifts
to the apparent justification for the restriction. A courthouse
and, especially, a courtroom is a nonpublic forum. See
___
United States v. Bader, 698 F.2d 553, 556 (1st Cir. 1983);
______________ _____
Claudio v. United States, 836 F. Supp. 1219, 1224-25 (E.D.N.C.
_______ ______________
1993), aff'd, 28 F.3d 1208 (4th Cir. 1994). A courtroom's very
_____
function is to provide a locus in which civil and criminal
disputes can be adjudicated. Within this staid environment, the
presiding judge is charged with the responsibility of maintaining
proper order and decorum. In carrying out this responsibility,
the judge must ensure "that [the] courthouse is a place in which
rational reflection and disinterested judgment will not be
disrupted." Ryan v. County of DuPage, 45 F.3d 1090, 1095 (7th
____ _________________
Cir. 1995). We think it is beyond serious question that the
proper discharge of these responsibilities includes the right
(and, indeed, the duty) to limit, to the extent practicable, the
appearance of favoritism in judicial proceedings, and
particularly, the appearance of political partiality. Cf. Greer
___ _____
v. Spock, 424 U.S. 828, 839 (1976) (finding that a ban on
_____
political speeches and demonstrations on military bases "is
wholly consistent with the American constitutional tradition of a
politically neutral military establishment under civilian
control").
Judge Delahanty's order compelling Berner to remove his
political-advocacy button while in the courtroom fits comfortably
14
within this apolitical paradigm. Emblems of political
significance worn by attorneys in the courtroom as a means of
espousing personal political opinions can reasonably be thought
to compromise the environment of impartiality and fairness to
which every jurist aspires. As an officer of the court, a
lawyer's injection of private political viewpoints into the
courtroom, coupled with the judge's toleration of such conduct,
necessarily tarnishes the veneer of political imperviousness that
ideally should cloak a courtroom, especially when the partisan
sentiments are completely unrelated to the court's business.
Here, Judge Delahanty stated clearly that he was
ordering Berner to remove the button because participants in the
judicial process ought not simultaneously "take sides" in
extraneous political debates.5 This explanation is entirely
consistent with a desire to ensure that the courtroom remains
free from the appearance of political partisanship. Evaluating
the professed justification, as we must, "in light of the purpose
of the forum and all the surrounding circumstances," Cornelius,
_________
473 U.S. at 809, we discern no reason why a judge may not even-
handedly prohibit lawyers from wearing political paraphernalia in
the courtroom.
Berner labors mightily to supply such a reason. Most
notably, he asseverates that, regardless of the form and function
of the courtroom, it is unreasonable to prohibit political pins
____________________
5We consider Judge Delahanty's statements only insofar as
they are reflected in the transcript appended to and incorporated
by reference in the plaintiff's complaint.
15
that do not have the effect of disrupting judicial proceedings.
As support for this thesis, he directs us to the Court's opinion
in Jews for Jesus. He emphasizes that the Justices there
_______________
invalidated a ban which, among other things, proscribed
"nondisruptive speech such as the wearing of a T-shirt or
button that contains a political message." 482 U.S. at 576.
Berner's reliance on Jews for Jesus is mislaid.
______________
That case involved an overbreadth challenge to a
municipal ordinance which, on its face, "reache[d] the universe
of expressive activity, and, by prohibiting all protected
___
expression, purport[ed] to create a virtual `First Amendment Free
Zone' at [a major airport]." Id. at 575. Not surprisingly, the
___
Court held that, even if an airport is a nonpublic forum, no
government interest could justify excluding all forms of
___
protected expression from that locale. See id. The prohibition
___ ___
here is hardly of such unbridled scope, and, in all events, the
plaintiff has not attacked it as overbroad or vague. In
addition, an airport terminal, in which free expression
presumably would have been allowed absent the challenged
ordinance, differs substantially from a courtroom, in which
"whatever right to `free speech' an attorney has is [already]
extremely circumscribed." Gentile v. State Bar of Nevada, 501
_______ ____________________
U.S. 1030, 1071 (1991). For these reasons, Jews for Jesus is
_______________
inapposite.
Stripping away the authority on which Berner relies
still leaves intact his bareboned contention that it is
16
unreasonable to restrict non-disruptive speech. As applied to
courtrooms, we think that this view is much too myopic.
In the first place, the danger of disturbing a court's
proceedings is only one acceptable justification for restricting
protected speech. There are others. So here: even though
Berner's button caused no commotion, his mere wearing of a pin
that advocates a position regarding a hotly contested political
issue raises the specter of politicalization and partiality.
Mindful of the purposes of the courtroom and Berner's role as an
officer of the court, we conclude that it was reasonable for the
judge to bar Berner's political statement regardless of whether
it created a stir. See Cornelius, 473 U.S. at 809 (finding that
___ _________
"avoiding the appearance of political favoritism is a valid
justification for limiting speech in a nonpublic forum").
There is, moreover, a broader justification. By their
nature, courtrooms demand intense concentration on important
matters. Whether or not disruptive, buttons that display
political messages are at the very least distracting. Lawyers
who wear such emblems serve not only as vocal advocates for their
clients in matters before the court, but also as active promoters
of their own political agendas. If a presiding judge turns a
blind eye to attorneys' espousals of political sentiments
unrelated to ongoing proceedings, clarity and continuity may well
suffer. Hence, judges may take reasonable prophylactic measures
to minimize such distractions.
As a fallback position, Berner maintains that Judge
17
Delahanty's policy is not viewpoint neutral because the defendant
banned his button despite having allowed other emblems in the
courtroom, and that this lack of neutrality violates the First
Amendment. We disagree. The essence of viewpoint-based
discrimination is the state's decision to pick and choose among
similarly situated speakers in order to advance or suppress a
particular ideology or outlook. See Lamb's Chapel v. Center
___ _____________ ______
Moriches Union Free Sch. Dist., 508 U.S. 384, 393-94 (1993);
________________________________
Cornelius, 473 U.S. at 806. Although the Free Speech Clause may
_________
not prevent government officials from restricting an entire
category of speech based on its content, it does preclude such
officials from selectively granting safe passage to speech of
which they approve while curbing speech of which they disapprove.
See, e.g., Burnham v. Ianni, 119 F.3d 668, 676 (8th Cir. 1997);
___ ____ _______ _____
Gay Lesbian Bisexual Alliance v. Pryor, 110 F.3d 1543, 1549 (11th
_____________________________ _____
Cir. 1997).
This requirement of viewpoint neutrality prohibits the
state both "from regulating speech when the specific motivating
ideology or the opinion or perspective of the speaker is the
rationale for the restriction," Rosenberger v. Rector & Visitors
___________ _________________
of the Univ. of Va., 515 U.S. 819, 829 (1995), and from treating
___________________
differently comparable means of expression when the nature of the
speech is the linchpin of the limitation, see AIDS Action Comm.
___ _________________
of Mass., Inc. v. Mass. Bay Transp. Auth., 42 F.3d 1, 9-12 (1st
______________ _______________________
18
Cir. 1994).6 This case does not implicate either of these
iterations.
There is simply no basis in the complaint for an
inference that ideology sparked the button ban. The closest that
the complaint comes is an averment that, despite outlawing
Berner's pin, the "[d]efendant has routinely permitted the
wearing in his courtroom of other ornamentation supporting
causes, such as crucifixes and insignia for armed forces or
fraternal orders." Taken as true, this averment is not
sufficient to sustain a claim of viewpoint discrimination because
Berner does not allege that the banishment of his political pin
had anything to do with the message emblazoned on his button or
that the causes promoted by the permitted symbols bear an
ideological relation to his own button-backed political viewpoint
such that allowing these other emblems in the courtroom but
excluding his pin rationally may be seen as a discriminatory
attempt to stifle his opinion.
Nor can the plaintiff convincingly mount a claim of
____________________
6In AIDS Action Committee, the defendant, a state agency,
_____________________
refused to allow the plaintiff to post public service
announcements that used "sexual innuendo and double entendre to
communicate its message" anent the use of condoms "while
simultaneously permitting other advertisers to communicate their
messages through these modes of expression." 42 F.3d at 10. The
panel compared the permitted and prohibited advertisements,
focusing particularly on whether they displayed sexual images at
equivalent levels of explicitness, and concluded that the two
sets of advertisements were equally suggestive. The panel then
ruled that the defendant's differential treatment of similarly
suggestive advertisements constituted "content discrimination
which gives rise to the appearance of viewpoint discrimination"
in violation of the First Amendment. Id. at 11.
___
19
viewpoint bias based on the prohibition of his political speech
in the courtroom without a corresponding disallowance of military
and religious ornamentation (which, in his view, also advance
political causes). The lesson of AIDS Action Committee is that
______________________
an inference of viewpoint discrimination sometimes can be drawn
when the proscribed speech and the permitted speech are alike in
ways that undermine the justification asserted in support of the
restriction. Here, however, the stated justification is to avoid
the appearance of political partiality, and Berner's allegations
do not in any way impeach that justification. No substantial
equivalency exists between political buttons, on the one hand,
and military and religious emblems, on the second hand. A
political button has only a single purpose: to express a view on
a political candidate or cause. In contrast, military and
religious symbols, standing alone, do not expressly advocate a
particular political position, and, at best, are subject only to
secondary political connotations. Such adornments have multiple
meanings, including but not limited to conveying allegiance to a
particular institution or a broad band of convictions, values,
and beliefs. Thus, because restraining partisan expression in
the neutral environ of a courtroom is a legitimate goal, a judge
reasonably may decide to prohibit pins that primarily and
expressly champion specific political stances and at the same
time permit the wearing of military and religious accessories.7
____________________
7This case does not require us to address the question of
whether, and if so, under what circumstances, a judge has the
power to exclude military and religious insignia. We leave that
20
In the circumstances of this case, the decision not to bar such
tokens does not compromise the propriety of an otherwise
permissible prohibition precluding political paraphernalia.
To say more would be supererogatory. Based on the
allegations of the plaintiff's complaint, no inference of
viewpoint bias reasonably can be drawn.
V. CONCLUSION
V. CONCLUSION
We need go no further.8 An attorney is free, like all
Americans, to hold political sentiments. In a courtroom setting,
however, lawyers have no absolute right to wear such feelings on
their sleeves (or lapels, for that matter). Judge Delahanty's
policy of prohibiting all political pins is a reasonable means of
ensuring the appearance of fairness and impartiality in the
courtroom, and the plaintiff has made no supportable allegation
that the restriction is viewpoint based. Consequently, Berner's
____________________
question for another day.
8In this venue, Berner argues, for the first time, that
Cornelius does not supply the appropriate legal guidepost for
_________
this case. In Berner's newly-emergent view, Cornelius should be
_________
read to affect limitations on access to public or nonpublic fora,
but not to affect limitations on speech. Although we are tempted
to hold explicitly that this access/speech dichotomy is made up
out of whole cloth, we take a simpler route. In the district
court, Berner acknowledged Cornelius's suzerainty and conceded
_________
relevant and substantial portions of the ensuing analysis.
Consequently, he has forfeited his right to argue a new, much
different theory on appeal. See McCoy v. Massachusetts Inst. of
___ _____ ______________________
Tech., 950 F.2d 13, 16 (1st Cir. 1991); Clauson v. Smith, 823
_____ _______ _____
F.2d 660, 666 (1st Cir. 1987).
21
complaint fails to state a claim upon which relief can be
granted.
Affirmed.
Affirmed.
________
22
| {
"pile_set_name": "FreeLaw"
} |
262 S.W.3d 564 (2008)
GALLE, INC., Appellant
v.
Joe POOL and Leslie Pool, Appellees.
No. 03-07-00619-CV.
Court of Appeals of Texas, Austin.
August 29, 2008.
*565 John M. Cox, John M. Cox & Associates, PC, Dallas, for appellant.
*566 Peter E. Ferraro, The Ferraro Law Firm, Austin, for appellees.
Before Chief Justice LAW, Justices PURYEAR and PEMBERTON.
OPINION
BOB PEMBERTON, Justice.
Galle, Inc., appeals from a judgment awarding Joe and Leslie Pool the sum of $214,400.58, plus prejudgment interest and costs. The judgment was based on jury findings that Galle made a negligent misrepresentation on which the Pools justifiably relied, proximately causing them a total of $214,400.58 in actual damages. Galle brings a single issue, contending that the district court erred in refusing to apply a $532,000.00 dollar-for-dollar credit reflecting the amount of the Pools' settlement with a co-defendant, Allstate Texas Lloyds Company, and render judgment that the Pools take nothing on their claims against Galle. On this record, we conclude that the district court was required to apply the settlement credit. Consequently, we will reverse the district court's judgment and render judgment that the Pools take nothing on their claims against Galle.
The underlying action is a mold suit. The Pools were the named insureds on a homeowners policy with Allstate Texas Lloyds Company covering their Dripping Springs house and its contents. At trial, Joe Pool, an attorney, testified that while wife Leslie was overseeing the remodeling of a bathroom on the lowest level of the house, mold was discovered "between the lavatory and the wall." Leslie, "who knew there was a problem, called it in to our carrier," Allstate. The Pools alleged they filed this claim on or about June 30, 2002. In response to their claim, the Pools alleged that, on or about August 6, Allstate "selected and employed Hometest, Inc. to assist them in their investigation" of the Pools' claim. Hometest proceeded to test the house for mold. The Pools pled that, "A tester for Hometest, however, left an air plug on the attic HVAC condensation drainage line unplugged when he finished testing the inside of the drainage line. This resulted in substantial water intrusion to the ceiling and floor of the third floor of the Residence."
Joe Pool recounted that "we got a phone call September 5" from an Allstate representative informing them that "test results came back and ... it's really bad, and you've got to leave the house and ... don't take anything with you." The Pools grabbed a few possessions and moved first to the Four Seasons in Austin, then to the Driskill. They remained at the Driskill until late December 2002, when they moved to a rental house in the Westlake area of Austin. The Pools remained at this location until approximately July 2003, thereafter moving to two other rental homes, a Home Suites, and finally a trailer on their property before work was finally completed on their house.
Joe Pool explained that, "I was told that I had to hire and contract with a remediation company ... to fix the mold problem and ... get the house right," as well as a contractor to rebuild damaged portions of the house thereafter. It so happened that a Driskill employee whom Joe Pool had befriended was engaged to Danny Galle, who at the time was involved in the mold remediation business. Galle's fianceé arranged a meeting, and the Pools, with Allstate approval and funding, eventually executed a contract with Galle, Inc., dated October 22, 2002. The contract specified that Galle would remove, remediate, and store the contents of the house; and remediate the house. The contract contemplated that after Galle had finished remediating the house, an "independent testing company selected by Allstate" *567 would perform "visual and air test clearance." Once the house passed the clearance testing, it was contemplated that rebuilding on the house could begin. Upon completion of the rebuild, the contract provided that Galle would return the contents to the house.
Galle proceeded to perform work on the house. The work included such tasks as constructing plastic barriers to contain mold in areas where it had been found, cleaning personal possessions by vacuuming or wiping them with chemical agents before storing them, removing the house's air conditioning units, and removing portions of the structure found to have been infested with mold. In December 2002, an independent testing laboratory retained by Allstate, Test Force, performed "clearance testing" on the house. The house failed this first round of testing. Galle performed additional work specified by Test Force. Test Force conducted another round of tests in early January 2003. The Pools were present for the second tests, along with a contractor, Steve Harris, with whom the Pools had been negotiating regarding the planned rebuild. Test Force concluded that the house passed the tests. However, claiming that he saw black or dark red "splotches" on surfaces in the house that he feared were mold, Joe Pool insisted that those surfaces be tested for mold. According to Joe, Galle, Test Force, and Allstate refused to have additional testing conducted, even when Joe offered to pay for it.
For several months thereafter, the Pools were embroiled in disputes with Allstate regarding whether the house was free of mold and ready for the rebuild to begin and the scope of the rebuild that Allstate would pay for. The Pools eventually obtained counsel and found another firm to test for mold in the house. This re-testing was not performed until mid-August 2003. By this time, the house had sat largely empty for several months, with air conditioning units removed. There was evidence that the absence of air conditioning or humidity controls during that period created conditions conducive to mold growth. The testing company found that mold had spread beyond the areas where it had been identified in the Hometest testing months earlier. The Pools hired a second remediation company, which re-remediated the house between October 2003 and January 2004.
In the meantime, in August 2003, the Pools filed their lawsuit. They named as defendants Allstate, Allstate adjusters Ted Mitchell and Clarence Driver, Hometest, and Galle.[1] The Pools complained of numerous actions by Allstate, its employees and agents, during the claims process. "During the claims process, Plaintiffs have been met with incompetence, delay, attrition and indifference all of which has resulted in additional damage to their residence and to them." This included not only disputes "concerning the scope of the remediation and build back covered by the insurance policy," but negligence and gross negligence in failing to timely and properly detect and repair the leaks and resultant water damage and remove the molds in Plaintiffs' home; in "failing to properly remove the molds, which mold contamination has now overtaken the home; and in failing to make the necessary arrangements to assure that such proper repairs were promptly undertaken and completed." The Pools also complained that during this process, they "have been forced to vacate their Residence and live in rented quarters rather than their home."
*568 The Pools pled that "[t]he Residence has been further damaged by the remediation and decontamination services of Galle" and that "Galle has failed to account for items of personal property and failed to comply with its contract for services." This noncompliance allegedly included failing to follow the "`Guidelines on Assessment And Remediation Of Fungi In Indoor Environments,' as published by the New York City, Department of Health." Thereafter, the Pools allege, Allstate retained "[a]n independent laboratory, Test Force ... and their consultant completed clearance testing and issued a report stating the Residence is mold free when mold is still apparent on surfaces throughout the house. Allstate and Test Force refused to conduct surface testing as part of this `clearance' testing even though Allstate has been shown that mold was apparent on many surfaces throughout the Residence."
The Pools pled that disputes continued with Allstate "concerning the scope of remediation and build back covered by the insurance policy." Among other things, the Pools complained that after the HVAC units in the house had been "completely removed at the direction of Allstate," "Ted Mitchell's build back estimate for the HVAC systems was inadequate [and] Ted Mitchell refused to employ air handling units and was unconcerned about the humidity problem and its conducive nature for a mold resurgence even though repeatedly informed of this fact and continuing problem by Joe Pool."
Against Allstate alone, the Pools asserted causes of action for violations of the DTPA and articles 21.21, 21.21-2, and 21.55 of the insurance code; bad faith; and fraud. The Pools further asserted causes of action against both Allstate and Galle for breach of contract, and against all defendants for negligence and negligent misrepresentation. Regarding negligent misrepresentation, the Pools pled:
Defendants made misrepresentations in the course of their business or in a transaction in which they had a pecuniary interest, Defendants supplied false information for guidance of Plaintiffs, Defendants did not exercise reasonable care or competence in obtaining or communicating the information, and Plaintiffs suffered pecuniary losses by justifiably relying on Defendants' misrepresentations. These misrepresentations were a producing/proximate case of Plaintiffs' damages, as set forth below.
As for damages, the Pools pled that "[a]s a direct and/or producing and/or proximate result of the acts and omissions of Defendants, Plaintiffs have suffered substantial actual damages." They added that "[a]s a further result of Defendants' acts and omissions, Plaintiffs have sustained substantial economic damages including but not limited to the value of their home, rental costs, and the cost to replace personal possessions, the reasonable and necessary cost to repair the house; and stigma damages, i.e., the loss of value of the house, because of the nature of the defects, even after the defects have been repaired; out-of-pocket expenditures reasonably made by Plaintiffs, and damages in an amount equaling the diminished value of the property." The Pools further sought "all actual damages for their personal injuries, property damages and other losses, in addition to economic damages, punitive and/or exemplary damages," including benefits payable under the Allstate policy; consequential damages resulting from Allstate's failure to comply with the policy terms; statutory penalties under the DTPA and articles 21.21, 21.21-2, and 21.55 of the insurance code; mental anguish; attorney's fees; expert witness fees and civil penalties under article 21.21-8 of *569 the insurance code; and punitive and exemplary damages.
In August 2004, the Pools settled and released their claims against Allstate, Mitchell and Driver (the "Allstate Defendants") in exchange for a payment of $532,000.00. The Pools agreed to release:
any and all liability now accrued, or hereafter to accrue, on account of any and all claims, including, but not limited to, damages for medical expenses past and future, physical pain, suffering and mental anguish past and future, physical impairment past and future, loss of earning capacity past and future, disfigurement past and future, property damage, bad faith, DTPA, Insurance Code violations, claims for mold, fungi or bacteria, water damage or any other damage to the contents of the home or structure of the home, claims for additional living expenses, claims as a result of the homeowners policy of insurance issued to Plaintiffs ... which we, or anyone claiming through or under [the Pools], may now have, or may hereafter have against ALLSTATE TEXAS LLOYDS, ALLSTATE INSURANCE COMPANY, TED MITCHELL and CLARENCE DRIVER, and all other persons, firms and/or corporations whomsoever, in any way arising from, growing out of or in any way connected with any and all injuries, losses and/or damages of any nature and kind whatsoever, or claims now known, or that may hereafter develop as a consequence of any and all plumbing leaks which occurred on or about June 30, 2002 at [the Pool's house.]
Similarly, the Pools agreed that the release included:
any and all claims, including, but not limited to, damages for medical expenses past and future, physical pain, suffering and mental anguish past and future, physical impairment past and future, loss of earning capacity past and future, disfigurement past and future and property damage, bad faith, DTPA, Insurance Code violations, claims for mold, fungi or bacteria, water damage or any other damage to the contents of the home or structure of the home, any foundation claims, claims for additional living expenses, claims as a result of the homeowners policy of insurance issued to Plaintiffs ... asserted by the [Pools] in any suit against said Defendants, ALLSTATE TEXAS LLOYDS, ALLSTATE INSURANCE COMPANY, TED MITCHELL and CLARENCE DRIVER, as well as any and all claims, including, but not limited to, damages for medical expenses past and future, physical pain, suffering and mental anguish past and future, physical impairment past and future, loss of earning capacity past and future, disfigurement past and future and property damage, bad faith, DTPA, Insurance Code violations, claims for mold, fungi or bacteria, water damage or any other damage to the contents of the home or structure of the home, any foundation claims, claims for additional living expenses, claims as a result of the homeowners policy of insurance issued to Plaintiffs ..., demands and/or causes of action which might have been asserted by JOE POOL AND LESLIE POOL, their heirs, executors, administrators, agents, servants and employees, or anyone acting on their behalf.
The case proceeded to trial against Galle alone in 2007 on the Pools' original petition.[2] The Pools' evidence centered on *570 representations Galle allegedly made regarding the company's qualifications and experience and the extent to which its work was consistent with these representations and its contractual obligations. The district court submitted theories of general negligence, negligent misrepresentation, and breach of contract. In the general negligence issue, the district court submitted the negligence of Galle, the Pools, "Allstate Insurance Co.," Hometest, and Test Force. The jury found that Galle and the Pools were negligent, and apportioned responsibility 60 percent to the Pools and 40 percent to Galle. Consequently, the jury did not award damages to the Pools on that theory.
The jury found that Galle made a negligent misrepresentation and awarded the following damages "proximately caused by such negligent misrepresentation": $44,000, "[t]he difference ... between the value of what the POOLS have received in the transaction and the purchase price or value given"; and $170,400.58, "[t]he economic loss ... otherwise suffered as a consequence of the POOLS' reliance on the misrepresentation."
The jury also found that Galle had failed to comply "with the agreement between it and the POOLS." It awarded the following damages "resulting from GALLE, INC.'s failure to comply": $51,200 for "[t]he reasonable and necessary cost to remediate the POOLS' home and contents," $6,400 for "[t]he reasonable and necessary cost to rent an alternative home to live in and contents to use," zero for "[t]he reasonable and necessary moving costs," and $1,704 for "[t]he reasonable and necessary cost to store the POOLS's home's contents while the home was being remediated." The jury also awarded $82,111.37 in trial-level attorney's fees, and zero appellate attorney's fees.
At numerous times prior to, during, and after trial, Galle had requested the district court to apply a credit in the amount of the Allstate settlement against the Pools' theories of recovery. The district court refused to apply the credit to either the Pools' breach of contract or negligent misrepresentation theories of recovery. However, the court did require the Pools to elect between those theories of recovery. The Pools elected the negligent misrepresentation theory, and the district court rendered its judgment based on the jury's liability finding and award.
On appeal, Galle contends that the district court erred in refusing to apply the Allstate settlement credit against the Pools' negligent misrepresentation theory of recovery or their alternative theory of breach-of-contract.[3] Galle had the initial burden of proving its entitlement to the settlement credit. See Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 927 (Tex.1998). As for the negligent misrepresentation theory, Galle relies on chapter 33 of the civil practice and remedies code. The current *571 version of chapter 33, as amended in 2005, applies in suits within its scope that were tried on or after June 9, 2005. Act of May 27, 2005, 79th Leg., R.S., ch. 277, 2005 Tex. Gen. Laws 770, 771 (effective June 9, 2005). The Pools' suit was tried in 2007. Chapter 33 governs settlement credits with respect to "any cause of action based on tort in which a defendant ... is found responsible for a percentage of the harm for which relief is sought." Tex. Civ. Prac. & Rem.Code Ann. § 33.002(a)(1) (West 2008). The Pools' negligent misrepresentation cause of action is based on tort, for which Galle, a defendant, was found wholly responsible. See id. Regarding settlement credits, section 33.012 requires that "[i]f the claimant has settled with one or more persons, the court shall," after any reductions based on proportionate responsibility, "further reduce the amount of damages to be recovered by the claimant with respect to a cause of action by the sum of the dollar amount of all settlements." Id. § 33.012(b) (West 2008). Although chapter 33 does not define "settle" or "settlement," it does define a "settling person" as "a person who has ... paid or promised to pay money or anything of monetary value to a claimant in consideration of potential liability with respect to the personal injury, property damage, death or other harm for which recovery of damages is sought." Id. § 33.011(5) (West 2008). Read together, these provisions contemplate that chapter 33 applies if the Pools were compensated in the Allstate settlement for the same harm for which they sought recovery against Galle.
Through its negligent misrepresentation claim, the Pools sought recovery from Galle for the same harm for which they had sought recovery from Allstate. In their live pleadings at the time of trial, the Pools asserted a common cause of action for negligent misrepresentation against all "Defendants" collectively. Similarly, the Pools also sought several overlapping categories of damages against all "Defendants," including, "actual damages" and, "[a]s a further result of Defendants' acts and omissions, ... substantial economic damages including but not limited to the value of their home, rental costs, and the cost to replace personal possessions, the reasonable and necessary cost to repair the house; and stigma damages, i.e., the loss of value of the house, because of the nature of the defects, even after the defects have been repaired; out-of-pocket expenditures reasonably made by Plaintiffs, and damages in an amount equaling the diminished value of the property."
Furthermore, the damage elements that the jury awarded the Pools under their negligent misrepresentation theory the difference between "the value of what the POOLS have received in the transaction and the purchase price or value given" and "[t]he economic loss ... otherwise suffered as a consequence of the POOLS' reliance on the misrepresentation" were damages that the Pools had pled jointly against all "Defendants." These findings likewise were based at least in part on evidence that there was proliferating mold in the Pools' house and on their personal possessions following Galle's remediation work. The Pools alleged that both Galle and Allstate jointly caused or contributed to this harm, Allstate by actions including "failing to timely and properly detect and repair the leaks and resultant water damage and remove the molds in Plaintiffs' home; in failing to properly remove the molds, which mold contamination has now overtaken the home; and in failing to make the necessary arrangements to assure that such proper repairs were promptly undertaken and completed." In particular, the Pools complained that during the months after Galle's work had ended, Ted Mitchell's actions contributed to a "humidity *572 problem and its conducive nature for a mold resurgence even though repeatedly informed of this fact and continuing problem by Joe Pool." In these ways, the Pools sought recovery from Galle and Allstate for a common harm mold in the Pools' house following Galle's work there. See Osborne v. Jauregui, 252 S.W.3d 70, 73, 76-78 (Tex.App.-Austin 2008, pet. filed) (en banc). Accordingly, chapter 33 applies.
As the non-settling defendant seeking to obtain the benefit of the settlement credit, Galle had the burden of proving the settlement amount, which it could meet by placing the settlement agreement or some evidence of the settlement amount in the record. See Ellender, 968 S.W.2d at 927. Galle clearly met this burden. It filed a written notice almost two years before trial advising the district court that Allstate had paid the Pools $532,000.00 in settlement of the Pools' claims against Allstate and its employees and agents. Galle attached to its notice a copy of the settlement agreement. Galle also raised the settlement credit issue numerous additional times before, during, and after trial, including in objections to the Pools' proposed judgment on the verdict and a motion to modify judgment.
Galle having met its burden, the burden shifted to the Pools to prove the extent to which the settlement amount had been allocated to separate damages paid by Allstate, as opposed to joint or common damages. See Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 391-92 (Tex.2000); Ellender, 968 S.W.2d at 928-29. In concept, a non-settling defendant "is entitled to a credit for any settlement amount representing joint damages," but "not for any amount of separate or punitive damages paid by the settling defendant." Casteel, 22 S.W.3d at 391-92. However, the plaintiff has the "burden to offer evidence allocating the settlement amount between actual damages, for which [the settling and non-settling defendants] were jointly liable, and additional damages, for which only the [settling] defendant was liable, in order to limit the credit" to the latter. Id. at 392. Otherwise, it is presumed that the settlement amount represented joint damages. See id.
The Pools urge that the Allstate settlement agreement encompassed claims that were purely "contractual and statutory" and compensated them solely for damages "sustained at their house in 2002 due to the plumbing leaks and ... to which they were potentially entitled to as a result of claims of Allstate's violations of various applicable statutes." Similarly, the Pools contend that the collateral source rule precludes the district court's application of the settlement credit here because their settled claims concerned only benefits to which the Pools were entitled under the policy.[4] However, the settlement agreement *573 is much broader, extending to claims "in any way arising from, growing out of or in any way connected with any and all injuries, losses and/or damages of any nature and kind whatsoever, or claims now known, or that may hereafter develop as a consequence of any and all plumbing leaks which occurred on or about June 30, 2002 at [the Pools' house]." The settlement agreement thereby encompasses the Pools' claims for recovery for damages that they alleged Allstate and Galle jointly caused, such as those relating to the failure to prevent, contain, or remediate mold.
Although it is theoretically possible that some of the damages the Pools sought to recover against Allstate and for which they were compensated in the settlement agreement may have been separate rather than joint, it was the Pools' burden to offer evidence allocating the settlement between actual damages for which only Allstate was liable and those for which Allstate and Galle were jointly liable, in order to limit the credit to the former. Casteel, 22 S.W.3d at 391-92. They failed to do so. Consequently, the district court was required to apply the full amount of the settlement credit against the jury's award of negligent misrepresentation damages. Further, because the amount of the settlement credit exceeds the amount of the jury's award of negligent misrepresentation damages, we must reverse the district court's judgment awarding the Pools damages under that cause of action and render judgment that they take nothing on that theory.
Galle also contends that the district court was obligated to apply the settlement credit against the jury's award of damages under the Pools' breach of contract cause of action. Galle relies on the common-law "one-satisfaction" rule. In cases where chapter 33 or another settlement credit scheme does not apply, the "one-satisfaction" rule may require a trial court to reduce a damage recovery based on a settlement. The one-satisfaction rule is "the longstanding proposition that a plaintiff should not be compensated twice for the same injury." Osborne, 252 S.W.3d at 75 (citing CTTI Priesmeyer, Inc. v. K & O Ltd. P'ship, 164 S.W.3d 675, 683 (Tex. App.-Austin 2005, no pet.) (citing Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex.1991) and Casteel, 22 S.W.3d at 390)). The rule guards against a plaintiff receiving a windfall "by recovering an amount in court that covers the plaintiff's entire damages, but to which a settling defendant has already partially contributed. The plaintiff would otherwise be recovering an amount greater than the trier of fact has determined would fully compensate for the injury." Id. (citing First Title Co. v. Garrett, 860 S.W.2d 74, 78 (Tex.1993)). The one-satisfaction rule applies both when several defendants commit the same act and when multiple defendants commit "technically different acts" that result in the same, single injury. Id. (citing AMX Enters., Inc. v. Bank One, N.A., 196 S.W.3d 202, 206 (Tex.App.-Houston [1st Dist.] 2006, pet. denied) (citing Casteel, 22 S.W.3d at 390)). The application of the rule is not limited to tort claims, and whether the rule may be applied depends not on the cause of action asserted but rather the injury sustained. Id. (citing El Paso Natural Gas Co. v. Berryman, 858 S.W.2d 362, 364 (Tex.1993) and Stewart Title, 822 S.W.2d at 8). Thus, if the plaintiff has suffered only one injury, even if based on "overlapping and varied theories of liability," the plaintiff may only recover once; "[t]his is especially true if the evidence supporting each cause of action is the same." Id. (quoting Buccaneer Homes of Ala., Inc. v. Pelis, 43 S.W.3d 586, 590 (Tex.App.-Houston [1st Dist.] 2001, no pet.)).
*574 The Pools pled that "Defendant Galle has breached its contract with Plaintiffs by performing remediation and re-build efforts that did not fulfill the obligations of the contract with Plaintiffs." The Pools further alleged that "Defendant Galle expressly and impliedly warranted to Plaintiffs that their services would be of good workmanlike quality. Defendant breached those warranties. The warranties were relied upon by Plaintiffs to their detriment, thus causing Plaintiffs' damages, as more fully set forth below." The Pools, as previously discussed, sought several overlapping categories of damages as to all "Defendants." The jury awarded breach-of-contract damages to the Pools representing the costs to re-remediate the Pools' home and contents resulting from Galle's failure to comply with the contract, the reasonable and necessary cost to rent an alternative home to live in and contents to use resulting from Galle's failure to comply with the contract, and the reasonable and necessary cost to store the Pools' home's contents while the home was being remediated resulting from Galle's failure to comply with the contract. These damages overlap with those the Pools sought against Allstate, which included "rental costs, and the cost to replace personal possessions, the reasonable and necessary cost to repair the house ... [and] out-of-pocket expenditures reasonably made by Plaintiffs." Furthermore, these damages, like the negligent misrepresentation damages the jury awarded, were based on pleadings and evidence of a common harm or injury of proliferating mold in the Pools' house following Galle's work there. See Osborne, 252 S.W.3d at 73, 76-78. Consequently, under the one-satisfaction rule, Galle was entitled to a credit for the Allstate settlement unless the Pools could meet their burden of presenting evidence allocating the settlement amounts to separate rather than joint damages. Casteel, 22 S.W.3d at 391-92. Because they failed to do so, the entire settlement amount must be applied against the jury's breach-of-contract award. Because the settlement amount exceeds the amount of the damage award, the Pools must take nothing on their breach-of-contract theory.
We accordingly sustain Galle's issue, reverse the district court's judgment, and render judgment that the Pools take nothing on their claims against Galle.
NOTES
[1] The Pools originally named Galle, Inc., as well as Danny Galle and father Pat Galle. The individual Galle defendants were later non-suited at trial.
[2] The parties represent that the other non-settling defendant, Hometest, had declared bankruptcy.
[3] Galle phrases its challenge in terms of whether the district court "abused its discretion" in refusing to apply the settlement credit. Some of our sister courts have suggested that an abuse-of-discretion standard may apply where there are factual disputes concerning allocation of a settlement amount. See, e.g., Oyster Creek Fin. Corp. v. Richwood Invs. II, Inc., 176 S.W.3d 307, 326 (Tex.App.-Houston [1st Dist.] 2004, pet. denied). However, it remains that, under any review standard, we review questions of law de novo. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) ("A trial court has no `discretion' in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion."). Here, our analysis of the settlement credit turns on questions of statutory construction, construction of the settlement agreement, and application of legal principles that do not involve questions of disputed facts. We review such legal questions de novo.
[4] The Pools also urge that they can sue Galle, notwithstanding the settlement credit, because the settlement agreement contains language whereby Allstate waived its right to subrogation as to any claims the Pools might have against other parties or potential parties, and the Allstate Defendants assigned any claims they might have as a consequence of claims or potential claims asserted against them "as a result of losses" at the Pools' house. What the Pools seem to suggest is that they now stand in the shoes of the Allstate Defendants with respect to a contribution claim they never asserted against Galle arising from the Pools' claims against them. To the contrary, the settlement of the Pools' claims against the Allstate defendants extinguished any potential contribution claims by those parties. See Beech Aircraft Corp. v. Jinkins, 739 S.W.2d 19, 22 (Tex. 1987) (contribution claim by settling tortfeasor against nonsettling parties prohibited); see also Jackson v. Freightliner Corp., 938 F.2d 40, 41-42 (5th Cir. 1991) (Texas law) (settling tortfeasor cannot assign plaintiff his rights of contribution and indemnity against a joint tortfeasor).
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827 F.2d 773
U.S.v.Wells (Arline Amelia)
NO. 86-1329
United States Court of Appeals,Ninth Circuit.
AUG 31, 1987
1
Appeal From: D.Nev.
2
AFFIRMED.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CP-00719-COA
DUNG THANK TRAN A/K/A JULIO TRAN APPELLANT
A/K/A DUNG TRAN A/K/A DUNG T. TRAN
A/K/A DUNG THANH TRAN
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 05/25/2016
TRIAL JUDGE: JOSEPH H. LOPER JR.
COURT FROM WHICH APPEALED: GRENADA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: DUNG THANK TRAN (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA BYRD
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: DISMISSED MOTION FOR POST-
CONVICTION RELIEF
DISPOSITION: AFFIRMED - 04/18/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
WILSON, J., FOR THE COURT:
¶1. Dung Thank Tran appeals from an order dismissing his motion for post-conviction
relief (PCR). The Grenada County Circuit Court dismissed Tran’s motion for lack of
jurisdiction because the Mississippi Supreme Court had denied Tran’s application for leave
to file the motion. We affirm.
FACTS AND PROCEDURAL HISTORY
¶2. In March 1999, Tran sold cocaine to a confidential informant working for the Grenada
Police Department. The transaction occurred in a room at the Holiday Inn in Grenada and
was recorded with audio and video equipment set up by narcotics agents who monitored the
buy from the next room. The audio and video tapes of the transaction were played at Tran’s
trial in the circuit court in January 2000. The jury found Tran guilty of selling cocaine, and
he was sentenced as a violent habitual offender to life imprisonment without the possibility
of probation or parole. On direct appeal, this Court affirmed Tran’s conviction and sentence.
Tran v. State, 785 So. 2d 1112, 1120 (¶26) (Miss. Ct. App. 2001).
¶3. In 2010, Tran filed a PCR motion attacking a prior conviction for possession of
cocaine, which resulted from a January 1995 guilty plea. Tran completed serving his
sentence on that conviction and was released from custody prior to his 1999 arrest and
conviction for selling cocaine. Tran sought to challenge his 1995 conviction via a PCR
motion because it was one of the predicate felonies used to convict him as a violent habitual
offender in 2000. The circuit court dismissed Tran’s PCR motion, and this Court affirmed.
Tran v. State, 92 So. 3d 1278, 1278 (¶1) (Miss. Ct. App. 2011), cert. denied 95 So. 3d 1274
(2012). This Court held that because Tran had already finished serving his sentence on the
1995 conviction, he could no longer collaterally attack that conviction via a PCR motion.
Id. at 1279 (¶7). We also noted that Tran’s attack on the 1995 conviction was clearly time-
barred. Id. at (¶6).
¶4. In 2014, Tran filed an application in the Supreme Court in which he sought leave to
challenge his present life sentence via a PCR motion in the trial court. Tran claimed that his
sentence was “illegal” because of his alleged “actual innocence as a habitual offender.” A
2
panel of the Supreme Court denied Tran’s application, finding that it was barred by the
statute of limitations, the prohibition against successive applications, and res judicata and
also “without merit.” Tran v. State, 2014-M-00253 (Miss. April 11, 2014).
¶5. Undeterred, Tran filed a new PCR motion in the circuit court. Although Tran’s
obvious goal is to set aside his present life sentence, his motion may be interpreted as an
attack on his prior (1995) conviction for possession of cocaine. Tran argues that his 1995
felony conviction is void because his offense was only a misdemeanor. He relies on
amendments to the law that took effect more than nineteen years after he was convicted and
more than sixteen years after he finished serving his sentence for the conviction.1
¶6. The circuit court dismissed Tran’s motion pursuant to Mississippi Code Annotated
section 99-39-7 (Rev. 2015), which provides that if a prisoner’s conviction and sentence have
been affirmed on direct appeal, he must request and obtain leave from the Supreme Court
before he may file a PCR motion in the circuit court. Tran had not obtained permission from
the Supreme Court; in fact, permission had been denied. Therefore, the circuit court
determined that it was without jurisdiction and dismissed Tran’s motion. Tran filed a timely
notice of appeal from the circuit court’s order of dismissal.
1
Effective July 1, 2014, the Legislature amended Mississippi Code Annotated section
41-29-139(c)(1) to provide that simple possession of less than one-tenth gram or two dosage
units of a Schedule I or II controlled substance “is a misdemeanor and punishable by
imprisonment for not more than one year.” 2014 Miss. Laws ch. 457, § 37 (H.B. 585). Prior
to 1998, the statute did not require proof of weight or quantity on a charge of simple
possession of a Schedule I or II controlled substance, so Tran’s 1995 indictment and
conviction do not specify the amount of cocaine he illegally possessed. Also, contrary to
Tran’s argument, nothing in House Bill 585 purports to void prior felony convictions.
3
DISCUSSION
¶7. We affirm because the circuit court properly dismissed Tran’s PCR motion. If Tran’s
present motion is construed as a challenge to his present life sentence, then the circuit court
was plainly correct to dismiss for lack of jurisdiction. Because Tran’s 2000 conviction and
sentence were affirmed on direct appeal, section 99-39-7 required him to obtain permission
from the Supreme Court before filing a PCR motion in the circuit court. “This procedure is
not merely advisory, but jurisdictional.” Doss v. State, 757 So. 2d 1016, 1017 (¶6) (Miss. Ct.
App. 2001). “Because permission to proceed had been denied, the trial court was without
jurisdiction to hear [Tran’s] motion.” Brock v. State, 114 So. 3d 733, 734 (¶8) (Miss. Ct.
App. 2012).
¶8. If instead we interpret Tran’s motion as an attack on his 1995 conviction, then it was
properly dismissed for the same reason that this Court affirmed the dismissal of his prior
PCR motion, which attacked the same conviction: Tran lacks standing to collaterally attack
his 1995 conviction years after he completed serving the sentence for that conviction, and
the circuit court therefore lacked jurisdiction to consider Tran’s motion. Tran, 92 So. 3d at
1279 (¶7); accord Birmingham v. State, 159 So. 3d 597, 599 (¶¶6-9) (Miss. Ct. App. 2014);
Wilson v. State, 76 So. 3d 733, 735-36 (¶¶11, 13) (Miss. Ct. App. 2011). Thus, the circuit
court was correct to dismiss Tran’s PCR motion no matter how it is interpreted.
¶9. THE JUDGMENT OF THE GRENADA COUNTY CIRCUIT COURT
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO GRENADA COUNTY.
4
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR,
GREENLEE AND WESTBROOKS, JJ., CONCUR.
5
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T.C. Memo. 2002-275
UNITED STATES TAX COURT
SALVATION NAVY, INC., Petitioner v. COMMISSIONER OF
INTERNAL REVENUE, Respondent
Docket No. 7013-01X. Filed October 30, 2002.
Based upon the facts contained in the
administrative record, Held: Petitioner is not
operated as an organization entitled to exemption under
sec. 501(c)(3), I.R.C.
David A. Valfer (an officer), for petitioner.
Linda P. Azmon, for respondent.
MEMORANDUM OPINION
NIMS, Judge: Respondent determined that petitioner
Salvation Navy, Inc. (SNI), does not qualify as a section
- 2 -
501(c)(3) charitable organization and, therefore, is not exempt
from Federal taxation under section 501(a). Pursuant to section
7428 and title XXI of the Tax Court Rules of Practice and
Procedure, SNI seeks a declaratory judgment that it is a
qualified organization under section 501(c)(3). The issue for
decision is whether SNI operates exclusively for charitable
purposes. Unless otherwise indicated, all section references are
to sections of the Internal Revenue Code in effect at the time
the petition was filed, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
Background
The administrative record, which includes all of the facts
upon which the Commissioner made the final adverse determination,
was submitted to the Court under Rule 217(b)(1) and is
incorporated herein by this reference.
SNI was incorporated on April 7, 1976, under the Nonprofit
Corporation Law of Pennsylvania. Its principal office is located
in Hartford, Connecticut. The founder, sole director, and
officer of SNI is David A. Valfer (Valfer).1
1
In response to a question posed by an IRS Exempt
Organization Specialist as to how the name “Salvation Navy”
relate(s) to the organization, SNI responded as follows:
On New Year’s Eve, 1975, at a police station in Boston,
MA, when told that David got kicked out of the
Salvation Army shelter, the policeman told him to go to
the Salvation Navy. He returned to Philadelphia, PA
Articles of Incorporation were drawn up, then on to the
(continued...)
- 3 -
On May 2, 1999, SNI filed a Form 1023, Application for
Recognition of Exemption Under Section 501(c)(3) of the Internal
Revenue Code, with the IRS, seeking recognition of exemption
under section 501(c)(3) of the Internal Revenue Code. In its
Articles of Incorporation, SNI stated that one of its purposes is
to “find out where one goes when he or she leaves”, and that SNI
“does not contemplate pecuniary gain or profit, incidental or
otherwise.” On the Form 1023, SNI recited that its activities
include charitable work performed on a volunteer basis by
petitioner’s founder and Chief Executive Officer (CEO), David A.
Valfer.
SNI further indicated on Form 1023 that its sources of
financial support came solely from Valfer’s Supplemental Social
Security income, aid to the disabled income, medicaid payments,
and food stamps. SNI also indicated that it had no fund-raising
program in place and had no revenue or expenses during the
taxable years 1995 through 1998. The administrative record does
not reveal that SNI kept any financial books and records.
Attached to the Form 1023 were several documents containing
citations and statements of recognition commemorating Valfer’s 20
years of community service to the City of Hartford, Connecticut,
which included his volunteer activities at a Hartford weekend
1
(...continued)
Department of State in Harrisburg, paid 75 dollars and
was incorporated on April 7, 1976.
- 4 -
Senior Citizen Center, a church-sponsored soup kitchen, and
various churches.
By letter dated July 19, 1999, the IRS required that SNI
amend its Articles of Incorporation to meet the organizational
test for exemption under section 501(c)(3). SNI complied by
amending its Articles of Incorporation to delete the statement
that one of its purposes is to “find out where one goes when he
or she leaves”, leaving in place the additional provision that
its purpose is to be “organized exclusively for charitable,
religious, educational, literary, and/or scientific purposes
under Section 501(c)(3) of the Internal Revenue Code.”
SNI also responded to a number of questions raised by IRS in
the July 19, 1999, letter. In response to a request that SNI
advise IRS as to the charitable purpose of SNI’s organization,
and provide a listing of the charitable activities conducted by
the organization, SNI responded:
The charitable purpose of Salvation Navy, Inc. is to be
an asset to the community and do good deeds. Although
it does not say so, for the most part, David Valfer’s
activities, as stated in the Mayor’s proclamation and
the other citations that were with form 1023, were the
same as the organization’s activities.
In a further response to an IRS request that SNI describe in
detail the activities it would conduct, SNI stated:
Presently, volunteering Saturdays and Sundays is taking
up 100% of * * * [Valfer’s] weekends at Hartford’s only
weekend senior center, WESP. David needs to be there
in time to say hello to the elderly citizens while he
hands the milk out before the hot noon meal. When
- 5 -
necessary David replenishes the paper towels, toilet
tissue, and soap in the restrooms. In addition, he
sets up the video to show a movie to a few seniors,
including a blind man. The show has to end just before
two p.m. in order for Dial-a-Ride to take them to their
respective residence.
SNI answered “yes” to the following question on the Form
1023: “Do you want us to consider the application as a request
for recognition of exemption as a section 501(c)(3) organization
from the date the application is received and not retroactively
to the date the organization was created or formed?”
In a further response to the July 19 letter, SNI indicated
that “David” would like to receive a tax-exempt letter to be able
to apply for a grant to procure a computer, a printer, and
related software. SNI indicated that after Valfer attended grant
writing and computer classes, the organization planned to
establish a website and homepage to start a chat room for the
psychiatrically disabled.
In subsequent correspondence dated December 10, 1999, SNI
indicated that it would also provide services as a “Shomer” (a
night watchman) to funeral homes, mortuaries, and morgues to keep
vigil through the night and into the mornings for persons who are
deceased and of the Jewish faith. SNI indicated that an offering
of between $75 and $90 per 12-hour vigil “would be accepted by
the Shomer for the organization.”
By letter dated April 19, 2000, IRS requested that SNI
modify its Board of Directors to place control in the hands of
- 6 -
unrelated individuals selected from the community which SNI
serves. According to the IRS, this request for modification was
made to ensure that SNI would serve the interests of the public,
rather than the interests of a particular individual. Valfer
refused the IRS request, stating that he does not trust any Board
of Directors that might vote him out of the Salvation Navy, Inc.
On June 16, 2000, the IRS issued an initial adverse
determination letter to SNI. SNI appealed to the IRS Office of
Appeals, which issued to SNI a final adverse determination on
April 4, 2001, denying tax-exempt status to SNI under section
501(c)(3).
Discussion
Petitioner SNI bears the burden of proving that it is a
section 501(c)(3) organization. See Rule 217(c)(2)(A). In order
to meet this burden, SNI must show that the administrative record
contains sufficient evidence to overcome the grounds stated in
the notice of final adverse determination. See Nationalist
Movement v. Commissioner, 102 T.C. 558, 572 (1994), affd. 37 F.3d
216 (5th Cir. 1994); At Cost Servs., Inc. v. Commissioner, T.C.
Memo. 2000-329. The following reason was given in the Notice:
Your organization is not organized or operated
exclusively for charitable purposes. Additionally,
part of the net earnings of your organization inure to
the benefit of a private individual.
Section 501(a) provides tax-exempt status for organizations
described in section 501(c). Section 501(c)(3) includes
“Corporations, and any community chest, fund, or foundation,
- 7 -
organized and operated exclusively for * * * charitable * * *
purposes, * * * no part of the net earnings of which inures to
the benefit of any private shareholder or individual.” (Emphasis
added.) Thus, the organization must be both organized and
operated exclusively for at least one of the stated purposes.
Sec. 1.501(c)(3)-1(a)(1), Income Tax Regs.
Respondent concedes that once SNI amended its Articles of
Incorporation to delete that one of its purposes was to “find out
where one goes when he or she leaves”, so that the Articles now
reflect that SNI’s activities would be limited to charitable,
religious, educational, literary, and/or scientific purposes, SNI
meets the organizational test. However, respondent asserts that
SNI fails to meet the operational test because SNI has not shown
that it is not operated for the benefit of a private individual;
i.e., David A. Valfer. See sec. 1.501(c)(3)-1(d)(1)(ii), Income
Tax Regs.
We agree with respondent. As stated in the regulations, the
operational test is as follows:
An organization will be regarded as “operated
exclusively” for one or more exempt purposes only if it
engages primarily in activities which accomplish one or
more of such exempt purposes specified in section
- 8 -
501(c)(3). An organization will not be so regarded if
more than an insubstantial part of its activities is
not in furtherance of an exempt purpose. [Sec.
1.501(c)(3)-1(c)(1), Income Tax Regs.]
As already noted, SNI desires recognition of exemption from
the date the Form 1023 was received by the IRS, and not
retroactively. As also indicated above, SNI responded to a
request for a detailed description of its contemplated future
activities by reiterating a description of the activities in
which Valfer was already engaged. In its brief SNI concedes that
“the Petitioner, SNI, and David A. Valfer are one and the same.”
However, SNI challenges respondent’s contention that
contributions to SNI inure to Valfer’s benefit, because “The
plain fact is that no contributions of either money or services
have been received by SNI from any source other than Mr. Valfer.”
Nevertheless, Valfer, responding on behalf of SNI to the July 19,
1999 IRS letter, stated that he would like to receive “a Tax
Exempt letter to apply for a grant to procure a computer,
printer, and related software.” Since the affairs of SNI and
Valfer are irretrievably intertwined, as Valfer/SNI readily
admits, the benefits Valfer plainly hopes to obtain via the “Tax
Exempt letter” would obviously inure to Valfer himself.
Similarly, SNI has not shown that compensation for Valfer’s
serving as a Shomer at a rate of $75 to $90 per 12-hour vigil
would not inure to a private individual. Petitioner SNI has not
shown that the recipients of Valfer’s services as a Shomer are
- 9 -
members of a charitable class, or that the fees SNI proposes to
charge serve any purpose other than to provide a source of income
for Valfer. Cf. Rev. Rul. 76-244, 1976-1 C.B. 155 (granting
exempt status to an organization providing home delivery of meals
at cost or less to financially distressed elderly and handicapped
persons).
Section 501(c)(3) provides for tax-exempt status for
corporations, and any community chest, fund, or foundation,
organized and operated exclusively for, among other things,
charitable purposes. It does not provide exemption for an
individual engaged in various activities, charitable or
otherwise. Insofar as can be ascertained from the administrative
record, Valfer engaged in various commendable activities--perhaps
sometimes in the name of SNI--but the activities were those of
Valfer, not SNI.
We accordingly conclude that SNI is not operated as a
section 501(c)(3) organization.
Decision will be entered
for respondent.
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271 F.2d 194
Thomas S. MICHALIC, Plaintiff-Appellant,v.CLEVELAND TANKERS, INC., Defendant-Appellee.
No. 13580.
United States Court of Appeals Sixth Circuit.
Oct. 29, 1959.
Harvey Goldstein, New York City (S. Eldridge Sampliner, Cleveland, Ohio, on the brief), for appellant.
Lucian Y. Ray, Cleveland, Ohio (of McCreary, Hinslea & Ray, Cleveland, Ohio, on the brief), for appellee.
Before SIMONS and ALLEN, Circuit Judges, and O'SULLIVAN, District judge.
PER CURIAM.
1
This action by a seaman, under the Jones Act (Title 46 U.S.C.A. 688), concluded by the District Judge's direction to a jury to return a verdict of no cause of action. The propriety of such direction is the matter here for review.
2
For some years prior to December 28, 1955, plaintiff had been suffering from Buerger's disease. In 1951 he was hospitalized from an injury consequent upon dropping a sack of cement on his foot, although which foot was not disclosed. In 1952 he was again hospitalized and he then learned that he was suffering from Buerger's disease in his left foot. Some surgery, including the cutting of a nerve in his back, was performed for the purpose of relieving pain which he was then suffering in his left leg.
3
He claims that on or about December 28, 1955, while using a wrench to remove nuts on a pump housing on defendant's vessel, the wrench, when he struck it with a mallet, slipped and fell, striking the big toe in his left foot. Without interruption, he continued working on the vessel until the conclusion of the lay-up in January, 1956. He rejoined the vessel on March 15, 1956. Plaintiff testified that after a few trips on the boat his leg became so bad he could no longer stand it. He then told his superior officers he wished to get off the boat and asked for a hospital ticket. This was on April 1, 1956. He then, for the first time, told of the claimed incident of the dropping of the wrench. Until then he had told no one of the incident, although he testified that his toe had begun to bother him immediately following the occurrence, requiring him to bathe it rather continuously while on the boat and after the season of navigation while ashore. He did not tell of the accident to the pumpman who had been working with him in the pumproom on the day it occurred. He said he did mention it to a couple of deckhands. Upon receipt of the hospital ticket he went to a Marine Hospital where several amputations were performed, the final one resulting in the amputation of his leg above the knee.
4
Plaintiff's complaint charged that the vessel and its equipment were unseaworthy and that the defendant was negligent. Aside from some general conclusionary allegations of negligence and unseaworthiness, his specific charges upon which he relied for a cause of action consisted of assertions--
5
That the defendant did not provide a safe place or way to work; that defendant provided him with a defective wrench, knowing that, 'the teeth of the wrench would not hold or be secure'; that defendant ordered and permitted him to work in close quarters; that defendant should have known of a defective condition of the teeth of the wrench; that defendant failed to provide him with a proper and secure wrench which would not loosen when average pressure would be applied; that defendant failed to provide adequate, proper and seaworthy and safe appliances, to wit: a proper wrench without worn teeth; that defendant failed to maintain a proper lookout for the plaintiff, and failed to supervise the removal of the nuts off the pump, and to replace a defective, old and unseaworthy wrench; that defendant failed to provide plaintiff with skillful, careful and competent co-employees.
6
On the trial it was disclosed, without dispute, that the wrench being used by plaintiff did not have any teeth in it, but was an open-end wrench, with a jaw opening of about 1 5/8 inches, approximately 12 inches long and weighing 2 1/2 pounds. It was made of spark-proof alloy metal. Plaintiff was also provided with a metal mallet for the purpose of striking the wrench in the process of lossening the nuts.
7
On this veview, we accept plaintiff's proofs as true and in their most favorable light. Plaintiff and a fellow workman described the condition of the tools with which he was working variously as follows:
8
'It was a big wrench, old, beat up wrench.'
9
'An old lead mallet they used in the pumproom.'
10
'It was an old wrench, all chewed up on the end.'
11
'He testified he told the pumpman:
12
'This tool is not very good, kind of beat up. This wrench keeps slipping off.'
The pumpman said:
13
'Never mind about that, do the job the best you can.'
14
A former Mate and Captain of the vessel who had been discharged by defendant, described the tools being used in the pumproom in December, 1955, as being, 'in beaten and battered condition * * * they had been very beaten and battered.'
15
Although plaintiff's pleadings made no charge of inadequate light or cramped quarters in the pumproom, the following testimony was received on these subjects:
16
As to illumination, plaintiff said, 'to my estimation, it was poor, very poor.'
17
'Q. Did they have any other electricity? A. No sir, they only had shore lights that's all.
18
'Q. As far as the illumination in that room, what other illumination was there besides the portable light? A. Nothing, that's all we had, just the portable light.
19
'Q. And where was it hanging? A. The portable light was hanging over the pumpman's pump on the port side. He had a string tied to it and it was hanging right down beside his pump.'
20
Referring to the portable light in the pumproom, he stated:
21
'Q. I attempted to move it over to where I was, but it was too short, it wouldn't reach my pump at all.'
22
'Q. Was there any light provided at the catwalk in that area at all, other than what you have described? A. No, sir.'
23
Referring to the portholes between the engine room and pumproom, plaintiff said:
24
'Those portholes were all dirty and greasy from grease flying around the pumproom.'
25
A fellow workman testified in relation to the light:
26
'Well, the pumproom wasn't too large. It wasn't a large pumproom and the lighting wasn't too good. In fact, we had to use an extension cord.'
27
The former Mate of the vessel, referring to the lighting in the pumproom, said:
28
'Very poor. In this lower level at all times it was necessary to use a flashlight in order to see anything in working on this grating level or below.'
29
As to the cramped space in the pumproom, plaintiff testified:
30
'I was ordered to go into the pumproom. This is the catwalk going from one end of the ship, from the starboard to the port side * * *'
31
'Q. Now, did you have to get off the catwalk? A. Yes, sir. I had to get off that catwalk, and I had to crawl between four beams that hold the pump from vibrating, work underneath the catwalk.
32
'Q. As you were working there you stated you had to get between four beams. Can you describe them a little bit? A. Yes, I can. The four beams they help the pump. When the pump is pumping out cargo in a port, the four steel beams that come around the pump keep the pump from vibrating when they are pumping out.
33
'Q. What is the distance from the top of the pump to the catwalk where you had to go in there and work? A. About six inches.
34
'Q. Is that the area you had to work? A. Yes.'
35
The above constitutes substantially all of the evidence relevant to the conditions in the pumproom and the condition of the tools with which plaintiff was working. There was no testimony in any way supporting a claim that the slipping or dropping of the wrench was brought about by, or related in any way to, the lighting conditions of the pumproom or to the smallness of the area. Plaintiff had actually removed all but five of an estimated total of twenty nuts before the wrench fell. He makes no claim that the progress of his work was in any way impaired or made more difficult by inadequate lighting or cramped quarters.
36
'Q. You had no difficulty seeing the bolts, did you? A. No, sir.'
37
Plaintiff's description of the accident is as follows:
38
'Q. What happened after you took off the bolts and nuts? A. After I started taking the bolts off with the old wrench, only about three or four more to get loose, a couple of them, I had hold of a nut * * * and I hit the wrench and it slipped off and it hit me on the foot at the big toe.'
39
'Q. Now, when you were taking the bolts and nuts off, how many of those nuts had you taken off at the time the wrench slipped? A. I had them all of but about five or six.
40
'Q. You took those off without difficulty? A. I had a hard time loosening them off.
41
'Q. But you got them off? A. Yes.
42
'Q. In other words, you put the wrench on there and tapped it with the mallet and lossened them and then you turned the nuts off? A. I had a hard time taking them off.
43
'Q. But you took them off? A. Yes. The pumpman told me, 'Do the best you can'.
44
'Q. You got them off, and you got all but how many off at the time the accident occurred? A. About five.
45
'Q. And you were using the same wrench? A. The same wrench.
46
'q. And the same mallet? A. Same mallet all the way through.'
47
'q. Did you become aware that this wrench as you have described, was getting worn as you were taking these nuts off? A. I told him about it, yes sir.
48
'q. Did you go out and try to get another wrench out of the box? A. No, sir, he told me 'You do the best you can with that wrench right there.'
49
'Q. He told you not to use another wrench? A. He said, 'You do the best you can with that wrench right there'.
50
'Q. That's the only wrench you could use? A. The only wrench that I had to use.'
51
'Q. Now, will you describe with as much particularity as you can just how the wrench slipped off the nut? A. Like I say, I had the wrench in my hand.
52
'Q. You were standing next to the pump? A. I was standing. I got hold over here, and I hit it with the mallet and it slipped off the nut and came down the side of the pump and hit my big toe.
53
'Q. You hit the handle of the wrench with the mallet? A. Yes, she slipped off the nut on the pump and came down the side of the pump and smashed my big toe.
54
'Q. That's exactly the way you did it on all the others? A. I had to use the mallet on all the nuts, that's right. They were pretty tight.
55
'Q. In other words, you had gone through the same maneuver on the others as you had with this? A. Yes, sir.
56
'Q. Did you have any difficulty putting the wrench on the nuts before hitting it with the mallet? A. Yes, sir, they slipped.
57
'Q. What slipped? A. The wrench did.'
58
'Q. I am talking about putting the wrench on the nuts. Did you have any difficulty putting the wrench on the nuts you took off? A. I told you the wrench was slipping off the nuts. It slipped off every one of them.'
59
A fair reading of the District Judge's oral opinion given when granting the motion for a directed verdict, indicates his conclusion that there was no evidence from which the jury could make a finding of negligence or unseaworthiness. We concur in this conclusion and further express our opinion that there was a failure of proof as to any causal connection between the conditions which plaintiff complained of, namely, improper lighting, close quarters and improper tools, and the injury which he suffered.
60
Neither by accepting plaintiff's proofs in their most favorable light nor by drawing all legitimate inferences therefrom, can it be said that insufficient light or cramped working space had anything to do with the slipping of the wrench which was the immediate cause of the plaintiff's injury.
61
We come, then, to consideration of whether there was any evidence from which a jury could find that negligence of the defendant or unseaworthiness of the vessel and equipment in any degree contributed to the slipping of the wrench and its falling upon the plaintiff's foot. The allegation of the complaint with reference to teeth of the wrench being worn was abandoned upon showing that it had no teeth, but was an open-end wrench. To say that a wrench is old, beaten, battered or chewed up gives no information as to whether or not the wrench was adequate or inadequate to perform its function of looseing a nut. Neither do the above adjectives tell whether the grip of the wrench was in any way impaired or it was otherwise an unsafe tool. The plaintiff's evidence did not disclose what part of the wrench was beaten, battered or defective, except that it was 'chewed up' on the end. There was no evidence of any improper design of the wrench or the mallet. The evidence discloses no claim or inference by plaintiff or his witnesses that the wrench slipped or fell because of any inadequate grip, nor that the wrench slipped or fell because the jaw of the wrench did not properly fit the nuts which were to be loosened by it. There was no evidence that the open or jaw end of the wrench was in any way deficient. We do not think merely stating that the wrench was beaten, battered, old, or chewed up is sufficient to allow an inference that it could not be used safely in the function for which it was designed. Evidence that the wrench was beaten, battered or chewed up, without other definition, was insufficient, in our opinion, to permit a jury to find that these thus described conditions, or any of them, were the cause of its slipping. The fact that the wrench slipped is not evidence that its slipping was the consequence of some condition in the jaw or handle of the wrench. There is no evidence from which it could be inferred that some condition described in the evidence contributed proximately as a cause of the slipping.
62
The recent cases of Rogers v. Missouri Pacific Railway Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493, and Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 77 S.Ct. 457, 1 L.Ed.2d 511, relied upon by appellant, emphasize the jealousy with which today's courts guard the rights of injured workmen to have their causes submitted to a jury where there is any evidence, however slight, to justify a jury's factual finding of liability. The rule that the plaintiff in such a case as this has the obligation to produce some evidence to prove, or permit a justifiable inference of, negligence and proximate cause is, however, still a part of our law. It is the function and duty of trial courts to determine whether or not in a particular case there is any evidence to justify the submission of a case to a jury.
63
In the case of Ferguson v. Moore-McCormack, supra, the Supreme Court affirmed the rule that the standard of liability under the Jones Act is the same as applied in actions under the Federal Employers' Liability Act, 45 U.S.C.A. 51 et seq. In a case arising under the latter Act, the United States Supreme Court in the case of Moore v. Chesapeake & O. Railway Co., 340 U.S. 573, 575, 71 S.Ct. 428, 429, 95 L.Ed. 547, said:
64
'To recover under the Act, it was incumbent upon petitioner to prove negligence of respondent which caused the fatal accident.'
65
We approve the ruling of the District Judge that the plaintiff in this case failed to provide any evidence from which a jury could find liability. It should be noted here that on his second cause of action for maintenance and cure, plaintiff recovered $2,610.00. No appeal was taken from that judgment.
66
The judgment of the District Court is affirmed.
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In
The
Court
of Appeals
Sixth
Appellate District of Texas at Texarkana
______________________________
No. 06-10-00011-CR
______________________________
KENDELL PRICE CORPUS,
Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th Judicial District Court
Lamar County, Texas
Trial
Court No. 23211
Before Morriss, C.J.,
Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM
OPINION
Appellant,
Kendall Price Corpus, filed a notice of appeal on February 1, 2010, from his
conviction of stalking. Corpus also
filed a motion for new trial. The trial
court subsequently granted that motion for new trial.
When
the trial court grants a motion for new trial, it restores the case to its
position before the former trial. Tex. R. App. P. 21.9(b). Because there is no conviction from which to
appeal, we have no jurisdiction to consider Corpus’s appeal. See
Waller v. State, 931 S.W.2d 640, 643–44 (Tex. App.––Dallas 1996, no pet.).
Consequently,
Corpus’s motion to dismiss is granted, and we dismiss the appeal as moot.
Bailey
C. Moseley
Justice
Date Submitted: March
3, 2010
Date Decided: March
4, 2010
Do Not Publish
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393 F.3d 327
Marcus MUNGO, Petitioner-Appellant,v.George DUNCAN, Respondent-Appellee.
No. 03-2706.
United States Court of Appeals, Second Circuit.
Argued: May 12, 2004.
Decided: December 28, 2004.
COPYRIGHT MATERIAL OMITTED Randall D. Unger, Bayside, NY, for Petitioner-Appellant.
Amy Appelbaum, Assistant District Attorney (Charles J. Hynes, District Attorney, Leonard Joblove, Assistant District Attorney, on the brief), Kings County Office of the District Attorney, Brooklyn, NY, for Respondent-Appellee.
Before: MESKILL, LEVAL, and CABRANES, Circuit Judges.
LEVAL, Circuit Judge.
1
Petitioner Marcus Mungo appeals from the judgment of the United States District Court for the Eastern District of New York (Jack B. Weinstein, J.) denying his petition for a writ of habeas corpus, which sought to overturn his conviction in the courts of New York for murder. Petitioner contends that the admission at his trial of certain hearsay statements made by the murder victim just before his death violated the Confrontation Clause of the Sixth Amendment to the United States Constitution. Upon petitioner's direct appeal from his conviction, the New York Supreme Court, Appellate Division, determined that the admission of the hearsay statements was proper under the excited utterance exception to the hearsay rule. In judging the habeas petition, the district court concluded that this ruling was not an unreasonable application of clearly established Supreme Court law, including Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), and White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992). The district court accordingly ruled that the state court's decision satisfied the deferential standards of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d)(1), and denied the petition. While this appeal from the district court's judgment was pending, the Supreme Court decided Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), in a manner that reconceived much of the Court's Confrontation Clause jurisprudence. Petitioner contends that under the standards established in Crawford he is entitled to grant of the writ. We agree with the district court that the state court did not unreasonably apply Roberts and White, and we further hold that petitioner is barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), from relying on the new rule established in Crawford.
Background
2
At approximately 1:20 a.m. on the morning of June 23, 1997, on Euclid Avenue in Brooklyn, New York, two plainclothes police officers, driving a police cruiser disguised as a taxicab, heard shots fired. Driving toward the sound of the shots, they were flagged down by the wounded Brent Arthur. They saw two black men in light-colored shirts run across the street. The driver, Sergeant Robert Delaney, asked Arthur, "Who shot you? Those guys running?" Arthur answered, "Yeah those guys." With Arthur in the cruiser, they drove off in pursuit. The second officer, Dante Cavallo, asked Arthur, "Do you know where they are going?" Arthur responded, "Go to the projects, go to the projects," referring to a nearby housing project at 1220 Sutter Avenue. When they arrived at Sutter Avenue, the officers saw two black men in the driveway. One wore a gray t-shirt; the other a white t-shirt with multicolored lettering. Delaney asked Arthur if the two men were his assailants. Arthur answered, "Those are them."
3
Cavallo, joined by other officers, pursued the men into 1220 Sutter Avenue and found them hiding in the doorway of a fourth-floor apartment. The men were later identified as petitioner Marcus Mungo (in the gray shirt) and LeShawn Stewart (in the white shirt). No weapons were found on either man. By the time the men were brought downstairs, Arthur was lying on the ground near the cruiser writhing in pain. Sergeant Delaney told him that an ambulance was on the way and said, "Listen, I'm going to bring over two people, bring two people over to you one at a time. You have to tell me are these the guys that shot you." Officer Cavallo then brought forward Stewart and asked, "Is that the guy that shot you?" Arthur answered, "Yes." Cavallo then brought forward petitioner and asked, "Is this the guy that shot you?" Arthur again answered, "Yes." Cavallo then asked Arthur, "I need to know exactly who shot you." Arthur responded, "The guy in the gray." Delaney asked Arthur why they had shot him, and Arthur stated, "They tried to rob me." Arthur died shortly thereafter. In Officer Cavallo's estimation, the entire episode from the time when Arthur entered the cruiser until he identified the defendant lasted only about two and one-half to three minutes.
4
In statements to police the next day, petitioner admitted that until the previous evening he had lived on Euclid Avenue in an apartment owned by Arthur. Petitioner stated that he had decided to move out of the apartment the previous night and move into Stewart's apartment at 1220 Sutter Avenue. Petitioner denied hearing any gunshots, but stated that while he and Stewart were standing on the street, Stewart had suddenly begun to run. Petitioner then ran with him back to Stewart's apartment, whereupon they were arrested.
5
Over objection, the trial judge admitted into evidence under the excited utterance exception to the hearsay rule Arthur's several statements tending to identify petitioner as the shooter. The jury convicted petitioner of second degree murder, and he was sentenced to a term of twenty-five years to life. The Appellate Division affirmed, rejecting petitioner's contentions relating to his hearsay objection. People v. Mungo, 287 A.D.2d 523, 731 N.Y.S.2d 632, 632-33 (App. Div.2d Dep't 2001). Leave to appeal to the Court of Appeals was denied. People v. Mungo, 97 N.Y.2d 685, 738 N.Y.S.2d 301, 764 N.E.2d 405 (2001); People v. Mungo, 98 N.Y.2d 639, 744 N.Y.S.2d 768, 771 N.E.2d 841 (2002).
6
Mungo petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, arguing that the admission of Arthur's statements at trial violated his rights under the Confrontation Clause. The district court applied AEDPA's deferential standard of review and denied the petition, finding that the state court's ruling was not an unreasonable application of Supreme Court precedent. The court reasoned that the statements were properly admitted under the excited utterance exception to the hearsay rule, and thus, under White, were categorically immune from Confrontation Clause challenge. Mungo v. Duncan, 277 F.Supp.2d 176, 184 (E.D.N.Y.2003). The court, however, granted a certificate of appealability, noting the "fallacy of the assumption that out of court `excited utterances,' as a class, should be presumed reliable without further examination of the trustworthiness of the statements." Id. at 185.
Discussion
7
1. Analysis of the petition under Roberts and White. The Sixth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, provides, "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." In Ohio v. Roberts, the Court stated that the Confrontation Clause "was intended to exclude some hearsay," 448 U.S. at 63, 100 S.Ct. 2531, but that it nonetheless countenances "hearsay marked with such trustworthiness that `there is no material departure from the reason of the general rule,' "id. at 65, 100 S.Ct. 2531 (quoting Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 78 L.Ed. 674 (1934)). Reliability, the Court said, could either be established through "a showing of particularized guarantees of trustworthiness," or be inferred from the fact that the evidence fell "within a firmly rooted hearsay exception." Id. at 66, 100 S.Ct. 2531. Subsequently, in White v. Illinois, the Court recognized that "spontaneous declarations" — which describes the same category of statements as the term "excited utterances" used in the courts of New York — fell within a "firmly rooted" hearsay exception. See 502 U.S. at 355 n. 8, 112 S.Ct. 736. The Court therefore ruled constitutionally admissible statements by a four-year-old girl made about an hour after her sexual assault, even though the girl was available and could have been required to testify. Id. at 356-57, 112 S.Ct. 736. See also Brown v. Keane, 355 F.3d 82, 89-90 (2d Cir.2004) (noting that the excited utterance exception "has been ruled to be firmly rooted") (citing Lilly v. Virginia, 527 U.S. 116, 126, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999)).
8
Petitioner essentially concedes that the statements challenged here fall within New York's excited utterance exception to the hearsay rule. See Pet. Reply Br. at 2 ("[T]he appellant has essentially conceded that the statements elicited from Arthur by the police were excited utterances, as the courts in New York have consistently interpreted this exception."). Under New York's rule, "[a]n excited utterance occurs under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection" — a period which "is not measured in minutes or seconds but rather is measured by facts." People v. Cotto, 92 N.Y.2d 68, 78-79, 677 N.Y.S.2d 35, 699 N.E.2d 394 (1998) (internal quotation marks omitted).
9
Petitioner instead contends that the statements admitted here were so inherently unreliable that, despite falling within New York's excited utterance exception, they should not be considered to bear the "indicia of reliability" generally required by Roberts. See 448 U.S. at 66, 100 S.Ct. 2531. We cannot say that it would have been unreasonable for the Appellate Division to reject this argument. Even accepting that some statements that fall within New York's excited utterance exception might be too unreliable to support the inference of reliability drawn by White for all statements within the traditional common law spontaneous declaration exception, the statements admitted here were not clearly of such a nature. In White, the Court described the exception by stating that "[a] statement that has been offered in a moment of excitement — without the opportunity to reflect on the consequences of one's exclamation — may justifiably carry more weight with a trier of fact than a similar statement offered in the relative calm of the courtroom." White, 502 U.S. at 356, 112 S.Ct. 736. The Court referred with apparent approval to the Federal Rule of Evidence incorporating the exception. Id. at 355 n. 8, 112 S.Ct. 736; see also Fed.R.Evid. 803(2) (describing an excited utterance as "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition"). The district court here assumed that the statement would have qualified under the Federal Rule, Mungo, 277 F.Supp.2d at 184, and petitioner does not suggest otherwise.
10
Petitioner argues only that (i) the statements were prompted by police questions, some of which were leading; and (ii) Arthur identified both Stewart and petitioner as the shooter, and only specified petitioner when the police said they needed to know which of the two pulled the trigger.1 On the other hand, as the People point out, Arthur knew petitioner personally, and was thus unlikely to confuse him with someone else. Furthermore, if Arthur was attacked by both men acting in concert, as appears to have been the case, it was reasonable for him to describe both as having shot him, even though only one held the gun and pulled the trigger. We do not see these factors as inconsistencies casting serious doubt on the reliability of the statements. We cannot say that the Appellate Division's ruling amounted to an objectively unreasonable application of then-current Confrontation Clause jurisprudence. See 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O'Connor, J., for the Court).
11
2. Retroactive Application of Crawford. On March 8, 2004, after the district court had denied the petition for habeas corpus, and while this appeal was pending, the Supreme Court issued its opinion in Crawford. The opinion reconceived much of the Court's prior Confrontation Clause jurisprudence in a manner that is potentially inconsistent with the court's admission of some of Arthur's statements at trial. Crawford ruled essentially that, notwithstanding the prior holdings of Roberts and White, out-of-court statements of a person who does not appear as a witness at trial that are of a "testimonial" nature2 may not be received against the accused to establish the truth of what was stated unless (i) the declarant is unavailable to testify at the trial, and (ii) the accused was afforded a prior opportunity to cross-examine the declarant on the statement. Crawford, 124 S.Ct. at 1365-66 ("As the English authorities above reveal, the common law in 1791 conditioned admissibility of an absent witness's examination on unavailability and a prior opportunity to cross-examine. The Sixth Amendment therefore incorporates those limitations."). The People argue that petitioner is barred from retroactively invoking Crawford both by the nonretroactivity doctrine of Teague v. Lane, and by the independent nonretroactivity rule imposed by AEDPA in § 2254(d)(1). Petitioner contends that Crawford establishes a "watershed" rule of criminal procedure, and that neither Teague nor AEDPA bars retroactive application of such a watershed rule.
12
a. Nonretroactivity Under Teague v. Lane and AEDPA. In Teague, the Supreme Court barred the application of new procedural rulings in the collateral review of convictions that became final before those rulings were announced. See Teague, 489 U.S. at 310, 109 S.Ct. 1060 (plurality opinion); Penry v. Lynaugh, 492 U.S. 302, 313, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (majority opinion adopting the Teague analysis).3
13
The Teague opinion, however, delineated two exceptions. The first, which is not pertinent to this controversy, is that "a new rule should be applied retroactively if it places `certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.'" Teague, 489 U.S. at 311, 109 S.Ct. 1060 (quoting Mackey v. United States, 401 U.S. 667, 692, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in part and dissenting in part)).4 The second exception is for "new `watershed rules of criminal procedure' that are necessary to the fundamental fairness of the criminal proceeding" and improve the accuracy of the criminal process. Gaines v. Kelly, 202 F.3d 598, 604 (2d Cir.2000) (quoting Sawyer v. Smith, 497 U.S. 227, 241-42, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990) (quoting Teague, 489 U.S. at 311, 109 S.Ct. 1060)). Petitioner contends that the new rule of Crawford is a "watershed" rule which falls within this exception.
14
A second principle of nonretroactivity with potential application to this case was created by AEDPA itself. Under the AEDPA provision codified at 28 U.S.C. § 2254(d)(1), if a state prisoner seeks habeas corpus relief on a claim that was decided on the merits by the state court, we apply the following standard:
15
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim ... resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States....
16
28 U.S.C. § 2254(d)(1). The Supreme Court has described this standard as mandating that federal courts decide habeas corpus petitions not with reference to the Supreme Court's current jurisprudence, but rather with reference to the Supreme Court jurisprudence as of either the date of the pertinent state court "adjudicat[ion] on the merits," or the date when the state court conviction became final.5 See Williams, 529 U.S. at 412, 120 S.Ct. 1495 (O'Connor, J., for the Court) (stating that the "clearly established" phrase in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision"); id. at 380, 120 S.Ct. 1495 (Stevens, J., for four justices) ("AEDPA codifies Teague to the extent that Teague requires federal habeas courts to deny relief that is contingent upon a rule of law not clearly established at the time the state conviction became final."); cf. id. at 390, 120 S.Ct. 1495 (Stevens, J., for the Court) ("The threshold question under AEDPA is whether [petitioner] seeks to apply a rule of law that was clearly established at the time his state-court conviction became final.").6 We have also held in general terms that § 2254(d)(1) bars retroactive reliance on new rules of law. See Vasquez v. Strack, 228 F.3d 143, 148 (2d Cir.2000) ("If petitioner's claim requires us to apply a rule of law that was not clearly established Federal law as determined by the Supreme Court at the time of the state court determination, Section 2254(d)(1) bars relief.").
17
Because the state court adjudicated petitioner's claim on the merits, § 2254(d)(1) applies. The People point out that § 2254(d)(1), unlike the Teague opinion, does not set forth an exception for watershed rules. They argue that, even if Crawford is deemed retroactive under the Teague exception, the new Crawford rule cannot be applied under AEDPA and the petition must be denied. The question thus arises whether § 2254(d)(1) nullifies Teague's exceptions in cases coming within the statute's terms, or instead implicitly adopts them.
18
This poses a difficult question of statutory, and perhaps even constitutional, interpretation. Teague's exception to the general rule of nonretroactivity gives recognition to new rulings that purport to enhance the accuracy of the factfinding process in a manner "necessary to the fundamental fairness of the criminal proceeding." Gaines, 202 F.3d at 604 (internal quotation marks omitted). The People argue that no such exception exists under the AEDPA rule. According to this argument, if a state criminal conviction were obtained in a manner later determined by the Supreme Court to be not only unconstitutional but also incompatible with fundamental fairness and fraught with an "impermissibly large risk that the innocent will be convicted," Teague, 489 U.S. at 312-13, 109 S.Ct. 1060 (internal quotation marks omitted), the federal courts would nonetheless be compelled to reject the petition and accept the potentially inaccurate and fundamentally unfair conviction, so long as the state court had affirmed on the merits.
19
In any case, whether § 2254(d)(1) was intended, or out of prudence should be read, to adopt the Teague exceptions is a question we need not answer because we conclude that the Crawford rule does not qualify as a watershed rule coming within the exception to Teague. We therefore find that petitioner's reliance on Crawford is barred by Teague itself, and an interpretation of the scope of § 2254(d)(1)'s anti-retroactive effect is unnecessary to the disposition of this case.
20
b. Analysis Under Teague. Teague bars petitioner from relying on a new rule of criminal procedure, unless that rule fits into the exception for watershed rules. We assume for analysis of the question that Crawford announced a new rule of criminal procedure. As noted above, the Supreme Court in Roberts stated that the Confrontation Clause countenances "hearsay marked with such trustworthiness that there is no material departure from the reason of the general rule," 448 U.S. at 65, 100 S.Ct. 2531 (internal quotation marks omitted), and that the requisite trustworthiness could be inferred if the evidence fell within a "firmly rooted" hearsay exception, id. at 66, 100 S.Ct. 2531. In Crawford, however, the Court divided out-of-court statements into two categories, those that are testimonial in nature and those that are not, asserting that testimonial hearsay is the "primary," if not the only, object of the Confrontation Clause. See 124 S.Ct. at 1364-65, 1370. It then held that the testimonial statement of a person who does not appear as a witness at the trial may not be admitted against the accused to prove the truth of the statement unless the declarant is unavailable to appear as a witness and the accused had a prior opportunity for cross-examination. See id. at 1365-66, 1369.
21
Assuming that Crawford announced a new rule, the question of its retroactivity turns, for our purposes, on whether the rule is necessary to the fundamental fairness, and improves the accuracy, of criminal proceedings. Teague, 489 U.S. at 311-14, 109 S.Ct. 1060. We do not believe that Crawford necessarily improves the overall accuracy of the criminal process. As we see the operation of the Crawford rule, it is likely to improve accuracy in some circumstances and diminish it in others. To the extent that Crawford requires the exclusion of unreliable hearsay that would have been admitted under the prior law, it is likely to improve accuracy. As the Crawford Court noted, courts applying Roberts were required to make "amorphous" determinations whether hearsay statements bore "particularized guarantees of trustworthiness," and inevitably received unreliable evidence on that basis on some occasions. Crawford, 124 S.Ct. at 1370-72. Further, as Judge Weinstein observed below, not all hearsay statements that fit within firmly established exceptions to the hearsay rule are necessarily reliable. Mungo, 277 F.Supp.2d at 184-85. Because Crawford bars the admission of testimonial statements that would have been countenanced by the old rules, and because some such evidence is unreliable, Crawford will in those instances improve the accuracy of the process.
22
At the same time, however, Crawford also precludes admission of highly reliable testimonial out-of-court statements that would have been admissible under the old rules. In such instances, juries will be deprived of highly reliable evidence of guilt, and cases that otherwise would have resulted in well-deserved convictions will now result in acquittals or hung juries. We recognize that Crawford's rule derives from the principle that cross-examination is a better engine of truth-determination than a judge's assessment of the reliability of uncross-examined hearsay. Crawford, 124 S.Ct. at 1370. We do not question this principle. But it does not necessarily follow that the Crawford rule will improve the accuracy of the process. For the requirement of cross-examination will, in cases where the declarant is not available to be called for cross-examination, simply result in the exclusion of the testimony altogether. Where the testimony was admissible under the old rules precisely because it was reliable, these applications of Crawford will diminish, rather than increase, the accuracy of the process.7
23
In short, the advent of the Crawford rule brings about substantial changes in the protection given by the Confrontation Clause to an accused from receipt of uncross-examined statements. In some instances those changes will likely improve the accuracy of the factfinding process; in others they will likely impair the accuracy of the factfinding process. Because Teague's test of a watershed rule requires improvement in the accuracy of the trial process overall, we conclude that Crawford is not a watershed rule. We thus conclude that Crawford should not be applied retroactively on collateral review.8 Accordingly, our conclusion that the Appellate Division did not unreasonably apply the then-current law of Roberts and White is sufficient to dispose of the petition.9
Conclusion
24
The judgment of the district court is AFFIRMED.
Notes:
1
Petitioner suggests further that the identification was suspect because it was dark, but there was testimony that the area was lit by floodlights. Finally, petitioner suggests that the identification was suspect because Arthur was in need of medical attention and was just trying to "placate" the police officers. At the time of the identification, however, the officers had already told Arthur that an ambulance was on the way
2
The Supreme Court expressly refrained from defining "testimonial."See Crawford, 124 S.Ct. at 1374 ("We leave for another day any effort to spell out a comprehensive definition of `testimonial.'"). The Court's brief discussion suggested, however, that the term was intended to include sworn evidentiary statements, such as affidavits, depositions, grand jury testimony, and trial testimony, as well as unsworn declarations given to the police.
3
A conviction becomes final for the purposes ofTeague when "the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally decided." Beard v. Banks, ___ U.S. ___, 124 S.Ct. 2504, 2510, 159 L.Ed.2d 494 (2004) (quoting Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994) (internal quotation marks omitted)).
4
The Court has recently clarified that becauseTeague by its own terms applies only to new procedural rules, the first so-called exception is not so much an exception as a category of substantive rules not subject to Teague's bar. See Schriro v. Summerlin, ___ U.S. ___, 124 S.Ct. 2519, 2523 n. 4, 159 L.Ed.2d 442 (2004).
5
BecauseCrawford was decided long after both the relevant adjudication on the merits and the date when petitioner's conviction became final, the precise date on which § 2254(d)(1)'s nonretroactivity rule takes hold is not material for our purposes.
6
TheWilliams case did not turn on nonretroactivity. The petitioner, Terry Williams, argued that his death sentence was invalid because his counsel had been ineffective in failing to present mitigation evidence. A majority of the justices agreed that, under the test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Williams had in fact been denied his Sixth Amendment right to counsel. Williams, 529 U.S. at 398-99, 120 S.Ct. 1495. Williams's conviction had become final in 1988, four years after Strickland. See id. at 370, 120 S.Ct. 1495.
7
Crawford did not rule on whether the Confrontation Clause has any application to nontestimonial hearsay. See Crawford, 124 S.Ct. at 1369-70. But the opinion asserted that testimonial hearsay is the "primary object" of the Confrontation Clause, id. at 1365; it might conceivably be later construed to mean that nontestimonial hearsay is not within the Confrontation Clause's concern at all. If the Crawford rule is eventually so interpreted, it will additionally diminish the accuracy of the trial process: under Roberts, nontestimonial hearsay deemed unreliable is barred by the Confrontation Clause.
8
In so holding, we join the only other court of appeals to rule on the issue thus farSee Brown v. Uphoff, 381 F.3d 1219, 1226-27 (10th Cir.2004).
9
Because petitioner is barred byTeague from relying on Crawford, we need not address whether the hearsay statements admitted in this case were testimonial and thus excluded within the meaning of Crawford. Nonetheless, in an effort to begin to understand the boundaries of the "testimonial" concept, we offer in dictum some speculation as to how the distinction drawn by Crawford might apply to Arthur's several statements to the police.
As noted above, the Supreme Court refrained from attempting to specify the boundaries of "testimonial" statements. After reference to trial testimony, affidavits, depositions, and vague references to "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial," Crawford, 124 S.Ct. at 1364, the Court went on to say that "[s]tatements taken by police officers in the course of interrogations are also testimonial...." Id. Although the word "interrogation" can include any asking of questions, the first meaning listed (for "interrogate") in Webster's Third New International Dictionary is "to question typically with formality, command, and thoroughness for full information and circumstantial detail." Webster's Third New International Dictionary 1182 (1976). We believe the Supreme Court intended this more limited meaning, which is more consistent with the other types of testimonial statements the Court mentioned.
Several statements made by Arthur to the police were admitted at Mungo's trial. The first group were the responses to a series of investigatory and hot-pursuit questions, including whether "[t]hose guys running" were the ones who shot Arthur, whether Arthur knew where they were going, and, upon overtaking them, whether they were the shooters. Again after Mungo and Stewart had been taken into custody, the police asked Arthur as to each whether this was the person who had shot him. When Arthur answered yes as to each of the two, Officer Cavallo pressed for clarification, "I need to know exactly who shot you," to which Arthur responded, "The guy in gray [Mungo]," and explained, "They tried to rob me."
As for the answers to the early questions, delivered in emergency circumstances to help the police nab Arthur's assailants, we doubt that these were of the type of declarations the Court would regard as testimonial. As for the final statement, however, made after Mungo and Stewart had been caught, and after Arthur had confirmed that they were the men who shot him, specifically that it was Mungo who shot the gun and that the motive was robbery, this statement seems to have been made in greater formality with a view to creating a record and proving charges. It seems more likely to fall within the category the Court described as testimonial.
The Supreme Court declined to attempt any precise definition of "testimonial," wisely sensing that the issue was complex and that the exact rule should gradually emerge in light of cumulative experience. We offer these reflections in the hope that they may assist courts to work gradually, case by case, toward a functional understanding of the term.
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853 F.Supp. 886 (1994)
INTERREX, INC., Plaintiff,
v.
UNITED STATES of America, Defendant.
No. 3:92-CV-254-P.
United States District Court, W.D. North Carolina, Charlotte Division.
January 12, 1994.
Waldon Michael Hingle, Michael Hingle & Associates, Inc., New Orleans, LA, for plaintiff.
Mark E. Seamster, Seale, Macaluso, Daigle & Ross, Hammond, LA, for defendant.
ORDER
ROBERT D. POTTER, District Judge.
This Matter is before the Court on motion of Defendant United States of America, ("Government"), filed November 17, 1993, for leave to file an amended answer and counterclaim. Plaintiff Interrex, Inc. ("Interrex") filed a response in opposition on December 2, 1993. The Government filed a reply on December 16, 1993.[1]
*887 BACKGROUND
This action arises out of an Internal Revenue Service ("IRS") employment tax audit of Interrex for the tax years 1986, 1987, and 1988. As a result of the audit, the IRS notified Interrex on August 1, 1990, that it owed employment taxes and penalties assessed in the amount of $300,828.88. On August 7, 1990 Interrex appealed the assessment. This appeal was subsequently denied by the IRS. On July 15, 1991, the IRS reassessed the amount of tax and penalty in the amount of $368,673.24. On August 29, 1992, Interrex made a partial payment on the taxes allegedly owed in the amount of $2,360.38 and simultaneously filed for a refund of such payment.
Interrex filed this refund action on July 7, 1992. The Government filed its original answer on September 10, 1992. Plaintiff alleges that pretrial discovery was completed on or about December 31, 1992. On October 25, 1993, approximately one week before the case was subject to be called for trial in early November, and after both sides had filed their trial briefs, the Government filed its first motion for leave to file an amended answer and counterclaim.[2]
DISCUSSION
The government has placed before the court a muddled and spurious argument in support of its motion for leave to file an amended answer and counterclaim. Essentially, the Government's counterclaim seeks to reduce to judgment the balance of the assessment made against Interrex. In support of its motion, the Government offers little justification for the delay in filing its counterclaim, despite the fact that they have been aware of the assessment which is the subject of their claim since at least July, 1991.
Motions to amend pleadings by asserting omitted counterclaims are governed by Rule 13(f) of the Federal Rules of Civil Procedure. The Court finds that the standards established under that rule are applicable to this case. Specifically, Rule 13(f) provides:
When a pleader fails to set up a counterclaim through oversight, inadvertence or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment.
Although this provision is generally applied liberally, the Court notes that the instant motion was made one year after the filing of the original answer and just one week before the case was subject to be called for trial. Furthermore, the Government has failed to provide any reasonable explanation for this delay.
The Government's only justification for the delay in coming forward with its counterclaim is that it lacked authorization from the IRS to assert the counterclaim at the time the Answer was originally filed. The Court finds that the Government's argument that their delay was justified or excused by the statutory requirement to obtain IRS authorization prior to filing a claim is totally without merit. The Court has been informed that the Government requested authorization from the IRS on or about October 27, 1992, and received such authorization approximately three weeks later on November 17, 1992. The Government makes no further attempt to explain the ensuing delay of nearly eleven (11) months to bring this issue forward. In any event, a lack of authorization from the IRS was clearly not the reason for the delay. Whatever the reason, the Government cannot now escape the consequences of its failure to timely file its counterclaim.
Furthermore, without expressly stating that their counterclaim is compulsory, the Government suggests that there is a logical relationship between the claim and the counterclaim, and that the issues of law and fact raised by each are essentially the same. The Court recognizes that where an omitted counterclaim is compulsory, mere passage of time between filing of the original answer and the attempted amendment to assert a counterclaim is not a sufficient reason for denial of a motion for leave to amend. See Spartan Grain & Mill Co. v. Ayers, 517 *888 F.2d 214 (5th Cir.1975). However, the law is well settled that a collection action need not be asserted as a compulsory counterclaim in a refund suit like this one. See Caleshu v. United States, 570 F.2d 711, 713-14 (8th Cir.1978), citing Flora v. United States, 362 U.S. 145, 166, 80 S.Ct. 630, 641, 4 L.Ed.2d 623 (1960), aff'g on rehearing, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958).
The Court believes that the Government's action to reduce Interrex's unpaid tax assessment to judgment need not be treated as a compulsory counterclaim to Interrex's suit for a refund of alleged overpayments in taxes because the nature and purpose of the statutes authorizing government tax collection suits demonstrate Congress' intent that such suits were not required to be compulsory counterclaims. Specifically, Congress has provided that the Government has up to six years after assessment in which to bring a collection action. See 26 U.S.C. § 6502. This authorization is valid despite the fact that the subject matter in the refund action would be a compulsory counterclaim within Rule 13(a). Accordingly, justice does not require this Court to grant leave for the Government to set up its omitted counterclaims absent a showing of excusable neglect, inadvertence or oversight. The Defendant has failed to make such a showing.
The Plaintiff correctly notes that the defendant had more than adequate time in which to assert its counterclaim. The plaintiff argues that the defendant's motion should be refused because of undue delay. This Court agrees. The Court finds that the government has unduly and unnecessarily delayed the filing of its motion. Furthermore, although it is disputed by the parties, the Court believes that addition of the counterclaim will likely entail additional discovery which might further delay a trial in this matter. Accordingly, it is far too late for the Defendant to change its motion without further burdening the plaintiff and further delaying the resolution of this case. Therefore, this Court concludes that equity and justice will not be served by permitting the United States to file an amended answer and counterclaim.
NOW, THEREFORE, IT IS ORDERED that Defendant's motion for leave to file an amended answer and counterclaim be, and hereby is, DENIED.
NOTES
[1] The motion presently before this Court represents the defendant's second attempt to assert a counterclaim. On October 25, 1993, defendant filed its first motion for leave to file amended answer and counterclaim. Without ruling on the merits, the Court denied that motion on October 27, 1993, because it did not comply with the pretrial order.
[2] This case was unable to be tried during the November Civil Term. After the conclusion of the November session the Government filed this second motion for leave to file an amended answer and counterclaim.
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T.C. Memo. 1996-38
UNITED STATES TAX COURT
ANNA RUTH FRENCH, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 3265-94. Filed February 1, 1996.
Jerold K. Nussbaum, for petitioner.
Helen F. Rogers, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
WRIGHT, Judge: Respondent determined a deficiency in
petitioner’s Federal income tax for taxable year 1986 in the
amount of $123,862. Respondent further determined that
petitioner is liable for an addition to tax in the amount of
$12,386 pursuant to section 66611 for a substantial
understatement of income tax. The issues for decision are:
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect during the year in issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
- 2 -
(1) Whether petitioner qualifies for innocent spouse relief
under section 6013(e). We hold that she does not.
(2) Whether petitioner is liable for the addition to tax
for a substantial understatement of income tax under section 6661
for the taxable year at issue. We hold that she is.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
The stipulation of facts and the attached exhibits are
incorporated herein. Petitioner resided in Frederica, Delaware,
at the time the petition was filed in this case.
For each of the 6 taxable years ending in 1990, petitioner
and her husband (Mr. French) filed joint Federal income tax
returns. The return for taxable year 1988 was filed in October
1989 and contained a net operating loss (NOL) of $618,987. The
NOL was derived from several entrepreneurial undertakings by Mr.
French. On November 10, 1989, petitioner signed a Form 1045,
Application for Tentative Refund, requesting that $226,855 of the
NOL from 1988 be carried back to taxable year 1986.
Concurrently, petitioner and Mr. French filed related Forms 1040X
with respect to taxable years 1986 and 1988. On or about January
20, 1990, petitioner and Mr. French received a refund check in
the approximate amount of $226,000 for taxable year 1986.
Following an audit, respondent disallowed part of the 1988
NOL which was carried back to 1986. Respondent now seeks to
recapture the corresponding portion of the refund.
- 3 -
A. Petitioner and Mr. French
Petitioner graduated from high school in 1958 and was
married to George French (Mr. French) in 1959. Petitioner
received no further formal education. Shortly after graduating
from high school, petitioner was employed as a clerk typist.
Petitioner left the labor force in approximately 1960, after
deciding to raise a family. In 1974, petitioner obtained
employment with B.F.W. Scientific (BFW). While with BFW,
petitioner performed the duties of an accounts receivable clerk.
In 1976, petitioner accepted employment with International Office
Machines (IOM), where she performed a variety of duties,
including those of an accounts receivable clerk. Petitioner
remained employed by IOM until sometime in 1983. After leaving
IOM, petitioner was not employed again until late 1989, when she
accepted a job with Ocean Plaza Mall (OPM). Throughout the
course of the 2 years that petitioner was employed by OPM, she
performed a variety of managerial functions.
In early 1989, petitioner and Mr. French separated. In July
1989, after leaving the marital home located in Annapolis,
Maryland, petitioner moved into the family condominium located in
Ocean City, Maryland. The Ocean City condominium was jointly
owned by petitioner and Mr. French and had been purchased
sometime prior to 1987. In 1990, Mr. French left the marital
home in Annapolis, Maryland, and moved to the State of Florida.
Petitioner and Mr. French were divorced in 1993.
- 4 -
Petitioner admits that her family maintained a comfortable
lifestyle during 1987 and 1988; she estimates that her personal
and family living expenses for 1988 equaled $104,515. The
majority of these expenses were paid by checks drawn against Mr.
French’s personal account. Some expenses, however, were paid by
petitioner.
On their tax return for 1987, petitioner and Mr. French
reported $804,282 in gross rental receipts and $598,457 in
salaries and wages. The following year, 1988, petitioner and Mr.
French reported $414,715 in gross rental receipts and $79,500 in
salaries and wages. The correct amount of gross rental receipts
for 1988 is $737,200. It has been stipulated that Mr. French was
not aware of the discrepancy between the actual and reported
amounts of gross rental receipts for 1988. The couple reported
$223 of interest income in 1987 and $18,021 of interest income in
1988.
B. Mr. French’s Business Activities
During the 5-year period ending with 1989, Mr. French was
the sole shareholder in a number of S corporations, including
Arundel Housing Components, Inc. (AHC). In furtherance of its
corporate objectives, AHC leased several parcels of real estate
from Mr. French. Substantially all of the rental payments made
by AHC were deposited directly into Mr. French’s personal bank
account. Mr. French’s secretary managed this account, but she
- 5 -
failed to keep complete and accurate records regarding the rental
deposits.
Sometime prior to 1989, AHC began experiencing financial
distress. In June 1988, AHC’s controller quit because of the
company’s deteriorating financial condition. AHC hired a new
controller, but this replacement quit 3 months later for similar
reasons. Shortly thereafter, AHC sought the services of an
accounting firm to evaluate its corporate records for taxable
year 1988. The accounting firm determined that AHC’s corporate
records were in poor condition and many required reconstruction.
In December 1988, AHC filed a chapter 11 bankruptcy
petition. The petition was subsequently converted to a chapter 7
petition. During the pendency of the bankruptcy proceedings, a
creditors committee filed suit against AHC alleging improper
transfers and fraudulent conveyances. The creditors committee
hired Piper & Marbury, a law firm, to represent it in the
bankruptcy proceedings. Piper & Marbury hired the accounting
firm of Ernst & Young to evaluate AHC’s financial records. In
January 1989, before the process of reconstructing AHC’s
financial records for 1988 had been completed, the creditors
committee obtained possession of such records. Sometime after
October 1989, the creditors committee returned the records to
AHC. Upon receipt of the records, AHC discovered that some
records were missing. Consequently, neither petitioner nor Mr.
- 6 -
French was in possession of AHC’s financial records for taxable
year 1988 at the time their 1988 return was prepared.
C. Refund Check and Certificates of Deposit
In January 1990, petitioner and Mr. French received a refund
check in the approximate amount of $226,000 from the Internal
Revenue Service (IRS). The refund was for taxable year 1986 and
resulted from the NOL carryback which occurred in 1988.
Petitioner and Mr. French also received two refund checks from
the State of Maryland, totaling $47,000, in December 1989. In
February 1990, petitioner and Mr. French used the proceeds from
the three refund checks to purchase three certificates of
deposit. Two of the three certificates of deposit were in the
amount of $100,000 and the third was in the amount of $70,000.
Each of these certificates of deposit was issued jointly to
petitioner and Mr. French. Sometime thereafter, a portion of
these certificates of deposit was cashed, and petitioner used
some of the proceeds for personal and family living expenses.
Mr. French also retained some of the proceeds for use in a
business venture he was undertaking in Florida. In December
1990, the remaining portion of the three certificates of deposit
purchased in February 1990 was rolled over into two new
certificates of deposit, one in the amount of $100,000 and the
other in the amount of $50,000. Both of these certificates of
deposit were issued solely in petitioner’s name.
- 7 -
In November 1990, petitioner and Mr. French sold their
marital home located in Annapolis, Maryland. The net proceeds
from this sale amounted to approximately $144,000. These
proceeds were used to purchase a certificate of deposit in the
approximate amount of $144,000. This certificate of deposit was
issued solely in petitioner’s name. In early 1991, petitioner
cashed the certificate of deposit in order to aid Mr. French with
the purchase of a condominium in Pompano Beach, Florida. The
Pompano Beach condominium was subsequently sold pursuant to the
couple’s divorce decree. Petitioner received $100,000 from the
sale of the Pompano Beach condominium as a division of her
marital rights.
OPINION
Issue 1. Innocent Spouse
A husband and wife who file a joint return are jointly and
severally liable for the tax due. Sec. 6013(d)(3). An
"innocent" spouse, however, is relieved of liability if he or she
proves the following: (1) That a joint return has been made for
a taxable year; (2) that on such return there is a substantial
understatement of tax attributable to grossly erroneous items of
the other spouse; (3) that he or she did not know, and had no
reason to know, of such substantial understatement when he or she
signed the return; and (4) that after consideration of all the
facts and circumstances, it would be inequitable to hold him or
her liable for the deficiency in income tax attributable to such
- 8 -
substantial understatement. Sec. 6013(e)(1), as amended by the
Deficit Reduction Act of 1984, Pub. L. 98-369, sec. 424(a), 98
Stat. 801-802; Purcell v. Commissioner, 86 T.C. 228, 235 (1986),
affd. 826 F.2d 470 (6th Cir. 1987). Petitioner bears the burden
of establishing that each of the four requirements of section
6013(e) has been satisfied. Purcell v. Commissioner, 826 F.2d at
473; Sonnenborn v. Commissioner, 57 T.C. 373, 381-383 (1971).
The requirements of section 6013(e) are conjunctive rather
than alternative; a failure to meet any of the requirements
prevents a spouse from qualifying for relief under section
6013(e). Cohen v. Commissioner, T.C. Memo. 1987-537; Estate of
Killian v. Commissioner, T.C. Memo. 1987-365; Levin v.
Commissioner, T.C. Memo. 1987-67. The parties agree that
petitioner and Mr. French filed a joint return for the taxable
year in issue. The parties also agree, and we find, that there
is a substantial understatement of tax attributable to a grossly
erroneous item of Mr. French’s for the taxable year in issue.
Whether petitioner fulfilled the remaining requirements of
section 6013(e), however, is disputed.
Section 6013(e)(1)(D)--Inequitable
Petitioner must prove that, given the facts and
circumstances, it would be inequitable to hold her liable for the
deficiency attributable to Mr. French’s substantial
understatement. Sec. 6013(e)(1)(D); sec. 1.6013-5(b), Income Tax
Regs. Section 6013(e), as amended, no longer requires us to
- 9 -
determine whether a spouse significantly benefited from the
erroneous item; however, this factor is still considered in
determining whether it is inequitable to hold a spouse liable.
Purcell v. Commissioner, 86 T.C. at 242; Johnson v. Commissioner,
T.C. Memo. 1993-227. Normal support is not a "significant
benefit" for purposes of determining whether denial of innocent
spouse relief would be inequitable under section 6013(e)(1)(D).
Terzian v. Commissioner, 72 T.C. 1164, 1172 (1979); sec.
1.6013-5(b), Income Tax Regs. Normal support is measured by the
circumstances of the parties. See Sanders v. United States, 509
F.2d 162, 168 (5th Cir. 1975). Petitioner bears the burden of
proving that she received no significant benefit from the
understatements other than normal support, and this burden must
be satisfied with specific facts regarding lifestyle
expenditures, asset acquisitions, and dispositions of the
benefits of the understatements. Estate of Krock v.
Commissioner, 93 T.C. 672 (1989).
Respondent contends that it would not be inequitable to hold
petitioner liable for the deficiency attributable to the
understatement because petitioner significantly benefited from
the omitted income during 1988. Respondent further argues that
it would not be inequitable to hold petitioner liable because she
received significant benefits from the refund check received.
In contrast, petitioner contends that she experienced no
significant benefit with respect to either the omitted income
- 10 -
during 1988 or the refund check received in 1990. Petitioner
maintains that any benefit that she received from either the
omitted income or the refund check amounted to nothing more than
normal support. We disagree. Even assuming that petitioner
received nothing more than normal support from the omitted income
in 1988, we do not accept petitioner’s contention with respect to
the refund check. As explained above, normal support is not a
"significant benefit" for purposes of determining whether denial
of innocent spouse relief would be inequitable under section
6013(e)(1)(D). Terzian v. Commissioner, supra at 1172; sec.
1.6013-5(b), Income Tax Regs. We believe, however, that the
refund check provided petitioner with more than normal support in
1990. Using the funds obtained from the refund check, petitioner
and Mr. French jointly purchased several certificates of deposit
in large denominations. A portion of the money represented by
these certificates of deposit was used for the direct and
individual benefit of petitioner. The remainder, less some
amount used personally by Mr. French, was rolled over into two
certificates of deposit owned individually by petitioner.
Although the record is not entirely clear as to what petitioner
did with these two certificates of deposit, which totaled
$150,000, we are not persuaded by petitioner’s argument that such
funds merely amounted to normal support allotted to her by Mr.
French. In fact, the $150,000 exceeds petitioner’s 1988
estimated family expenses by nearly 50 percent. Moreover, this
- 11 -
$150,000 was in addition to all other support petitioner received
during 1990.
Accordingly, we find that it is not inequitable to hold
petitioner liable for the deficiency attributable to Mr. French’s
substantial understatement. We therefore hold that petitioner
has not met all the conjunctive requirements of section 6013(e),
and she is not entitled to relief as an innocent spouse. As a
result of this holding, it is unnecessary for us to consider
whether petitioner knew or had reason to know of Mr. French’s
substantial understatement.
Issue 2. Addition to Tax, Section 6661
Respondent determined that petitioner is liable for the
addition to tax pursuant to section 6661 for taxable year 1986
due to a substantial understatement of income tax. Respondent's
determination carries the presumption of correctness. Rule
142(a).
The addition to tax is 25 percent of any underpayment
attributable to a substantial understatement. Sec. 6661(a);
Pallottini v. Commissioner, 90 T.C. 498 (1988). A substantial
understatement is one which exceeds the greater of 10 percent of
the tax required to be shown on the return or $5,000. Sec.
6661(b)(1). Petitioner has not shown that the understatement for
taxable year 1986 is subject to reduction pursuant to section
6661(b)(2)(B)(i) or (ii). Accordingly, respondent's
determination as to this issue is sustained.
- 12 -
To reflect the foregoing,
Decision will be
entered for respondent.
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601 F.2d 573
Boldenv.Pennsylvania State Police
No. 78-2356
United States Court of Appeals, Third Circuit
6/8/79
1
E.D.Pa.
AFFIRMED
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103 F.Supp. 543 (1951)
GRIGALAUSKAS et al.
v.
UNITED STATES.
Civ. A. 50-18.
United States District Court D. Massachusetts.
May 3, 1951.
*544 *545 Jules E. Angoff, Boston, Mass., for plaintiff.
George Garrity, U.S. Atty., Edward O. Gourdin, Asst. U. S. Atty., Boston, Mass., for defendant.
McCARTHY, District Judge.
This is a suit under the Federal Tort Claims Act, 28 U.S.C.A. § 2671, et seq., arising out of alleged negligent treatment in an Army Station Hospital of a dependent child of an enlisted man of the Regular Army on active duty. The child is suing, through her father as a next friend, for damages. The father seeks consequential damages. The gist of the complaint is that the child was born in the Station Hospital at Fort Leavenworth, Kansas, and in the course of post-natal care at the hospital, she suffered injuries through the negligence of the Army doctor in attendance, who, when she was experiencing difficulty in breathing, administered an injection twenty times normal strength which caused skin and tissue of the lower back region to slough off and left a mass of scar tissue there.
The defendant earlier filed a motion to dismiss the complaint on the ground that the practice of providing medical care to the mother and the plaintiff child was a mere discretionary function, and that the defendant is expressly exempted from liability in such cases under the first exception to the Act. 28 U.S.C.A. § 2680(a). The court ruled that the defendant had already exercised its discretion by admitting the plaintiff to medical service, and denied the motion.
The case has been heard on testimony, deposition and arguments of counsel, and after mature deliberation I find the following facts:
1. In November of 1947, the Fort Leavenworth Station Hospital, Kansas, was a hospital owned by the United States of America, and operated by its Army. No profit, in the form of money, was realized as a result of its operation. Funds for its operation found their source in the Treasury of the United States. Persons who were admitted to the hospital for treatment and care were those only who qualified for admission under then current Army regulations. These persons paid no money for board or for medical service received.
2. The minor plaintiff's father, Master Sergeant Joseph George Grigalauskas, was assigned to duty at Fort Leavenworth, Kansas, in November of 1947. His wife Edna, who had received pre-natal care at other Army hospitals, was admitted to the Station Hospital at Fort Leavenworth under the provisions of Army Regulations 40-505 and 40-590 on November 11, 1947. She was placed under the care of First Lieutenant George J. Hopkins, Chief of Obstetrics and Gynecology. The minor plaintiff was born on November 11, approximately two months prematurely. She was placed in an incubator, and remained in the hospital under *546 the care of the defendant until January 15, 1948.
3. On November 16, 1947, the infant developed dyspnea or labored breathing. She then lapsed into alternate periods of no breathing with short breaths between. Lieutenant Hopkins, called from his home, examined the baby and determined that there was some dehydration. He ordered a nurse of the defendant to go to "Medical Supply" and get an ampule of "Ringer's Lactic Solution". He administered ten cubic centimeters of the fluid from the ampule handed him by the nurse into the area over the lower part of the child's back. This was a concentrated solution. In his deposition the doctor admitted that he failed to read the label on the ampule which stated that the fluid was to be diluted one to twenty parts sterile water. [Deposition, Hopkins, Pg. 5] Doctor Hopkins, during the taking of the deposition, gave the following answers to questions put to him by counsel for the plaintiff, no objection being made to the questions:
"Q. Do you, Doctor, know the probable consequences to human tissues by injecting or administering undiluted Hartman's Ringer's Solution of 10 cc's? A. Oh, yes.
"Q. And what would the probable consequences of such an injection be by the destruction of the tissues in the immediate area? A. Oh, a destruction of tissues in the immediate area. It would destroy the skin and flesh underneath the skin in the area where it was injected.
"Q. Is there also a likelihood of it destroying the bone structures in the immediate area? A. No.
"Q. There isn't any question, doctor, that the injection of Hartman's Ringer's Solution to the child's lower back area was the sole cause of the skin in that back area sloughing off? A. No. [Deposition, Hopkins, Pg. 8, 9].
4. On November 16, 1947, the area injected with the hypertonic solution became discolored and the skin began to slough off. [Deposition, Hopkins, Pg. 17]. The wound was treated with alternating penicillin packs and lyosite. There was a "certain amount of purulent drainage from the wound". On December 20 plastic surgery was attempted. Granulation tissues over the area were removed, skin margins were undermined and were brought together and sutured. On December 23 a pyocyaneous infection developed in the wound, the sutures broke and the skin margins separated, After the infection had been aborted, the wound went on to heal over. On January 15, 1948, the baby was discharged from the hospital.
5. I find that the child has an extensive disfiguring and deforming scar running laterally across the lower area of the back. It extends out and parallel to the iliac crest on each side, the total length of the scar being 9 or 10 inches. From the lower end of the scar there is a linear scar extending to the anal margin. The tissues adjacent to it overhang in large folds creating an abnormal contour. She stands in "fatigue" posture, with an increased curve in the lumbar region, flat chest and protruding abdomen. As she stands, the unyielding scar tissue which adheres to the fascia over the sacrum forms a cleft accentuated by protruding buttocks. The scar tissue is inelastic, and because it is adherent to the bony element beneath the skina permanent conditionshe shows a limitation of motion in the lower spine element. She walks with a peculiar gait, "waddles" while she runs, and accomplishes a range of 50 degrees only when bending and extending.
6. The plaintiff child will require plastic surgery operations in the future, perhaps as many as four. Such operations will have desirable cosmetic effects, relieving the "cleft" appearance in the lower back, but they will not restore mobility between the lower spine and the sacrum. She will always have considerable scarring. Her physical activity will be limited substantially. She will never be able to sit down comfortably. She will have difficulty in any activity which requires flexion of the lower back. She will not be able to participate in sustained physical sports. She will have great difficulty in child bearing. As she matures she will become more conscious of *547 her deformity, and will have difficulty with psychological factors of adjustment.
7. The mother of the child has testified that prior to the commencement of suit, the father had expended about $150 for doctors' fees. With respect to the future, there has been evidence that the series of plastic surgery operations, dressings, post-operative care and hospitalization will cost a minimum of $2500, a maximum of $10,000.
8. The minor plaintiff is now three and a half years of age. The probabilities are that, conceding the success of the proposed surgery, her permanent disability will preclude her from employment. She will suffer pain as a result of the proposed operations and mental anguish while experiencing unavoidable psychological difficulties. Taking into consideration all of the foregoing facts, I conclude that the failure of the doctor to note and to heed the instructions on the label of the ampule to dilute the contents with water at a ratio of one to twenty, prior to injecting the fluid into the area over the lower part of the minor plaintiff's back, was negligence on the part of agents or employees of the government at the hospital; that this neglect is the sole proximate cause of the damages sustained by the minor plaintiff and her father. It was stipulated that any amount recoverable by the father for consequential damages should be included in the award to the minor plaintiff. An appropriate verdict inclusive of any claim for consequential damages is $94,650.
As a matter of law I rule that this court has jurisdiction of the subject matter and of the parties; that the minor plaintiff's action is brought properly under the Federal Tort Claims Act, 28 U.S.C.A. § 2671, et seq.; that the father's action for consequential damages is brought properly; that none of the exceptions enumerated in 28 U.S. C.A. § 2680 exclude the claims of the plaintiffs; and that the United States, if a private person, would be liable to the plaintiffs, in accordance with the law of Kansas, where the act occurred. The reasons for these conclusions are set forth below. Judgment will be presented and entered in conformity with these findings and conclusions.
This case is clearly not the usual type of action brought under the Federal Tort Claims Act, 28 U.S.C.A. § 2671, et seq.
The defendant has argued that the court is without jurisdiction to adjudicate the claims asserted in the complaint, by reason of the provisions of Title 28, U.S.C.A. § 2680(a) which reads: "The provisions of this chapter and section 1346(b) of this title shall not apply to(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." As stated herein before, the defendant earlier brought a motion to dismiss the complaint, contending that this subsection applies. The motion was denied on June 19, 1950, the court stating in its memorandum that the facts in the case are squarely on all fours with those in a case decided by the United States Court of Appeals for the Fifth Circuit, Costley v. United States, 5 Cir., 181 F.2d 723.
Congress has denied jurisdiction to the district courts for the adjudication (1) of any claim based upon an act or an omission of a government employee in the execution of a statute or regulation exercising due care, whether or not the statute or regulation is valid, and (2) of any claim based upon the performance or failure to perform a discretionary function or duty on the part of a government agency or employee, whether or not the discretion involved be abused. Sickman v. United States, 7 Cir., 184 F.2d 616, 619.
It is provided by Federal law, 10 U.S. C.A. § 96 that medical officers of the Army shall give medical services free of charge to the families of soldiers whenever practicable. Pursuant to this law, Army regulations, AR 40-590 and AR 40-505 provide that when suitable facilities for hospitalization are available for their care, wives and dependent children of soldiers may be admitted *548 to hospitals provided they reside in the homes of such Army personnel and are not legally dependent upon an individual not in military service.
Mrs. Grigalauskas was authorized and entitled to receive medical attention where available. The hospital authorities made the determination that she should be admitted. The child was born to her while she was a patient in the hospital. The activity of the physicians and others at the hospital attending Mrs. Grigalauskas and the child was therefore "in the execution of a statute or regulation". Hence the claims would fall within the first exception stated in Sec. 2680(a), were it not for the fact that, by the terms of the Act, such claims are not barred unless the employee of the Government was in the exercise of due care. This employee was not in the exercise of due care.
The defendant contends, however, that the complaint falls within the second exception of Sec. 2680(a) as a claim "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of * * * an employee of the Government".
In Denny v. United States, 5 Cir., 171 F. 2d 365, it was pointed out that the United States is under no obligation to provide medical service. In that case the government refused to admit the dependent of a soldier to hospital care, and a complaint based upon the Tort Claims Act was dismissed, the court ruling that the government was exercising its discretion when it refused to admit Mrs. Denny, since the Army regulations allow the hospital authorities to make the preliminary determination whether suitable facilities are available for care.
In Costley v. United States, supra, [181 F.2d 724.] as in this case, a dependent of a soldier, having been admitted to an Army hospital, sustained personal injury by reason of alleged negligence in the administration of a drug. The Circuit Court of Appeals for the Fifth Circuit decided that the employees of the Government were "not exercising a discretionary function because they had already exercised their discretion by admitting her into the hospital, and once having admitted her and undertaken the delivery of her child, they were under a duty to attend and treat her."
Despite the striking similarity of the facts in this case to those in the Costley case, the defendant presses the argument that the claims are barred by reason of the second exception. It contends that the hospital authorities exercised a discretionary function in making the determination that it was practicable to admit Mrs. Grigalauskas to medical treatment and in admitting her. This is so under the authority of the Denny decision. However, says the defendant, the medical treatment given to Mrs. Grigalauskas and the minor plaintiff subsequently was in the performance of the discretionary function. This contention, it is assumed, was not considered by, nor urged before the Court of Appeals in the Costley case, nor this court when considering the motion to dismiss.
An exception which reserves a part of immunity should be construed liberally in favor of the Government, Kendrick v. United States, D.C., 82 F.Supp. 430, 431, but the hair-splitting construction urged here is not logically sound. The defendant searches for a distinction where none is to be found. The nouns "exercise" and "performance" are practically synonymous, as used in the statute. If we are to distinguish them, it would be well to employ the word "exercise" when concerned with a duty or an activity which is performed habitually, and the word "performance" when concerned with a function which is not the subject of habit.
The Army Regulations allow the hospital authorities an exercise of discretion only in determining whether the dependent should be admitted. Once the patient has been admitted, the discretionary function has been completed.
Counsel for the Government presses another, and a novel contention: that the relationship between the Government and Master Sergeant Grigalauskas, a member of its armed forces, is "distinctively federal *549 in character"; that the dependent wife and child of the sergeant are a part of this federal status; that the serviceman himself would "have no right to sue on such a claim"; that, the rights and privileges of the wife and child being derived from the serviceman's status, they, therefore, have no right to sue on such a claim. The argument concludes that the action for consequential damages must also fail.
The United States Supreme Court, in one opinion, Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152, considered three cases arising under the Federal Tort Claims Act, and decided that the Act does not extend its remedy to servicemen who, while on active duty and while not on furlough, sustain injury due to negligence of others in the armed forces. If the serviceman sustains the injury while on furlough or leave, the result is "wholly different". Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200.
In the Feres opinion, the court states 340 U.S. at page 141, 71 S.Ct. at page 157: "We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving. Nor is there any liability `under like circumstances' [28 U.S.C.A. § 2674, below], for no private individual has power to conscript or mobilize a private army with such authorities over persons as the Government vests in echelons of command. * * *", and 340 U.S. at page 142, 71 S.Ct. at page 157: "It is not without significance as to whether the Act should be construed to apply to service-connected injuries that it makes `* * * the law of the place where the act or omission occurred' govern any consequent liability. 28 U.S.C. § 1346(b), 28 U.S.C.A. § 1346(b). This provision recognizes and assimilates into federal law the rules of substantive law of the several states, among which divergencies are notorious. This perhaps is fair enough when the claimant is not on duty or is free to choose his own habitat and thereby limit the jurisdiction in which it will be possible for federal activities to cause him injury. That his tort claims should be governed by the law of the location where he has elected to be is just as fair when the defendant is the Government as when the defendant is a private individual. But a soldier on active duty has no such choice and must serve any place * * *. That the geography of an injury should select the law to be applied to his [emphasis supplied] tort claims makes no sense. * * *"
The Feres decision, supra, does not bar the claims of these plaintiffs. The relationship between the Government and a serviceman's dependents is not "distinctively federal in character", within the meaning of this decision. That the dependents are the subjects of many rules and regulations promulgated by the Army is not to be denied, nor is the fact that they enjoy privileges by reason of their relation to the serviceman. Their status, with relation to the Government, however, is completely different from his. They are not subject to the orders of superior officers, and, to paraphrase the language of the Supreme Court, they are not "serving the Government", they are not "on duty", and they are free to choose their own habitat, thereby limiting the jurisdiction in which it will be possible for federal activities to cause them injury. That their tort claims should be governed by the law of the location where they have elected to be makes sense. It does not follow that, because these dependents enjoy privileges by reason of their relation to the serviceman, their rights to sue are derived from the serviceman's status.
If a member of the armed forces may recover judgment against the United States under this Act for injury not incident to his services, Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200, the dependents of such a member may recover judgment for injury sustained as a result of the negligence of an employee of the Government. The statute provides for jurisdiction over "any claim" founded on negligence brought against the Government. Congress did not list claims of servicemen's dependents among the exceptions.
*550 Neither does the Feres decision bar the claim of the soldier father for consequential damages. Messer et al. v. United States, D.C., 95 F.Supp. 512, 513.
There is a final problem which requires discussion; whether the United States, if a private person, would be liable to the claimants in accordance with the laws of the State of Kansas.
Title 28, U.S.C.A. § 1346(b) provides: "Subject to the provisions of chapter 171 of this title, the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States * * * for * * * personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." [Emphasis supplied.]
There is no dispute with respect to the law of Kansas concerning a denial of recovery against certain principals of tortfeasors. Charitable organizations conducting hospitals are not liable for the negligence of their physicians and attendants resulting in injury to patients, unless it is shown that the management has not exercised reasonable care in the employment of physicians and attendants. Nicholson v. Atchison, Topeka & Santa Fe Hospital Association, 97 Kan. 480, 155 P. 290, L.R.A. 1916D, 1029; Davin v. Kansas Medical, Missionary & Benevolent Association, 103 Kan. 48, 172 P. 1002; Webb v. Vought, 127 Kan. 799, 275 P. 170; Ratliffe v. Wesley Hospital & Nurses' Training School et al., 135 Kan. 306, 10 P.2d 859; Leeper v. Salvation Army, 158 Kan. 396, 147 P.2d 702. Such is the law of Kansas, for the reason that "the resources of charitable organizations are trust funds which cannot be subjected to the payment of damages in such cases." Webb v. Vought, supra, 127 Kan. 799, 275 P. at page 171.
It follows that if the Army Station Hospital at Fort Leavenworth, in November of 1947, falls within the classification of "charitable hospital", the Government is not liable to the plaintiffs. If, on the other hand, the defense of "charitable hospital" is not established, the plaintiffs are entitled to prevail.
The decisions of the Kansas courts above-noted do not contain a definition of "charitable hospital", but a thorough study of these opinions and other authorities leads me to the conclusion that the hospital with which we are concerned cannot be as classified.
Counsel have argued with respect to the characteristics of charitable hospitals, and, while I am grateful for their intelligent assistance and mindful of the great amount of research involved, a lengthy discussion of these "characteristics" would serve to confound the issue more than to resolve it. For example, the fact that a hospital requires of its patients payment for their board according to their circumstances, that no person has individually a right to demand admission to the hospital, that the trustees determine who can be received, does not render a hospital less a public charity. Admitting all this, these are negative notions of the legal nature of the institution. These are accidents which may characterize both charitable and noncharitable hospitals.
The determinative factor, in each case, is the purpose for which the particular hospital is created and exists. "A charity of course exists for the benefit of the public, [emphasis supplied] and even the fact that it receives payment for its services from its beneficiaries will not affect its character, so long as the money is used for charitable purposes and not for profit". Prosser, Torts, § 108. "The appellee * * * is a corporation organized under the laws of Kansas for the purpose of maintaining a benevolent and charitable institution for ministering to the indigent, sick, and wounded." [Emphasis supplied.] Ratliffe v. Wesley Hospital & Nurses' Training School et al., supra, 10 P.2d at page 859. Leeper v. Salvation Army, supra, quotes, 147 P.2d at page 703 from the *551 charter of the corporation: "That this corporation is organized not for profit and the purposes for which it is formed are to engage in charitable, educational, missionary, philanthropic and religious work * * *." "A corporation, the object of which is to provide a general hospital for sick persons, having no capital stock nor provision for making dividends or profits, deriving its funds mainly from public and private charity and holding them in trust for the object of sustaining the hospital, and conducting its affairs for the purpose of administering to the comfort of the sick, without expectation or right on the part of those immediately interested in the corporation to receive compensation for their own benefit, is a public charitable institution". 10 Am.Jur., Charities, § 135. [Emphasis supplied.]
At first blush, the Army Hospital hereinbefore described would seem to fall within the last definition of "charitable" hospital, but it does not. First, while it is true that it is not self-supporting, it does not derive its funds from public and private charity, nor does it hold such funds "in trust". It is supported by public monies, so that the reason given in Webb v. Vought, supra, for the adoption of the principle of immunity with respect to tort claims against charitable corporations is here inapplicable. Secondly, while it is true that Army Hospitals are not run for "profit" in the ordinary sense of the word, there is a gain or advantage which accrues to the Government by reason of their creation: the building and preservation of health and morale in the armed forces. Medical service which is furnished by the Army to the soldier and to his dependents "whenever practicable" serves as a compelling influence where a prospective soldier weighs the advantages of enlistment. No one who receives treatment in an Army Station Hospital, therefore, is the recipient of charity.
For the foregoing reasons, I rule that the Army Station Hospital does not fall within the category of a "charitable hospital" which would be immune from recovery under Kansas law for the negligent acts of its employees.
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398 B.R. 526 (2008)
In re BERNARD TECHNOLOGIES, INC., Debtor.
George L. Miller, Chapter 7 Trustee, Plaintiff,
v.
Sumner A. Barenberg, Jane Doe, John Doe and Xyz Corporation, Defendants.
Bankruptcy No. 04-13617(MFW). Adversary No. 06-51017(KG).
United States Bankruptcy Court, D. Delaware.
December 5, 2008.
*527 David Brion Smith, Smith, Giacometti, LLC, Philadelphia, PA, Harry J. Giacometti, Philadelphia, PA, Harry J. Giacometti, Wilmington, DE, for Plaintiff.
John D. McLaughlin, Jr., Young, Conaway, Stargatt & Taylor, Wilmington, DE, for Sumner A. Barenberg.
John Doe, pro se, Jane Doe, pro se, XYZ Corporation, pro se.
MEMORANDUM OPINION[1]
KEVIN GROSS, Bankruptcy Judge.
I. INTRODUCTION
The Court is issuing its opinion following a trial on June 26, 2008. The adversary proceeding involves the effort of George L. Miller, Chapter 7 Trustee ("Trustee") to avoid and recover pre-petition transfers from defendant. The Trustee has not proceeded against the unnamed defendants. For the reasons explained below, the Court finds in favor of the defendant.
II. JURISDICTION
The Court is exercising jurisdiction pursuant to 28 U.S.C. § 1334. In addition, this is a core matter pursuant to 28 U.S.C. § 157(b)(2)(F), (H) & (O).
III. FINDINGS OF FACT[2]
A. BTI
Bernard Technologies, Inc. ("BTI" or "Debtor") filed for bankruptcy protection under Chapter 11 of the Bankruptcy Code on December 24, 2004 ("the Petition *528 Date"). The Court converted the case to Chapter 7 on May 5, 2005, on the motion of the Office of the United States Trustee (D.I.180). BTI was formed as a Delaware corporation in 1994 and engaged itself in the business of developing proprietary technology to create self-sterilizing materials[3]. By 2002, Debtor was positioned to begin making a profit. Tr. at 9-10. It had several business relationships for selling its products, including McDonald's Corporation (single use, disposable gloves); and it had obtained Food and Drug Administration approvals for the use of its technology for direct food contact and had developed a patent estate. Tr. at 9.
Dr. Sumner A. Barenberg, the defendant ("Defendant"), founded BTI and served as its chief executive officer until May 2002. Tr. at 10. At that time, several BTI directors mounted an insurgency and removed Defendant as CEO. Id. BTI's business thereafter dwindled and it found itself defending several lawsuits. Tr. at 12-13. By 2004, BTI was unable to pay its debts as they became due and therefore filed for bankruptcy. Tr. at 31-32.
B. BTAP
BTI owned all of the stock of BTI (USA) II, Inc., which in turn owned all of the stock of Bernard Technologies Asia Pacific Pte, Ltd. ("BTAP"). Pre-Trial Order ("PTO") at 7.
C. Transfers at Issue
The Trustee challenges the following transfers which Debtor made to Defendant from December 26, 2003, to the Petition Date (i.e., within one year preceding the Petition Date) (PTO at 6 and 8, Px 1).
----------------------------------------------------------
Date Amount Description
----------------------------------------------------------
5/11/04 $ 3,938.13 Expense
Reimbursement
----------------------------------------------------------
7/01/04 $ 5,252.42 Loan Repayment
----------------------------------------------------------
7/08/04 $ 14,500.00 Loan Repayment
----------------------------------------------------------
9/23/04 $ 5,000.00 Expense
Reimbursement
----------------------------------------------------------
12/26/03 thru 7/04 $108,000.00 Wages
----------------------------------------------------------
In addition to the transfers by BTI to Defendant, the Trustee also challenges and seeks to avoid BTAP payments to Defendant, as follows (Px 1):
----------------------------------------------------------
Date Amount Description
----------------------------------------------------------
6/30/04 $60,000.00 None Provided
----------------------------------------------------------
6/30/04 $ 127.53 None Provided
----------------------------------------------------------
12/14/04 $30,000.00 None Provided
----------------------------------------------------------
12/14/04 $ 87.09 None Provided
----------------------------------------------------------
Accordingly, the total amount of the transfers at issue is $226,905.17.
IV. DISCUSSION
In his Amended Complaint,[4] the Trustee asks the Court to avoid the payments to Defendant pursuant to 11 U.S.C. §§ 547 (pre-petition preference payments), 548 and 544(b) (pre-petition fraudulent transfers), 551 (preservation of property), and to disallow the claims Defendant filed against Debtor pursuant to 11 U.S.C. § 502(d).[5]
A. Legal Standard
The Trustee's burden was to prove that each transfer:
(1) was for the benefit of Defendant. 11 U.S.C. § 547(b)(1),
*529 (2) was for or on account of an antecedent debt which Debtor owed before making the transfer. 11 U.S.C. § 547(b)(2) and
(3) was made when Debtor was insolvent, 11 U.S.C. § 547(b)(3), with a presumption that Debtor was insolvent for transfers made within 90 days of the Petition Date. 11 U.S.C. § 547(f).
The Trustee is further required to prove that Defendant received more than he would receive were the case under Chapter 7 and the transfer not been made. 11 U.S.C. § 547(b)(5).
If Debtor met the foregoing burdens of proof, Defendant could successfully defend against avoidance by proving that:
1. Each transfer was intended to be a contemporaneous exchange for new value given by the Debtor and is in fact a substantially contemporaneous exchange. 11 U.S.C. § 547(c)(1).
2. Each transfer was in payment of a debt incurred by the Debtor in its ordinary course of business or financial affairs and made according to ordinary business terms 11 U.S.C. § 547(c)(2).
3. After each transfer, Defendant gave new value to or for the benefit of Debtor not secured by an otherwise unavoidable security interest and on account of which new value the Debtor did not make an otherwise unavoidable transfer to or for the benefit of Defendant. 11 U.S.C. § 547(c)(4).
B. BTAP Transfers
Defendant challenges the Trustee's entitlement to avoid the transfers from BTAP at issue. The Trustee knew that Defendant would vigorously contest the BTAP transfers on the law and the facts[6], yet did not present a scintilla of evidence in support of a claim which was already suspect, since BTAP is a non-debtor subsidiary. Defendant in motions to dismiss had argued forcefully that the Court lacked jurisdiction over the Singaporean corporation BTAP, and that it was a distinct and separate entity from BTI. As such, the transferred assets were not property of the Debtor. The Court agrees with Defendant and earlier ruled that BTI and BTAP are separate and distinct entities. See In re Bernard Technologies, Inc., 342 B.R. 174, 180 (Bankr.D.Del.2006) ("... the Court cannot ignore the Debtor's and Subsidiary's separate existence...."). See also, Amphenol Corp. v. Shandler (In re Insilco Technologies Inc.), 351 B.R. 313 (Bankr.D.Del.2006) (basic tenet that corporations are distinct from shareholders even if subsidiary is wholly owned).
The Trustee, in turn, argues that the BTAP transfers were made "on account" of Debtor. The Trustee failed to offer any proof that BTAP transferred money which belonged or should have belonged to BTI. Indeed, the evidence at trial leads to a contrary finding. Defendant performed services for BTAP as a separate entity. Defendant served as a director of BTAP (Tr. at 46) and was compensated by BTAP for services to BTAP. Id. Accordingly, the claims involving the BTAP transfers are dismissed.
C. Insolvency
The Trustee's claims are predicated on the Bankruptcy Code and a preliminary and integral requirement is a finding that BTI was insolvent at the time of the transfers. Defendant does not challenge BTI's insolvency in the 90 days preceding the Petition Date, and there is a presumption of insolvency during that period. 11 U.S.C. § 547(f). Defendant does, however, *530 dispute that BTI established insolvency between 91 days and the year preceding the Petition Date. The Trustee did not offer an insolvency report or expert testimony, instead relying on BTI's books and records and the testimony of Ms. Colleen Kelly of the Giuliano Miller & Company accounting firm. The Trustee is a partner in the firm. Ms. Kelly testified that BTI was insolvent during the year before the Petition Date. Ms. Kelly based her testimony upon a review of BTI's financial documents. The documents consisted of the trial balance for BTI as of December 26, 2004 (Px 7) and, the general ledger as of December 31, 2004 (Px 3), which Ms. Smith utilized to create a month-by-month summary of BTI's financial status (Px 9). The testimony and analysis established that on an accounting basis, BTI was insolvent in the year preceding the Petition Date.[7] Defendant established that the Debtors' financial analysis does not take into account BTI's intellectual property (Tr. at 85). Defendant did not, however, introduce evidence of the value of such property.[8]
Ms. Kelly presented competent testimony establishing that on the books Debtor was insolvent at the time of each transfer. Ms. Kelly prepared a month-by-month trial balance based upon Debtor's general ledger for the period May 2004 through December 31, 2004 (TR. at 72-76). The result of Ms. Kelly's work was produced in a document entitled "Bernard Technologies, Inc., Balance Sheet Summary" (Px 9). BTI's book losses for the period were as follows:
--------------------------------
Date Amount
--------------------------------
May 2004 $ 737,824.52
--------------------------------
June 2004 $1,806,670.59
--------------------------------
July 2004 $1,141,606.79
--------------------------------
August 2004 $1,205,864.81
--------------------------------
--------------------------------
Date Amount
--------------------------------
September 2004 $1,289,803.83
--------------------------------
October 2004 $1,299,883.83
--------------------------------
November 2004 $1,324,803.83
--------------------------------
December 2004 $1,326,803.83
--------------------------------
The Trustee also introduced evidence through Ms. Kelly's testimony that Debtor's equity decreased each month from a negative $1,291.680.28 at May 31, 2004, to negative 1,898,659.59 at December 31, 2004 (Px 8). Against these losses, the claims filed against Debtor's estate exceed $13 million. Tr. at 82.
The Trustee established a prima facie case of insolvency, as was his burden. It is equally clear that Defendant's only rebuttal to Debtor's insolvency evidence was his point that the Debtor had not considered the value of the intellectual property. Tr. at 85. Defendant did not, however, introduce evidence of the significance, if any, of not valuing the intellectual property.
The test for insolvency begins with Section 101(32)(A) of the Bankruptcy Code which defines "insolvent" as the "financial condition such that the sum of such entity's debts is greater than all of such entity's property, at a fair valuation." 11 U.S.C. 101(32)(A). Here, the Debtor's proof of insolvency rested solely upon the balance sheet through the use of Generally *531 Accepted Accounting Principles, i.e., "GAAP." The Trustee's analysis did not take into account the value of the Debtor's assets, specifically the fair market value of such assets. The Trustee did not make any adjustment to the balance sheet to account for assets, particularly the value of the Debtor's intellectual property.
The Trustee's failure to account for Debtor's assets in the insolvency analysis is problematic. In Lids Corp. v. Marathon Investment Partners, L.P., (In re Lids Corp.), 281 B.R. 535 (Bankr.D.Del. 2002), this Court faced competing insolvency analyses in avoidance litigation. The Court explained that:
This standard for solvency [i.e., Section 101(32)(A) ] is typically called the "Balance Sheet Test." In re Trans World Airlines, Inc., 180 B.R. 389, 405 n. 22 (Bankr.D.Del. 1994). However, this may be a misnomer because the Balance Sheet Test is based on fair valuation and not based on Generally Accepted Accounting Principles ("GAAP"), which are used to prepare a typical balance sheet. Id.
Lids, 281 B.R. at 540.
As Lids makes plain, a solvency analysis requires asset valuation. The Trustee did not value Debtor's assets.
The difficulty the Court confronts is that the Trustee has the benefit of a presumption of insolvency, at least for the 90 days prior to the Petition Date. The Trustee did establish that Debtor was unable to meet its obligations as they came due. The burden therefore shifted to the Defendant to prove solvency. And Defendant did not establish that Debtor was solvent and did not introduce any evidence of the value of Debtor's assets. Accordingly, the Court can only conclude based on the magnitude of Debtor's losses in the record that Debtor was insolvent at the time of the transfers.
D. The Transfers
The Court has found with reservation that the Trustee barely has satisfied the required proof of insolvency at the time of the Transfers. The Trustee has failed to establish by a preponderance of the evidence that the Transfers constitute avoidable transfers. The Court has already discussed the BTAP transfers and has dismissed them on the basis of applicable law as well as the law of the case doctrine. Only the BTI transfers remain to be decided.
Defendant credibly testified that:
His annual compensation was $250,000. Tr. at 104, Dx 2.
He received only $84,000 in gross compensation in 2004. Tr. at 105, Dx 3.
For the period ended June 30, 2004, he received compensation of $12,000, less than his full contractual entitlement of $20,833.33 per month. Tr. at 110. Defendant agreed to the reduction and received $12,000 per month for every month beginning December 1, 2003, through July 2004. He received no compensation beginning August 2004 through the Petition Date. Tr. at 110-14.
Defendant made a series of loans to Debtor and received promissory notes in exchange. The loans were as follows:
------------------------ ------------------------
Date Amount Date Amount
------------------------ ------------------------
February 14 $32,000.00 April 30 $11,000.00
------------------------ ------------------------
February 14 $29,100.00 May 3 $ 6,000.00
------------------------ ------------------------
February 24 $10,000.00 May 5 $ 4,500.00
------------------------ ------------------------
March 10 $13,100.00 May 14 $ 8,000.00
------------------------ ------------------------
March 15 $ 2,000.00 May 17 $ 3,000.00
------------------------ ------------------------
March 24 $ 8,000.00 May 19 $ 2,100.00
------------------------ ------------------------
March 31 $11,000.00 May 20 $ 500.00
------------------------ ------------------------
April 1 $40,000.00 June 16 $24,244.55
----------------------------------------------------------
TOTAL LOANS $204,544.55
----------------------------------------------------------
*532 Defendant testified that he never received repayment of the loans. Tr. at 116-126.
The Trustee did not successfully rebut Defendant's testimony on cross-examination or introduce any direct rebuttal evidence. The Court is satisfied, based on its observation of Defendant's demeanor and the strength of Defendant's testimony that BTI's transfers are not avoidable. Excluding the BTAP Transfers,[9] there are five transfers to Defendant at issue.
------------------------------------------------------------------------------
Date Amount Description
------------------------------------------------------------------------------
May 11, 2004 $ 3,938.13 Expense
Reimbursement
------------------------------------------------------------------------------
July 1, 2004 $ 5,253.42 Loan Repayment
------------------------------------------------------------------------------
July 8, 2008 $ 14,500.00 Loan Repayment
------------------------------------------------------------------------------
September 23, 2004 $ 5,000.00 Loan Repayment
------------------------------------------------------------------------------
December 26, 2003-
December 26, 2004 $108,000.00 Wages
------------------------------------------------------------------------------
Each of the transfers with the exception of the loan repayment is a payment made in the ordinary course-wages and reimbursements. The loan repayment constitutes new value on the facts of this case. Defendant's contractual compensation was $250,000 per year, which he voluntarily reduced to $144,000 per year. Despite the reduction, Defendant did not receive wages for the four months of August through November and 23 days of December, for a total unpaid amount of $57,200. As a result, Defendant contributed new value of $57,200.00 against the receipt of $19,753.42 (the total of the loan repayments).
V. CONCLUSION
In hindsight, the Court should have granted the Defendant's motion to dismiss but, instead, and correctly at the time, determined that the Trustee had made a sufficient showing to entitle him to a decision on the merits of the case. The Trustee has now had a full opportunity to present his case against the Defendant. The Court has given the Trustee wide latitude, particularly on the insolvency issue and still concludes without hesitation that the Trustee has not established that Defendant received any avoidable payments. Accordingly, the Court will grant judgment in favor of Defendant by separate order.
ORDER AND FINAL JUDGMENT
The Court conducted a trial on the claims of George Miller, Chapter 7 Trustee (the "Trustee") against Sumner A. Barenberg ("Defendant"). For the reasons contained in the Memorandum Opinion of even date,
IT IS HEREBY ORDERED, ADJUDGED and DECREED that judgment be entered in favor of Defendant and against the Trustee, with no sum due and owing from Defendant. The case is hereby dismissed with court costs assessed against the Trustee.
NOTES
[1] This Memorandum Opinion constitutes the findings of fact and conclusions of law required by Federal Rule of Bankruptcy Procedure 7052. To the extent any of the following findings of fact are determined to be conclusions of law, they are adopted, and shall be construed and deemed, conclusions of law. To the extent any of the following conclusions of law are determined to be findings of fact, they are adopted, and shall be construed and deemed, as findings of fact.
[2] The facts are largely undisputed. It is the conclusions the Court draws which form the bases of the rulings.
[3] Examples of the technology include film to protect food products and packaging for shoes to prevent mold and mildew. Trial Transcript ("Tr. at____") at 9.
[4] Debtor filed the Amended Complaint (D.I.25) after the Court granted the Defendant's motion for a more definite statement (D.I.22).
[5] Defendant filed claims against the Debtor which the parties did not address at the Trial and which are therefore not yet at issue.
[6] Defendant twice moved to dismiss the claims relating to the BTAP transfers, which the Court denied on the basis of the liberal standards applicable to motions to dismiss.
[7] BTI's exhibits were prepared without the benefit of source documents. The Court accepts their accuracy with some trepidation, but there is no reason to suspect that Debtor did not maintain accurate financial records. Defendant did not refute their accuracy.
[8] Defendant objected to the introduction of Trustee's exhibits at trial on the ground that the Trustee did not produce them in discovery. Although the Court was troubled by the Trustee's failure, the exhibits were work products from documents equally available to Defendant. Had the Court excluded the evidence the Trustee could have established the evidence but in a less useful manner.
[9] The Court has ruled that the Trustee does not have the right to challenge the BTAP transfers. The evidence relating to those transfers would, however, lead the Court to the same conclusion, i.e., they are not avoidable transfers.
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 9, 2020
Decided January 24, 2020
Before
DIANE P. WOOD, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 19-1709
LEVAN GALLERIES LLC, et al., Appeal from the United States
Plaintiffs-Appellants, District Court for the
Northern District of Illinois,
v.
Eastern Division.
CITY OF CHICAGO, et al.,
No. 18-cv-4580
Defendants-Appellees.
Sara L. Ellis, Judge.
ORDER
In 2012, Jemal Hancock tried to retain Sotheby’s services to sell his art
collection. He visited the Sotheby’s Chicago office twice in two years and
provided nearly 2,000 photographs of the pieces that he wished to sell. The
Chicago office employees told Hancock that they would send the photographs to
New York, where Sotheby’s would assess whether the collection was worth
selling. Four years later, Hancock still had not heard back. Frustrated, he began
No. 19-1709 Page 2
writing emails to two Sotheby’s executives, inquiring about the company’s
disparate treatment of African Americans. The executives informed the Chicago
office that they were being harassed; in response, Sotheby’s hired two off-duty
police officers for security. One afternoon, the security guards called the police
station to report that Hancock had trespassed on Sotheby’s property. After
investigating, the officers who responded to the call filed a police report in which
they suggested that Sotheby’s seek a protective order—which it did, but a state
court declined to issue one.
Hancock then filed multiple lawsuits against Sotheby’s, the officers, and
the City of Chicago, all of which were dismissed by the district court. In the
action that is the subject of this appeal, Hancock sued the security guards, the
officers who responded to their call, and the City on the theory that the police
report deprived him of his Fourteenth Amendment Due Process and Equal
Protection rights. Hancock characterizes the police report as a de facto protective
order and says that this “order” was entered because of his race and in violation
of his due process rights. The district court dismissed Hancock’s suit for failure
to state a claim, a judgment that he asks us to reverse.
I.
At the outset, it is worth noting that Hancock mistakes the pleading
standard under Federal Rule of Civil Procedure 8(a). He states that the standard
for dismissal for failure to state a claim is Conley v. Gibson’s “no set of facts” test.
355 U.S. 41, 45–46 (1957). But the modern standard is, of course, plausibility.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). And the district court was correct that
Hancock’s claims are not remotely plausible on the facts alleged.
Hancock’s equal protection claim has several problems, but it suffices to
address one: Hancock fails to plausibly allege that the officers discriminated
against him. To maintain an equal protection claim, “plaintiffs must prove that
the defendants’ actions had a discriminatory effect and were motivated by a
discriminatory purpose.” Chavez v. Ill. State Police, 251 F.3d 612, 635–36 (7th Cir.
2001). Critically, it must be the government, not a private entity, that undertook
the discriminatory action. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 619
(1991) (“Racial discrimination, though invidious in all contexts, violates the
Constitution only when it may be attributed to state action.”). Here, Hancock
asserts that the two Sotheby’s executives acted on the basis of racial animus
when they hired security guards to protect the Chicago office from him. But he
No. 19-1709 Page 3
does not allege that the relevant state actors—the officers who filed the police
report—did so “at least in part ‘because of’ … its adverse effects upon an
identifiable group.” Alston v. City of Madison, 853 F.3d 901, 907 (7th Cir. 2017)
(citation omitted). Without an allegation that the police officers were motivated
by his race, Hancock’s equal protection claim can’t get off the ground.
His due process claim fares no better. The Fourteenth Amendment
requires the state to provide fair procedures when it deprives someone of life,
liberty, or property. “[A] violation of the Fourteenth Amendment does not occur
unless a person is ‘deprive[d] ... of life, liberty, or property, without due process
of law.’” Whitlock v. Brueggemann, 682 F.3d 567, 582 (7th Cir. 2012) (alteration in
original) (quoting U.S. CONST. amend. XIV, § 1). Hancock maintains that the
police report deprived him of liberty because it functions as a de facto no-contact
order that prohibits him on pain of legal penalty from going near Sotheby’s. Yet
unlike a formal protective order, which carries criminal penalties for its violation,
see 740 ILCS 21/125, a police report has no legal effect whatsoever. And Hancock
alleges no facts supporting an inference that this was anything other than an
ordinary police report. (Indeed, if this report functioned as a no-contact order,
it’s unclear why Sotheby’s would go through the trouble of seeking an actual
protective order, as Hancock alleges it did.) Hancock assures us that the police
would treat the report as a protective order if he ever went near Sotheby’s again.
But that is pure speculation, not a plausible inference from the facts he alleges.
II.
Hancock argues in the alternative that the district court should have
granted him leave to amend his complaint to cure its defects. When a district
court grants a motion to dismiss the original complaint, a plaintiff “no longer
ha[s] a right to amend h[is] complaint as a matter of course.” Runnion ex rel.
Runnion v. Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 519 (7th Cir. 2015);
see FED. R. CIV. P. 15(a)(1). A “court should freely give leave” to amend “when
justice so requires,” FED. R. CIV. P. 15(a)(2), yet it has “broad discretion” to decide
whether to allow amendment and may refuse “in cases of undue delay, bad faith
or dilatory motives, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice or futility,” Garner v. Kinnear Mfg. Co., 37
F.3d 263, 269 (7th Cir. 1994).
Hancock referenced the possibility of amendment very briefly in his
opposition to the defendants’ motion to dismiss. We recently addressed how
No. 19-1709 Page 4
courts should treat such a request. In Chaidez v. Ford Motor Co., the plaintiffs
requested leave to amend in a single, short sentence in their brief opposing the
defendant’s motion to dismiss. 937 F.3d 998, 1008 (7th Cir. 2019) (affirming in
relevant part). The plaintiffs did not file an independent motion to amend either
before or after the court entered judgment. We held that such a brief statement,
standing alone, “provid[ed] no grounds for amendment or explanation of how
an amended complaint would cure the defects of their original complaint.” Id.
Hancock’s request to amend is nearly identical to that of the plaintiffs in
Chaidez. It consists of nothing more than two conclusory sentences—one in each
of the two briefs he submitted opposing the defendants’ motions to dismiss. He
“request[ed] [that] the Court grant leave to amend the complaint” if it decided to
grant the motion to dismiss, without offering any explanation of how
amendment would correct the errors in his complaint. As in Chaidez, the district
court did not abuse its discretion in refusing to grant Hancock leave to amend.
AFFIRMED
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4388
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMES RAMAGE, a/k/a James Russell Ramage,
Defendant – Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:09-cr-00061-IMK-JSK-1)
Submitted: February 10, 2011 Decided: March 17, 2011
Before WILKINSON, NIEMEYER, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles T. Berry, Fairmont, West Virginia, for Appellant.
William J. Ihlenfeld, II, United States Attorney, Zelda E.
Wesley, Assistant United States Attorney, Clarksburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Ramage pled guilty to possessing a firearm as a
convicted felon after officers seized a gun from his home while
investigating a reported domestic disturbance. Prior to
Ramage’s guilty plea, the district court denied his motion to
suppress evidence obtained following a warrantless search of his
home, finding that, although the officer’s warrantless entry was
illegal, the primary taint of the illegal entry was purged when
Ramage’s wife consented to a search of the home. On appeal,
Ramage argues that the district court erred in denying his
motion to suppress because the entry was illegal, the initial
taint of the illegal entry was not purged, and Ramage expressly
refused to consent to the search. * Finding no reversible error,
we affirm.
On appeal from the denial of a suppression motion, we
review the district court’s legal determinations de novo and
factual findings for clear error. United States v. Hernandez-
Mendez, 626 F.3d 203, 206 (4th Cir. 2010). The evidence is
reviewed in the light most favorable to the Government as the
prevailing party below. United States v. Green, 599 F.3d 360,
375 (4th Cir. 2010).
*
Ramage’s guilty plea reserved his right to appeal the
district court’s denial of his motion to suppress.
2
The Fourth Amendment prohibits unreasonable searches;
a search conducted without a warrant is per se unreasonable
unless it falls within a valid exception to the warrant
requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219
(1973). “Until a valid search warrant has issued, the Amendment
safeguards the privacy interests of owners, boarders, and
tenants, of a home, apartment, or other dwelling place.” United
States v. Gray, 491 F.3d 138, 144 (4th Cir. 2007) (internal
citations omitted). Warrantless searches “are per se
unreasonable under the Fourth Amendment – subject only to a few
specifically established and well-delineated exceptions.”
United States v. Bush, 404 F.3d 263, 275 (4th Cir. 2005)
(quoting Mincey v. Arizona, 437 U.S. 385, 390 (1978)). The
government bears the burden of demonstrating exigent
circumstances. Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984).
Here, it is undisputed that an officer entered
Ramage’s home without a warrant or exigent circumstances. The
Government contends, however, that the district court erred in
holding that the officer’s warrantless entry was illegal. We
need not decide this issue, however, as we conclude that, even
assuming illegal entry of the Ramage home, the evidence
recovered from the home was ultimately admissible.
Evidence that is the product of an unlawful search or
seizure is nevertheless admissible so long as the connection
3
between the unlawful conduct of the police and the acquisition
of the evidence is sufficiently attenuated as to purge the
evidence of the primary taint. Wong Sun v. United States, 371
U.S. 471, 487 (1963); Nardone v. United States, 308 U.S. 338,
341 (1939). To determine whether the taint of an illegal entry
has been purged, this court evaluates three factors: (1) the
length of time between the illegal act and the seizure of
evidence; (2) whether there were intervening circumstances; and
(3) the gravity, flagrancy, and reason for the police
misconduct. Brown v. Illinois, 422 U.S. 590, 603-04 (1975). As
the district court concluded, Ramage’s wife’s consensual
conversation with the officer constituted a sufficient
intervening circumstance. Further, the entry was not in
flagrant disregard of Ramage’s Fourth Amendment rights, as the
officer was investigating a domestic disturbance and prudently
attempting to prevent escalation of the incident upon his
departure. Accordingly, we hold that the taint of any illegal
entry was purged.
Finally, Ramage argues that the district court erred
when it found that the officer’s search did not violate
Georgia v. Randolph, 547 U.S. 103 (2006), because he expressly
refused to consent to the officer’s entry. See 547 U.S. at 106
(holding that when multiple occupants share authority over an
area, the express refusal to consent to police entry of one co-
4
occupant prevails over the consent to entry of another co-
occupant). In fact, the district court did not reach the
Randolph issue because it declined to credit Ramage’s testimony
that he forbade the officer from entering his home. We hold
that, in the face of contradictory testimony from multiple
police officers and inconsistent testimony from Ramage, it was
not clear error for the district court to find that Ramage did
not expressly refuse to consent to the officer’s entry. Thus,
the district court did not err in denying Ramage’s motion to
suppress.
Accordingly, we affirm the district court’s order. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
5
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2018 IL App (1st) 172858
SECOND DIVISION
January 15, 2019
No. 1-17-2858
UNION TANK CAR COMPANY, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee and Cross-Appellant, ) Cook County, Illinois.
)
v. ) No. 16 L 2559
)
NUDEVCO PARTNERS HOLDINGS, LLC, ) Honorable
) Diane M. Shelley,
Defendant-Appellant and Cross-Appellee. ) Judge Presiding.
PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion.
Justices Lavin and Pucinski concurred in the judgment and opinion.
OPINION
¶1 Following a 2017 bench trial, plaintiff-appellee, Union Tank Car Company (Union
Tank), was awarded $1.27 million in damages as a result of the breach of a lease guaranty by
defendant-appellant, NuDevco Partners Holdings, LLC (NuDevco). On appeal, NuDevco
challenges the verdict, claiming the trial court erred by (i) concluding that Union Tank’s cause of
action was not governed by the Uniform Commercial Code (UCC) (810 ILCS 5/1-101 et seq.
(West 2016)), (ii) awarding Union Tank damages when Union Tank failed to satisfy the UCC’s
condition precedent to the recovery of damages, (iii) awarding damages to Union Tank for
anticipated blasting and future storage costs, and (iv) admitting certain evidence, which, in turn,
influenced the amount of damages.
No. 1-17-2858
¶2 Union Tank cross-appeals from the trial court’s refusal to award the present value of lost
future rent under the lease and the trial court’s deduction of $10,000 from Union Tank’s petition
for attorney fees.
¶3 For the reasons that follow, we affirm in part and vacate in part.
¶4 BACKGROUND
¶5 In January 2003, Ponderosa Petroleum Company (Ponderosa) entered into a lease with
General Electric Railcar Services Corporation (GE Railcar) for 47 railcars to carry crude
petroleum. In the ensuing years, the parties executed numerous riders providing for lease terms
ending between May 2017 and February 2020. On April 1, 2015, Associated Energy Services,
LLC (Associated Energy) assumed the obligation to make payments under the lease, although
Ponderosa remained a party to the lease.
¶6 Associated Energy is a wholly owned subsidiary of NuDevco. On March 3, 2015,
NuDevco executed a guaranty in favor of GE Railcar to pay Associated Energy’s obligations
under the lease. The terms of the guaranty provided that NuDevco would
“absolutely, irrevocably and unconditionally guarantee the full and prompt payment
when due of all the obligations *** due under the Leases, including, but not limited to,
rent, service charges, freight, railroad charges, *** [and] cleaning charges *** together
with all other sums which may or shall become due and payable pursuant to the
provisions of the Leases, including, without limitation, any damages resulting from the
Lessee’s failure to perform its obligations thereunder.”
The guaranty further provided that NuDevco would reimburse Union Tank for all costs it
incurred in enforcing the guaranty, including reasonable attorney fees.
-2
No. 1-17-2858
¶7 In September 2015, Union Tank acquired the lease, riders, and railcars from General
Electric Capital Corporation, which owned or controlled (directly or indirectly) all of the interest
in GE Railcar.
¶8 On September 1, 2015, Associated Energy sent a notice of termination of the lease to GE
Railcar citing as justification that the cars were approaching the end of their permitted use to haul
crude oil. No provision of the lease authorized termination for this reason. At the same time,
Associated Energy also began returning the railcars to Union Tank. Associated Energy
discontinued rental payments as of September 30, 2015, and returned all the leased cars to Union
Tank by December 2015. Union Tank then invoked the guaranty, but NuDevco refused to honor
it.
¶9 On March 10, 2016, Union Tank filed a complaint against NuDevco alleging breach of
the guaranty. The complaint alleged that the reason given for Associated Energy’s termination of
the lease was not valid per the lease terms and NuDevco’s refusal to comply with Union Tank’s
demand for payment was a material breach of the guaranty.
¶ 10 At the bench trial, Union Tank presented evidence that Associated Energy sent all of the
leased railcars to a Union Tank facility in Evanston, Wyoming, without first informing Union
Tank. Because that facility was unable to process that number of cars, Union Tank transferred 39
of the 47 railcars to a facility in Kansas, 2 of the cars to a facility in Texas, and kept only 6 in
Wyoming. The cars were cleaned at those locations, at a cost of $137,690.09, of which
Associated Energy paid only $60,710. Union Tank also incurred costs (known as “freight”) in
moving the railcars from Wyoming to Kansas and Texas and “switching” charges in connection
with transporting the cars. A switching charge is incurred when a car is transported from a main
line railroad and “switched” to storage by way of a short-line railroad or privately held yard.
-3
No. 1-17-2858
¶ 11 Union Tank had to pay to store the cars after their return, as it had excess inventory of
those specific railcars and could not market them to new customers. (Union Tank had
insufficient yard space to store the cars on its own and generally shipped excess inventory to
third-party railyards.) Union Tank again incurred freight and switching charges in shipping the
cars from where they were cleaned to where they were ultimately stored. Through the date of
trial, Union Tank incurred $192,975.80 in freight costs, $9605 in switching costs, and
$41,315.30 in storage charges.
¶ 12 As evidence to support these incurred costs, Union Tank introduced invoices that it
received from third parties. While none of the third parties generating the invoices were called to
testify, Frederick Koenig, a 40-year Union Tank employee currently serving as Union Tank’s
director of fleet repair, testified that Union Tank receives freight invoices through an Internet
portal or via e-mail in the ordinary course of its business. A Union Tank employee then signs the
invoice, whereupon it is routed to the accounts payable department, which generates payment by
check or electronically. William Constantino, the general manager of Union Tank’s leasing
business unit, testified that he receives similar invoices for storage, switching, and cleaning
charges, which are checked for accuracy and then sent to him for countersignature if above a
certain amount. According to Constantino, he receives these invoices during the normal and
typical course of his business activity anytime Union Tank has idle equipment in storage.
Finally, Union Tank’s controller and vice president for the leasing business unit, James
Murauskis, testified that, after the invoices (for cleaning, freight, storage, or switching) are
routed to accounts payable, the invoices are paid.
¶ 13 Murauskis’s testimony regarding payment was based on a spreadsheet Union Tank
generated in the course of its business. That spreadsheet listed the bills associated with the 47
-4
No. 1-17-2858
railcars Associated Energy returned and linked each invoice to the authorization for payment by
wire transfer through Bank of America. NuDevco objected to Murauskis’s testimony on this
issue given that the payment confirmation pages from Bank of America were not introduced at
trial.
¶ 14 In addition to the costs incurred as of the date of trial, Union Tank also sought
$97,215.90 in storage costs for the remainder of the lease terms. In support of these costs,
Constantino testified that in the beginning of 2016, shortly after Associated Energy returned the
leased cars, Union Tank had 3000 DOT-111 cars (the type leased by Associated Energy) in
storage and not leased to customers. But by the end of 2016 and at the time of trial, Union Tank
had leased only 550 DOT-111 cars to new lessees while the number of cars in storage had
increased to 6000. (The remainder of Union Tank’s DOT-111 inventory—approximately 16,000
cars—was leased.) Constantino testified that the pace of leasing these cars was not increasing.
While Constantino nevertheless expected to eventually re-lease the 47 cars Associated Energy
returned, he admitted that he could not make a final determination as to the fate of the cars until
they are brought to the repair shop and Union Tank undertakes an economic evaluation of their
condition.
¶ 15 Finally, the evidence at trial revealed that before it could lease the 47 railcars to other
customers, Union Tank would need to “blast” the interior of the cars to remove the residue from
the prior service, namely, crude oil. Union Tank introduced evidence that the railcars would
necessarily be used to transport something other than crude oil, as they no longer complied with
governmental regulations for the transport of crude petroleum. Based on the size of the cars,
blasting would cost Union Tank $109,930; however, blasting had not occurred as of the date of
trial, given that the cars had not yet been reassigned to transport a different commodity.
-5
No. 1-17-2858
¶ 16 Following the conclusion of Union Tank’s case in chief, NuDevco moved for a directed
verdict, which was denied after briefing. NuDevco did not present any evidence, and on May 18,
2017, the trial court found in favor of Union Tank, awarding it $192,975.80 in freight costs,
$207,510.18 in cleaning costs, $41,315.30 in past due storage costs, $97,214.90 in future storage
costs, $109,930 in “anticipated future blasting,” and $743,912.90 in past due rent, amounting to a
total of $1,332,149, plus prejudgment interest and attorney fees to be determined. The trial court
did not award damages for the present value of future rent because the lease did not contain a
rent acceleration clause.
¶ 17 Union Tank filed its attorney fee petition, and while that petition was pending, NuDevco
moved for reconsideration of the trial court’s judgment, which was denied.
¶ 18 On December 21, 2017, the court issued its order on the fee petition and other
miscellaneous relief, granting Union Tank attorney fees in the amount of $255,139.66, which
was $10,000 less than Union Tank requested, based on the court’s finding that the $10,000 was
for excessive, redundant, or otherwise unnecessary work. The December 2017 order also reduced
Union Tank’s damages to reflect a miscalculation in cleaning costs and additionally awarded
$9605 in switching costs, reducing the judgment to $1,271,935.80.
¶ 19 NuDevco timely appeals, and Union Tank cross-appeals.
¶ 20 ANALYSIS
¶ 21 NuDevco urges reversal of the trial court’s decision on four grounds. We consider each in
turn.
¶ 22 Initially, NuDevco argues that the trial court erred in finding the UCC inapplicable to
Union Tank’s cause of action alleging breach of the guaranty. This is a question of law which we
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No. 1-17-2858
review de novo. Hessler v. Crystal Lake Chrysler-Plymouth, Inc., 338 Ill. App. 3d 1010, 1017
(2003) (applying de novo review to trial court’s construction of contract).
¶ 23 At the outset, we acknowledge that the UCC is applicable to any transaction that creates a
lease. 810 ILCS 5/2A-102 (West 2016). Here, however, Union Tank did not sue Associated
Energy based on its breach of the lease but sued NuDevco for its failure to perform under the
guaranty. NuDevco maintains that this is a distinction without a difference given that its liability
under the guaranty is predicated on the amounts due under the lease. We disagree.
¶ 24 Notwithstanding the fact that the guaranty would not have been triggered but for
Associated Energy’s breach of the lease, the guaranty, as the trial court aptly noted, is a contract
in and of itself. See TH Davidson & Co. v. Eidola Concrete, LLC, 2012 IL App (3d) 110641,
¶ 10 (guaranty is contract subject to traditional principles of contractual interpretation). And the
guaranty, unlike the lease, was not a contract for the lease of goods or services but was a promise
to pay a debt. Contracts promising to pay a debt are not governed by the UCC, and none of the
cases NuDevco relies on support a conclusion to the contrary. Under these circumstances, we
conclude that the UCC is not applicable to the guaranty.
¶ 25 Because we conclude that the trial court correctly found the UCC inapplicable to Union
Tank’s cause of action for breach of the guaranty, we necessarily reject NuDevco’s argument
that the trial court erroneously allowed Union Tank to recover notwithstanding its alleged failure
to satisfy the UCC’s conditions precedent to recovery. 1
1
Under the UCC, in order to be entitled to recovery, Union Tank would have to show that it was
unable after a reasonable effort to dispose of the cars at a reasonable price or that circumstances indicated
that such an effort would have been unavailing. 810 ILCS 5/2A-529(1)(b) (West 2016). Union Tank’s
damages would also be reduced by the value of the available market rent for the leased goods. Id. § 2A
528(1). We note that, even if the UCC applied, the proof Union Tank adduced at trial showed that its
inventory of unleased DOT-111 railcars doubled from the date of Associated Energy’s breach through
trial, thus supporting the reasonable inference that there was no market for the cars.
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No. 1-17-2858
¶ 26 Next, NuDevco contends that the trial court erred in awarding damages to Union Tank
for anticipated blasting and future storage costs. We review a trial court’s damages award under
the manifest weight of the evidence standard. Bell Leasing Brokerage, LLC v. Roger Auto
Service, Inc., 372 Ill. App. 3d 461, 473 (2007). A decision is against the manifest weight of the
evidence only when the opposite conclusion is apparent or the findings are unreasonable or
arbitrary. Jameson Real Estate, LLC v. Ahmed, 2018 IL App (1st) 171534, ¶ 59. Given that the
trial court is the finder of fact, its award of damages is entitled to substantial deference. See
Young v. Alden Gardens of Waterford, LLC, 2015 IL App (1st) 131887, ¶ 80.
¶ 27 NuDevco bases its argument on the well-settled principle that a plaintiff is not entitled to
recover damages that are remote, speculative, or uncertain. Doornbos Heating & Air
Conditioning, Inc. v. James D. Schlenker, M.D., S.C., 403 Ill. App. 3d 468, 485 (2010). Instead, a
plaintiff must establish an actual loss with measurable damages in order to recover. Pepper
Construction Co. v. Palmolive Tower Condominiums, LLC, 2016 IL App (1st) 142754, ¶ 85.
Importantly, however, “absolute certainty” with respect to the damage amount is not required.
Kirkpatrick v. Strosburg, 385 Ill. App. 3d 119, 130 (2008). Rather, so long as the existence of
damages is certain, a plaintiff need not necessarily establish the precise amount of damages. See
Westlake Financial Group, Inc. v. CDH-Delnor Health System, 2015 IL App (2d) 140589, ¶ 51.
A contrary rule would “immunize *** defendants from the consequences of their wrongful
conduct” by allowing them to escape liability merely because the amount of damages they have
caused cannot be proved with mathematical certainty. Id.
¶ 28 Turning first to future storage costs, while Union Tank had not incurred these costs as of
the date of trial, this does not necessarily render the costs too speculative to support an award of
damages. The need to recover future storage costs was supported by Constantino’s testimony that
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No. 1-17-2858
in 2016, Union Tank had leased only 550 DOT-111 cars to new customers, leaving 6000
unleased cars in its inventory. This excess inventory of the DOT-111 cars, coupled with
Constantino’s testimony that the demand for the cars was not increasing, is a reasonable basis for
concluding that UTC will incur storage costs for the 47 cars leased to Associated Energy through
the end of the cars’ last lease term in 2020.
¶ 29 To the extent that NuDevco argues that testimony regarding the need for future storage
costs was unreliable due to the fact that the testifying witness was not an expert, we disagree. A
lay witness is permitted to give opinion testimony where it is based on that witness’ personal
observation, is one the witness is competent to make, and assists in a clearer understanding of the
relevant issues. Klingelhoets v. Charlton-Perrin, 2013 IL App (1st) 112412, ¶ 44. Constantino,
who testified to the need for future storage and blasting costs, was the general manager of leasing
for Union Tank. As such, the market demand for the cars was certainly within his purview. We
cannot say the trial court’s decision to allow his testimony notwithstanding the fact that he was
not qualified as an expert in the rental market of railroad cars was an abuse of discretion. See id.
(reviewing trial court’s decision to allow lay witness testimony for abuse of discretion).
¶ 30 With regard to anticipated blasting, however, we agree with NuDevco that these damages
are too speculative to be recoverable. The extent of Union Tank’s surplus of DOT-111 railcars
and the anemic rate of new leases suggests that it is highly unlikely these 47 cars will ever be re-
let to transport a different commodity so as to require blasting. This is particularly true where
Constantino testified that the cars had not yet undergone an economic evaluation of their
condition in Union Tank’s repair shop, which was required before Union Tank could determine
whether they could be remarketed in the first place. Further, as NuDevco points out, it is
incongruous to award both future storage costs, which will only be incurred if the cars are not re
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No. 1-17-2858
let by the end of the lease terms, and costs for blasting, which will be incurred if the cars are re-
let. This inconsistency compels us to conclude that the trial court’s decision on this element of
damages was against the manifest weight of the evidence. See Jameson Real Estate, LLC, 2018
IL App (1st) 171534, ¶ 59 (decision is against manifest weight of the evidence where opposite
conclusion is apparent). We therefore vacate this component of the damage award.
¶ 31 Finally, NuDevco argues that the trial court erred in admitting evidence of third-party
invoices and testimony that those invoices were paid. A trial court has broad discretion regarding
the admission of evidence, and we will not disturb the court’s ruling absent an abuse of
discretion. Wheeler Financial, Inc. v. Law Bulletin Publishing Co., 2018 IL App (1st) 171495,
¶ 104. An abuse of discretion is the most deferential standard of review, and a trial court abuses
its discretion only when its decision is unreasonable, arbitrary, or no reasonable person would
take the view it adopted. Gulino v. Zurawski, 2015 IL App (1st) 131587, ¶ 64.
¶ 32 At trial, Union Tank relied on the business records exception to the general rule
prohibiting hearsay to introduce the third-party invoices as evidence. Under this exception, the
proponent of evidence must show that the record was kept in the ordinary course of business and
it was the regular practice of the business to make that record at that time. City of Chicago v. Old
Colony Partners, L.P., 364 Ill. App. 3d 806, 819 (2006); see also Ill. S. Ct. R. 236(a) (eff. Aug.
1, 1992). Records made by a third party may be admissible as business records so long as the
person authenticating the record was either their custodian or other person familiar with the
business and its mode of operations. Bank of America, N.A. v. Land, 2013 IL App (5th) 120283,
¶ 13. Significantly, the circumstances surrounding the making of the record, including the lack of
personal knowledge, go to the weight of the evidence rather than its admissibility. PennyMac
Corp. v. Colley, 2015 IL App (3d) 140964, ¶ 17.
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No. 1-17-2858
¶ 33 The theory underlying the business records exception to the hearsay rule is that because
their purpose is to aid the business (and they are useless for that purpose unless accurate), there is
no motive to falsify the record and every reason to ensure its accuracy. Kimble v. Earle M.
Jorgenson Co., 358 Ill. App. 3d 400, 413-14 (2005).
¶ 34 NuDevco’s primary objection to the introduction of the invoices is that they were
prepared by third-party service providers who were not called as witnesses. But this alone does
not preclude their admission where the foundational requirements are satisfied. Id. at 413. Old
Colony Partners is instructive. There, the plaintiff challenged the admission of certain
documents an architecture firm provided to the defendant at the defendant’s request. Old Colony
Partners, 364 Ill. App. 3d at 820. The trial court admitted the documents as business records
based on the testimony of the defendant’s property manager, who testified that she maintained
the documents from the architecture firm on site in the ordinary course of business and
confirmed that the documents were received by the defendant. Id. On appeal, we affirmed the
trial court’s decision to admit the documents, notwithstanding the fact that the property manager
could not testify as to how they were generated. Id.
¶ 35 Likewise, in this case, Koenig and Constantino testified that they maintained the third-
party invoices and confirmed that they received the invoices on a regular basis by e-mail or
Internet portal during the ordinary course of Union Tank’s business. Koenig also identified the
relevant portions of the invoices, including the car number to which they corresponded and the
initials of the Union Tank employee approving them for payment. Under these circumstances,
the fact that there was no testimony regarding how the invoices were generated does not compel
a conclusion that no reasonable person would find the foundational requirements for the business
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No. 1-17-2858
records exception satisfied. This is particularly true since Union Tank relied on these invoices to
make payments to third parties.
¶ 36 Apa v. National Bank of Commerce, 374 Ill. App. 3d 1082 (2007), on which NuDevco
relies, is inapposite. There, we considered the admissibility of the plaintiff’s bank statements as
business records evidencing his lost income from the conversion of a bus he had purchased. Id. at
1084. We acknowledged that the business record need not be created by the party seeking to
introduce it in order to be admissible but held that the proponent of the record nevertheless
needed to satisfy Rule 236’s foundational requirements, namely that the record was made in the
regular course of business at or near the time of the occurrence. Id. at 1087-88. Finding that the
plaintiff failed to present evidence of “the circumstances of [the statements’] creation,” we held
that the trial court abused its discretion in admitting the bank statements. Id. at 1088.
¶ 37 Here, too, there was no evidence of the invoices’ creation. But unlike Apa, where the
plaintiff used the bank statements solely to establish his damages and did not introduce evidence
indicating that he relied on the bank statements in the course of his business, in this case, the
evidence established that Union Tank did rely on the accuracy of the invoices in that it made
payments based on them. This diminishes the concern that they are inaccurate or falsified, which
forms the basis of the general rule prohibiting hearsay evidence. Kimble, 358 Ill. App. 3d at 414.
¶ 38 We likewise reject NuDevco’s argument that the testimony regarding the fact that the
invoices were paid was inadmissible because Union Tank did not produce the Bank of America
payment confirmation statements. For this argument, NuDevco cites the best evidence rule,
which prefers the production of the original documentary evidence when the contents of that
document are sought to be proved. See Village Discount Outlet v. Department of Employment
Security, 384 Ill. App. 3d 522, 526 (2008). It is sufficient to note that the best evidence rule
-12
No. 1-17-2858
applies only when the contents or terms of a writing are at issue and must be proved. People v.
Davis, 2014 IL App (4th) 121040, ¶ 20 (citing People v. Pelc, 177 Ill. App. 3d 737, 742 (1988)).
Here, however, the issue was not the content of the payment confirmation, but whether the
payment was made. And the fact that a payment was made existed independent of any writing
confirming that payment. Accordingly, the best evidence rule is inapplicable. Continental Illinois
National Bank & Trust Co. of Chicago v. Eastern Illinois Water Co., 31 Ill. App. 3d 148, 159
(1975) (“The best evidence rule does not apply where a party seeks to prove a fact which has an
existence independent of any writing, even though the fact might have been reduced to, or is
evidenced by, a writing.”).
¶ 39 Because we find that the evidence regarding the invoices and their payment was properly
admitted, we reject NuDevco’s argument that it was error for the trial court to award damages
based on this evidence.
¶ 40 Having disposed of NuDevco’s arguments, we turn next to Union Tank’s cross appeal.
Initially, Union Tank challenges the trial court’s deduction of $10,000 from the attorney fees it
requested pursuant to the terms of the guaranty. We review an award of attorney fees for an
abuse of discretion. Timan v. Ourada, 2012 IL App (2d) 100834, ¶ 29.
¶ 41 After considering Union Tank’s fee petition, the trial court reduced the amount of
attorney fees Union Tank requested by $10,000 after finding that “some of the work” performed
by Union Tank’s counsel was duplicative. Union Tank points out that the court’s order referred
only to entries in November 2015, which amounted to $5917.50 in fees, less than the $10,000 the
trial court deducted. However, the trial court’s decision in no way suggested that the work it
found redundant, excessive, or otherwise unnecessary was limited to services rendered in
November. Indeed, in its response in opposition to Union Tank’s petition for fees, NuDevco
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No. 1-17-2858
pointed to $13,688.50 in excessive or duplicative fees, in January, February, and March 2016.
For example, time entries on February 2 and 3, 2016, reflect that two attorneys charged for
reviewing e-mails from each other. Similarly, entries in March 2016 reveal that multiple
attorneys billed Union Tank for reviewing the same draft complaint. The trial court’s order
supports the conclusion that it considered these other entries in finding $10,000 in fees to be
redundant or unnecessary, and we cannot say that the trial court’s decision to reduce the fee
award under these circumstances was an abuse of discretion.
¶ 42 Finally, Union Tank argues that the trial court should have awarded it the present value of
future rent under the leases through their expiration dates. As discussed supra ¶ 25, we review a
trial court’s decision on damages under a manifest weight of the evidence standard.
¶ 43 Because this argument turns heavily on the construction of the guaranty, we transcribe it
in full here:
“The Guarantor hereby guarantees, as principal and not as surety, absolutely,
irrevocably and unconditionally, the full and prompt payment when due of all of
the obligations, whether primary, secondary, direct, contingent, sole, joint, several
or joint and several, due under the Leases, including, but not limited to, rent,
service charges, freight, railroad charges, lessee responsible repairs and
maintenance, casualties, return obligations, cleaning charges, taxes and
governmental impositions, assessments, customs and duties, mandated
modification charges, fines, penalties and other charges, costs associated with
removal of liens and encumbrances, high mileage utilization and indemnity
obligations thereunder, together with all other sums which may or shall become
due and payable pursuant to the provisions of the Leases, including, without
-14
No. 1-17-2858
limitation, any damages resulting from the Lessee’s failure to perform its
obligations thereunder.”
Union Tank parses the guaranty into two subparts defining NuDevco’s responsibilities: first,
NuDevco guarantees prompt payment of all of the obligations due under the lease, and second, it
guarantees “all other sums which may or shall become due” pursuant to the lease terms,
including damages resulting from Associated Energy’s failure to perform its obligations under
the lease. According to Union Tank, it is this second clause (the “guaranty of damages”) that
entitles Union Tank to acceleration of rent based on the breach of the lease.
¶ 44 Damages for breach of contract are intended to place the nonbreaching party in the same
position as if the contract had been performed. Delatorre v. Safeway Insurance Co., 2013 IL App
(1st) 120852, ¶ 36. To that end, all damages foreseeably resulting from a breach are generally
recoverable. Midland Hotel Corp. v. Rueben H. Donnelley Corp., 118 Ill. 2d 306, 318 (1987).
However, as NuDevco correctly points out, Illinois common law does not recognize a present
obligation to pay future rent in the event of a breach of contract. Miner v. Fashion Enterprises,
Inc., 342 Ill. App. 3d 405, 416-17 (2013). For that reason, the failure to pay rent when it accrues
does not accelerate the unpaid rent absent a contractual provision to that effect. Id.
¶ 45 Neither the guaranty nor the lease says anything about rent acceleration in the event of
breach of the lease. Instead, the guaranty only provides that NuDevco guarantees “damages”
resulting from Associated Energy’s breach of the lease. Under the common law, damages for
breach of a lease do not include future rent (id.), thus precluding Union Tank from recovering
this amount.
¶ 46 In an attempt to avoid this conclusion, Union Tank relies on the UCC to support its
argument that it is entitled to the present value of future rent. But Union Tank previously argued
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No. 1-17-2858
that the UCC does not govern the guaranty, as it is a contract separate from its lease with
Associated Energy. It strains logic to conclude, as Union Tank urges, on the one hand, that the
UCC cannot limit Union Tank’s recovery, but on the other, its provisions can serve to increase
Union Tank’s damages award. Accordingly, having agreed with Union Tank that the UCC is
inapplicable to a cause of action alleging breach of the guaranty (supra ¶ 24), we conclude that
Union Tank cannot rely on the UCC to support its argument for rent acceleration, particularly
when the lease does not contain a rent acceleration clause.
¶ 47 We do not agree with Union Tank’s contention that this conclusion nullifies the guaranty
of damages clause. See Guterman Partners Energy, LLC v. Bridgeview Bank Group, 2018 IL
App (1st) 172196, ¶ 51 (courts should not interpret contract to nullify or render provisions
meaningless; all provisions in contract are presumed to have a purpose). The present value of
future rent is not the only “damage[ ] resulting from [Associated Energy’s] failure to perform its
obligations [under the lease].” The damages resulting from Associated Energy’s breach of the
lease also include the future storage costs. Contrary to Union Tank’s contention, these damages
are not encompassed under the guaranty of prompt payment clause, which allows Union Tank to
recover the accrued rent and the freight, railroad, and cleaning charges defined in the lease. Thus,
the two clauses of the guaranty—the guaranty of prompt payment and the guaranty of
damages—can be read in harmony without application of the UCC.
¶ 48 CONCLUSION
¶ 49 For the foregoing reasons, we affirm the trial court’s judgment in favor of Union Tank
and its award of damages for freight costs, cleaning costs, past due storage costs, future storage
costs, and past due rent but vacate the court’s award of damages for anticipated future blasting in
the amount of $109,930. With respect to Union Tank’s cross-appeal, we affirm the $10,000
-16
No. 1-17-2858
reduction in attorney fees and the judgment in favor of NuDevco on Union Tank’s request for an
award of the present value of future rent due under the leases.
¶ 50 Affirmed in part and vacated in part.
-17
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196 U.S. 229 (1905)
SLAVENS
v.
UNITED STATES.
No. 228.
Supreme Court of United States.
Argued December 7, 8, 1904.
Decided January 9, 1905.
APPEAL FROM THE COURT OF CLAIMS.
*231 Mr. A.A. Hoehling, Jr., for appellant.
Mr. Special Attorney Joseph Stewart, with whom Mr. Assistant Attorney General Pradt was on the brief, for the United States.
MR. JUSTICE DAY, after making the foregoing statement, delivered the opinion of the court.
From the foregoing statement of facts it is evident that the *232 case resolves itself into three propositions: (1) Can the appellant recover for the alleged wrongful termination of his contracts by the Postmaster General? (2) Under the contracts were the services performed in carrying mails from the street cars, at the places designated, extra services for which compensation outside of the contract should be awarded? (3) Under the Boston contract did the service required in carrying the mails to and from Brookline constitute extra service, for which compensation should be awarded?
To determine the first proposition it is essential to have in mind certain provisions of the statute, the preliminary notice to bidders, and, most important of all, the terms of the contract itself. In the notice to bidders it is said:
"There will be no diminution of compensation for partial discontinuance of service or increase of compensation for new, additional or changed service that may be ordered during the contract term; but the Postmaster General may discontinue the entire service on any route whenever the public interest, in his judgment, shall require such discontinuance, he allowing, as full indemnity to the contractor, one month's extra pay."
In the contract it is stipulated:
"It is hereby stipulated and agreed by the said contractor and his sureties that the Postmaster General may change the schedule and termini of the route, vary the routes, increase, decrease, or extend the service thereon, without change of pay; and that the Postmaster General may discontinue the entire service whenever the public interest, in his judgment, shall require such discontinuance; but for a total discontinuance of service the contractor shall be allowed one month's extra pay as full indemnity."
Section 817, Revised Statutes, Postal Laws and Regulations, 1887, provides:
"The Postmaster General may discontinue or curtail the service on any route, in whole or in part, in order to place on the route superior service, or whenever the public interests, *233 in his judgment, shall require such discontinuance or curtailment for any other cause, he allowing as full indemnity to the contractor one month's extra pay on the amount of service dispensed with, and a pro rata compensation for the amount of service retained and continued."
Under the power supposed to be conferred upon him by the terms of the contract, made in pursuance of the preliminary advertisement and the authority vested in him by the Postal Laws and Regulations, above cited, the Postmaster General, having decreased the service under the contract, by reason of the introduction of the method of carrying the mails on the street railways, until the service required originally would be much more than paid for by the compensation agreed upon, discontinued the original service, and, the contractor declining to perform the work remaining at the lower compensation, put an end to the contract by an order of discontinuance, allowing the contractor one month's extra pay as full indemnity. It is contended by the appellant that this contract, properly construed, while it permits the Postmaster General to make changes in the schedule and termini of the route, to reduce the same, to increase, decrease or extend the service, without change of pay, does not confer the right to cancel the contract except upon abandoning the entire service, which may be done with the allowance of one month's extra pay to the contractor. But, it is insisted, so long as any part of the service remains to be performed, it is not within the power of the Postmaster General to put an end to the service of the contractor and relet a part of it to another, substituting a different character of service for a part of the field theretofore covered by the contract. In other words, it is contended that the total discontinuance of service, which only can terminate the contract, must not leave any service to be performed in the district covered.
We cannot accede to this narrow construction of the powers given the Postmaster General by the terms of this contract. He is given general power to increase, decrease or extend the *234 service contracted for, without change of pay. Furthermore, whenever the public interests in his judgment require it, he may discontinue the entire service. We think the advertisement and the regulations under which this contract was made and the contract as entered into were intended to permit the Postmaster General, when in his judgment the public interest requires it, to terminate the contract, and if a service of a different character has become necessary in his opinion, to put an end to the former service upon the stipulated indemnity of one month's extra pay being given to the contractor. It is not reasonable to hold that the power given to the Postmaster General for the public interest can only be exercised when the mail service in the district is to be entirely abandoned. In the present case the contract was for mail service in three cities of importance, two of them among the large cities of the country, and all of them thriving and growing communities. It is hardly possible that the parties, in making this contract, could have had in view a time when the mail service would be dispensed with. On the other hand, the condition which the contract contemplated, and which in fact arose, made it desirable to extend to this district the use of street railways to carry the mails, with which to improve the facilities for mail delivery.
The authority given to the Postmaster General is broad and comprehensive, requiring him to exercise his judgment to end the service, and thereby terminate the contract, whenever the public interest shall demand such a change. In that event the contractor takes the risk that the exercise of this authority might leave him only the indemnity stipulated for one month's extra pay. We are not called upon to say in this case that the Postmaster General, merely for the purpose of reletting the contract at a lower rate, may advertise and relet precisely the same service for the purpose of making a more favorable contract for the Government, no change having arisen in the situation except the desire for a better bargain. And it may readily be conceived that in some instances there *235 may be such a diminution of the service contracted for in the district, by reason of the substitution of new and improved methods, as will render the compensation agreed upon altogether disproportionate to the services left to be rendered, and thereby invoking the authority of the Postmaster General to exercise the power reserved to him to terminate the contract. In the present case the findings of fact do not disclose a case of the arbitrary exercise of power. A new means of service within the district by means of the street railway was deemed by the Postmaster General to be required in the public interest. This necessitated the cutting down of the former service to make way for the new, and the Postmaster General exercised the power given him under the contract, and put an end to the service and the contract. If the contention of the appellant is to be sustained, while in the present case the street railway service was not a large proportion of the total service required, the same argument, carried to its legitimate conclusion, would prevent the Postmaster General from taking advantage of this stipulation, although it was manifest that a large proportion, maybe practically all, of the service could be better rendered to the public by substituting the new method, leaving only a small part of the old service to be rendered. In this contingency, as construed by the appellant, the contract price must still be paid, notwithstanding the changed conditions. These contracts were made for a term of years; two for four years and one for two years. It is insisted that the construction contended for by the Government practically puts the contractor into the power of the Postmaster General, and makes the stipulation, in substance, an agreement upon his part to do whatever that officer may require. The obvious answer to this contention is that the contractor is not obliged to carry on the contract when the Postmaster General elects to cancel it. Such action puts an end to the obligations of the contractor as well as the Government. Under the postal regulations, it appears that the contractor is given the opportunity to perform the reduced service at a lower rate. This he was not obliged *236 to do, and, in the present case, declined to undertake. Our conclusion is that, acting in good faith, of which there is every presumption in favor of the conduct of so important a department of the Government, the Postmaster General may, as was done in this case, discontinue the service, and thereby put an end to the contract when the public interest, of which he is the sole judge, authorizes such action.
This view of the contract renders it unnecessary to consider at length the provisions of section 817 of the Postal Laws and Regulations, above quoted. It is urged that this section applies more particularly to star route and steamboat service, but the provisions of the law are broad and comprehensive, and not limited by the terms of the act to such specific service, but the power is given the Postmaster General whenever, in his judgment, the public interest shall require, to discontinue or curtail the same, giving the contractor as indemnity one month's extra pay. Speaking of the action, authorized under section 263 of the former rules and regulations, this court, in Garfielde v. United States, 93 U.S. 242, 246, said:
"There was reserved to the Postmaster General the power to annul the contract when his judgment advised that it should be done, and the compensation to the contractor was specified. An indemnity agreed upon as the amount to be paid for cancelling a contract, must, we think, afford the measure of damages for illegally refusing to award it."
And upon similar contract stipulations this court in Chicago & Northwestern Railway Co. v. United States, 104 U.S. 680, 684, said:
"It is true, that under this reservation the Postmaster General would be authorized to discontinue the entire service contemplated by the contract, and the practical effect of that would be to terminate the contract itself, on making the indemnity specified."
As to the other claim for extra services: In the stipulation of the contracts, it appears that the contractor was required to perform all new or additional or changed covered wagon *237 mail station service that the Postmaster General should order, without additional compensation, whether caused by change of location of post office, stations or landings, or by the establishment of others than those existing at the time of the contract, or rendered necessary in the judgment of the Postmaster General from any cause, and that officer has the right to change the schedule, vary the routes, increase, decrease or extend the service without change of pay. It is insisted that these stipulations, properly construed, permit the Postmaster General to require only additional service of the same kind as that stipulated for, and that the carrying of the mails from street cars, where the same might be ordered to be met at crossings, was a new and different kind of service, and was not a change caused by a different location of a post office, station or landing within the meaning of the contract. But we think this is too narrow a construction of the terms of the agreement. Strictly speaking, the carrying of the mails from the street cars at the crossings is not taking them from the stations, but it practically amounts to the same thing. It imposes no additional burden upon the contractor; indeed, the findings of fact show that it greatly decreased his burden by lessening the number of miles of carrying required. We think this change of service was fairly within the power reserved to the Postmaster General, and the right given to him to designate such changes in the service as the public interest might require in the performance of this contract. It is true that if these services were not within the terms of the contract, and if they were of a different character, the fact that they greatly decrease the burden of the contractor might not require a disallowance of the claim for extra services. But we think the services were within the contract, fairly construed, and do not entitle the contractor to extra compensation.
In reference to the services rendered in Boston, required by the postmaster, between Back Bay station, in Boston, and the Brookline post office outside the limits of the city of Boston and not within the terms of the contract, it does not appear *238 that the requirement of such service was made, except by the postmaster of the city of Boston, who had no authority, so far as we can discover, to require such service. When the claimant protested to the Postmaster General he was promptly relieved from the service, and another contract was made for the performance of the same.
It is said that this claim is in all respects like the one sustained by this court in United States v. Otis, 120 U.S. 115, where the contractor was allowed extra compensation for carrying the mails across the Hudson River from the Pennsylvania Railway depot at the foot of Cortlandt street, New York, to the depot of the same line in Jersey City, N.J., when the contract required him to carry the mails only to and from the depots in New York. In the opinion in that case Mr. Justice Blatchford pointed out that the United States directed the performance of the service. Presumably this was done by some one having authority of the United States. In this case the Court of Claims has held, as we think rightly, that the postmaster, having no power or authority to contract in respect to the mail messenger service, was not the agent of the Government for such service, and could not bind the Government by his knowledge or acts in respect thereto. Roberts v. United States, 92 U.S. 41, 48; Hume v. United States, 132 U.S. 406; Whitsell v. United States, 34 C. Cl. 5. As the additional service in this case was not required by the authorized agent of the Government, we think the contractor is not entitled to extra compensation therefor.
Finding no error in the proceedings of the Court of Claims, its decision is
Affirmed.
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702 S.E.2d 240 (2010)
IN RE S.C.L.
No. COA10-682.
Court of Appeals of North Carolina.
Filed November 16, 2010.
Certification December 6, 2010.
Case Reported Without Published Opinion Affirmed.
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842 F.2d 333
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Nos. 87-6162, 87-6163.
Ruth M. SHRIVER, Administratrix C.T.A. of Estate of AnnKennedy Shriver, Plaintiff-Appellee,v.James A. SHRIVER and His Conservators, William M. Foster andFrank E. Watkins, Jr., Defendants-Third PartyPlaintiffs-Appellees,v.ONAN CORPORATION, a Subsidiary of McGraw-Edison Company,Third Party Defendant-Appellant.Mission Marine Associates, Inc., Third Party Defendant-Appellant.
1
United States Court of Appeals, Sixth Circuit.
2
March 21, 1988.
3
Before KRUPANSKY and WELLFORD, Circuit Judges, GILMORE, District Judge*.
ORDER
4
Defendants/third-party plaintiffs Shriver, et al., move to dismiss these appeals on the ground that third-party defendants lack standing to pursue an appeal inasmuch as they are neither aggrieved nor prejudiced by the district court's judgment from which they appealed. The third-party defendants have responded in opposition to the motion to dismiss.
5
On September 17, 1985, defendant/third-party plaintiff James Shriver and his wife, Ann Kennedy Shriver, took a pleasure outing on their 36 foot power boat, the Rosolute II. They travelled from the marina several miles upriver where they turned off the main engine, anchored and activiated an auxiliary generator. The auxiliary generator leaked carbon monoxide fumes and as a result of inhaling those fumes, Ann Kennedy Shriver died and James Shriver was rendered totally incapacitated.
6
Several lawsuits arose from this unfortunate event. In Tennessee state court, plaintiff and defendant/third-party plaintiff sued the manufacturer of the boat and the generator and their successors in interest and a company who inspected the boat shortly before the Shrivers purchased it. In federal court, plaintiff Ruth Shriver sued defendant James Shriver; the complaint alleged jurisdiction under general admiralty law under 28 U.S.C. Sec. 1333 and the Jones Act, 28 U.S.C. Sec. 688. Defendant Shriver then filed a third-party complaint against the same defendants named in this state court action. Finally, defendant Shriver filed a complaint pursuant to 46 U.S.C. Sec. 183 et seq. for exoneration from or limitation of liability.
7
On May 19, 1987, plaintiff Ruth Shriver and defendant/third-party plaintiff James Shriver moved to dismiss the action pursuant to Fed.R.App.P. 41(a)(2). The third-party defendants objected to voluntary dismissal on the grounds that they had expended time and money in defending the lawsuit.
8
The district court dismissed the suit for lack of subject matter jurisdiction. The court determined that it did not have jurisdiction under the Jones Act (46 U.S.C. Sec. 688) because the decedent was not a "seaman" within the meaning of the Jones Act. Likewise, the district court concluded it did not have jurisdiction under the general admiralty law because the tort involved had no relation to traditional maritime activities of service, commerce or navigation as required by Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249 (1972). The third-party defendants appealed and now oppose the motion to dismiss.
9
The district court's conclusion that it lacked subject matter jurisdiction will not have a collateral estoppel effect in the pending state court actions. The state court actions will proceed under common law tort principles regardless of the district court's determination that the federal action was not subject to admiralty jurisdiction. We conclude that the third-party defendants have not been aggrieved by the district court's dismissal of the action. See 9 J. Moore & B. Ward, Moore's Federal Practice p 203.06 (2d ed. 1985). We also note that the third party defendants did not raise the collateral estoppel argument in district court and are therefore precluded from so doing now. Chandler v. Jones, 813 F.2d 773, 777 (6th Cir.1987).
10
According the motion to dismiss is granted.
*
The Hon. Horace W. Gilmore, U.S. District Judge for the Eastern District of Michigan, sitting by designation
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3 So.3d 340 (2009)
TOLER
v.
STATE.
No. 5D07-1857.
District Court of Appeal of Florida, Fifth District.
February 17, 2009.
Decision without published opinion. Affirmed.
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974 So.2d 838 (2008)
ENTERGY LOUISIANA, INC., Plaintiff-Appellee,
v.
Paul R. JAMES, d/b/a Tupaw Manor Apartments, Defendant-Appellant.
No. 42,826-CA.
Court of Appeal of Louisiana, Second Circuit.
January 23, 2008.
*839 Hallack Law Firm by William H. Hallack, Jr., West Monroe, for Appellant.
Breithaupt, Dunn, Dubos, Shafto & Wolleson, LLC by Michael L. Dubos, Monroe, for Appellee.
Cyd Sheree Page, Lafayette, for West Tree Service, Third Party Defendant-in-Reconvention/Appellee.
Before WILLIAMS, GASKINS & PEATROSS, JJ.
PEATROSS, J.
In this action for damages against Entergy Louisiana, Inc. ("Entergy") for alleged wrongful trimming of vegetation around a distribution line, Plaintiff-in-Reconvention, Paul R. James, d/b/a Tupaw Manor Apartments, appeals a judgment in favor of Entergy and dismissing his claim. For the reasons stated herein, we affirm.
FACTS and PROCEDURAL BACKGROUND
In 1991, Highway 143 (Whites Ferry Road) which is located next to Tupaw Manor Apartments in West Monroe, Louisiana, was widened. Entergy's distribution lines ran along Alexander Road and Highway 143 and, with the widening of the highway, several poles were relocated. Three poles were placed so that the lines crossed the highway diagonally to the southeast corner of the apartment complex. In 1994, Mr. James purchased Tupaw Manor Apartments, bearing municipal address of 111 Alexander Road. The distribution lines at issue are contained within what Mr. James characterizes as a "green zone" that buffers the apartment complex from the highway traffic adding to the aesthetic value of the complex.
In 2004, Entergy renewed its contract with West Tree Service ("West") to trim vegetation encroaching on electrical distribution lines. West was to perform this work in compliance with Entergy's "Distribution Vegetation Management Line Clearance Specifications" ("Clearance Specifications") on file with the Louisiana Public. Service Commission. During August 2004, Superior Forestry, Inc., sprayed the area with herbicide. During September 2004, and specifically on September 27, 2004, West cleared vegetation that had been sprayed and performed additional trimming on Mr. James' property as per Entergy's contract. Mr. James objected; however, during the last few months of 2004, at Entergy's direction, West crews made several additional attempts to trim vegetation on the property of Mr. James. On September 28, 2004, Mr. James executed Entergy's Tree Trimming Refusal form. Also during this time, Entergy sent two certified letters to Mr. James attempting to secure his consent to allow it to perform the necessary trimming of the overgrown vegetation around the lines in order for Entergy to provide safe and continuous electricity to the area. Unable to obtain consent from Mr. James, Entergy filed a petition in January 2005 asserting that it had an agreement with the city of West Monroe to operate electric facilities within the city and had a right-of-way easement onto Mr. James' property for maintenance purposes. Ultimately, the trimming was completed in January 2005.
Mr. James filed an answer and reconventional demand in February 2005 seeking damages in excess of $410,000. He *840 claimed that Entergy engaged in the clear-cutting of trees, harvesting and removing over 200 trees. He claimed that Entergy cut trees far in excess of the allowed or agreed upon width of trimming. Mr. James sought property damage to fencing, a dumpster pad and lost rentals from apartments, along with physical pain and mental anguish as a result of an alleged encounter between himself and West's workers. Mr. James further argued that Entergy's intentional and egregious acts were in bad faith, thereby entitling him to treble damages and attorney fees. Entergy filed a third party demand against its contractor, West, with which it had contracted to do the actual trimming work.
Significantly, later in February 2005 and prior to trial, the parties entered into a stipulated Declaratory Judgment and Preliminary Injunction in which they agreed that:
* * *
B. Entergy has the right to maintain all of its electric distribution lines and poles by trimming any encroaching trees, limbs, shrubs and other vegetation within ten feet (10') of Entergy's lines in accordance with modern arboretum standards and as specifically outlined in Entergy's Distribution Vegetation Management Line Clearance Specifications attached hereto as Exhibit "A.
C. Pursuant to the St. Julien Doctrine,[1] so long as Entergy and/or its contractors comply with the vegetation maintenance standards stated on Exhibit "A", Paul R. James, d/b/a Tupaw Manor Apartments, ("Defendant") has no legal right to prohibit or interfere with Entergy's reasonable and necessary trimming of encroaching trees, limbs, shrubs and other vegetation along its distribution lines and utility poles located throughout Ouachita parish, Louisiana, including but not limited to Alexander Road and Louisiana Highway 143 (White's Ferry Road).
The Clearance Specifications provide in paragraph 1.0.2 that "all trees at a minimum shall be trimmed back to the previous trim point (amount of clearance obtained during the last trim) or as per table below, whichever is greater." The table Provides that slow growth trees in rural settings be trimmed to 10 feet and fast growth trees in rural settings be trimmed to 15 feet. Paragraph 1.0.5 provides that an exception to paragraph 1.0.2 will be made where "there is a customer refusal where procedures outlined in the [Clearance Specifications] have been followed" . . . "such execption[], however, shall not *841 result in unsafe conditions or jeopardize reliability."
According to Mr. James, Entergy could only (A) trim to an indefinite width under the St. Julien Doctrine of La. R.S. 19:14, see footnote 1, supra, depending on the extent to which it had actually claimed and used a right-of-way in the past or (B) ten feet under the Clearance Specifications. Mr. James alleged, inter alia, that Entergy exceeded this allowable width of trimming around the distribution line, thereby causing damage to the aesthetic value, of the "green zone" around the apartment complex. As previously stated, Mr. James filled out a Tree Cutting Refusal Form expressing his objection to having any trees removed, which he contends requires Entergy to then seek a court order to continue trimming. Entergy's letter to Mr. James was written in accordance with paragraph 1.0.5 of the Clearance Specifications noting that the trimming was necessary to ensure safe, reliable electrical service to the area, including the apartment complex.
At trial, Entergy called three witnesses, Don Adcock, Don Newell and Paul LeMoine. Each witness agreed that the trimming exceeded 15 feet, but provided detailed testimony regarding the existence of a prior trim point. Arthur Summit, foreman for West, also testified that all trimming was done inside the prior trim point. In addition, Dr. John Adams, who testified as an expert for Entergy, determined that there was a prior trim line and that all cutting was done within that prior trim point. Dr. Adams further testified that the physical evidence he observed during his inspection of the property supported the existence of the prior trim point, including the numerous resprouts and the break line between the small trees and larger trees. Casey Keeling, the West employee who actually performed much of the trimming on the James property, testified that most of the vegetation removed was resprouting tangled with vines.
Mr. James provided testimony that there were log trucks being loaded with cut trees coming and going from the property. This testimony was contradicted by West employees. Mr. James also testified that, on one particular date, a West trimming crew was on site attempting to trim trees on his property. Mr. James stated that a West worker began to cut a branch with a chainsaw directly above his head causing debris to fall on him. The record indicates that Mr. James stood under the work being performed and had some falling sawdust land on him, at which time he alluded to a potential personal injury claim against the workers. Mr. James also alleged that a worker drove a truck within an inch of him, almost striking him,
After hearing the evidence and in its reasons for judgment, the trial court framed the issue as whether Entergy had complied with its Clearance Specifications in performing the trimming. The court found that Mr. James failed to carry his burden of proof and was, therefore, entitled to no damages. This appeal ensued.
DISCUSSION
On appeal, Mr. James asserts 11 assignments of error, framing the issues as follows (verbatim):
1. Did the Trial Court err in dismissing Paul R. James' cause of action under the St. Julien Statute?
2. Did the Trial Court err in failing to hold that the burden of proof of the required facts for the existence and extent of servitude under LSA R.S. 19:14 (St. Julien Statute) was on Entergy Louisiana, Inc.?
3. Did the Trial Court err in dismissing Paul R. James' cause of action under the Distribution Vegetation *842 Management Line Clearance Specifications?
4. Did the Trial Court err in its determination that there was a prior trim point established by or on behalf of Entergy Louisiana, Inc.?
5. Did the Trial Court err in dismissing Paul R. James' cause of action under LSA-R.S. 3:4278.1 (Tree Piracy)?
6. Did the Trial court Err in dismissing Paul R. James' cause of action under General Tort Principles?
7. Did the Trial court err in dismissing Paul R. James' cause of action for assault/battery under General Tort Principles?
8. Did the Trial Court err in dismissing Paul R. James' cause of action for trespass under General Tort Principles?
9. Did the Trial Court err in sustaining the objection that resulted in the refusal to admit into evidence photographs of the vegetation maintenance practices of Entergy Louisiana, Inc., along its distribution line as evidence of Entergy Louisiana, Inc.'s habit or practice of compliance with the Distribution Vegetation Management Line Clearance Specifications?
10. Did the Trial Court err in sustaining the objection that resulted in the refusal to admit into evidence John May's testimony in confirmation of the correctness of Paul James' calculation of damages resulting from diminution in value of his apartment complex?
11. Did the Trial Court err in failing to apply the adverse presumption rule for the non-testifying witnesses that Entergy Louisiana, Inc., could have called?
The first four issues/assignments of error essentially involve a central query of whether Entergy had the right to trim vegetation around the distribution lines on the property of Mr. James and, if so, to what width around the lines was Entergy allowed to trim. We will address the remaining issues in turn.
Vegetation Trimming
On the specific facts of this case, we conclude that the stipulated declaratory judgment signed by the parties prior to trial controls the allowable trimming width of the vegetation around the distribution lines on the property at issue owned by Mr. James. Recall that, in this stipulated declaratory judgment, the parties agreed that the trimming width would be 10 feet from the poles or according to Entergy's Clearance Specifications. The Clearance Specifications, as previously stated, provide widths of 10 feet for slow growing foliage, 15 feet for fast growing foliage or trimming, to a prior trim point, whichever is greater. Mr. James signed this judgment and no appeal was taken therefrom.
In light of this stipulated judgment, we find that the trial court correctly found the issue to be whether or not Entergy complied with its Clearance Specifications. This is a factual determination. An appellate court may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong, and where two permissible views of the evidence exist, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Bright Morning Star Missionary Baptist Church v. Brown, 38,333 (La.App.2d Cir.5/28/04), 877 So.2d 1003, writ not considered, 04-2136 (La.11/15/04), 887 So.2d 466. We detect no abuse of discretion here. As previously mentioned, Entergy produced several qualified witnesses, thoroughly outlined by the trial judge in his reasons for judgment, *843 who found strong evidence of resprouts and prior trim points. Dr. Adams testified that there was a previous trim point and that all of the cutting was done within that trim point. The trial court's factual conclusions regarding specific tree removal and stump versus resprouting removal are all well supported by the testimony and we find no abuse of discretion in those conclusions.
In summary, we note that the Clearance Specifications may, in certain circumstances, lead to unauthorized, increased and unchecked trimming on private property; however, under the specific facts of this case, Mr. James is bound by the "stipulated declaratory judgment and we find no clear error in the trial court's factual determination that Entergy's trimming fell within the guidelines set forth therein.
In light of our conclusion, we pretermit any further discussion of the St. Julien doctrine or separate cause of action under the tree piracy statute, La. R.S. 3:4278.1, as urged in issue/assignment of error number five.
Assault/Battery or General Tort Liability
Regarding Mr. James' allegations of damages resulting from alleged encounters with West employees, argued in issues/assignments of error numbers six and seven, we note that the trial judge was in the best position to hear and weigh the testimony of the witnesses regarding those alleged incidents. Stobart v. State, Dept. of Transp. and Dev., 617 So.2d 880 (La.1993). We cannot say that the trial court abused its discretion in finding that Mr. James failed to carry his burden of proof that he was injured physically or suffered mental anguish from such alleged incidents. We will not disturb these findings on appeal. Likewise, we find no error in the trial court's failure to award damages for trespass.
Furthermore, in light of our holding herein, we pretermit any discussion of issue/assignment of error number nine concerning the trial' court's refusal to admit certain photographs into evidence. Likewise, the propriety of the calculation of damages argued in issue number ten is moot under our ruling herein.
Finally, Mr. James' argument in issue/assignment of error number eleven regarding application of the adverse presumption for non-testifying witnesses on behalf of Entergy is abandoned for failure to brief. URCA 2-12.4.
CONCLUSION
For the foregoing reasons, the judgment of the trial court in favor of Entergy Louisiana, Inc. is affirmed at the cost of Paul R. James, d/b/a Tupaw Manor Apartments.
AFFIRMED.
GASKINS, J., concurs with written reasons.
GASKINS, J., concurring.
I respectfully concur with the majority's opinion.
In this case, Mr. James stipulated that Entergy was entitled to trim up to the prior trim point. Mr. James' position was that the most current trimming was in excess of the prior trim point. Evidence was presented by Entergy that this contested area had previously been trimmed. The trial court found the testimony to be credible, and found in favor of Entergy.
The opinion hints, but does not flatly state, that Entergy does not have a right to trim to the prior trim point, when it is in excess of the 10-15 foot guidelines, and the landowner protests. Certainly, special circumstances could arise that might allow trimming beyond the 10-15 foot guidelines, over the landowner protestations. However, *844 just because Entergy, on a prior occasion, trimmed beyond this 10-15 foot point, does not give Entergy the unfettered right to always trim in excess of these guidelines.
NOTES
[1] The St. Julien doctrine is derived from La. R.S. 19:14, which provides, in pertinent part, as follows:
§ 14. Possession of property; removal of facilities; objection; waiver
A. In any case where the state or its political corporation or subdivision has actually, in good faith believing it had authority to do so, taken possession of privately owned immovable property of another, and constructed facilities upon, under, or over such property with the consent or acquiescence of the owner of the property, such owner shall be deemed to have waived his right to contest the necessity for the taking and to receive just compensation prior to the taking, but he shall be entitled to bring an action for such compensation, to be determined in accordance with the provisions of R.S. 19:9, for the taking of his property or interest therein, the just compensation to be determined as of the time of the taking of the property, or right or interest therein, and such action shall proceed as if the state, its political corporation, or subdivision had filed a petition for expropriation as provided for in R.S. 19:2.1.
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380 S.W.2d 401 (1964)
STATE of Missouri, Respondent,
v.
William CUNNINGHAM, Appellant.
No. 50276.
Supreme Court of Missouri, Division No. 1.
July 13, 1964.
*402 Thomas F. Eagleton, Atty. Gen., Jefferson City, James J. Sauter, Special Asst. Atty. Gen., St. Louis, for respondent.
Stanford A. Zeldin, Kansas City, for defendant-appellant.
HENLEY, Judge.
William Cunningham appeals from a judgment imposing a sentence of imprisonment for six years for feloniously obtaining money by means of trick, deception and false and fraudulent representations, statements or pretense, commonly called "the confidence game". Section 561.450. (All references to statutes or rules are to RSMo 1959, V.A.M.S., and Supreme Court Rules, V.A.M.R.) He questions (1) the validity and sufficiency of the information, (2) the giving of instruction No. 2, being the State's main or verdict directing instruction, and (3) the verdict.
In his motion for a new trial Cunningham raises the point that the State failed to make a submissible case. He does not make this point, specifically designated as such, in his "Points and Authorities"; yet, by inference in his printed argument, he indirectly questions the sufficiency of the evidence presented by the State. This assignment of error in his motion for a new trial was abandoned by him by his not presenting this question in his brief. Rule 28.02. State v. Johnson, 362 Mo. 833, 245 S.W.2d 43. Although it was so abandoned, we have read and considered the evidence.
The information, including the caption because it is referred to in the State's brief, but omitting the signatures, oath and jurat, is as follows:
"Section 561.450
"State of Missouri
vs.
WILLIAM CUNNINGHAM
"In the Circuit Court of Jackson County, Missouri, at Kansas City, May Term, 1962. In Division Number 6 thereof, designated by the rules of said Court as Criminal Division A.
"Now comes Sam Modica, Assistant Prosecuting Attorney for the State of Missouri, in and for the body of the County of Jackson, and upon his oath informs the Court, that William Cunningham whose Christian name in full is unknown to said Assistant Prosecuting Attorney, late of the County aforesaid, on the 2nd day of February, 1962, at the County of Jackson, State of Missouri, did then and there unlawfully, knowingly, intentionally and feloniously, with intent to cheat and defraud, obtain from Fay A. Bradley, certain money, property and valuable things, to-wit: Four Thousand Twenty-Five ($4025.00) Dollars by means of trick, deception and false and fraudulent representations, statements or pretense, commonly called `Confidence Game'; against the peace and dignity of the State."
The decision in this case turns decisively on the first point raised by Cunningham. For this reason we do not recite the evidence, nor is it necessary that we treat with the other two points raised by appellant. "* * * without a valid indictment, these questions are no longer live issues and any discussion of them would amount to nothing more than obiter dictum." State v. Harris, Mo., 313 S.W.2d 664, 671.
*403 Specifically, the defendant states that the information is invalid and insufficient for the reason (among others) that it fails to allege that the victim of the confidence game relied upon the defendant's false representations and in reliance thereon was induced to part with his money. The defendant did not allege this point as error in his motion for a new trial. But he did raise it in his brief and we consider it because we must render our judgment on the record before us. Rule 28.02. Section 547.270, RSMo 1959.
Woven into points two and three made by defendant can be heard strains of the same given specific reason why the information is considered by him to be invalid and insufficient.
To be sufficient an information (1) must be in writing and (2) shall state the essential facts constituting the offense charged. Rule 24.01. An essential element of the crime denominated by Section 561.450 as "the confidence game" is that the victim must have relied upon some false and fraudulent representation, or statement or pretense by defendant and have thereby parted with his money. State v. Fields, Mo., 366 S.W.2d 462, 467. State v. Stegall, Mo., 353 S.W.2d 656, 657. The information in this case does not allege this essential element and is, therefore, fatally defective.
The State contends that this information is sufficient because it follows the language of Section 561.450, supra. We agree with the general statement that describing the offense in the language of the statute is sufficient, but only where the statute in denouncing the offense states all the essential elements of the crime. Every ingredient of which the offense is composed must be alleged. State v. Terry, 109 Mo. 601, 19 S.W. 206. Section 561.450, supra, did not specifically contain every ingredient of this offense. Nor did the information as we have noted above. We rule against this contention of the State. The State contends also that the words, "confidence game", as used in the information, encompass the essential element of "reliance" and that the word "confidence" is synonymous with "reliance". Another contention of the State in support of this information is that it informed defendant fully of the crime with which he was charged by reference to Section 561.450 in the caption of the information. It is elementary that the caption of the information is not a part of the charge. We respectfully rule against the State on this point, and its venture into semantics.
Considering the record of the evidence in this case we have concluded that the cause should be remanded to give the State an opportunity to seek leave to file an amended information or take such other action as the State deems advisable.
For the reasons stated the judgment of the trial court is reversed and the cause is remanded.
All concur.
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1505
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MONICA HERNANDEZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:13-cr-00949-2 — Virginia M. Kendall, Judge.
____________________
ARGUED MARCH 3, 2020 — DECIDED MARCH 10, 2020
____________________
Before EASTERBROOK, KANNE, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. A jury found Monica Hernandez
guilty of mail fraud for her participation in a fraudulent mort-
gage trust company. Hernandez appeals her conviction, argu-
ing that the government did not prove that she used the mails
in furtherance of the scheme to defraud. Her sentence also in-
cludes sizable restitution, and she contends that the district
court improperly delegated its authority to the Bureau of Pris-
ons by not entering a specific payment schedule for her to
2 No. 19-1505
follow while serving her prison sentence. But sufficient evi-
dence supports the mail fraud convictions, and the district
court permissibly deferred Hernandez’s restitution payments
until after her release, so we affirm the judgment.
I. Background
Because Hernandez challenges the sufficiency of the evi-
dence supporting the jury’s verdict, we recount the evidence
in the light most favorable to the prosecution. See United States
v. Kelerchian, 937 F.3d 895, 907 (7th Cir. 2019). Monica Hernan-
dez cofounded Washington National Trust in 2011 and mar-
keted it as a legitimate company designed to assist homeown-
ers struggling to pay their mortgages. She and her codefend-
ants promised prospective “members” that, in exchange for
fees between $3,500 and $10,000, the Trust would negotiate
with their lenders to take over their mortgages and stop or
prevent foreclosure proceedings. The Trust promised to re-
fund the fees if it could not purchase the mortgages and as-
serted that the arrangement would greatly reduce the balance
of the homeowners’ mortgages.
More than 50 homeowners became members of the Trust.
When they agreed to work with the Trust, they signed mem-
bership documents and paid all or part of the Trust’s fees,
usually in person. (If a homeowner was unable to pay the fees
up front, he or she could make installment payments.) A
packet consisting of the membership agreement, deed, receipt
of payment, and other materials related to the Trust was then
mailed to the homeowners or made available for pick-up.
Once new members signed their paperwork, Hernandez told
them, they could be relieved that the Trust would help them
retain their homes.
No. 19-1505 3
Several homeowners paid installments to the Trust after
their membership packets arrived in the mail. Indeed, at least
three homeowners who could not afford the Trust’s fees up
front received payment schedules with their membership
packets. Two such homeowners became the basis for Count 1
and Count 4 of the indictment. A third homeowner, the sub-
ject of Count 2, received a handwritten payment schedule in
the mail, but he decided to complete his payment in one lump
sum. And though the third homeowner paid his fees to the
Trust, he received a court summons to appear for foreclosure
proceedings months after he had signed the membership
agreement. This was not unusual; but when homeowners ex-
pressed concern about the pending foreclosure proceedings,
Hernandez and her codefendants reassured them that the
Trust would abide by the agreement.
The true nature of the Trust became known in 2013 when
Illinois authorities discovered that the Trust was not licensed.
Nor did the Trust have enough funds to purchase a single
mortgage. Instead, Hernandez and her codefendants had
spent the membership fees on meals, travel, and vehicle pur-
chases. Though it collected fees totaling over $220,000 from at
least 50 homeowners over the course of two years, the Trust
did not help any homeowners reduce their mortgage pay-
ments, and at least three homeowners who paid the Trust had
their homes foreclosed on. Later in 2013, a grand jury indicted
Hernandez and two codefendants for mail fraud.
At trial, the government proposed a jury instruction on a
“lulling” theory of mail fraud, which stated that communica-
tions that lull a victim into a false sense of security after being
defrauded can support a finding that the defendant used the
mails in furtherance of the scheme to defraud. The court
4 No. 19-1505
refused the instruction because the government had not pre-
sented evidence that the mailings lulled any victim into a false
sense of security. The court did, however, agree to instruct the
jury that communications that assist a defendant in avoiding
detection of the scheme to defraud may be sufficient to sup-
port a finding that the defendant used the mails in furtherance
of the scheme. Hernandez did not object to that proposed in-
struction.
In its closing argument, the government urged the jury to
find Hernandez guilty of three counts of mail fraud based on
the mailing of the membership packets to three victim-home-
owners. (The government moved to dismiss one count from
the four-count indictment before the close of trial.) Hernan-
dez, in turn, argued that the mailings did not further the
scheme to defraud because they were sent after the victims
signed their membership agreements—in other words, after
the fraud was complete. The jury returned a guilty verdict on
all three counts.
Hernandez moved for a judgment of acquittal or a new
trial. See Fed. R. Crim. P. 29, 33. She maintained her argument
about the timing of the mailings: Because the homeowners’
deals with the Trust were completed upon signing the agree-
ments, the later mailings of the membership documents were
not in furtherance of the scheme to defraud. The district court
denied Hernandez’s motions, concluding that sufficient evi-
dence supported the jury’s finding that the mailings contrib-
uted to the scheme and helped prevent its detection.
Hernandez was sentenced to 60 months in prison, one
year of supervised release, and was ordered to pay, jointly
and severally with her codefendants, nearly $260,000 in resti-
tution to her victims. She requested that the court establish a
No. 19-1505 5
payment plan for her while in prison, limiting her to paying
no more than ten percent of her monthly prison income. At
the sentencing hearing, however, the court orally declined to
order Hernandez to begin paying while in prison. The written
judgment reflected that pronouncement, as the court estab-
lished a schedule beginning upon Hernandez’s release:
[Y]ou shall pay any financial penalty that is im-
posed by this judgment that remains unpaid at
the commencement of the term of supervised
release. Your monthly payment schedule shall
be an amount that is at least 10% of your net
monthly income, defined as income net of rea-
sonable expenses for basic necessities such as
food, shelter, utilities, insurance, and employ-
ment-related expenses.
And the check box on the judgment form that sets forth a pay-
ment schedule during imprisonment was left unchecked.
II. Discussion
On appeal, Hernandez challenges her conviction on the
ground that the government presented insufficient evidence
that she used the mails in furtherance of the fraudulent
scheme. She also contends that the district court erred in fail-
ing to set a schedule of restitution payments to be made dur-
ing her term of imprisonment.
A. Sufficiency of the Evidence
We review de novo the denial of a defendant’s motion for
acquittal, asking whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. See Kelerchian, 937 F.3d at 907. Hernandez challenges
the sufficiency of the evidence supporting the second element
6 No. 19-1505
of mail fraud, namely, that “the use of the mailing system for
the purpose of executing the scheme.” United States v. McClel-
lan, 794 F.3d 743, 751–52 (7th Cir. 2015); see 18 U.S.C. § 1341.
She argues that no evidence shows the mailings of the mem-
bership packets were for the purpose of executing the scheme
to defraud because numerous victims testified that they be-
lieved their business with the Trust was complete once they
signed their membership agreements—before the defendants
mailed any documents.
We have stated that “[a] mailing is not ‘in furtherance’ if
the scheme has already reached fruition at the time of the
mailing.” United States v. McClellan, 868 F.2d 210, 216 (7th Cir.
1989). But Hernandez ignores the effects of the mailings in the
charged counts. Two homeowners—the victims in Count 1
and Count 4 of the indictment—received in the mail payment
schedules for their remaining fee balances and, consistent
with those schedules, paid down the remainder of their fees.
The fruition of the scheme—receiving the fee payment in full
without actually saving the homeowners’ homes or reducing
their mortgage payments—was thus accomplished directly
by use of the mails. See United States v. Lane, 474 U.S. 438, 452
(1986) (jury could find scheme was not completed until re-
ceipt of last payment, so mailings that took place while
scheme was still continuing sufficiently supported mail fraud
conviction); McClellan, 868 F.2d at 216 (mailing of invoice to
ticket bureau, which in turn issued airline tickets, was neces-
sary step in scheme to defraud).
The mailing to the third homeowner—Count 2 of the in-
dictment—was slightly different: He also did not pay the full
fee when he signed the agreement and he received a bill in the
mail; but he finished paying in one lump sum rather than
No. 19-1505 7
follow the payment schedule. That payment still came after
receiving the mailing, however, so a reasonable jury could
find that the mailing contributed to the success of the scheme.
See Schmuck v. United States, 489 U.S. 705, 711–12 (1989); Lane,
474 U.S. at 452.
Hernandez still contends that the fraud was complete
upon the signing of the membership agreement, before the
mailings. Even if the sign-up agreements were the heart of the
scheme and the mailings merely secondary, mailings occur-
ring after the fraudulent act are within the mail fraud statute
if they assisted the defendant with avoiding detection.
See Lane, 474 U.S. at 451–52; United States v. McGowan, 590 F.3d
446, 457 (7th Cir. 2009). Here, the mailings contained payment
receipts, a copy of the signed agreement that stated the Trust
would purchase the homeowner’s mortgage, and a refund
policy. The mailings falsely indicated that the Trust would
soon purchase the homeowner’s mortgage and that if the
Trust were unable to, it would refund the homeowner’s fee.
Because the mailings repeated the fraudulent promises and
lent credibility to the legitimacy of the Trust, a reasonable jury
could conclude that they helped Hernandez conceal the
fraudulent scheme.
But, Hernandez insists, this court has said that “lulling”
and “avoiding detection” are the same thing, and since the
district court found no evidence of lulling, that necessarily
means there was no evidence that the mailings helped her
avoid detection. She relies on United States v. O’Connor, 874
F.2d 483, 486 (7th Cir. 1989), in which this court labeled as a
“lulling” theory an argument that post-conduct communica-
tion furthered a fraudulent scheme by making detection less
likely. But, here, the district court declined to give a “lulling”
8 No. 19-1505
instruction only because no victims testified that the mailing
had a reassuring effect on them. Although it correctly stated
the law, the district court properly rejected the instruction be-
cause the evidence did not support it. Here, the issue of lull-
ing the victims was separate from the question of whether the
mailings helped conceal the scheme after the fact. And the
court concluded there was evidence that the mailings helped
Hernandez forestall homeowners’ inquiries and made detec-
tion of the scheme less likely. This was sound; a reasonable
jury could infer that the mailings legitimized the scheme and
therefore allowed it to continue longer.1
B. Restitution Payment Schedule
Hernandez finally contends that the district court improp-
erly delegated its authority to the Bureau of Prisons by failing
to set a restitution payment schedule for the time she spent in
prison. It is not clear why Hernandez raises this argument—
the district court deferred mandatory payment until after her
prison term ends, so payment in prison would occur only
through the Bureau of Prison’s voluntary Inmate Financial
Responsibility Program. We have held that participation in
that program cannot be made mandatory—indeed, it is plain
error for a district court to order participation—even though
the Bureau is permitted to impose penalties on prisoners who
decline to participate. See United States v. Miller, 883 F.3d 998,
1 Hernandez’s narrow focus on the supplemental “avoid detection”
instruction ignores that the jury was not instructed exclusively on this the-
ory of “use of the mails.” The court also gave the pattern jury instruction
that the mails must have been used for the purpose of carrying out the
scheme. Hernandez did not object to either instruction. And the preceding
discussion explains why, as to each count, a mailing directly furthered the
collection of fraudulent proceeds.
No. 19-1505 9
1005 (7th Cir. 2018); United States v. Boyd, 608 F.3d 331, 335
(7th Cir. 2010); 28 C.F.R. § 545.11(d). But deference to the Bu-
reau with respect to the administration of the program is not
impermissible delegation. Boyd, 608 F.3d at 335 (error man-
dating participation in program was not one of delegation be-
cause court did not have authority to order participation). If
Hernandez has an issue with any payment plan established
by the Bureau, her remedy is through the prison’s grievance
system. See United States v. Sawyer, 521 F.3d 792, 794 (7th Cir.
2008).
And, there is no impermissible delegation to the Probation
Office or any other entity. A restitution order must be paid
immediately unless the district court provides otherwise. See
18 U.S.C. § 3572(d)(1); United States v. Wykoff, 839 F.3d 581, 582
(7th Cir. 2016). In that case, the restitution order must include
a schedule in which restitution is to be paid. See 18 U.S.C.
§ 3664(f)(2); United States v. Moeser, 758 F.3d 793, 800 (7th Cir.
2014). Here, the district court did provide otherwise—both
orally at the sentencing hearing and in the judgment—by set-
ting a schedule of payments (subject to Hernandez’s income
and expenses) commencing after Hernandez’s release from
prison. Thus, the district court did not err with the restitution
schedule.
III. Conclusion
We AFFIRM the district court’s judgment.
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989 F.2d 498
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.MELVIN BYRD, Plaintiff-Appellant,v.W. JEFF REYNOLDS, Defendant,HOWARD CARLTON; WILLIE GRACE ANGEL, Defendants-Appellees.
No. 92-5627.
United States Court of Appeals, Sixth Circuit.
March 22, 1993.
Before MERRITT, Chief Judge, and BOGGS and BATCHELDER, Circuit Judges.
ORDER
1
Melvin Byrd is a pro se Tennessee prisoner who appeals a district court judgment dismissing his civil rights suit filed under 42 U.S.C. § 1983. His case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, the panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
Byrd alleged that the defendants violated his Fourteenth Amendment right to due process by placing him in administrative segregation until he submitted to a screening test for tuberculosis. On March 27, 1992, the district court granted the defendants' motion for dismissal under Fed.R.Civ.P. 12(b)(6). It is from this judgment that Byrd now appeals. His brief on appeal contains a request for counsel.
3
A complaint may be dismissed under Rule 12(b)(6) if the plaintiff undoubtedly can prove no set of facts that would entitle him to relief on his claims, even when the complaint is construed in a light most favorable to him and all of his factual allegations are accepted as true. Meador v. Cabinet for Human Resources, 902 F.2d 474, 475 (6th Cir.), cert. denied, 111 S.Ct. 182 (1990). Byrd alleged that he was segregated pursuant to a policy that concerned the isolation of inmates who posed a threat to institutional security. This factual question must be resolved in his favor under Rule 12(b)(6).
4
An inmate who is segregated to safeguard institutional safety or to conduct an investigation of unresolved misconduct charges is only entitled to notice of the reasons for his transfer and an opportunity to present his views to the appropriate official. Woodson v. Lack, 865 F.2d 107, 109-10 (6th Cir.1989) (citing Hewitt v. Helms, 459 U.S. 460, 476 (1983)). Byrd does not argue that he was segregated as punishment for violating a specific prison rule, and he does not allege that his good time was ever in jeopardy. Thus, Byrd was only entitled to the minimal due process protections that are prescribed in Hewitt. See Hensley v. Wilson, 850 F.2d 269, 283 (6th Cir.1988).
5
A de novo review of the complaint shows that Byrd knew that he was being transferred because he refused to submit to a screening test for tuberculosis. The complaint also indicates that Byrd argued his position to the nurse who initially requested his transfer and that he subsequently protested his segregation by filing a grievance. Under these circumstances, Byrd received all of the process that was constitutionally required by Hewitt. See Childs v. Pellegrin, 822 F.2d 1382, 1386 (6th Cir.1987).
6
Accordingly, Byrd's request for counsel is denied and the district court's judgment is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 9, 2014
Elisabeth A. Shumaker
Clerk of Court
THERESA WELCH,
Plaintiff - Appellant,
v. No. 13-1195
(D.C. No. 1:12-CV-00818-CMA)
CAROLYN W. COLVIN, Acting (D. Colo.)
Commissioner of the Social Security
Administration,
Respondent - Appellee.
ORDER AND JUDGMENT*
Before PHILLIPS, PORFILIO, and BALDOCK, Circuit Judges.
Theresa Welch appeals the district court’s order affirming the Commissioner’s
decision denying her application for disability insurance benefits. We have
jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), and we affirm.
*
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); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
I. BACKGROUND
Ms. Welch applied for disability benefits in 2008 for right shoulder and neck
impairments stemming from a work accident in 2005. She alleged an onset date of
January 1, 2005, and was eligible through the date she was last insured for benefits,
March 31, 2008. Her application was denied. Ms. Welch then requested a hearing
before an administrative law judge (“ALJ”), which was held in 2010.
Following the hearing, the ALJ found Ms. Welch had the severe impairments
from a disc bulge at C5 and C6 vertebrae, right shoulder pain, thrombocytosis,
depression, and drug and alcohol abuse. Based on these impairments, the ALJ found
that Ms. Welch had the residual functional capacity (“RFC”) to perform light work
with certain limitations: she could only occasionally push and pull with her upper
extremities, needed to avoid reaching overhead, and was limited to simple and
unskilled work with one-, two-, or three-step instructions.
Despite finding that Ms. Welch’s limitations prevented her from performing
her past work at step four of the five-step evaluation process, the ALJ found at step
five that she could perform other work that exists in significant numbers in the
economy. See Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (describing
five-step sequential process). Thus, the ALJ concluded that Ms. Welch was not
disabled. Ms. Welch appealed, but the Appeals Council denied review and the
district court affirmed the ALJ’s decision. Ms. Welch now appeals to this court,
arguing that the ALJ (1) failed to properly determine her RFC and (2) improperly
-2-
erred at step five by relying on the vocational expert’s answer to the ALJ’s
hypothetical.
II. DISCUSSION
“We review the Commissioner’s decision to determine whether the ALJ’s
factual findings are supported by substantial evidence in the record and whether the
correct legal standards were applied.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161
(10th Cir. 2012) (internal quotation marks omitted). “Substantial evidence is more
than a mere scintilla and is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Flaherty v. Astrue, 515 F.3d 1067, 1070
(10th Cir. 2007) (internal quotation marks omitted). In determining whether
substantial evidence supports the agency’s decision, we examine the record as a
whole but we do not reweigh the evidence. Id.
A. RFC Determination
1. Medical Evidence
Ms. Welch first argues that the ALJ failed to explain the weight she gave to
the medical opinions of Drs. Sramek, Schulze, and Young. “Medical opinions are
statements from . . . medical sources that reflect judgments about the nature and
severity of your impairment(s), including your symptoms, diagnosis and prognosis,
what you can still do despite impairment(s), and your physical or mental
restrictions.” 20 C.F.R. § 404.1527(a)(2). However, as the Commissioner points out,
none of the physicians Ms. Welch identifies provided medical opinions about her
-3-
that, given her impairments, the ALJ was required to weigh. Rather, each physician
simply diagnosed her impairments and in some cases recommended treatment for
them.
For example, Dr. Sramek stated Ms. Welch had right neck pain, “numbness
and weakness in [her] C5 and C6 distributions,” and recommended surgery as a result
of those symptoms. Aplt. App. Vol. I at 225. Dr. Sramek also noted Ms. Welch’s
reported pain and her psychological issues with mood changes, sleep disturbance, and
difficulty coping. Dr. Young noted her neck and shoulder pain, as well as her high
platelet count (thrombocytosis) that required cancelling her scheduled neck surgery.
Dr. Schulze likewise noted her thrombocytosis and a rotator cuff tear, and advised
surgery. None of the physicians, however, opined on Ms. Welch’s limitations
resulting from her impairments except that Drs. Sramek and Schulze excused
Ms. Welch from working for short periods of time.1 As to the impairments
themselves, the ALJ appropriately addressed each one and incorporated limitations
based on them into her RFC finding. We therefore find no error in the ALJ’s not
weighing the physicians’ “opinions.” See Cowan v. Astrue, 552 F.3d 1182, 1189
(10th Cir. 2008) (finding doctor’s statement providing no information about the
nature and severity of the claimant’s physical limitations or the activities he could
still perform was not a medical opinion).
1
Specifically, Dr. Sramek wrote that Ms. Welch could not work from March
2005 through May 2005, and Dr. Schulze wrote that she could not work in June 2005.
-4-
We also find no merit in Ms. Welch’s contention that the ALJ ignored her need
for surgery when she assessed her RFC. On the contrary, the ALJ twice noted that
Ms. Welch had been scheduled for surgery but that the surgery was postponed due to
her elevated platelet count. Aplt. App. Vol. I at 20, 23. We are thus satisfied that
the ALJ properly considered the need for surgery when she gave “careful
consideration of the entire record” in determining Ms. Welch’s RFC. Id. at 23.
2. Credibility Assessment
Ms. Welch additionally argues that the ALJ improperly relied on treatment
gaps and inconsistencies between the medical evidence and her stated activities of
daily living to find that the alleged intensity of her stated limitations was not fully
credible. But the medical record indeed shows gaps in Ms. Welch’s treatment
records, specifically from August 2007 until September 2008, which Ms. Welch
does not dispute. The record also shows that Ms. Welch testified she could do light
yard work, light chores, light cooking, grocery shop, drive, and visit her family
despite her impairments. Lack of treatment and a claimant’s daily activities are both
proper considerations as part of a credibility determination. See Barnett v. Apfel,
231 F.3d 687, 690 (10th Cir. 2000); Wilson, 602 F.3d at 1146. Thus, the ALJ
adequately tied her credibility finding to substantial evidence in the record. Given
the deference we accord credibility determinations that are supported by substantial
evidence, see Adams ex rel. D.J.W. v. Astrue, 659 F.3d 1297, 1302 (10th Cir. 2011),
we must conclude the ALJ’s credibility determination was not improper.
-5-
3. Combined Effects of Impairments
Ms. Welch additionally contends the ALJ failed to consider the combined
effects of all her non-severe impairments with her severe impairments. She
specifically points to such non-severe impairments as gastrointestinal problems,
chronic pain, a hernia, chest pain, post-traumatic stress disorder (“PTSD”), and
suicidal tendencies. However, Ms. Welch does not identify how any of these
impairments affected her functioning during the time she claims she was disabled,
either individually or in combination with each other. See 20 C.F.R. § 404.1512(c).
Further, there was no other medical evidence that these complications restricted her
ability to work. Thus, even if the ALJ did err, such error is harmless because
Ms. Welch fails to identify—and we do not discern—any resulting prejudice.
4. Mental Impairments
Ms. Welch argues the ALJ should have ordered a consultative psychological
evaluation because her suicide attempt in 2010 should have indicated to the
Commissioner a “reasonable possibility of the existence of a disability.”
See Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir. 1997) (holding that an ALJ
should order a consultative evaluation when a reasonable possibility of the existence
of a disability exists and the evaluation would materially assist resolving the issue of
disability). An ALJ is obligated to order a consultative evaluation only when the
medical sources on record are insufficient to allow the ALJ to make a disability
determination. 20 C.F.R. § 404.1517. Here, the ALJ noted Ms. Welch possessed a
-6-
record that “was fully developed with records from treating sources,” thus allowing
the ALJ to make a disability determination without the use of an evaluation.
Aplt. App. Vol. I at 18. The record included numerous psychological diagnoses and
treatments, including for depression and anxiety, which were both accounted for in
the ALJ’s RFC. Further, the ALJ also reasoned that an evaluation conducted over
two years after the date last insured would “shed little light” on Ms. Welch’s status
during the relevant time period. Aplt. App. Vol. I at 17. It is evident that the ALJ
possessed record evidence sufficient to make a disability determination and would
not have been materially assisted by a consultative evaluation.
Ms. Welch also contends that the Commissioner erred by failing to assess her
PTSD. She claims that, although her PTSD was not diagnosed until two years after
her date last insured, the origins of her PTSD go back to sexual assaults that
occurred in 2007 and her accident in 2005. She asserts that the Commissioner
improperly rejected the opinion of Dr. Robbins, who diagnosed her with PTSD in
2010. Dr. Robbins’s August 2010 PTSD diagnosis was not before the ALJ but was
submitted to the Appeals Council, which denied review. The Commissioner,
meanwhile, argues that Ms. Welch’s argument is unavailing because Dr. Robbins’s
opinion does not change the weight of the evidence both because it is unreliable or
inaccurate and because there is no evidence Ms. Welch had PTSD before the date
she was last insured. We agree.
-7-
There is nothing in the record gathered before the date Ms. Welch was last
insured that suggests Ms. Welch suffered from PTSD. While she undoubtedly
suffered from psychological problems such as depression and anxiety, none of the
doctors who evaluated her mental health mentioned anything about PTSD before
2010. It is true Dr. Robbins stated that the “likely beginning effective date” for
Ms. Welch’s limitations, including those induced by PTSD, was August 2006.
Id. at 528. But in the same report, Dr. Robbins wrote that the traumatic event which
caused Ms. Welch’s PTSD did not occur until July 2007, exhibiting an inconsistency
in her opinion. Moreover, Dr. Robbins’s report was not created until two years after
the relevant time period ended (and after the ALJ issued her decision). We may
conclude the Appeals Council erred in denying review based on the new evidence
only if the new evidence provides a basis for changing the ALJ’s decision.
See O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994). Here, given the lack of
more chronologically relevant evidence of PTSD and the fact that the RFC
accounted for Ms. Welch’s mental limitations, we cannot say that the evaluation
required a change in the outcome. The Commissioner was therefore reasonable in
deciding to affirm the ALJ’s findings despite the results of Dr. Robbins’s
psychological evaluation.
B. Step Five
-8-
At step five of the sequential process, an ALJ is required to consider whether,
given a claimant’s background and RFC, the claimant can perform other work that
exists in significant numbers in the national economy. See 20 C.F.R. § 404.1520(g).
Ms. Welch argues that the ALJ was not justified in relying on the vocational expert’s
answers to the ALJ’s hypothetical because the hypothetical did not accurately capture
all of Ms. Welch’s impairments. But we have already affirmed the ALJ’s findings
regarding the nature and extent of Ms. Welch’s impairments in rejecting her
challenges to the ALJ’s RFC determination. And the ALJ’s hypothetical question
included an accurate recitation of Ms. Welch’s limitations. “Because these findings
are adequately reflected in the ALJ’s hypothetical inquiries to the vocational expert,
the expert’s testimony provided a proper basis for adverse determination of this
case.” See Gay v. Sullivan, 986 F.2d 1336, 1340-41 (10th Cir. 1993) (citation
omitted).
The judgment of the district court is affirmed.
Entered for the Court
Gregory A. Phillips
Circuit Judge
-9-
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accusations founded on facts supported only by impalpable or highly
suspect evidence." Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161
(1976). Regardless of its severity, a sentence within the statutory limits is
not "cruel and unusual punishment unless the statute fixing punishment
is unconstitutional or the sentence is so unreasonably disproportionate to
the offense as to shock the conscience." Blume v. State, 112 Nev. 472, 475,
915 P.2d 282, 284 (1996) (quoting CuIverson v. State, 95 Nev. 433, 435, 596
P.2d 220, 221-22 (1979)); see also Harmelin v. Michigan, 501 U.S. 957,
1000-01 (1991) (plurality opinion). Moreover, "sentencing is an
individualized process; therefore, no rule of law requires a court to
sentence codefendants to identical terms." Nobles v. Warden, 106 Nev. 67,
68, 787 P.2d 390, 391 (1990).
Here, the district court was presented with evidence that
Krieger goaded the victim into a confrontation, knocked him unconscious,
and beat his unconscious body, causing his death. Krieger's consecutive
prison terms of 48-120 months and 72-180 months and fine of $10,000 fall
within the parameters imposed by the relevant statutes, see NRS 200.080;
NRS 200.340(2), and Krieger fails to demonstrate that these statutes are
unconstitutional or that the district court relied solely upon impalpable or
highly suspect evidence when imposing sentence. We conclude that the
district court did not abuse its discretion.
Second, Krieger contends that the State erroneously cross-
examined his mother at sentencing regarding her knowledge of offenses he
committed as a juvenile without following the proper procedure to unseal
his juvenile records, and that the district court erroneously considered his
juvenile offenses when imposing sentence. We disagree with these
contentions. Krieger does not demonstrate that the information regarding
SUPREME COURT
OF
NEVADA
2
(0) 1947A
his juvenile offenses was obtained from sealed records. See generally Zana
v. State, 125 Nev. 541, 546, 216 P.3d 244, 247 (2009) (the act of sealing a
juvenile's records only erases the official record of his involvement with
the criminal justice system, "not his actual conduct and certainly not his
conduct's effect on others"). Moreover, Krieger did not object to the
inclusion of the juvenile offenses in the presentence investigation report,
the district court's consideration of the offenses, or the cross-examination
of his mother, and we conclude that he fails to demonstrate plain error
affecting his substantial rights. See Mendoza-Lobos v. State, 125 Nev.
634, 644, 218 P.3d 501, 507 (2009) (reviewing unobjected to errors at
sentencing for plain error).
Third, Krieger contends that (1) the district court's order that
he pay $5,000 in attorney's fees violates his right to equal protection, (2)
NRS 178.3975 is unconstitutionally vague, and (3) the $5,000 attorney fee
demand was excessive and constituted an impermissible fine because the
district court failed to consider the burden that paying the fees would
place on him and his family. We disagree with these contentions.
Krieger's equal protection challenge fails because MRS 178.3975 does not
burden a suspect class and is reasonably related to a legitimate
government interest. See Rico v. Rodriguez, 121 Nev. 695, 703, 120 P.3d
812, 817 (2005). Moreover, the statute is not penal, see State v. Webster,
102 Nev. 450, 454, 726 P.2d 831, 833-34 (1986), and therefore does not
implicate the void-for-vagueness doctrine, see Glauner v. Miller, 184 F.3d
1053, 1055 (9th Cir. 1999). Finally, Krieger did not object to the
imposition of attorney's fees and he fails to demonstrate that the district
court did not consider all relevant factors when imposing them. See NRS
178.3975(2).
SUPREME COURT
OF
NEVADA
(0) 1947A
3
Having considered Krieger's contentions and concluded that
they lack merit, we
ORDER the judgment of conviction AFFIRMED.
P C*4.ALCLir,
Parraguirre
Saitta
PICKERING, J., concurring in part and dissenting in part:
I agree that Krieger's claims lack merit and concur with the
denial of these claims. I write separately to address respondent's counsel's
failure to file a fast track response.
When a party fails to file a brief on appeal, this court can
impose any number of meaningful sanctions. See NRAP 3C(n); NRAP
31(d). By rule, this court may dismiss an appeal where the appellant fails
to file an opening brief, NRAP 31(d), but when the appellant has a
constitutional right to effective assistance of appellate counsel, the court
typically imposes sanctions other than dismissal of the appeal. See, e.g.,
Burke v. State, 110 Nev. 1366, 887 P.2d 267 (1994) (imposing monetary
and other sanctions against appellant's counsel, rather than dismissing
the appeal, for counsel's failure to brief the appeal). In contrast, the
respondent's failure to file a brief can be treated as a confession of error.
NRAP 31(d); Polk v. State, 126 Nev. „ 233 P.3d 357, 359-60 (2010).
This court, however, will not impose this sanction if the claims raised by
SUPREME COURT
OF
NEVADA
4
(0) 1947A Ger.
appellant clearly lack merit. See Hewitt v. State, 113 Nev. 387, 392, 936
P.2d 330, 333 (1997), overruled on other grounds by Martinez v. State, 115
Nev. 9, 11-12 & n.4, 974 P.2d 133, 134-35 & n.4 (1999). Because Krieger's
claims clearly lack merit, I agree that treating respondent's failure to file a
fast track statement as a confession of error is not appropriate.
Nevertheless, respondent's counsel's complete failure to file a fast track
response was a material violation of our procedural rules, see NRAP
3C(f)(1)(A) ("Within 20 days from the date a fast track statement is served,
the respondent shall serve and file a fast track response." (emphasis
added)), and for that reason I would impose a monetary sanction against
respondent's counsel, see NRAP 3C(n) (identifying the failure to file a fast
track response as a sanctionable action).
J.
Pickering
cc: Hon. Michael Montero, District Judge
Karla K. Butko
Attorney General/Carson City
Humboldt County District Attorney
Humboldt County Clerk
SUPREME COURT
OF
NEVADA
5
(0) 1947A
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42 Wn. App. 138 (1985)
709 P.2d 817
THE STATE OF WASHINGTON, Respondent,
v.
DOUGLAS S., Appellant.
No. 6761-1-III.
The Court of Appeals of Washington, Division Three.
November 12, 1985.
*139 Sharon Carberry, for appellant (appointed counsel for appeal).
Jeffrey C. Sullivan, Prosecuting Attorney, and Steven R. Keller, Deputy, for respondent.
McINTURFF, A.C.J.
Douglas S. appeals his juvenile conviction for possession of marijuana in an amount less than 40 grams. Specifically, he challenges the Superior Court's ruling which upheld the search of his person and the seizure of a pipe with marijuana residue and a film canister with a marijuana bud inside it. We hold the search was invalid and reverse Douglas' conviction.
On July 2, 1984, four detectives from the Yakima City and County narcotics unit executed a search warrant for marijuana at 318 Lewis, Yakima, Washington. The warrant described the residence and also authorized the search of the person of "John Doe, who is known to be in the vicinity of the described premises." Upon entering the house, the officers noted the odor of marijuana. They discovered a sizable "grow operation" in the locked basement, marijuana buds on a tray between two windows in the master bedroom, and a small tray with marijuana residue and some smoking utensils in one of the remaining two bedrooms. Douglas' father was present during the search and told the police the marijuana was his and nobody else had any involvement. Also present was Douglas' mother and his 6-year-old brother.
About 10 to 15 minutes into the search, after all the marijuana had been located, Douglas arrived home. The father identified him as his son and a resident of the house. One of the detectives conducted a pat-down search of *140 Douglas for weapons. He felt something hard in the shirt pocket, and removed a pipe. The officer stated it was "immediately apparent" to him that the pipe contained marijuana. His impression was based on his experience working in the field of narcotics. He also removed a film canister from Douglas' sock. Since he knew these canisters are often used for carrying controlled substances, he opened it and found a marijuana bud.
The court orally ruled "the officers acted reasonably in searching ... [Douglas] because of their desire to protect themselves and the other persons on the premises." The court also stated part of its reasoning was that Douglas was "not a stranger to the premises."
[T]here was a search that had revealed controlled substances and the officers had not yet linked up . .. which bedroom belonged to which individuals.... [E]ven though the father had stated his ownership of the contraband it's inconsistent with finding more than one location in the house....
[1] First, the warrant's authorization to search "John Doe, who is known to be in the vicinity of the described premises ...", did not provide authority to search Douglas. This court recently held such a warrant, without any other description of the person to be searched, insufficient and fatally defective. State v. Rollie M., 41 Wn. App. 55, 59-60, 701 P.2d 1123 (1985). The court stated:
Where the warrant does not specifically name the person to be searched, then some other means reasonable under the circumstances must be used to assist in identifying the person either his occupation, personal appearance, peculiarities, or place of residence.
(Citations omitted.) Rollie M., at 59. As in Rollie M., the warrant here gave no particularities, not even that the "John Doe" resided at the premises described in the warrant.
[2] Second, the search of Douglas was not justified as a frisk. Even if a person is present at a location the police are authorized to search by a valid warrant, that person may be *141 patted down for weapons only if the police have reasonable grounds to believe he is armed and dangerous. State v. Broadnax, 98 Wn.2d 289, 294-95, 654 P.2d 96 (1982) (citing Ybarra v. Illinois, 444 U.S. 85, 62 L.Ed.2d 238, 100 S.Ct. 338 (1979)). Here, the police officers did not testify to any facts which could give rise to such a belief in connection with Douglas.
[3] The question then is whether the discovery of marijuana in the residence justifies the search of a minor who lives in the residence with his parents. As to individuals who are present but are not in dominion and control of the premises searched, the State must show additional factors connecting them to the drugs found on the premises to establish probable cause for their arrest. Broadnax, at 302. As to persons in dominion and control over the dwelling where the drug is found, the law of constructive possession establishes probable cause for their arrest and search. See State v. Hystad, 36 Wn. App. 42, 49, 671 P.2d 793 (1983) (citing State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969)). Thus, in State v. Huff, 33 Wn. App. 304, 654 P.2d 1211 (1982), this court held that the contraband found in Mr. Huff's residence provided probable cause for the search of Mr. Huff's person incident to his lawful arrest. See also Michigan v. Summers, 452 U.S. 692, 69 L.Ed.2d 340, 101 S.Ct. 2587 (1981).
Huff is distinguishable from the instant case. Mr. Huff was an adult resident, and the police found his papers in the same bedroom in which they discovered marijuana. Here, Douglas is a minor. His father told police he owned the marijuana, a claim which was partially corroborated by the fact the marijuana was found in the master bedroom and in a locked basement, to which he produced a key. The record does not disclose who slept in the second bedroom which contained marijuana, but Douglas was not the only other resident of the house, nor was the second bedroom the only bedroom, other than the master bedroom, available for sleeping. The third bedroom may have been his. The fact the police noted the odor of marijuana in the *142 house is not sufficient to show Douglas had dominion and control over the contraband, especially in these circumstances where he was not present in the dwelling at the time of the officers' initial entry.
Some evidence of dominion and control is necessary to establish constructive possession. Where a minor lives in his parents' home, dominion and control is not established by mere residence. Evidence tending to prove Douglas had dominion and control of the premises is lacking. Accordingly, we hold the police did not have probable cause to search Douglas and the evidence found on his person should not have been admitted.
The judgment of the Superior Court is reversed.
MUNSON and THOMPSON, JJ., concur.
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503 So.2d 396 (1987)
FLORIDA BEVERAGE CORPORATION, Appellant,
v.
DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, DEPARTMENT OF BUSINESS REGULATION, State of Florida, and Barton, Brands, Ltd., Appellees.
No. BM-368.
District Court of Appeal of Florida, First District.
February 23, 1987.
Rehearing Denied March 24, 1987.
*397 David M. Maloney of Maloney, Comfort & Goldberg, Tallahassee, for appellant.
Louisa A. Hargrett, Tallahassee, for appellee Dept. of Business Regulation, Division of Alcoholic Beverages and Tobacco, State of Fla.
Jeffrey M. Weissman, Gary R. Rutledge, Brian S. Dervishi of Sparber, Shevin, Shapo, Heilbronner & Book, Miami, for appellee Barton Brands, Ltd.
NIMMONS, Judge.
Appellant challenges an order of the circuit court dismissing appellant's complaint alleging a breach of contract by appellee, Barton Brands, Ltd. We reverse.
In its initial complaint, appellant alleged that a contract was entered into between Barton and appellant for the distribution to the latter of a certain brand of wine. At the time the contract was entered into, Florida law contained Section 564.045, Florida Statutes (1979), known as the Brand Withdrawal Law. That law prohibited a manufacturer, or primary American source of supply (such as Barton), from withdrawing or discontinuing sales of a brand of wine from a Florida distributor without a showing of good cause. Under the procedure provided for in the statute, the Division of Alcoholic Beverages was responsible for determining whether the requisite good cause existed. The statute was repealed effective May 31, 1985, by Chapter 85-58, Laws of Florida.
Appellant's complaint alleged that on August 15, 1985, Barton unilaterally terminated its contract with appellant and withdrew the above referred brand of wine from appellant. The complaint requested declaratory relief, damages for breach of contract, injunctive relief, and specific performance, all predicated upon Barton's failure to show good cause for such withdrawal. The trial court entered an order holding the action in abeyance until appellant exhausted its purported administrative remedies with the Division.
Thereafter, Appellant filed a petition for declaratory statement with the Division seeking a determination that Barton wrongfully withdrew the brand without a showing of good cause. The Division entered an order determining that, in view of the repeal of Section 564.045, it no longer had jurisdiction to entertain brand withdrawal disputes.
Subsequent thereto, appellant filed an amended complaint in circuit court similar to its initial complaint but, in addition, *398 alleging the Division's dismissal of its petition for declaratory statement. The circuit court dismissed the amended complaint with prejudice. The basis for dismissal, as expressly stated in the court's order of dismissal, was the fact that the Brand Withdrawal Law was repealed prior to Barton's withdrawal of the subject brand. Stated the court:
The Court is of the opinion that the entire Brand Withdrawal Statute was, effective May 31, 1985, no longer applicable to contracts entered into between the time the Brand Withdrawal Statute became effective and the date of its repeal if, as here, the termination was effectuated after May 31, 1985.
The order went on to distinguish our earlier opinion in Standard Distributing Company v. Florida Department of Business Regulation, 473 So.2d 216 (Fla. 1st DCA 1985) (hereinafter discussed) on the basis that Standard involved a withdrawal by the manufacturer prior to May 31, 1985, the date of the repeal of the Brand Withdrawal Law.
The laws in force at the time of the making of a contract enter into and form a part of the contract as if they were expressly incorporated into it. Shavers v. Duval County, 73 So.2d 684 (Fla. 1954); Tri-Properties, Inc. v. Moonspinner Condominium Association, Inc., 447 So.2d 965, 967 n. 2 (Fla. 1st DCA 1984) (statutory provision governing contract cancellation rights); Cycle Dealers Insurance, Inc. v. Bankers Insurance Company, 394 So.2d 1123 (Fla. 5th DCA 1981) (statutory provision governing contract cancellation rights); 11 Fla.Jur.2d Contracts § 129, 17 Am.Jur.2d Contracts § 257.
In Somerset Importers, Ltd. v. Department of Business Regulation, 428 So.2d 679 (Fla. 1st DCA 1983), this Court, consistent with the above authorities, held that Section 565.095(5) (Chapter 565's liquor counterpart to the similar wine provision in the subject statute) became, by virtue of the above-stated principle of law, a part of the brand distribution contract which had been entered into between the manufacturer's predecessor and its distributor.[1]
Subsequently, in Standard Distributing Company v. Florida Department of Business Regulation, supra, this Court held that the burden was on the manufacturer to show good cause for withdrawal of a brand instead of the burden being on the distributor to show lack of good cause for withdrawal and that the manufacturer's status as a successor to the manufacturer with whom the distributor had contracted did not establish the requisite good cause. The subject Brand Withdrawal Law and its counterpart in Chapter 565 (Section 565.095(5)) were repealed effective May 31, 1985, two weeks after our opinion in Standard. In denying rehearing, we held that the statutory rights and obligations which had become a part of the contract between the parties were not affected by the Statute's repeal. Standard at 219.
Barton asserts that Standard does not govern the instant case because in Standard the brand was withdrawn prior to the repeal of the statute while in the instant case the brand was not withdrawn until after the statute's repeal. We cannot agree that this distinction drawn by Barton and the trial court is tenable.
At the time the parties entered into their brand distribution agreement, when the subject Statute was in force, they are presumed, consistent with the authorities mentioned above, to have agreed that the brands could not be withdrawn during the term of the agreement absent good cause therefor.[2] Assuming, as we must, *399 that such was legally regarded as a part of their agreement, to adopt Barton's assertion regarding the effect of the statute's repeal would constitute a prohibited impairment of the obligations of the contract.
Section 564.045(5) provided for a detailed administrative apparatus for the determination of whether good cause was shown. We agree with appellee Division that, with the repeal of the statute, this administrative mechanism for the resolution of the parties' rights is no longer available. It is assumed that parties enter into contracts with knowledge that the government may from time to time alter the methods available for the vindication of existing rights. Mahood v. Bessemer Properties, 154 Fla. 710, 18 So.2d 775 (1944); Ruhl v. Perry, 390 So.2d 353 (Fla. 1980). In a case such as this, the courts are available, as in other types of contract disputes, to adjudicate the rights and obligations of the parties including, where appropriate, reliance upon declaratory, injunctive and/or other remedial action.[3]
Barton asserts that the procedural aspects of the Brand Withdrawal Law are so intertwined with the substantive rights of the parties as to be inseparable. We find, however, that the single substantive right contained in that Law, the right to have a brand continued unless good cause exists for discontinuing it, is separable from the remainder of the statute, which merely defines the former remedies available to the parties.
Accordingly, the order dismissing with prejudice the amended complaint is REVERSED and this cause is REMANDED for further proceedings consistent with this opinion.
WENTWORTH and WIGGINTON, JJ., concur.
NOTES
[1] Our holding in Somerset is consistent with the standard articulated in General Development Corporation v. Catlin, 139 So.2d 901 (Fla. 3rd DCA 1962), to wit:
[T]he laws with reference to which the parties must be assumed to have contracted were those which in their direct or necessary legal operation controlled or affected the obligations of the contract. (emphasis in original).
Id. at 903.
[2] We note that this is not a case where the contract contained language purporting to incorporate future amendments or changes in the law. Compare McKesson Corporation v. Schieffelin & Co., 390 So.2d 353 (Fla. 3rd DCA 1986).
[3] It is worthy of note that in the same legislative session in which the Brand Withdrawal Law was repealed, the legislature amended Section 562.46 by adding the following language:
... further, an action involving a contractual dispute between a licensed distributor and its registered primary American source of supply, as defined in s. 564.045 or s. 565.095, may be filed in the courts of this state.
Chapter 85-161, section 7, Laws of Florida.
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658 F.Supp. 655 (1987)
Roy K. BINGHAM and Pamela Y. Bingham, Plaintiffs,
v.
CITY OF PITTSBURGH, Raymond Cousins, Samuel McElrath, James W. Owens, Michael J. Kondas, Charles P. Bates, and Lana Price, Defendants.
Civ. A. No. 84-3110.
United States District Court, W.D. Pennsylvania.
April 16, 1987.
*656 Glenn S. Sinko, Lawrence G. Zurawsky, Pittsburgh, Pa., for plaintiffs.
John George Shorall, II, D.R. Pellegrini, Dept. of Law, Bryan Campbell, Pittsburgh, Pa., for defendants.
MEMORANDUM OPINION
MENCER, District Judge.
I. INTRODUCTION
On December 31, 1984 plaintiffs, Roy K. Bingham and Pamela Y. Bingham,[1] filed a lawsuit against individual police officers employed by the City of Pittsburgh ("City")[2] and against the City itself. Plaintiffs allege that the individual defendants violated Mr. Bingham's civil rights by arresting him without probable cause and by using unlawful, unjustified and excessive force in carrying out the arrest. The City is implicated by reason of its allegedly unconstitutional policies which caused or permitted to be caused the unlawful acts perpetrated on plaintiff.
Pending before the Court is a summary judgment motion filed on behalf of the City. The City contends that it has no official policy which condones any of the following: the use of improper police practices; the inadequate training, supervision or discipline of its officers or the use of excessive force. In the absence of such a policy or policies there cannot, as a matter of law, be any § 1983 municipal liability. Therefore, according to the City, judgment should be entered in its favor.
In response to the motion for summary judgment, the plaintiff asserts that: (1) the motion is unsupported by record evidence; (2) the motion should not be granted while there are still outstanding interrogatories and requests for production, and (3) there is a genuine issue of material fact as to the existence of an official policy. For these reasons, the plaintiff urges the Court to deny the motion.
The Court finds that the defendant has complied with the requirements of Fed.R. Civ.P. 56, see also Celotex Corp. v. Catrett, ___ U.S. ___, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and that the plaintiff's contention that the motion should be denied because discovery requests are still outstanding is untimely.[3] Therefore, concluding that there are no genuine issues of material fact, regarding the Defendant City of Pittsburgh, the Court will grant the defendant's motion for summary judgment.
II. FACTUAL BACKGROUND
In the late evening hours of January 1, 1983, while the plaintiff, Roy Bingham, was managing "Leonard's Store," in Homewood, a number of males entered the premises and began making threatening remarks. *657 With the thought of protecting the patrons, the property and himself, plaintiff demanded that the men leave the store. When they would not do so voluntarily, plaintiff retrieved and displayed a revolver that had been hidden under the counter. Predictably, the males dispersed.
Shortly thereafter, acting on a report that gunshots had been fired from inside "Leonards," Officers Cousins and McElrath entered the premises and approached plaintiff. Officer Cousins demanded that Mr. Bingham surrender his gun; plaintiff immediately complied with that demand. Next, Officer Cousins frisked and handcuffed Mr. Bingham. After the initial search was complete, without instigation or provocation, Officer Cousins began "roughing up" the plaintiff. This "roughing up", at least part of which was witnessed by five other police officers, continued to the point where plaintiff required emergency medical treatment.[4]
After he was treated at the West Penn Hospital emergency room, plaintiff was brought to the police station where criminal charges were filed against him. The charges included reckless endangerment and violation of the Uniform Firearms Act. All the charges were subsequently withdrawn or dismissed.
III. SUMMARY JUDGMENT STANDARD
In reviewing a motion for summary judgment, the Court is governed by the standard set forth in Fed.R.Civ.P. 56(c). In pertinent part the Rule provides that "[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."
The application of this standard requires that "[i]nferences to be drawn from the underlying facts contained in the evidential sources submitted to the trial court must be viewed in the light most favorable to the party opposing the motion." Baker v. Lukens Steel Co., 793 F.2d 509, 511 (3d Cir.1986) citing Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). Therefore, this Court must resolve all doubt, as to the existence of a genuine issue of material fact, in favor of the plaintiff.
Plaintiff contends that the motion for summary judgment must be denied because the City failed to properly support its motion. As explained by the Supreme Court in Celotex Corp. v. Catrett, ___ U.S. ___, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), however: "[i]n cases like the instant one, where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.'" Celotex Corp., 106 S.Ct. at 2553.
In the present case, the City based its motion for summary judgment on its answers to the complaint, wherein it specifically denied the existence of a constitutionally inadequate policy and/or custom. Therefore, as the nonmoving party, plaintiff must now, through affidavits or otherwise, establish the existence of a genuine issue of material fact. Id. Plaintiff may not rest or rely solely on the pleadings. See Fed.R.Civ.P. 56(e).
IV. LEGAL DISCUSSION
A. The Monell Standard
The pivotal case in the area of municipal liability under § 1983 is Monell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 *658 L.Ed.2d 611 (1978). Reversing its earlier decision in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the Supreme Court in Monell held that a municipal corporation is a person for purposes of § 1983. A municipality may, therefore, be liable for damages that arise out of a violation of constitutional rights. As determined by the Court in Monell, however, municipal liability is not without limits.
In addressing the exposure of municipal corporations to § 1983 liability, the Monell Court expressly excluded liability based on principles of respondent superior. Monell, 436 U.S. at 691, 98 S.Ct. at 2036. Rather, the Court held, "it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. at 694, 98 S.Ct. at 2037. Thus, under § 1983, a municipal corporation is not liable for the acts of its employees unless there is an official policy which caused the plaintiff's injury.
The official policy requirement has been identified as the causation element in § 1983 actions. In his concurring opinion in City of Oklahoma v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), Justice Brennan analyzed this element.
In a § 1983 case involving a municipal defendant, the causation element to be proved by the plaintiff may be seen as divided into two parts. First, the plaintiff must predicate his recovery on some particular action taken by the city, as opposed to an action taken unilaterally by a nonpolicymaking municipal employee.... [T]he plaintiff would carry his burden by proving the existence of a particular official municipal policy or established custom.... Second, the plaintiff must prove that this policy or custom "subjected" or "caused him to be subjected" to a deprivation of a constitutional right. Id. at 829-30, 105 S.Ct. at 2439.
Therefore, before municipal liability will attach, a plaintiff must demonstrate both the existence of a policy and a causal link between the policy and the alleged injuries. See Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir.1984).
The plaintiff, in the instant case, alleges three separate policies pursuant to which municipal liability should attach. These policies are: (1) failure to terminate improper police practices; (2) failure to adequately train, supervise, and discipline City police officers and (3) failure to investigate and correct behavior of police officers who have demonstrated a propensity to use excessive force. The Court will examine each alleged policy individually.
B. Improper Police Practices
The plaintiff asserts that the City is liable under § 1983 for failing to terminate "improper police practices." Reading the complaint in the light most favorable to the nonmoving party, the allegedly improper practices include arresting persons without probable cause and using excessive force in carrying out arrests. In regard to these police practices, plaintiff offers no proof of prior police acts.
In both Monell and Pembaur v. Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), the Supreme Court found that a municipality was liable under § 1983 for a single incident that resulted in the deprivation of a constitutional right. Those cases involved circumstances where the official policy was itself unconstitutional. As announced by the Supreme Court in Tuttle, however, "where the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality and the causal connection between the `policy' and the constitutional deprivation." Tuttle, 471 U.S. at 824, 105 S.Ct. at 2436, 85 L.Ed.2d at 804.
Since the policy in the instant case is "far more nebulous, and a good deal further removed from the constitutional violation" in Monell, more than a single episode of police misconduct is required to trigger an inference of a policy. Tuttle, 471 U.S. at 822, 105 S.Ct. at 2436. See also Wellington v. Daniels, 717 F.2d 932 (4th Cir.1983); Languirand v. Hayden, 717 F.2d 220 (5th *659 Cir.1983), cert. denied 467 U.S. 1215, 104 S.Ct. 2656, 81 L.Ed.2d 363 (1984).[5] Despite the allegations in the complaint, plaintiff has failed to produce any evidence of prior improper police conduct. Short of the production of such evidence, it cannot be inferred that there was a policy which either encouraged or condoned improper acts carried out by police officers. Plaintiff has fallen short in his production of evidence; the City's motion for summary judgment, as it pertains to improper police practices, shall be granted.
C. Failure to Train, Supervise or Discipline
The plaintiff contends that the City had a de facto policy of improperly training, supervising and disciplining its police officers.[6] In support of this allegation plaintiff referred the Court to the City's Internal Investigation Procedures. Appendix B, paragraph 7 of the Procedures provides "[w]hen a police officer is accused of misconduct on either a departmental charge or on a citizen complaint and the charge or complaint is unfounded, then all records of the investigation are to be destroyed one year after the investigation is completed." According to the plaintiff, the City's policy of destroying records of complaints, creates an atmosphere of tacit approval of police misconduct.
Although the plaintiff has arguably identified an official policy, he has failed to establish a causal link between the policy and the injuries he sustained. The existence of a policy is clearly not sufficient. As articulated by the court in Mariani v. City of Pittsburgh, 624 F.Supp. 506, 509 (W.D.Pa.1986) "to sustain his burden, plaintiff must develop facts which demonstrate an `affirmative link" between the misconduct of the individual officer and some policy, express or implied, which has been adopted or authorized by the City.... [In other words] [t]he official policy must be the `moving force' behind the constitutional violation." (citations omitted). See also Kranson v. Valley Crest Nursing Home, 755 F.2d 46 (3d Cir.1985).
The facts in the pending case do not support a conclusion that the City's policy was the moving force behind the constitutional violation inflicted by the police officers. The City's policy of destroying records of unfounded complaints, cannot support even an inference of municipal approval of unconstitutional acts. Plaintiff has offered no proof of a nexus between the City's policy and the police misconduct complained of. See King v. Ware, 522 F.Supp. 1206, 1209 (W.D.Pa.1981). Without the essential link between the policy and the unconstitutional act there can be no municipal liability.
As an additional basis for municipal liability the plaintiff contends that the City failed to comply with paragraph 7 of the Internal Investigation Procedures. Pursuant to a discovery request, plaintiff learned that Officer Cousins' file contained no record of his 1982 and 1984 criminal convictions. Clearly, these claims were not "unfounded" and evidence of them should have been contained in Officer Cousins' file, argues the plaintiff.
The problem with plaintiff's position, in regard to the inaccurate record of Officer Cousins' file, is two-fold. First, a careful reading of the City's Procedure reveals that while the City may have had an affirmative *660 duty to destroy records of unfounded claims, it is not clear that it had an affirmative duty to maintain records of legitimate claims. Absent proof of an affirmative duty to maintain records there is no evidence of an official policy or the breach of such a policy.[7] Therefore, plaintiff's initial burden is to prove that the City had a policy of disregarding or failing to consider the criminal misconduct of its officers.
The necessity of establishing this policy creates an additional hurdle for plaintiff. The evidence demonstrates that Officer Cousins had been arrested on a number of occasions. The evidence also indicates that Officer Cousins engaged in violent behavior on those occasions. However, two of the three violent episodes that Officer Cousins was involved in occurred after January 1, 1983 and thus have no causal connection or link to the existence of an official policy in 1983. Clearly, events that transpired subsequent to January 1, 1983 could not have caused or been the moving force in causing the injuries that plaintiff sustained at that time. Therefore, Cousins' 1984 conviction and his 1985 arrest are irrelevent to a showing of an official policy in 1983.
Thus the Court must determine whether the failure of the City to maintain a record of Officer Cousins' 1982 conviction is sufficient to establish the existence of a policy. The Court holds that it is not. As the Court in Tuttle held, "where the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case." Tuttle, 471 U.S. at 824, 105 S.Ct. at 2436. The evidence available in the present case does not constitute "considerably more proof than the single incident." Therefore, the standard set forth in Tuttle has not been satisfied and the City's motion must be granted.
D. Condoning the Use of Excessive Force
Finally, plaintiff alleges that the City's failure to investigate and/or remedy the improper use of excessive force, employed by some of its police officers, constituted a de facto policy. Plaintiff also asserts that the policy is causally connected to the injuries he sustained at the hands of the City's employees. Therefore, according to the plaintiff, the City should be liable for the damages he incurred.
The plaintiff's claim, that the City sanctioned the use of excessive force, is not novel. For the most part, however, courts have been reluctant to find that use of excessive force is an official policy. See, e.g., Voutour v. Vitale, 761 F.2d 812, 820 (1st Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 879, 88 L.Ed.2d 916 (1986); Vippolis v. Village of Haverstraw, 768 F.2d 40 (2d Cir.1985), cert. denied, ___ U.S. ___, 107 S.Ct. 1369, 94 L.Ed.2d 685 (1987); Gilmere v. City of Atlanta, Georgia, 774 F.2d 1495, 1503 n. 7 (11th Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986). In only the most exceptional case will the facts support a municipality's affirmative encouragement of the use of excessive force. Rather the more common ground for such a claim is a municipality's acquiescence in the use of excessive force.
Again, absent a concrete official policy, like the policy in Monell, an inference of the existence of a policy can only be drawn from a well-established pattern. See Brandon v. Holt, 469 U.S. 464, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985); Herrera v. Valentine, 653 F.2d 1220 (8th Cir.1981). An isolated episode of a police officer using excessive force will not be sufficient to prove a pattern. Supreme Court precedent, and the case law that has applied that precedent, demonstrate that more is required. See, e.g., Tuttle, 471 U.S. 808, 105 S.Ct. 2428; Strauss v. City of Chicago, 760 F.2d 765 (7th Cir.1985).
*661 Plaintiff bases his allegation of a policy of acquiescence on four incidents that involve Officer Cousins. The first incident involving a "domestic dispute," occurred in December 1982, and resulted in a criminal conviction. The second incident is the one that led to the filing of this lawsuit. The remaining two events involve a conviction in 1984 for harassment, see Plaintiff's Exhibit F-1, and an arrest in 1985 for terroristic threats and simple assault, see Plaintiff's Exhibit E-1. Plaintiff suggests that the above events constitute "a long history of repeated brutality and unjustifiable use of excessive force."
As the Court held in its discussion regarding improper training, the events that occurred in 1984 and 1985 are irrelevant to a consideration of what the City's policy was in 1983. Therefore, in determining whether the City had a policy of acquiescing in the practice of excessive use of force, the Court may only consider Officer Cousins' 1982 conviction and the January 1, 1983 event. Again, without more evidence, the Court cannot conclude that the City engaged in a policy of acquiescing in its employees use of excessive force.
V. CONCLUSION
As set forth in the complaint and further detailed in Mr. Bingham's deposition testimony, the events that transpired, during the late evening hours of January 1, 1983, and continued on into the early morning hours of the following day, were calamitous. The alleged unconstitutional acts inflicted on Roy Bingham, by City of Pittsburgh police officers, are inexcusable. Although the Court is not unmoved by these tragic events, the law precludes recovery against a municipality absent a showing of an official policy.
In Monell, the Supreme Court expressly limited municipal liability to cases where an official policy is the moving force behind constitutional violations. As commanded by the Supreme Court, a municipality cannot be held liable for the acts of its employees absent a showing of a policy and a causal connection between that policy and the injuries suffered.
Therefore, the plaintiff in the instant case must demonstrate that there is a genuine issue of material fact regarding both an official policy and the causal connection between that policy and his injuries. The plaintiff has failed to satisfy this burden. The Court concludes that there is insufficient evidence to create an inference that the City had a policy of condoning either improper police practices, or the use of excessive force. Similarly, the Court concludes that the plaintiff has failed to establish that the City had a policy of disregarding "well-founded" complaints lodged against police officers. Finally, the Court finds that there is no causal connection between the City's "policy" of destroying unfounded complaints and the injuries sustained by the plaintiff.
Concluding that there are no genuine issues of material fact, this Court will grant the City's motion for summary judgment.
An appropriate order shall be issued.
NOTES
[1] Roy K. Bingham and Pamela Y. Bingham are plaintiffs in this lawsuit. Since Pamela Bingham's claims are derivative, in its discussion of the § 1983 claims, the Court will employ the singular use of the word plaintiff.
[2] In the complaint, the plaintiff named Raymond Cousins, Samuel McElrath, James W. Owens, Michael J. Kondas, Charles P. Bates and Lana Price as individual defendants.
[3] In his brief in opposition to the motion for summary judgment, the plaintiff urges the Court to deny the motion because there are still outstanding discovery requests. The Court is not persuaded by this argument. The Court held a Status Conference on August 5, 1985 and set up a discovery period which was to close on November 18, 1985. Pursuant to two requests for extensions, discovery did not close until on or about March 4, 1986. At no time during the discovery period did the plaintiff file a motion to compel. It is over a year since the close of discovery, plaintiff cannot now be heard to complain about inadequate or insufficient compliance with discovery.
[4] Roy Bingham described the altercation with Officer Cousins in the following way:
[Officer Cousins] grabbed me, pulled me up back by the handcuffs, punched me in the face, rammed me against the pop box, punched me in the face, pulled a pistol out, put it to my head and told me he should kill me. He put it in my mouth and knocked me in the mouth with the butt of the gun. Then he took me and threw me further. I went into this glass candy case. I went through the glass and fell on the floor.
Plaintiff's Deposition at 34-35.
[5] It is possible to infer that certain acts or omissions constitute a policy or custom, if the acts or omission amount to either tacit approved or deliberate indifference to unconstitutional conduct. Estate of Bailey v. County of York, 768 F.2d 503, 508 (3d Cir.1985); Wellington, 717 F.2d at 935-37.
[6] In a footnote in Tuttle, 471 U.S. at 824 n. 7, 105 S.Ct. at 2436 n. 7, the Supreme Court stated:
We express no opinion on whether a policy that itself is not unconstitutional, such as the general `inadequate training' alleged here, can ever meet the `policy' requirement of Monell. In addition, even assuming that such a `policy' would suffice, it is open to question whether a policymaker's `gross negligence' in establishing police training practices could establish a `policy' that constitutes a `moving force' behind subsequent unconstitutional conduct, or whether a more conscious decision on the part of the policymaker would be required.
See also Springfield v. Kibbe, ___ U.S. ___, 107 S.Ct. 1114, 1116, 94 L.Ed.2d 293 (1987) (O'Connor, J., dissenting)
[7] Considering the source of the "policy"the Working Agreement Between the City of Pittsburgh and the Fraternal Order of Police Fort Pitt Lodge No. 1. it is not surprising that there is no evidence of a "policy" regarding the maintenance of records of claims. The Court does not mean to suggest that the City had no policy, rather the source of that policy was not likely to be a collective bargaining agreement.
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268 F.2d 221
Wilbert Thomas ARBUCKLEv.UNITED STATES of America.
No. 6099.
United States Court of Appeals Tenth Circuit.
March 27, 1959.
Appeal from the United States District Court for the Western District of Oklahoma.
Paul W. Cress, U. S. Atty., and Erwin A. Cook, Asst. U. S. Atty., Oklahoma City, Okl., for appellee.
Before BRATTON, Chief Judge, PICKETT, Circuit Judge, and KNOUS, District Judge.
PER CURIAM.
1
Affirmed without written opinion, on the ground that the questions raised in the motion filed under the provisions of Title 28 U.S.C. § 2255 could only be reviewed by direct appeal.
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922 F.2d 748
32 Fed. R. Evid. Serv. 210
UNITED STATES of America, Plaintiff-Appellee,v.Robert Leslie HENDRIETH, Defendant-Appellant.
No. 89-3672
Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
Jan. 30, 1991.
Donald S. Modesitt, Tallahassee, Fla., for defendant-appellant.
Stephen S. Dobson, III, Asst. U.S. Atty., Tallahassee, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Florida.
Before JOHNSON and CLARK, Circuit Judges, and RONEY, Senior Circuit Judge.
PER CURIAM:
1
Appellant, Robert Leslie Hendrieth, appeals his conviction and sentence for conspiracy to pass counterfeit Federal Reserve notes, in violation of 18 U.S.C. Sec. 371, and for receiving counterfeit Federal Reserve notes with intent to pass them as genuine, in violation of 18 U.S.C. Sec. 473. The jury returned a verdict of guilty on both counts on April 27, 1989. Appellant was sentenced on August 1, 1989 to thirty-three months imprisonment on each count, with sentences to run concurrently. Because we find no error in the district court proceedings, we affirm.
FACTS
2
On February 24, 1989, Verbus Arthur Taylor arrived in Tallahassee, Florida with approximately $49,500 in counterfeit $10.00 Federal Reserve notes. Shortly after his arrival in Tallahassee, he met with the appellant, Robert Leslie Hendrieth, and asked if Hendrieth would accompany him to Canada. When Taylor showed Hendrieth the counterfeit money, Hendrieth offered to distribute the money in Tallahassee instead of accompanying Taylor to Canada. Hendrieth received all of the counterfeit money and made arrangements to sell the money in Tallahassee.
3
Hendrieth enlisted the aid of Moses McFadden, Jr. to assist him in finding buyers for the currency. Hendrieth ultimately negotiated with individuals from Gadsden County, Florida who agreed to purchase some of the counterfeit currency. Taylor, who was not involved in these meetings, held Hendrieth responsible for negotiating the sale and giving Taylor his percentage of the receipts.
4
One of the individuals at the meeting to negotiate the sale of currency contacted and agreed to cooperate with the police. A subsequent meeting between Hendrieth and the cooperating buyer ultimately led to Hendrieth's arrest, indictment, and conviction. $20,950.00 in counterfeit currency was recovered from Hendrieth's vehicle.
DISCUSSION
5
Hendrieth raises five issues on appeal. First, during jury selection for his trial, the prosecution exercised three peremptory challenges, each to exclude a black juror. The jury selected had no black jurors. Hendrieth, who is black, challenges the prosecutor's use of peremptory challenges as a denial of Equal Protection.
6
In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court held that when, as here, the defendant establishes a prima facie case of discrimination, the prosecution must provide a specific and facially neutral explanation of its peremptory challenges. In this case, the district court excluded one juror because she was the sister-in-law of a defense witness, another because he admitted bias against the government, and a third because she was inattentive and rubbing and rolling her eyes during voir dire. Thus, the prosecutor proffered a credible and nonracially motivated explanation for the exclusion of the three challenged jurors. The requirement enunciated in Batson having been satisfied, the district court properly overruled the defendant's objection to peremptory challenges.
7
Next, the defendant argues that the district court erred when it denied defense counsel's request to present hearsay evidence of statements made by a witness who invoked his Fifth Amendment right to remain silent. Defendant argues that he needs the testimony of Sandy Payne, an alleged drug-informant who, prior to Hendrieth's trial, was arrested on drug charges and who properly invoked his Fifth Amendment privilege against self-incrimination. Once Payne became unavailable, the defendant sought to introduce Payne's alleged exculpatory statements through the statements of Addys Walker. Walker claimed that he was in the federal courthouse looking for his attorney, who also was Hendrieth's counsel, when Payne, a stranger to Addys Walker, began a conversation with him while the two were sitting outside the courtroom on the day of Hendrieth's trial. Payne allegedly told Walker that, among other things, Payne and his family were drug dealers and that to avoid arrest, he had been cooperating with the government by setting up drug dealers and persons passing counterfeit money.
8
Statements made by a witness who is unavailable at trial which tend to exculpate a defendant may be admissible as a hearsay exception under Federal Rule 804(b) if (1) the declarant is unavailable; (2) the statements are against the declarant's penal interest; and (3) corroborating circumstances clearly indicate the trustworthiness of the statement. Fed.R.Evid. 804(b)(3); United States v. Gossett, 877 F.2d 901, 906 (11th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1141, 107 L.Ed.2d 1045 (1990). "Unavailability," for purposes of the Rule, includes a declarant not testifying because of privilege. Fed.R.Evid. 804(a)(1); United States v. Thomas, 571 F.2d 285, 288 (5th Cir.1978).
9
Under the "clearly erroneous" standard of review for failure to consider an element of admissibility under Rule 804(b)(3), United States v. Bagley, 537 F.2d 162, 166 (5th Cir.1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 816, 50 L.Ed.2d 794 (1977), this court finds no error in the district court's determination that no evidence existed to corroborate Walker's recitation of Payne's alleged story that he had been setting up people for the government. The district court also considered Walker's motive to misrepresent the matter, the character of the speaker, whether other people heard the out of court statement, the spontaneity of the statement, and the relationship between the speaker and the witness. The district court found Walker completely unworthy of belief and, as a result, was unable to determine what, if any, statements actually were made by Payne. See United States v. Alvarez, 584 F.2d 694, 701-02 (5th Cir.1978) (pursuant to 804(b)(3), the court should determine credibility primarily by analysis of the probable veracity of the in-court witness and the reliability of the out-of-court declarant). Payne's statements, thus, were properly excluded under the rules of evidence.
10
Third, Hendrieth claims that the district court erred by permitting the government to introduce evidence of statements alleged to have been made by the defendant while in custody and after the defendant had invoked his right to remain silent and to obtain the assistance of counsel. The district court, in a hearing held outside the presence of the jury, heard testimony of the arresting officer, Ray Jones, that he advised Hendrieth of his Miranda rights, and Hendrieth responded "Let's make a deal." Officer Walter Beck corroborated Jones' testimony. Both officers testified that Hendrieth volunteered additional information at the police department, stating that he was helping out a friend and had "screwed up." He repeated his statements, while on the telephone, within earshot of the police officers.
11
This court previously has held that statements made while in custody are not per se involuntary, Martin v. Wainwright, 770 F.2d 918 (11th Cir.1985), cert. denied, 479 U.S. 909, 107 S.Ct. 307, 93 L.Ed.2d 281 (1986), and statements voluntarily made by the defendant after he has invoked his Miranda rights are admissible against him. United States v. Ogueri, 798 F.2d 452 (11th Cir.1986). When a defendant deliberately chooses to initiate or continue conversation, Michigan v. Mosley, 423 U.S. 96, 103-06, 96 S.Ct. 321, 326-27, 46 L.Ed.2d 313, 321-22 (1975), the statements violate neither the Fifth Amendment right against self-incrimination nor the Sixth Amendment right to counsel. Smith v. United States, 505 F.2d 824, 829 (6th Cir.1974). Considering all the facts and circumstances of the possible waiver by Hendrieth of his Miranda rights, we find that Hendrieth's statements were made voluntarily and were admissible on that basis.
12
Fourth, the defendant challenges the prosecutor's reference in closing argument to the defendant's failure to call certain witnesses or present evidence that he was not guilty. During closing argument the prosecutor stated that "the only witness the defense called was a police officer," and pointed to the defendant's failure to call additional witnesses. He commented that "[t]here has been no evidence presented that indicates that Robert Leslie Hendrieth is not guilty" and made similar statements regarding the lack of exculpatory evidence.
13
"The test for determining whether a prosecutor's comments warrant the granting of a new trial is (1) whether the remarks were improper and (2) whether they prejudicially affected substantial rights of the defendant's." United States v. Vera, 701 F.2d 1349, 1361 (11th Cir.1983). The prosecutor at Hendrieth's trial made no comment on the defendant's own failure to testify. His remarks were directed to the failure of the defense to counter or explain the evidence. United States v. Watson, 866 F.2d 381 (11th Cir.1989) (mistrial unnecessary when prosecutor commented on the failure of the defense to counter evidence presented by the government); United States v. Bright, 630 F.2d 804, 825 (5th Cir.1980); United States v. Hartley, 678 F.2d 961 (11th Cir.1982), reh'g denied, 688 F.2d 852, cert. denied, 459 U.S. 1170, 103 S.Ct. 815, 74 L.Ed.2d 1014 (1983). For these reasons, we find no error in the failure of the district court to declare a mistrial based upon prosecutor's remarks to the jury.
14
Finally, Hendrieth argues that his sentence is not in accordance with the Sentencing Guidelines. He challenges the court's characterization of him as an "organizer" or "leader" of the criminal activity and the resulting increase in his sentence under the guidelines. U.S.S.G. Sec. 3B1.1(a). Hendrieth also challenges the court's upward adjustment for criminal activity involving more than minimal planning or a scheme to defraud more than one victim. U.S.S.G. Sec. 2F1.1(b)(2).
15
The guidelines commentary provides that in considering the role of the defendant as a "leader" or "organizer," the court should consider, among other things, "the exercise of decision making authority, ... the recruitment of accomplices, ... the degree of participation in planning or organizing the offense, [and] the nature and scope of the illegal activity." U.S.S.G. Sec. 3B1.1, comment. (n. 3). "More than minimal planning" means "more planning than is typical for commission of the offense in simple form." It exists in "any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune." U.S.S.G. Sec. 1B1.1, comment. (n. 1f).
16
We find no basis in the record for appellant's challenge of his sentence. Hendrieth suggested to Taylor that the counterfeit money be distributed in Tallahassee and made arrangements to sell a substantial amount of currency in Tallahassee; he had complete responsibility for negotiating its sale. Hendrieth enlisted the aid of McFadden as an accomplice to carry out his plan. This court has recognized that "[t]he sentence imposed is committed to the discretion of the trial court and, so long as the sentence falls within the range provided by statute, generally will not be reviewed on appeal." United States v. Funt, 896 F.2d 1288, 1298 (11th Cir.1990). On these facts, it is clear that Hendrieth's sentence falls within the statutory guidelines for sentencing.
17
Finally, Hendrieth emphasizes that a comparison of the offenses of Hendrieth and his co-defendant, McFadden, shows that although both participated almost equally in the offense, Hendrieth's sentence under the guidelines was substantially greater than McFadden's sentence. However, this court has rejected as "frivolous" challenges to sentencing because a co-defendant received a less severe penalty. United States v. Allen, 724 F.2d 1556, 1558 (11th Cir.1983), reh'g denied, 732 F.2d 944 (1984). His sentence will not be disturbed on appeal.
18
In light of the foregoing, the conviction and sentence imposed against Robert Leslie Hendrieth is AFFIRMED.
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218 Cal.App.2d 285 (1963)
KARM SINGH et al., Plaintiffs and Respondents,
v.
IDA BURKHART, an Incompetent Person, etc., Defendant and Appellant.
Civ. No. 27017.
California Court of Appeals. Second Dist., Div. One.
July 15, 1963.
Maurice Rose and Marvin E. Levin for Defendant and Appellant.
Jack Schnider and F. Walter French for Plaintiffs and Respondents.
FOURT, J.
This is an appeal from a judgment wherein among other things the defendant Ida Burkhart (by and through her guardian Schiff) was ordered to perform specifically an agreement to sell certain real property upon being paid the consideration agreed upon.
[1a] A resume of some of the facts is as follows: Ida Burkhart was the owner of certain described real property located in Santa Monica and she desired to sell the same. Upon her own accord she went into the office of Thornbury Realty Company in Ocean Park and talked with Harry Baizer, a salesman for the Thornbury Realty Company. Mrs. Burkhart stated to Baizer that she had some property in Santa Monica which she wanted to sell and she gave Baizer a description of the same. Baizer indicated to Mrs. Burkhart that he would look at the property and ascertain what he thought it should bring upon a sale. The office of the Thornbury Realty Company and the property in question are several miles apart and Baizer went to the location of the property and examined it. He also contacted P. J. Burns and a Mr. Carlson with reference to what the property should sell for and they referred him to Sidney Grey. Grey was in the real estate business and operated as Grey Associates and was a member of the Realtors' Multiple Listing Service, Santa Monica Bay District Board of Realtors. Grey, after looking *287 at the property, informed Baizer that he thought the market value of the property was $50,000.
Baizer thereafter advised Mrs. Burkhart on or about Tuesday, January 17, 1961, that they, Thornbury Realty, could get $50,000 for the property. She suggested that the commission should be added to the sales price and then asked $52,500 for the property. An exclusive listing agreement was prepared upon the "California Real Estate Association" listing form and it was signed by Mrs. Burkhart as the owner of the property and by Baizer for Thornbury Realty. The sales price of the property was to be $52,500 with a down payment of $15,000 and the balance payable at $350 or more per month including 6 per cent interest upon the balance until paid. A brokerage commission of 5 per cent of the selling price was to be paid by Mrs. Burkhart "if said property is sold during the term hereof or any extension thereof by broker or by me or by another broker or through any source." The property was then put on the "Realtors' Multiple Listing Service, Santa Monica Bay District Board of Realtors, Inc." of which Thornbury Realty was a member. The description of the property appeared on a circular of the multiple listing service dated Friday, January 20, 1961, under the title, "Advance Listings." The price and down payment as heretofore set forth were listed in such circular. Max Kramer, a salesman in Grey's realty office in Santa Monica, apparently received a copy of the listing when it came out about the 20th of January 1961. Grey and Kramer went out to check some of the properties which were listed in the bulletin including the property in question. Kramer had not talked with Grey about the particular property before seeing it listed in the bulletin. Kramer at the time of viewing the property with Grey suggested to Grey that the Singhs, who owned a business next door to the property in question, might be interested. Upon returning to their office Kramer called the Singhs on the telephone and told Mrs. Singh that the property next to them was being offered for sale and she stated that they wanted to buy it. The Singhs brought $2,000 to Grey's office at once and signed the deposit receipt offer to buy the property at the price under the conditions offered. Grey took the document to Baizer at the Thornbury office.
On Tuesday, January 24, 1961, Baizer presented to Mrs. Burkhart for her signature the deposit receipt offer to buy the property. The document on its face recited that "Karm & Mary Singh H & W as Jt. Tenants" of "426 Lincoln *288 Blvd." had placed the sum of $2,000 as a "deposit on account of the purchase price" of the property in question subject to a portion of the taxes, conditions and easements of record "for the purchase price of fifty two thousand five hundred dollars." $15,000 was to be paid through escrow and the seller to take back a first deed of trust to secure the payment of the balance of $37,500 payable at $350 per month or more, including interest on the balance at 6 1/2 per cent until paid. It was set forth that the property was to be sold "as is" subject further to an existing lease on the store building (which lease expired June 30, 1964, with an option to renew for five years more). The lease of the store provided for a rental of $250 per month, and two small houses at the rear rented for $75 and $95 per month respectively. The deposit receipt offer also provided "this is to be a 60 day escrow or less" and that "time is the essence of this contract." The agreement apparently was prepared by Sidney B. Grey's office as it set forth his name as a broker and his license number as such, by Max Kramer as the salesman.
Karm and Mary M. K. Singh signed the document under the words, "I agree to purchase the above described property on the terms and conditions herein stated, and receipt of copy of herein agreement is hereby acknowledged" as the "purchaser." Mrs. Burkhart signed the document under the words, "I agree to sell the above described property on the terms and conditions herein stated and agree to pay the above signed broker as a commission the sum of twenty six hundred twenty-five & 00-100 dollars, or one-half the deposit in case same is forfeited by purchaser, provided the same does not exceed the full amount of the commission. Receipt of copy of herein agreement is hereby acknowledged," as the "seller."
On January 24, 1961, Grey opened an escrow at the Santa Monica Bank and deposited the $2,000 received from the Singhs in escrow. Later on that same day the Singhs signed the escrow instructions. The escrow instructions provided among other things that the total price for the property was to be $52,500 of which $37,500 was to be paid in installments of $350 per month including interest at the rate of 6 1/2 per cent (such obligation to be evidenced by a promissory note secured by a first deed of trust upon the property) and $15,000 was to be paid "prior to March 24, 1961," "of which amount $2,000 has been paid to broker Sidney B. Grey and deposited by him in escrow." A note in the proper amount *289 and form was signed by the Singhs as was a deed of trust securing the same and left with the escrow holder.
Apparently Mrs. Burkhart told her son-in-law Max Schiff (interlocutory decree of divorce in Schiff v. Schiff, March 21, 1961) who was the tenant of the store building that she was selling the property and wanted to show him the papers. Schiff asked Mrs. Burkhart to come to the store the next day. She went there with the copy of the deposit receipt which she had signed. Schiff immediately upon seeing the signed instrument called an attorney (one of present counsel for appellant) and told him in effect that Mrs. Burkhart had sold the property and "I just would like to know what we could do to get out of it." Schiff and Mrs. Burkhart went to the attorney's office the next day, Friday afternoon, January 27, 1961, where Mrs. Burkhart apparently was questioned about the transaction. The attorney called the bank where the escrow was located and inquired whether any money other than the $2,000 had been deposited. On Monday, January 30, 1961, the attorney signed a notice of rescission for Mrs. Burkhart and Schiff. The purported rescission notice was received by the Singhs on or about January 31, 1961--it set forth among other things that Mrs. Burkhart was entirely without understanding and of unsound mind.
From January 24, 1961, to January 30, 1961, Mrs. Burkhart refused repeatedly to go to the bank to sign the escrow instructions or even to read a copy of the same. She stated in effect that she was not going to go through with the deal, that she was not going to sign any escrow papers. In short that "she wouldn't go to escrow--and that was the end of it." Baizer, the seller's broker, called Kramer, the buyer's broker, stating that "the deal was off." As a consequence the Singhs were advised by their broker under the circumstances to deposit no more money into the escrow at the bank until it was ascertained and determined whether Mrs. Burkhart was going to proceed with the transaction. In other words Mrs. Burkhart repudiated the agreement to sell the property (apparently at the insistence and direction of Schiff the lessee of the store building and her then son-in-law). Schiff had called Baizer and had told him that the deal was not a good one for Mrs. Burkhart and that he, Schiff, had told Mrs. Burkhart not to sign the escrow instructions when she was requested to do so.
On or about Thursday, February 9, 1961, a petition for the appointment of a guardian for Mrs. Burkhart was filed *290 by Schiff. He set forth in his petition for appointment as such guardian that he was the son-in-law of Mrs. Burkhart and that she was incompetent and needed a guardian. The matter was noticed for hearing for February 27, 1961, at which time Schiff and his then wife testified. An order was made on March 2, 1961, appointing Schiff as the guardian of Mrs. Burkhart. Letters of guardianship were issued to him on March 7, 1961.
On February 10, 1961, the Singhs commenced this action to compel the defendants, Mrs. Burkhart and Schiff, to perform the contract for the sale of the real property. Mrs. Burkhart answered the complaint on March 6, 1961, by and through Schiff as her guardian. She alleged among other things that she did not have the legal capacity on January 24, 1961, to agree to sell the property, denied that an escrow was opened, denied that she was requested to sign the escrow instructions, denied that she ever was asked to execute a conveyance. As affirmative defenses, she alleged that (1) she was without understanding; (2) was adjudged incompetent February 27, 1961; (3) the agreement was with the mutual understanding that it would qualify "as an installment sale under the Internal Revenue Code"; (4) consideration was inadequate; (5) agreement lacked mutuality; (6) agreement lacked certainty; (7) parties entered into agreement on the condition that it would qualify as an installment sale under the Internal Revenue Code; and (8) that plaintiffs and their agents represented that the agreement of January 24, 1961, would qualify as such an installment agreement which was untrue.
At the trial Mrs. Burkhart did not testify nor does it appear why she was not present at the trial. She was examined by a court-appointed qualified psychiatrist for the plaintiffs prior to the trial. During the trial respondents attempted to call the doctor out of order for the obvious purpose of showing that Mrs. Burkhart was perfectly competent on the date she signed the agreement to sell the real property. The offered testimony was to be for rebuttal purposes; however, at the time plaintiffs wanted to call the doctor to testify there was nothing to refute with reference to Mrs. Burkhart's competency.
At the conclusion of the testimony of the witnesses, counsel for the respective parties and the judge made certain statements. [fn. 1]*291
Several experts testified at great length for the plaintiffs with reference to the market value of the property to the effect that on the contract date the property was reasonably worth $52,500 or less.
Appellant now asserts that because plaintiffs failed to deposit the full $15,000 in escrow within three days from January 24, 1961, they are now barred from obtaining specific performance of the contract; that plaintiffs had no intention of depositing $15,000 into the escrow within the three- day period following the signing of the agreement; that plaintiffs are not entitled to specific performance because the defendants' agent exhibited bad faith, in that the two brokers were to share the commission under the multiple listing agreement; that the evidence was insufficient to establish that the price of the property was adequate; that the adjudication of incompetency cannot be collaterally attacked; that Schiff had no authority or power to waive his ward's defense of incompetency and that the judgment failed to provide explicitly that the plaintiffs were to execute a first deed of trust on the property to secure payment of their note for $37,500.
[2] The rights of the parties are governed by the terms of the deposit receipt agreement. [1b] It is obvious from *292 the record in this case that the failure upon the part of the Singhs to make the full deposit of the $15,000 into the escrow was entirely due to the acts and conduct of Mrs. Burkhart and Schiff. (See Civ. Code, 1440.) [fn. 2]
[3] The rule in this state is to the effect that if one party notifies the other, before the latter is in default, that he will not perform the contract on his part, the other party may *293 enforce the contract without previously performing conditions in favor of the party giving such notice of nonperformance. (12 Cal.Jur.2d 454; 17 C.J.S., Contracts, 472, p. 975.) In Vineland Homes, Inc. v. Barish, 138 Cal.App.2d 747, 760 [292 P.2d 941], this court said:
"Appellants' refusal to execute escrow instructions or conveyance without reservation to themselves of oil and mineral rights leaves no doubt that, had respondent placed the full amount of the purchase price in the escrow started by it, the result of the escrow would have been the same. The formal tender of the full purchase price would have been a useless act. The law does not require the performance of useless acts. (Ruzich v. Boro, 58 Cal.App.2d 535, 541 [137 P.2d 51]; Ehrhart v. Mahony, 43 Cal.App. 448, 451 [184 P. 1010].)"
See also Beverage v. Canton Placer Mining Co., 43 Cal.2d 769, 777 [278 P.2d 694]; Semas v. Bergmann, 178 Cal.App.2d 758, 762 [3 Cal.Rptr. 277]; Local 659, I.A.T.S.E. v. Color Corp. of America, 47 Cal.2d 189, 198 [302 P.2d 294].
Appellant places great reliance upon what is stated in Pitt v. Mallalieu, 85 Cal.App.2d 77 [192 P.2d 24]; however the facts of the case at bench and the facts in the Pitt case are in no sense similar. See Groobman v. Kirk, 159 Cal.App.2d 117, 121 [323 P.2d 867]; Diamond v. Huenergardt, 175 Cal.App.2d 214, 222 [346 P.2d 37].
[4] Repudiation is a question of fact to be determined from the evidence. [1c] Here the evidence was clear that following the moment Mrs. Burkhart told Schiff that she had sold the property she refused to do anything toward completing the transaction and effectively repudiated her agreement. (See Wilton v. Clarke, 27 Cal.App.2d 1, 4 [80 P.2d 141]; Nemanick v. Christensen, 87 Cal.App.2d 844, 847 [197 P.2d 785]; Gold Mining & Water Co. v. Swinerton, 23 Cal.2d 19, 28 [142 P.2d 22].)
With reference to the assertion by appellant that the plaintiffs never intended to deposit any funds in the escrow and therefore a fraud was imposed upon Mrs. Burkhart, it appears first of all there is no pleading claiming such a misrepresentation *294 and secondly even if there were such a pleading there is no evidence to support it. There is a great deal of evidence to the effect that the Singhs would have and could have put up whatever money was necessary and required at any time but they were deterred from doing so by the repudiation of the seller.
There likewise is no evidence of any other fraud upon the part of the brokers or the salesmen or either of them or of the Singhs. No useful purpose would be served by setting forth at length the testimony with reference to this phase of the case, but suffice it to say that the court from its own questions and the answers received thereto and from the entire record was convinced that the transaction was entirely free and clear of any fraud.
The value of the property was explored at great length and as heretofore stated at least three experts testified that the property was reasonably worth $52,500 or less.
The record is clear that as of the dates with which we are particularly concerned Ida Burkhart was competent to execute the agreement of January 17, 1961, and the contract of January 24, 1961. Appellant now seems to assert that the defense of incapacity as of the date of the contract could not be withdrawn at or near the conclusion of the taking of testimony in the case. No authority in point is cited by counsel.
The trial court very carefully did not go back of the determination that Ida Burkhart was declared an incompetent in March of 1961. In the trial of this case however the judge was concerned with whether she was competent or incompetent, so to speak, as of January 17 and January 24, 1961, and there was no evidence that she was incompetent on either of those dates and there was considerable evidence that she was competent. Under this state of the evidence counsel for the defendants saw fit with the concurrence of the guardian to withdraw the contention of incompetency as to the particular dates in question. There was no pretense of any attempt to invalidate the determination made in March of 1961. In fact the file in the incompetency proceedings was introduced into evidence by the plaintiffs.
[5] Appellant's last contention is to the effect that the judgment as presently written fails to provide that upon the execution of a deed by Ida Burkhart, by her guardian, that the plaintiffs shall execute a first trust deed on the property to secure payment of their note for $37,500. The contention is well taken. It is apparent that in the preparation of such *295 judgment the provision contended for by the defendants was inadvertently omitted, for in the second part of the judgment which provides for the contingency of the defendants' failing to execute the deed the clerk of the court is to execute the deed upon payment of the $15,000 and interest and depositing with him "the promissory note and First Deed of Trust as heretofore set forth." The plaintiffs have stipulated in this court that the provision should be in the judgment.
It is therefore ordered that paragraph 3 of the judgment be amended by adding thereto the following: The plaintiffs shall further execute and deposit in said escrow above mentioned a first trust deed in the form as customarily used by banks or trust companies (in the Santa Monica area) to secure the payment of the promissory note above described.
As amended and modified the judgment is affirmed.
Wood, P. J., and Lillie, J., concurred.
Your Honor, at this time I'd like to make an offer of a stipulation. I'd like to offer to stipulate with respect to the matter of contentions of defendant raised in the joint pretrial statement on page 12, at line 21, being number f, small f, of the contentions, which is the defense of the alleged incapacity of the incompetent, Ida Burkhart, on the date of the contract.
Clearly the evidence shows there was no such adjudication on the date of the contract. So therefore the evidenec that could be presented to this Court to bear on that issue would be further testimony from Mr. Schiff, perhaps further testimony from Mr. and Mrs. Singh, and anybody else that counsel for plaintiffs might wish to bring in in the way of lay persons, and further testimony from two experts.
I know, I was present when Dr. McNeil examined, pursuant to court order, the incompetent person, after the adjudication of incompetency.
I will stipulate in that regard that if Dr. McNeil were called, that he would render an opinion in this Court that in his opinion on January 24, 1961 the defendant, Ida Burkhart, at all times here in question was a person entirely with understanding, and could deliver a valid conveyance for the transfer of title to her said real property, and had the capacity to do so.
I will stipulate further that if he were called to testify in this proceeding, he would testify that in his opinion, that the defendant Ida Burkhart at all times here in question, and particularly on January 24, 1961, did not lack the capacity to understand the nature of the subject matter before her, namely the contract dated January 24, 1961, and knew the effect of signing same.
My offer of stipulation further is that an expert witness who has examined the defendant, Dr. Jerome Kummer, of this city, of 2200 Santa Monica Boulevard, if called to testify in this proceeding, would testify as follows with respect to these two__________
The Court: You better take them one at a time.
The Court: Are you willing to stipulate that Dr. McNeil would so testify?
Mr. Schnider: Your Honor, without restricting my right to call Dr. McNeil in any manner whatsoever__________
The Court: If you're going to call him, we don't have a stipulation.
Mr. Levin: I am trying to save the Court's time.
Mr. Schnider: Without restricting my right to call Dr. McNeil, should it become apparent to me that such is necessary, I am willing to accept his stipulation with this understanding, that we read into the record Dr. McNeil's opinion as to what he will testify to. Mr. Levin has a copy of it, and I have the original.
Mr. Levin: I don't have a copy of that.
The Court: Have you seen it?
Mr. Levin: No, I haven't. I don't think you have ever served me or given me a copy of it. I have my notes from the time when I was present.
The Court: Apparently we have no stipulation. Let's proceed.
Mr. Schnider: May I examine this for a moment and then perhaps we do have a stipulation?
The Court: We will take a short recess.
(recess)
Mr. Levin: Before I call a witness, your Honor, if the Court please, at this time I wish to do something which is very difficult to do, I have never done it before. But upon serious consideration and full consent of the guardian who is charged with the responsibilities of prosecuting this defense, for the protection of the estate of the incompetent, I am waiving the defense of incapacity, having in mind that the defense of incapacity here is one that was raised, and also the matter of incompetency was adjudicated also after the fact of the contract, January 24, 1961.
In this waiver, I do not wish any implications to take place or to be considered by the Court or by counsel that I did not have Mrs. Burkhart thoroughly examined by an expert--and he was available on my call to be in this proceeding and testify--I won't give the testimony--but he was available to testify on behalf of the guardian.
The Court: No implication. If the defense is withdrawn, period. The implication is that the Court necessarily has to find that she was competent.
Mr. Schnider: May the record reflect, your Honor, that I raise no implication of any kind whatsoever as a result of the withdrawal of this defense.
I am fully aware of the fact that you may plead any defense you wish and withdraw it any time you wish, even inconsistent defenses.
Mr. Levin: I don't believe this defense was inconsistent in any way.
The Court: You have said enough. You have withdrawn it. That's it.""
NOTES
[fn. 1] 1. "Mr. Levin: No further questions of this witness.
[fn. 2] 2. " 1440. When performance, etc., excused. If a party to an obligation gives notice to another, before the latter is in default, that he will not perform the same upon his part, and does not retract such notice before the time at which performance upon his part is due, such other party is entitled to enforce the obligation without previously performing or offering to perform any conditions upon his part in favor of the former party."
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^« :**%.. Court of Appeals
Third District of Texas
P.O. BOX 12547, AUSTIN, TEXAS 78711-2547
www.txcourts.gov/3rdcoa.aspx
(512) 463-1733
JEFF L. ROSE, CHIEF JUSTICE JEFFREY D. KYLE, CLERK
DAVID PURYEAR, JUSTICE
BOB PEMBERTON, JUSTICE
MELISSA GOODWIN, JUSTICE
SCOTT K. FIELD. JUSTICE
CINDY OLSON B0URLAND. JUSTICE
M arc>^2015
The Honorable Velva L. Price
Civil District Clerk
Travis County Courthouse
P.O.Box 1748
Austin, TX 78767
* DELIVERED VIA E-MAIL *
RE: Court of Appeals Number: 03-13-00616-CV
Trial Court Case Number: D-1 -GN-08-002596
Style: Vista Medical Center Hospital
v. Texas Department of Insurance, Division of Workers' Compensation; and Texas
Mutual Insurance Company
Dear Honorable Velva L. Price:
The Third Court of Appeals has issued the mandate in this cause. Therefore, I am returning
the following original exhibits:
Plaintiff's exhibit 1 (CD, administrative record) and Court's exhibit 1 (list of cases set for
hearing 5/30/13).
Very truly yours,
Jeffrey D. Kyle, Clerk
Piled in The District Court
of Travis County, Texas
MAR 12 2015
At M.-^C
Velv. Price, District Clerk
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684 F.2d 928
67 A.L.R.Fed. 733, 221 U.S.App.D.C. 406
ATTORNEY GENERAL OF the UNITED STATES of America, Appellant,v.The IRISH PEOPLE, INC., Appellee.
No. 81-1035.
United States Court of Appeals,District of Columbia Circuit.
Argued 21 Oct. 1981.Decided 2 July 1982.
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 76-01518).
Brian K. Ahearn, Atty., Dept. of Justice, Washington, D. C., with whom John C. Keeney, Acting Asst. Atty. Gen., John L. Martin and Joseph E. Clarkson, Attys., Dept. of Justice, Washington, D. C., were on the brief for appellant.
Charles S. Sims, New York City, with whom Helene M. Freeman, New York City, and Mark Lynch, Washington, D. C., were on the brief for appellee.
Before BAZELON, Senior Circuit Judge, and WILKEY and WALD, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKEY.
Separate opinion for the Court filed by Circuit Judge WALD.
Concurring opinion filed by Senior Circuit Judge BAZELON.
PER CURIAM:
1
Judge Wilkey files an opinion in which Judge Wald and Senior Judge Bazelon concur, except with respect to Part II, A (entitled "Lack of Improper Motivation"). Judge Wald files a separate opinion in which Senior Judge Bazelon concurs. Judge Wald's opinion, and Judge Wilkey's opinion, except for Part II, A, together constitute the opinion of the court. The district court's order is reversed and the case remanded for further proceedings consistent with the opinion of the court.
2
So Ordered.
WILKEY, Circuit Judge:
3
The Attorney General of the United States, plaintiff/appellant, initiated this suit under the Foreign Agents Registration Act1 ("FARA" or "the Act") to compel defendant/appellee, publisher of the newspaper The Irish People, to register under the Act. The district court ruled that certain documents requested by the defense from plaintiff were state secrets, as the Attorney General claimed, but that defendant had established a need for discovery of the documents in order to pursue the selective prosecution defense it had raised. The court therefore concluded that since the Attorney General chose not to surrender the material to the defendant the action had to be dismissed.
4
We reverse because we find that neither element necessary for a selective prosecution defense was sufficiently demonstrated by the district court's opinion, 502 F.Supp. 63, for the defendant to be entitled to discovery on the issue. We also caution that on remand, even if a colorable selective prosecution claim is ultimately demonstrated to exist, outright dismissal may be too extreme a measure to invoke for plaintiff's inability to comply with defendant's discovery request.
I. Background
5
On 16 August 1976 the Attorney General filed this complaint seeking a mandatory injunction requiring defendant, a New York corporation and publisher of the weekly newspaper The Irish People, to register with his office as required by FARA. The Act requires that, with certain exceptions, anyone acting as an agent of a foreign principal register with and make certain disclosures to the Attorney General. The main allegations of the suit are that the defendant is controlled and partially financed by the Irish Northern Aid Committee (INAC), an admitted agent of a foreign principal, and that the defendant in turn is a means to garner support for INAC and its principal, the Irish Republican Army (IRA).2 The defendant has denied these allegations and has raised a series of affirmative defenses including selective prosecution. Specifically, the defendant claims that it was improperly singled out for registration under FARA, not as a matter of legitimate discretion, but rather "because of hostility to the editorial policy of defendant, and the (Irish Republican) cause it espouses,"3 and as a result of pressure from the British and perhaps the Irish governments.
6
Beginning in January 1978 The Irish People engaged in extensive efforts to secure production and discovery of information and documents it claimed to be relevant to its factual exculpation and legal defenses. Eventually, after various interim orders and extensive briefing by the parties, the parties joined issue over the documents which the Attorney General sought to shield from discovery as state secrets. In the meantime the Attorney General had furnished a large number of other documents.
7
By a memorandum opinion of 13 July 19794 the district court held that the state secrets privilege did apply, and denied defendant access to the privileged material.
8
On the basis of this denial, the defendant next moved for the dismissal of the Attorney General's cause of action, asserting that without access to the privileged material the defendant could not adequately pursue its defense of selective prosecution and that the Attorney General, by successfully invoking the privilege, was now precluded from seeking a mandatory injunction requiring defendant to comply with FARA. Defendant argued that "fair adjudication ... has been rendered impossible by the government's assertion of a claim of state secrets privilege to withhold relevant evidence necessary for the defense."5
9
After considering the arguments of the parties, the district court found that the defendant had established a need for the privileged material in order to pursue the selective prosecution defense and that the plaintiff had to surrender the material to the defendant or the action would be dismissed.6 The plaintiff moved for reconsideration, arguing that neither the circumstances nor the applicable law warranted such a dismissal. The district court denied the motion for reconsideration and granted defendant's motion to dismiss.7
10
We reverse. The opinion by the district court adequately demonstrated neither of the two elements necessary for a selective prosecution-improper motivation and selection by the Government.8 Moreover, in any event outright dismissal may have been too extreme a measure for the district court to invoke. We discuss these two findings in turn.9
II. The Selective Prosecution Claim
11
As we held in United States v. Diggs,10 a defendant alleging or invoking the selective prosecution defense, even at the discovery stage, must offer at least a colorable claim both that the prosecution was improperly motivated and that it was selective in the first place.11 In the case at hand, however, the district court's opinion does not indicate that defendant has done either.
A. Lack of Improper Motivation
1. Overview
12
The district court found, first, that defendant had established "entitlement to discovery relating to the defense of selective prosecution" and, second, that "the particular documents that the defendant seeks to discover are sufficiently related to that defense to justify compelling the government to release them."12
13
All three judges on this panel are agreed that the district court must reconsider both findings. We are agreed that the evidence cited by the district court did not entitle defendant to discovery since it did not demonstrate a colorable showing of improper motivation, and that-even if such a showing were made-the documents in question may not be sufficiently relevant to the defense to justify their discovery.13
14
The district court listed the reasons for its conclusion that the defendant had established entitlement to discovery on the selective prosecution issue as follows:
15
(T)he court is satisfied that regardless of the test applied-reasonable doubt, colorable basis, beyond frivolous, evidence tending to show essential elements-the defendant has carried his burden. Particularly significant is the January 30, 1980 deposition of Mr. Dennis Dickson, a former F.B.I. Legal Attache stationed with the American Embassy in London. Dickson indicated that the United States Department was at one time "getting various requests from the Government of Ireland as to what the U.S. was doing to prosecute individuals that were shipping guns, ammunition, that was in violation of the Registration Act...." Dickson Deposition at 50. He confirmed that at a meeting convened by the State Department, id., apparently on September 26, 1973, id. at 47, there was discussion of means of alleviating political as well as financial and military support furnished by (sic) Irish militants by U.S. citizens, id. at 52-53. In view of these and other statements in the Dennis Deposition, it would be unreasonable to deny the requested discovery.14
16
The district court then turned to whether the documents defendant sought, which the court had earlier ruled to be state secrets, would bear on whether the Attorney General was improperly motivated. The court quoted United States v. Reynolds15 in concluding that dismissal would be proper if the Government had "invoke(d) its governmental privileges to deprive the accused of anything which might be material to his defense."16
17
Having examined each of the documents in camera, Judge Flannery then concluded:
18
There is a manifest likelihood that documents reflecting communications between agencies of the Irish and British governments and agencies of the United States would shed considerable light on the existence vel non of at least one unlawful basis for the present prosecution. Indeed, as this court stated earlier in this case, "The defendant in the case sub judice has argued persuasively that proof of the existence of communications between agencies of the British or Irish governments and American agencies is crucial to its defense of selective prosecution...."17
19
The district court apparently concluded that something which "might be material" to defendant's defense had been shown if the documents demonstrated that "the British or Irish governments had communications or discussions with American agencies, or officers, which might have resulted in, stimulated, or led to the intensification of the investigation by American agencies"18 of The Irish People.
20
However, it is clear that Congress intended to allow the Attorney General to be motivated in part by foreign policy, international political, and national security considerations, as is discussed at length below.19 A showing that the Attorney General acted in such a way is not a showing of improper motive at all. Thus, the district court erred if it ruled that defendant was entitled to discovery because the Attorney General may have sought defendant's registration at the request of our allies.20 It similarly erred if it held that the documents in question here were relevant to the defense since they might demonstrate that our allies' wishes influenced the Attorney General.21
21
There is some confusion in the case law-and the district court's opinion-over what constitutes "improper motivation." Two kinds of motives are apparently impermissible: those which have no rational basis under the statutory scheme being enforced, and those which are in and of themselves violative of the Constitution.22
22
The analysis of the meaning of FARA in the next section specifically addresses the first objection. It demonstrates that consideration of an ally's wishes and the defendant's alleged foreign ties and unfriendly activities is rational under the statutory scheme of the Act.
23
The centrality of these considerations to FARA also dictates the rejection of any allegation that the registration sought here is improperly motivated as a matter of constitutional law. In the first place, given the conclusion that FARA's origin, language, and application show it to be aimed at agents who are "propagandists" for principals like the IRA, defendant's First Amendment and equal protection constitutional challenges to FARA as applied in this case cannot be separated from a challenge to the general constitutionality of the Act. Yet it is well settled that FARA is constitutional.23 Moreover, the cases upholding its constitutionality generally involved agents with specific constitutional claims at least as colorable as defendant's here.24 Finally, there is certainly no reason to disturb these precedents on the basis of the facts before us today. All that is sought here is registration and disclosure. No limit is to be placed on what defendant can say, or whom he can see.25
24
Because the Attorney General's mandate under FARA is critical to the decision today, the statutory language, legislative history, and case law of the Act must be reviewed in some detail.
2. The meaning of FARA
25
Reviewing the language and history of FARA, and the case law under it, makes clear that the Attorney General may, consistent with the Act's scheme and Congress' intent, keep foreign policy, international political, and national security considerations in mind in his enforcement of the statute.
26
a. Language of the statute
27
Before discussing the actual language of the statute, it merits mentioning that the Act is found in Title 22 of the U.S. Code, "Foreign Relations and Intercourse," at Chapter 11, "Foreign Agents and Propaganda." This is an immediate indication that we are dealing here with a statute whose underlying nature is rooted in international political considerations and the conduct of foreign policy. This also reflects, as should be kept in mind throughout our review of the statute and its history, that a deliberate major concern of Congress was to require the disclosure of the foreign principal behind propaganda activities.
28
These considerations are reflected most strongly in the Act's provisions themselves. In § 611, the definitional section, one criterion of an "agent of a foreign principal" is that he "engage( ) within the United States in political activities for or in the interests of such foreign principal."26 "Public-relations counsel" are limited to persons representing a principal in matters "pertaining to political or public interests, policies, or relations of such principal."27 Section 611(e) "government of a foreign country," § 611(f) "foreign political party," § 611(j) "political propaganda," § 611(o) "political activities," and § 611(p) "political consultant" are all naturally defined in political terms also. The limitation of the Act to political behavior indicates its preeminent concern with international political and domestic security matters.
29
That the Act was geared toward use in the foreign policy and national security areas is also reflected by the limitation of the term "political propaganda" to matters involving the political interests of foreign governments and parties, United States "foreign policies," United States "dissensions," or "any racial, social, political, or religious disorder, civil riot, or other conflict involving the use of force or violence in any other American republic,"28 where "American republic" is limited to those "states which were signatory to the Final Act of the Second Meeting of the Ministers of Foreign Affairs of the American Republics at Habana, (sic) Cuba, July 30, 1940."29 It should also be obvious-and reviewing of the legislative history amply confirms this-that to the extent FARA focuses on subversion by foreign powers, foreign policy concerns become inevitable. The Attorney General may channel his limited resources against agents of those powers inimical to the United States, who are more likely to subvert our allies and interests.
30
Section 612(f) gives the criteria for exemption from the general filing requirements of § 612(a)30: "The Attorney General may, by regulation, provide for the exemption- ... where by reason of the nature of the functions or activities of such person the Attorney General, having due regard for the national security and the public interest, determines that such registration, or the furnishing of such information, as the case may be, is not necessary to carry out the purposes of this subchapter."31
31
Broader exemptions are set out in § 613,32 which declares that the requirements of § 612(a) "shall not apply to the following agents of foreign principals," and then lists seven categories of persons exempted. These categories are: "Diplomatic or consular officers"; "Official of foreign government"; "Staff members of diplomatic or consular officers"; "Private and nonpolitical activities; solicitation of funds"; "Religious, scholastic, or scientific pursuits"; "Defense of foreign government vital to United States defense"; and "Person qualified to practice law." With the exception of the last category, it is clear that all the exemptions are rooted in either foreign policy concerns or can be explained by the fact that Congress was interested in monitoring public and political activities, rather than private, nonpolitical, religious, scholastic, scientific, or similar activities which have only an attenuated relationship to foreign policy and national security.33
32
Section 614 is devoted to the "Filing and labelling of political propaganda," and § 621 requires that "(t)he Attorney General shall, from time to time, make a report to the Congress concerning the administration of this subchapter (i.e., FARA), including the nature, sources, and content of political propaganda disseminated or distributed."34
33
Finally, and perhaps most significant of all, § 616 requires the Attorney General
34
promptly upon receipt (to) transmit one copy of every registration statement filed hereunder and one copy of every amendment or supplement thereto, and one copy of every item of political propaganda filed hereunder, to the Secretary of State for such comment and use as the Secretary of State may determine to be appropriate from the point of view of the foreign relations of the United States.35
35
Section 616 also authorizes the Attorney General
36
to furnish to departments and agencies in the executive branch and committees of the Congress such information obtained by him in the administration of this subchapter, including the names of registrants under this subchapter, copies of registration statements, or parts thereof, copies of political propaganda, or other documents or information filed under this subchapter, as may be appropriate in the light of the purposes of this subchapter.36
37
b. Legislative history
38
That FARA was to serve a foreign policy-oriented role was apparent from the outset. It is worth noting that the registration functions originally belonged to the Secretary of State and were transferred to the Attorney General only in 1942.37 The House Report38 accompanying the original bill was entitled "Investigation of Nazi and Other Propaganda." The bill set out the results of the investigation of Naziism, Fascism, and Communism and other foreign-controlled political movements. The Report evinced a particular concern with violence and of course with foreign control.39 Concern was also expressed with the fact that the movements sought to influence "our governmental policies."40 The Report concluded:
39
....
40
2. That Congress should enact a statute conferring upon the Secretary of Labor authority to shorten or terminate the stay in this country of any visitor admitted here under temporary visa, whenever in the judgment of the Secretary such visitor shall engage in the promotion or dissemination of propaganda or engage in political activity in the United States.
41
3. We recommend that the Department of State, in collaboration with the Department of Labor, negotiate treaties and agreements with foreign nations by which such nations shall agree to receive back any persons entering this country from such foreign nation at any time such immigrant shall become subject to deportation under our laws.
42
....
43
6. That Congress should make it an unlawful act for any person to advocate changes in a manner that incites to the overthrow or destruction by force and violence of the Government of the United States, or of the form of government guaranteed to the several States by article IV, section 4, of the Constitution of the United States.41
44
The focus on radical violence and foreign affairs was to be a recurrent theme in the legislative history of not only the initial passage of FARA but also of its subsequent amendments. These themes significantly illuminate today's case.
45
The House Report of the 75th Congress42 in 1937 declared that the basic purpose of the Act was to focus a "spotlight of pitiless publicity" on those organizations financed by "foreign governments or foreign political groups" to spread propaganda and thereby "influence the external and internal policies of this country."43 This Report emphasized that the purpose of the Act was disclosure rather than prohibition. Moreover, the Report continued, "the provisions of this measure (will) have no reference to nor include any person performing only private, non-political, financial, mercantile, commercial, or other activity in furtherance of bona-fide trade or commerce of a foreign principal."44 The Senate Report45 of the same Congress incorporated the House Report.46
46
The 77th Congress amended the 1938 version of the Act. The Senate Report outlining the changes made in the Act was dated nine days after the attack on Pearl Harbor.47 It stated that the Act was "prefaced by a section stating the policy and purpose of the statute and emphasizing its function as a means of enabling the people of the United States to appraise the propaganda and other activities of foreign agents in the light of their association and background."48 The section read:
POLICY AND PURPOSE
47
It is hereby declared to be the policy and purpose of the Act to protect the national defense, internal security, and foreign relations of the United States by requiring public disclosure by persons engaging in propaganda activities and other activities for or on behalf of foreign governments, foreign political parties, and other foreign principals so that the Government and the people of the United States may be informed of the identity of such persons and may appraise their statements and actions in the light of their associations and activities.49
48
The Report also incorporated a letter from Attorney General Biddle endorsing the Act and emphasizing the "nonpolitical nature" of the exemptions allowed.50 Again, the international political and foreign policy considerations were obvious in both the amendments to the Act and their genesis.
49
The House Report51 of that session spoke of the "transfer (of administration) of the Act from the Department of State to the Department of Justice."52 In this vein, the Report continued: "The (amended) section also provides coordination with the State Department by providing that it shall receive a copy of each registration statement for examination from the point of view of the foreign relations of the United States."53
50
One interesting highlight of the amendments proposed in 1941 and 1942 further illuminates the foreign policy and international political considerations inherent in the Act. Certain sections of the bill were rejected54 by President Roosevelt as putting too great a strain on our relations with wartime allies whose agents might have to register under the terms of the original amendments.55 Subsequently, therefore, an exemption was added to the Act for agents "whose foreign principal is a government of a foreign country the defense of which the President deems vital to the defense of the United States ...."56 The amendment was made pursuant to a suggestion by Attorney General Biddle, the letter accompanying which is incorporated in both the subsequent House Report and Senate Report,57 and this provision remains in the current version of the law.58 When a foreign principal is deemed to be a government essential to the defense of the United States,
51
such government of a foreign country (must) furnish( ) to the Secretary of State for transmittal to, and retention for the duration of (the Act) by, the Attorney General such information as to the identity and activities of such person or employee at such times as the Attorney General may require. Upon notice to the Government of which such person is an agent or to such person or employee, the Attorney General, having due regard for the public interest and national defense, may, with the approval of the Secretary of State, and shall, at the request of the Secretary of State, terminate in whole or in part the exemption herein of any such person or employee ....59
52
Thus, Congress amended the Act specifically to prevent its hampering of relations with friendly countries. If agents of foreign principals essential to our defense may be exempted from FARA altogether for the sake of our foreign policy, then it is certainly within the intent of the Act that in his enforcement the Attorney General may consider the identity of an unfriendly principal and the wishes of our allies.
53
In 1950 the definitional section of FARA was amended to include "a new category of persons within the definition of the term 'agent of a foreign principal.' The new category consist(ed) of persons who have knowledge of or have received instruction or assignment in the espionage, counter espionage, or sabotage service of a foreign government or political party ...."60 This part of FARA is now incorporated in sections 851 and 852 of Title 50, "War and National Defense." The 1950 amendments were part of the Internal Security Act of 1950, the primary purpose of which was "to combat un-American activities by requiring the registration of Communist organizations ...."61 Thus Congress modelled FARA precisely so that it could be used against those organizations inimical to American interests.
54
Further amendments were added to FARA in 1966. Again, Congress' concern with political, and not apolitical, activity underscored the international political and domestic security focus of the Act.62 The Report also stated: "The Secretary of State will be provided copies of the registration statements and political propaganda filed with the Department of Justice under the requirements of the (A )ct," "(c)ontingent fee contracts between agents and foreign principals based upon success in political activities to be undertaken by the agent are banned," and "(c)ampaign contributions for or in behalf of a foreign principal are prohibited in connection with any election to public office or in connection with any primary election or convention to select candidates for office."63
55
That Congress intended and desired that the legislation be sensitive to the requirements of national security was reflected by its statement that some changes in the statutory language had to be made since many of the earlier provisions had been dictated by the "prewar circumstances surrounding enactment of the law."64 The section-by-section analysis65 of the proposed amendments stated that they
56
would take into account the change of circumstances of the present day by requiring a showing not only of foreign connections but also of certain activities performed by the agent for foreign interests which are either political in nature or which are carried on in particularly sensitive areas in which the line between political and non-political action is difficult to define.66
57
The House Report also stated that the phrase "political or public interests, policies, or relations," referred to "matters which on the domestic governmental level would be called a policy matter, in the international context may be called questions concerning a country's foreign relations, and in the context of party politics may be termed matters involving the national interest."67
58
The House Report emphasized that one of the new subsections
59
would require the Attorney General to transmit to the Secretary of State not only the initial registration statement, as under existing law, but, in addition, supplemental and amendatory statements in propaganda filed with him by agents. The Secretary of State would be authorized to comment on the statements and to make such use of them and the related material as seems appropriate from the standpoint of the Nation's foreign relations. This, for example, would enable the Secretary of State to make American embassies and other missions more fully informed of the activities of agents of foreign principals.68
60
The Report pointed out that a new subsection would authorize the Attorney General to circulate copies of acquired material
61
to other branches, agencies and officials of the Government, as appropriate. It would, for example, be appropriate in light of the purposes of the act for such statements of propaganda to be forwarded to specific agencies named in the statements as the object of the agent's political activities or to congressional committees concerned with legislation which, according to the material filed by the agent, is the subject of his interest.69
62
It should be mentioned that departmental reports on the 1966 amendments were received from agencies involved with American foreign relations, while an agency concerned with foreign relations only to the extent that they have impact on non-political activities made the determination that comment would be inappropriate.70
63
The Senate Report71 for the 1966 amendments made some important additional points. In its discussion of the bill's main purpose, it stated that the amendments were "intended to protect the interests of the United States" by requiring disclosure by agents "acting for or in the interests of foreign principals where their activities are political in nature or border on the political." These disclosures would "permit the Government and the people of the United States to be informed as to the identities and activities of such persons and so be better able to appraise them and the purpose for which they act."72
64
The amendments were also "aimed at better focusing the act on those individuals attempting to influence Government policies through political activities."73 In particular, the amendments were tailored to provide better disclosure when agents were "contacting Members or committees of the Congress or Government officials on policy matters in behalf of their foreign principal ...."74 The Report noted the "persistent efforts by numerous agents of foreign principals to influence the conduct of U. S. foreign and domestic policies using techniques outside the normal diplomatic channels."75 The Report found it "noteworthy that the increased tempo of nondiplomatic activity has picked up in almost direct proportion to our Government's growing political, military, and economic commitments around the world."76
65
Given the established linkage between the defendant, INAC, and the IRA,77 clearly the statutory objectives are consonant with the registration of the defendant.
66
c. Case law
67
Soon after FARA was originally enacted the Supreme Court had occasion to elucidate the purpose of the Act in Viereck v. United States.78
68
The Act of 1938 requiring registration of agents for foreign principals was a new type of legislation adopted in the critical period before the outbreak of the war. The general purpose of the legislation was to identify agents of foreign principals who might engage in subversive acts or in spreading foreign propaganda, and to require them to make public record of the nature of their employment.... These means (used to accomplish the ends of the statute) included the requirement of registration of agents for foreign principals ... and the requirement that the registrant give certain information concerning his activities as such agent.79
69
Only Justices Black and Douglas dissented from the Supreme Court's opinion in Viereck, and they did so on grounds unrelated to the majority's statement of the general purpose of the statute. They also stated the purpose of FARA:
70
The general intent of the Act was to prevent secrecy as to any kind of political propaganda activity by foreign agents. Both the House and Senate Committees reporting the Bill under consideration declared it to be their purpose to turn "the spotlight of pitiless publicity" upon the propaganda activities of those who were hired by foreign principals. Appreciating that "propaganda efforts of such a nature are usually conducted in secrecy," they wanted to make full information concerning it "available to the American public" and sought by "the passage of this bill" to "force propaganda agents representing foreign agencies to come out 'in the open' in their activities, or to subject themselves to the penalties provided in said bill."1 They declared that the purpose of the Bill was to require all such hired agents "to register with the State Department and to supply information about their political activities, their employers, and the terms of their contracts." 2
71
What emerged from extended Congressional investigations, hearings and deliberations was this Act, intended to provide an appropriate method to obtain information essential for the proper evaluation of political propaganda emanating from hired agents of foreign countries. As the House and Senate Committees considering the Bill said, it "does not in any way impair the right of freedom of speech, or of a free press, or other constitutional rights." Resting on the fundamental constitutional principle that our people, adequately informed, may be trusted to distinguish between the true and the false, the bill is intended to label information of foreign origin so that hearers and readers may not be deceived by the belief that the information comes from a disinterested source. Such legislation implements rather than detracts from the prized freedoms guaranteed by the First Amendment. No strained interpretation should frustrate its essential purpose.
72
United States v. Peace Information Center81 quoted extensively from the original House Report in finding that "(t)he intent and purpose of the Congress in enacting (FARA)" was to " 'publicize' " those " 'propagandists' " who seek to " 'influenc(e) American political opinion on a political question.' "82 It quoted Viereck in finding that the " 'general purpose' " of this " 'new type of legislation adopted in the critical period before the outbreak of the war' " was to " 'identify agents of foreign principals who might engage in subversive acts or in spreading foreign propaganda, and to require them to make public record of the nature of their employment.' "83 The main focus of Peace Information Center was on the constitutionality vel non of the Act, and its finding that FARA was constitutional was based largely on Congress' broad authority to legislate on matters concerning foreign relations and national defense.
73
That the Attorney General may properly factor in national security, international political, and foreign policy considerations was reflected also in an opinion by Judge Bauman in 1972,84 in which he ordered the alleged principal in our case, INAC, to produce its books and records for officials charged with the enforcement of FARA:
74
The purpose of the Act is to protect the interests of the United States by requiring complete public disclosure by persons acting for or in the interests of foreign principals where their activities are political in nature. These disclosures offer the Government and our people the opportunity to be informed and therefore enable them to understand the purposes for which they act.
75
The Act is founded upon the indisputable power of the Government to conduct its foreign relations and to provide for the national defense....
76
... Its purpose is to meet the Government's need for records necessary to enforce its national defense and foreign policies.85
He went on to point out that INAC
77
engages in activities designed to promote the cause of one faction in the current dispute in Northern Ireland. Its fund raising and propaganda activities may well be designed to influence American policy or, put most charitably, may result in serious complications for the Government in its conduct of foreign affairs.86
78
Most recently Judge Haight began his opinion-wherein he found INAC to be an agent of the Irish Republican Army and ordered it to comply with FARA-with the recognition that "(t)he general purpose of the Act is to protect the security and foreign relations of this country by requiring agents of foreign principals to identify themselves and disclose their activities."87
79
Finally, the pattern of criminal prosecutions under FARA has, from the beginning, reflected the foreign policy and national security concerns of our Government, and Congress has never indicated any disapproval. The first three prosecutions brought, from 1939-40, involved the Soviet Union. Then, from 1940 through the end of World War II, of the sixteen prosecutions brought eleven involved Germany. The remaining five were divided, significantly, among Japan, Italy, Finland, Rumania, and Spain. In 1963 the Department of Justice reported that since World War II there have been twelve additional prosecutions. The principals alleged were, again, as we would expect: three prosecutions involved the Soviet Union, five Cuba, one Rumania, two the Dominican Republic, and one the Committee of World Congress of the Defenders of Peace.88 In the Justice Department's own pamphlet The Foreign Agents Registration Act of 1938 as Amended, it is stated that the policy and purpose of the Act is
80
to protect the national defense, internal security, and foreign relations of the United States by requiring public disclosure by persons engaging in propaganda activities and other activities for or on behalf of foreign governments, foreign political parties, and other foreign principals so that the Government and the people of the United States may be informed of the identity of such persons and may appraise their statements and actions in light of their associations and activities.89
3. Conclusion
81
A review of the language, history, and case law of the Foreign Agents Registration Act demonstrates that it was inspired by national security, international political, and foreign policy considerations. The design and use of FARA has reflected the evolving concerns of American foreign policymakers. It was prompted by and first used extensively against Fascism and Naziism in the 1930s and then during World War II itself, was then aimed more toward the Soviet Union and its allies in the post-war period, and-apparently-today is being employed for disclosing links with international terrorists.90 The Attorney General has only limited time and money to spend on enforcement, and may, consistent with the Constitution and the statute, channel his efforts in a way consistent with the underlying purpose of the Act. There is nothing in the district court's opinion to demonstrate that he acted in a way inconsistent with FARA's rationale-to the contrary. The Attorney General was entitled in the case before us to take into account the wishes of our allies and the uncongeniality of the prospective registrant's ultimate principal.91 Unless the district court finds that the documents at issue demonstrate colorably he did more than this, there has been no colorable showing of improper motivation.
B. Lack of Selection
82
Even before the district court reached the question of improper motive, it should have considered whether there had been any selection. Defendant must make a colorable showing that he has been especially singled out, that there exist persons similarly situated who have not been prosecuted. Without such a showing, it is irrelevant that the British or Irish may also have wanted the suit brought.
83
This court recently had occasion to consider the selective prosecution defense in United States v. Diggs.92 It is clear from Diggs that a demonstration of selection is indispensable for the defense and that the burden of so demonstrating lies squarely on the defendant. Diggs established a two-step process, under which the determination of selection should come first. And whether a judge determines the discrimination or selection first or last, at some point he must make this determination. In the case at hand, however, not only was there no showing that the selection was improperly motivated, there was no showing that there had been any selection at all.
84
The two elements of discriminatory selection and improper motive might be compared to the two elements of conspiracy, i.e., an agreement making up the conspiracy plus an overt act carrying the conspiracy into effect. Chronologically, in the case of discriminatory prosecution, the two steps are reversed in time, but we must have both. The improper motive compares to the agreement for an illegal object; the actual discriminatory selection compares to the overt act. Both elements are necessary for a conspiracy charge and both elements must be clearly and separately shown for a selective prosecution defense.
As stated in United States v. Scott :
85
In order to prevail in this allegation (of selective prosecution) appellant must bear the burden of proving at least a prima facie case. This requires that appellant first demonstrate that others similarly situated generally have not been prosecuted for conduct similar to that for which he was prosecuted.93
86
The district court stated that "(t)he present case does not lend itself easily to such analysis (as in Scott ), however, because of the manifest difficulty of finding others 'similarly situated' in the sense of voicing strong and regular opposition to the foreign policy (regarding Ireland) of a major United States ally (Great Britain)."94 Concluding that the Scott test is inappropriate, however, assumes the conclusion. If there are few "similarly situated" to The Irish People, it is precisely because of its uniqueness that we would find it difficult to fault the Attorney General's decision to require it to register. If, as the district court found, there was no one to whom defendant could be compared in order to resolve the question of selection, then it follows that defendant has failed to make out one of the elements of its case. Discrimination cannot exist in a vacuum; it can be found only in the unequal treatment of people in similar circumstances.95 Where defendant cannot show anyone in a similar situation who was not prosecuted, it has been held that he has not "met even the threshold point of the Yick Wo doctrine-' official discrimination ... between persons in similar circumstances, material to their rights ....' "96 Thus, if we accept the district court's conclusion that few are "similarly situated" with defendant-a tenuous assertion, in light of our discussion below97 of past registrations-we would not find for defendant.
87
This was, indeed, precisely the conclusion reached by Judge Haight in Attorney General v. INAC,98 a "comprehensive opinion"99 recently affirmed by the Second Circuit. There the court ordered INAC-the alleged principal in our case100-to register under FARA as an agent of the IRA. Judge Haight used the same two-pronged test we do today, relying on the Second Circuit case of United States v. Berrios.101 He found, as we do, that neither part of the test had been met.102 Specifically with regard to the lack of selection, he stated, "Even assuming that (INAC) has satisfied (the "improper motive") prong of the Berrios test, it has pointed to no instances in which others allegedly in violation of the Act have not been prosecuted. The absence of such proof, by itself, defeats the defense."103
88
Moreover, in choosing to rely on what it believed to be an alternative test found in some other cases,104 the district court in our case incorrectly concluded that these alternative tests obviated the need for the threshold examination of selection. To the contrary, a careful reading of these cases shows no deviation from the established two-step test of establishing selection and then the motive for selection. The passages cited by the district court from these cases deal not with the essential elements of the defense but with the degree to which these elements must be established before defendant can prevail. Indeed, in each case the need for the establishment of the fact of selection is recognized.105 At any rate, we reaffirm that Diggs is the controlling case for this Circuit.
89
Concluding that defendant failed to make out the first part of the two-element test for selective prosecution, and that both elements are required for the defense, does not quite end the inquiry, however. There remains the issue of whether this being so, there is no necessity of showing both where all that is being sought is discovery. Thus, the district court's opinion may be read as requiring less than the two-part test for deciding whether discovery is appropriate, even if the two-part test is still necessary for the selective prosecution claim itself.
90
Again following Diggs,106 we can see no reason for throwing out half the standard on the discovery issue. If either part of the test is failed, the defense fails; thus it makes sense to require a colorable claim of both before subjecting the Government to discovery. Since it is well established that, even in the context of a criminal prosecution, the Government enjoys a presumption of having "undertaken (the action) in good faith and in nondiscriminatory fashion,"107 it also makes sense that the burden be generally on the defendant to show the necessary elements at each procedural stage.
91
We think even the cases relied on by the district court as support to the contrary bear this out.108 In United States v. Berrios the court stated that, before it allowed the requested discovery, it would "require some evidence tending to show the existence of the essential elements of the (selective prosecution) defense"-not an essential element-and that "the documents in the government's possession would indeed be probative of these elements."109 Berrios thus pointed out that defendant there had "not pointed to a single unprosecuted violation ... on the part of others, even though proof of this essential element would not necessarily be in the government's exclusive control."110 We do not believe the other cases cited by the district court are supportive either. Berrigan required a "colorable basis"111 for the defense, and it seems to us that if an essential half of the defense is not colorable then there is no such "colorable basis." This was, incidentally, exactly the approach taken in Diggs.112 The same is true of the Oaks requirement that the claim be taken "past the frivolous stage";113 Oaks, moreover, required "an initial factual showing" of "impermissible discrimination"114-which, in that case's context, sounds like an amalgam of both elements. In Peskin, it is our reading of the case that the hearing for defendant's selective prosecution claim was denied precisely on the test of no improper motive alone. The same is true of Berrigan. In the last case relied upon by the district court, Falk, while it was held that defendant's selective prosecution claim was not without merit, it was done upon a finding that he had shown both elements.115 Finally, we again affirm that Diggs controls for this Circuit.
92
Defendant argues that it was selected "because of (the government's) hostility to the editorial policy of defendant, and the (Irish Republican) cause it espouses...."116 But if the question of selection is approached from the standpoint of the political issues involved in Northern Ireland and the defendant's support for one faction in the strife there, one finds that the Attorney General has sought and obtained the registration under FARA of persons representing a variety of political interests ranging from pro-loyalist to pro-Irish Republican.117 Defendant thus has a difficult though not impossible task to show selection.118
93
Note that all eligible foreign agents are required to register under the Act, whether the Attorney General brings suit against them or not. Thus, it is not as if the Attorney General's discretion determined that defendant fell within the Act: all that was exercised here was the executive's pure enforcement power.
94
If the Government has a valid ground to bring this action, then presumptively it has every right and duty to do so. It would be anomalous to allow The Irish People to escape the duty to register as a foreign agent solely because registration would create joy in Whitehall or Dublin. The interests of the United States Government are paramount, and if there was actually no selection, then all the correspondence from Britain and Ireland creating an aura of "improper" extraneous motive is beside the point: the first essential element of discriminatory selection has not been established.
III. The Improper Dismissal Issue
95
On remand the district court should reanalyze the documents at issue to determine whether, under the principles we have outlined, there remains a colorable showing of selective prosecution.119 It should look to see whether there was selection and, if so, whether it was improperly motivated. We should also point out that even if the district court makes this finding, dismissal may be an inappropriate remedy for the Government's inability to produce the documents.
96
In reaching its conclusion that dismissal was proper the district court stated, "It would be inconsistent with the fundamental fairness required by due process to allow the Government to assert the defendant's guilt and then deny it the materials that might serve to exculpate it."120 To support this proposition the court cited United States v. Reynolds121 and United States v. Andolschek.122 In the latter case, Judge Learned Hand stated,
97
While we must accept it as lawful for a department of the government to suppress documents, even when they will help determine controversies between third persons, we cannot agree that this should include their suppression in a criminal prosecution, founded upon those very dealings to which the documents relate, and whose criminality they will, or may, tend to exculpate. So far as they directly touch the criminal dealings, the prosecution necessarily ends any confidential character the documents may possess.... The government must choose; either it must leave the transactions and the obscurity from which a trial will draw them, or it must expose them fully.123
98
The district court quoted this passage and then concluded that a dismissal of the Government's action was proper in this case.
99
We disagree. Neither Reynolds nor Andolschek supports dismissal in this case. Reynolds involved a suit by the widows of three deceased civilian observers following the death of their husbands in the crash of a bomber. Plaintiffs sought production of the Air Force's official accident investigation report and the statements of the three surviving crew members. The Government moved to quash the motion, claiming that these matters were privileged against disclosure pursuant to Air Force regulations. Nonetheless, the district court ordered the Government to produce the documents in order that it might determine whether they contained privileged matter. The holding was affirmed on appeal, but the Supreme Court reversed. The Court stated:
100
Regardless of how it is articulated, some ... formula of compromise must be applied here. Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case. It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.124
101
The Court took judicial notice of the national security considerations in the case, and pointed out that a balance had to be struck between the competing claims of the two parties, taking into account the necessity of the evidence for plaintiff, and the national security considerations of defendants. The Supreme Court then stated:
102
There is nothing to suggest that the electronic equipment, in this case, had any causal connection with the accident. Therefore, it should be possible for respondents to adduce the essential facts as to causation without resort to material touching upon military secrets. (Plaintiffs) were given a reasonable opportunity to do just that when (the Government) formally offered to make the surviving crew members available for examination. We think that offer should have been accepted.125
103
As for Andolschek, which involved a criminal prosecution, the Supreme Court in Reynolds distinguished "those cases in the criminal field"126 from the case that was before them. The Court cited Andolschek without approval, and Judge Hand himself carefully limited Andolschek to "cases involv(ing) the prosecution of a crime consisting of the very matters recorded in the suppressed document, or of matters nearly enough akin to make relevant the matters recorded."127 That is not the case here.
104
Thus we hardly think that either Reynolds or Andolschek supports dismissal. On the contrary, Andolschek implicitly and Reynolds explicitly stand for the proposition that courts must balance a number of factors in determining how to proceed when one side or the other has claimed that certain evidence is privileged. Thus, even if defendant would normally be entitled to discovery, it does not follow that, if there can be no discovery in the particular case, dismissal is the only choice available to the court.
105
The parties dispute whether dismissal should be governed by Rule 37 of the Federal Rules of Civil Procedure. On the one hand, plaintiff argues that the Rule explicitly governs the permissible sanctions, including dismissal, for "Failure to Make or Cooperate in Discovery."128 The district court's 8 August 1980 order requiring the Attorney General to choose between producing the sought documents or suffering dismissal of his complaint does seem very like a production order.129 On the other hand, defendant argues that the Rules authorize discovery only of information "not privileged,"130 and the documents here have been held, quite correctly, to be so privileged. Still, it seems unduly formalistic to cast Rule 37 aside and create a procedural vacuum in this situation, which seems at the very least closely analogous to that covered by the Rule.
106
Happily, this issue is of an intricacy disproportionate to its interest. What is critical is the fact that, whether Rule 37 applies or not, the district court erred in deciding that dismissal is necessarily the proper remedy when information which "might" be relevant to a selective prosecution claim is unavailable for discovery. Whether or not defendant's due process claim is considered under Rule 37 or independently of it,131 it involves more than simply whether the materials sought "might serve to exculpate" defendant. Certainly the possibility of exculpation-if the defense of selective prosecution can be said to "exculpate" defendant-must be considered by the court, but other factors must be weighed as well: the likelihood that they will serve to exculpate defendant, their necessity for the defense,132 what defendant stands to lose in the case, the government's interest in maintaining the material's secrecy and in successfully bringing the action, the availability of alternatives to a dismissal-or-disclosure order, and, generally, the parties' respective behavior, cooperation or lack of cooperation, and good or bad faith during the course of the lawsuit.
107
Even if Rule 37 does not apply, it makes sense to conclude that, in the absence of a specific rule, the court should fashion a remedy which balances the interests of the parties, rather than take a meat-ax approach.133 Similarly, whether or not Rule 37 applies, the balancing we mandate will be somewhat different from-but just as critical-as in the usual Rule 37 case. In the latter context, courts are typically concerned with balancing the due process claim of a party resisting disclosure to his day in court against the court's need to vindicate its authority. Here, we are balancing the due process claims of the party seeking disclosure against the other party's interest in, inter alia, protecting valid privileges. We also point out that if Rule 37 limits dismissal when material is not privileged and there is a production order, then certainly if the material is privileged and there is not a production order-which plaintiff argues makes this a non-Rule 37 case-dismissal should also be limited. Thus, whether or not Rule 37 and the cases decided thereunder apply, they afford at the very least a proper and analogous framework demonstrating that a balancing of the parties' interests must be undertaken, and some of the factors to be considered in striking that balance.
108
In SociEetEe Internationale v. Rogers134 the Supreme Court reversed the decision below to dismiss an action when one party failed to produce all the documents requested in discovery. Justice Harlan's opinion stated:
109
In our opinion, whether a court has power to dismiss a complaint because of non-compliance with a production order depends exclusively upon Rule 37, which addresses itself with particularity to the consequences of a failure to make discovery by listing a variety of remedies which a court may employ as well as by authorizing any order which is "just."135
110
The opinion concluded that "Rule (37) allows a court all the flexibility it might need in framing an order appropriate to a particular situation,"136 thus recognizing the need to weigh the surrounding circumstances. In particular, the Supreme Court recognized as a valid distinction instances where the failure to produce documents was caused by inability on the part of a party, as opposed to willfulness or bad faith. In the discovery here, there has been no allegation of bad faith on the part of the Government. Indeed, plaintiff-like petitioner in SociEetEe Internationale -turned over several thousand pages of documents to defendant at its request or pursuant to earlier orders by the district court. The district court here had already found, moreover, that the documents plaintiff had were state secrets, and that plaintiff was under no duty to reveal them.137
111
Our recent holding in Zerilli v. Smith,138 also seems relevant. That case involved an action by plaintiffs under the Privacy Act and the Fourth Amendment against the Justice Department. Plaintiffs' attempts in the suit to force disclosure of a reporter's sources under Rule 37 were rebuffed, however: "Because we believe that in this case the First Amendment interest in protecting a news reporter's sources outweighs the interest in compelled disclosure, we affirm the District Court's decision to deny the motion to compel discovery."139 This court noted in Zerilli that overwhelming precedent supports a balancing of interests when a privilege is asserted.140 The court there balanced the two interests, the newspaper reporter's sources and the plaintiffs' interest in compelled disclosure, and concluded that compelled disclosure had the lighter weight. Only if we reduce our interests in national security and the confidentiality of our diplomatic and military communications to less than either a newspaper reporter's sources or compelled disclosure can we justify a dismissal here.
112
Similarly, in a case explicitly denying the applicability of Rule 37, the Fifth Circuit held in Wehling v. Columbia Broadcasting System that a district court's dismissal of a plaintiff's action when the defense sought privileged matter from him-precisely the situation here-was improper without a balancing of the parties' respective interests.
113
(T)he (district) court should have measured the relative weights of the parties' competing interests with a view toward accommodating those interests, if possible. This balancing-of-interests approach ensures that the rights of both parties are taken into consideration before the court decides whose rights predominate.141
114
In other non-Rule 37 cases-involving, like Wehling, claims brought by plaintiffs who then sought during discovery to invoke the Fifth Amendment privilege against self-incrimination-courts have ruled that dismissal is not automatic, that some balancing of the parties' interests is required, and that efforts at accommodation of both sides must be made.142
115
Balancing the relevant factors we outlined earlier143 seems to us to make the case at hand rather easy. The likelihood of injustice to defendant is small indeed. As we pointed out before, no constitutional rights are threatened, only registration is imminent, no jail sentence looms. The civil/criminal distinction is important, and was emphasized by the courts in both Reynolds and Andolschek.144 On the other hand, the consequences of revealing the evidence are of the same magnitude as revealing the military secrets in Reynolds, a case where the Supreme Court decided to strike the balance on the Government's side. In the district court's earlier memorandum and order sustaining the Attorney General's claim of state secrets privilege, it was held that "disclosure ... would compromise valuable sources of foreign intelligence and have adverse consequences on the President's ability to conduct the nation's foreign affairs and to protect the nation's security."145 We have inspected the in camera material and endorse Judge Flannery's appraisal of the consequences of disclosure. We find analogous an observation in a related proceeding in the Second Circuit:
116
It seems to the (c)ourt that this may well be an attempt to checkmate the Government's legal quest for information by requiring the presence for interrogation of high level Government officials engaged in one of the Nation's most sensitive security areas. It confronts them with the choice of submitting to the questions of the defendant or, in the alternative, of abdicating its statutory rights.146
117
And, as we have already discussed, the district court's findings do not demonstrate that the material which defendant seeks is relevant, let alone necessary, to the defense.147 It only confirms that the Attorney General is acting with considerations of the national defense, internal security, and foreign relations of the United States in mind-no improper motivation whatsoever. The Government, as we discussed earlier, has been cooperative in the suit thus far, and has an important and legitimate interest in maintaining this lawsuit.
118
There are, finally, alternatives available to defendant, which will afford the information which would be useful to it at a civil trial, while not impairing the Government's legitimate interests. The Second Circuit has suggested in its opinion In Re Attorney General of the United States148 a procedure which the district court could easily have adopted. There, in overturning a contempt citation of the Attorney General for his refusal to deliver certain informant files to the opposing plaintiff's attorneys, the appellate court directed the trial court to make representative findings of fact from the files which would not compromise the information which the Attorney General asserted was privileged. A similar procedure would have been practical in this case, since due process would not require that the defendant gain actual physical possession of the documents. So long as the defendant is not deprived of the benefit of any of the evidence the documents might contain, in fact, it has lost nothing at all. In SociEetEe Internationale the Supreme Court noted the availability of a similar remedy and the erroneous refusal of the district court to consider it.149 The Attorney General himself could be required to make the necessary findings of fact. Finally, rather than put the Government in the dilemma of choosing either to drop its case or turn the state secrets over to defendant, the district court may properly itself delve more deeply than it might ordinarily into marshalling the evidence on both sides for the selective prosecution claim. This investigating is done routinely, for instance, by courts in deciding Freedom of Information Act requests. The district court may also consider other alternatives which the parties suggest.
119
It is possible, however, that the district court's evaluation of the circumstances will lead it to conclude that we have underestimated the defendant's stake or the necessity of the documents, or that the alternatives we have suggested are impractical, or that in some other way our weighing has been inequitable. If so, the district court should not hesitate to reweigh the factors it deems important and reevaluate the propriety of a dismissal. However, if our analysis above has correctly identified and described the relevant circumstances, we think a dismissal improper.
IV. Conclusion
120
The district court erred in its conclusion that defendant is entitled to discovery for the selective prosecution claim. The evidence cited in the opinion does not demonstrate a colorable showing that the Attorney General was improperly motivated. Moreover, a ruling that defendant was entitled to discovery on the selective prosecution claim requires a colorable showing of selection as well as improper motive, and no such finding was made. On remand, the district court should reevaluate in light of today's opinion the evidence which defendant has presented for its selective prosecution defense. Finally we caution the district court that, even if both elements of the selective prosecution claim are sufficiently present to warrant discovery, it does not follow that dismissal is the proper remedy if the material sought for discovery is a state secret. The factual circumstances surrounding the litigation must be borne in mind and a balancing of the interests of both parties must be undertaken.
121
Reversed and remanded.
BAZELON, Senior Circuit Judge, concurring:
122
I concur in all but Part II(A) of Judge Wilkey's opinion, and in its result. I also concur in Judge Wald's opinion. In addition, I should only like to add that I do not read Part III of Judge Wilkey's opinion to suggest that the government's "good faith" in cases such as this could ever be a dispositive or even particularly important factor in determining whether or not dismissal is warranted to preserve a defendant's right to due process. Cf. Wilkey op. at 950-951, 953-954. As Judge Wilkey's opinion points out, one of the ways in which refusing to disclose legitimately privileged documents differs from disobeying a production order is that the latter act-but not the former-implicates the "court's need to vindicate its authority." Id. at 950-952. The good faith of the nonproducing party is necessarily an important and appropriate factor that courts should consider in the usual Rule 37 proceeding determining sanctions for failure to obey a production order. See Societe Internationale v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 1095, 2 L.Ed.2d 1255 (1958). Whether or not Rule 37 technically applies to the refusal to disclose legitimately privileged documents, however, the appropriate task for a court in that context is simply to "measure( ) the relative weights of the parties' competing interests with a view toward accommodating those interests, if possible." Wehling v. CBS, 608 F.2d 1084, 1088 (5th Cir. 1979). The non-disclosing party's good or bad faith may create objective facts that make "accommodation" more or less feasible. On the other hand, its "good faith" in and of itself should not be used to dilute the due process protection accorded to the party seeking disclosure.
123
Separate Opinion of Circuit Judge WALD, in which Senior Circuit Judge BAZELON concurs:
124
I concur in Judge Wilkey's opinion with the exception of Part II, A. I agree that a colorable claim of improper motivation has not yet been demonstrated but cannot entirely accept either his analysis of the legislative history or his comments on constitutionally permissible motivation.
125
As Judge Wilkey observes, Diggs requires that "a defendant alleging or invoking the selective prosecution defense, even at the discovery stage, must offer at least a colorable claim both that the prosecution was improperly motivated and that it was selective in the first place." Opinion of Wilkey, J., at 932. Here, neither prong of the Diggs standard was satisfied. First, the district court declined to rule on the issue of selection "because of the manifest difficulty of finding others 'similarly situated' in the sense of voicing strong and regular opposition to the foreign policy (regarding Ireland) of a major United States ally (Great Britain)." Mem. Op. at 3, J.A. at 114. And second, the court failed to identify adequate factual support for a colorable showing that the present action was prosecuted to "alleviat(e) political as well as financial and military support furnished (to) Irish militants by U. S. Citizens." Mem. Op. at 4, J.A. at 115 (emphasis in original). The district court's opinion points only to one witness' statement that "(p)erhaps" the Irish government made such a request. Deposition of Dennis Dickson at 52 (Jan. 30, 1980).
126
I cannot agree with Judge Wilkey, however, that FARA enforcement may permissibly be focused on one side (i.e., the side currently supported by the Administration) of foreign policy controversies that may be the subject of debate among Americans. Certainly the text of the Act and its legislative history allow the Justice Department to take account of foreign intelligence sources in deciding who is a foreign agent and how dangerous the agent may be and permit use of limited resources to target those alleged agents deemed most dangerous or powerful (i.e., saboteurs, terrorists). But I resist the notion that the power of prosecution may be used selectively to manage the information put before the American people in debates over foreign policy. In this context, i.e., selectively labelling a newspaper as an organ of propaganda for a foreign agent, issues of constitutionally improper motivation surface disturbingly. If the district court were to identify evidence which colorably shows that this newspaper was singled out for enforcement while those expressing views on the other side of the controversy were left alone and " 'the prosecution was undertaken with the motive to suppress' protected expression," Mem. Op. at 4, J.A. at 115 (quoting United States v. Peskin, 527 F.2d 71, 86 (7th Cir. 1975) (en banc)), the defendants would have made the requisite colorable showing of selective prosecution. FARA, evenhandedly applied, has survived constitutional objections, and in fact serves first amendment values by supplementing the information that might otherwise be available to the public. And I concede that, as Judge Wilkey's opinion points out, some unevenness was built into the Act through its congressionally authorized exemptions in the service of compelling interests of national security. But that unevenness may not permissibly be expanded through prosecutorial discretion to discredit views currently in disfavor while withholding the "spotlight of pitiless publicity" from views our government and allies prefer be presented to the American public in more palatable form.
127
Even were the district court to identify a colorable showing of both elements of a selective prosecution defense, however, there is some question whether the documents at issue are, even under a "liberal" standard, "sufficiently related to that defense to justify compelling the government to release them." Mem. Op. at 5, J.A. at 116. Their relevance must, of course, be considered on remand in light of additional fact findings. But the district court's description suggests the documents record only communications upon which the Attorney General could permissibly base an exercise of prosecutorial discretion. The existence of such communications would seem to bear only tangentially on the claim that the Attorney General responded to pressure to suppress political support for Irish militants. Such attenuated relevance, even were it sufficient to justify a discovery order, at the very least lessens the value of the documents to the defense and suggests that their unavailability to the defense provides slender support for dismissal.
1
22 U.S.C. §§ 611-621 (1976). The specific provision under which this action is brought is id. § 618(f)
2
In its FARA registration INAC has identified its foreign principal as the "Northern Aid Committee." However, in a case decided by the United States District Court for the Southern District of New York, Attorney Gen. v. INAC, 530 F.Supp. 241 (S.D.N.Y.1981), and affirmed by the Second Circuit, 668 F.2d 159 (2d Cir. 1982), it was held that the true foreign principal of INAC is the Irish Republican Army, an organization generally characterized as terrorist
3
Defendant's Answer, Joint Appendix (J.A.) at 6-7
4
Docket No. 76-1518, J.A. at 47
5
Defendant's Motion to Dismiss, J.A. at 55
6
Memorandum opinion (mem. op.), No. 76-1518 (D.D.C. 8 Aug. 1980), J.A. at 112
7
Order, No. 76-1518 (D.D.C. 6 Nov. 1980), J.A. at 136
8
Because we conclude that the findings of the district court demonstrate not even a colorable showing of selective prosecution, reversal is proper whether or not the showing which a defendant must make to obtain discovery differs from the showing it must make at trial to establish a prima facie case of selective prosecution. See United States v. Diggs, 613 F.2d 988, 1003 n.87 (D.C.Cir.1979), cert. denied, 446 U.S. 982, 100 S.Ct. 2961, 64 L.Ed.2d 838 (1980). However, because this determination will likely confront the district court on remand if it continues its inquiry into whether there has been a sufficient showing by defendant, we find further at this time that defendant in fact need make only a colorable showing of each prong of the defense in order to be entitled to discovery. This or something like it seems to be the rule in most other circuits which have reached this issue. See United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974) (" 'colorable basis' "); United States v. Berrigan, 482 F.2d 171, 177 (3d Cir. 1973) ("colorable basis"); United States v. Falk, 479 F.2d 616, 620-21 (7th Cir. 1973) (en banc) ("facts sufficient to raise a reasonable doubt about the prosecutor's purpose"). But see United States v. Johnson, 577 F.2d 1304, 1309 (5th Cir. 1978) (prima facie showing required for discovery). Note that this entitlement does not necessarily mean that dismissal is proper should compliance with discovery be impossible. See pp. 949-955 ("III. The Improper Dismissal Issue") infra
We need not reach the question of to what extent the selective prosecution defense may be inappropriate in a civil suit context, though we do hold that when the interests of the parties in the suit must be balanced, the civil or criminal nature of the case is important. See note 25 and pp. 949-955 ("The Improper Dismissal Issue") infra.
9
Defendant also challenges the district court's 4 January 1977 order denying its motion to dismiss for lack of jurisdiction. However, we agree with the district court that sufficient contacts exist for jurisdiction to be proper here. See Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)
10
613 F.2d 988, 1003-04 (D.C.Cir.1979), cert. denied, 446 U.S. 982, 100 S.Ct. 2961, 64 L.Ed.2d 838 (1980)
11
Other cases supporting this two-part approach are discussed at pp. 946-949 ("II.B Lack of Selection") infra. We also note that this analysis was employed by Judge Haight in proceedings related to this one. Attorney Gen. v. INAC, 530 F.Supp. 241 (S.D.N.Y.1981), aff'd, 668 F.2d 159 (2d Cir. 1982). INAC-the alleged principal in our case-invoked a selective prosecution defense when the Attorney General sought to compel it to register under FARA as an agent of the IRA. Judge Haight held:
Selectivity alone does not render prosecution unlawful, Oyler v. Boles, 368 U.S. 448, 455-56 (82 S.Ct. 501, 505, 7 L.Ed.2d 446) (1962); Moss v. Hornig, 314 F.2d 89 (2d Cir. 1963); rather, to be unlawful, the decision to prosecute must be predicated on some unjustifiable standard. Oyler, supra, 368 U.S. at 456 (82 S.Ct. at 505); Yick Wo v. Hopkins, 118 U.S. 356 (6 S.Ct. 1064, 30 L.Ed. 220) (1886); United States v. Steele, 461 F.2d 1148, 1151 (9th Cir. 1972) (prosecution unlawful if it is an act of discrimination against those who exercise their First Amendment rights). The party raising the defense of selective prosecution "bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights." United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974). If the defendant establishes a prima facie case, the burden shifts to the government to prove that the prosecution did not arise from discriminatory motives. Id. at 1212 n.4 and cases cited therein.
Id. mem. op. and order at 19.
Judge Haight ultimately ruled in favor of the Attorney General on all issues, including the selective prosecution defense.
12
Mem. op. at 5, J.A. at 116
13
See Opinion of Wald, J
14
Mem. op. at 4, J.A. at 115 (emphasis in original)
15
345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953)
16
Id. at 12, 73 S.Ct. at 534 (emphasis added by the district court)
17
Mem. op. at 6, J.A. at 117
18
Id. at 5, J.A. at 116 (quoting from Second Reply Statement of Points and Authorities in Support of Defendant's Motion to Compel, at 9)
19
See "2. The meaning of FARA," pp. 937-945 infra
20
See mem. op. at 4, J.A. at 115 ("(Deponent) indicated that the United States (State) Department was at one time 'getting various requests from the Government of Ireland as to what the U. S. was doing to prosecute individuals that were shipping guns, ammunition, that was in violation of the Registration Act....' ... In view of these and other statements ... it would be unreasonable to deny the requested discovery")
Judge Wald's opinion, while finding that the district court erred in finding a colorable showing of improper motivation since the evidence relied on was too scant, holds open the possibility that a showing of intent by the Attorney General to "alleviat(e) political as well as financial and military support furnished by (sic) Irish militants by U. S. citizens," mem. op. at 4, J.A. at 115 (emphasis in original), would suffice to show improper motivation.
I disagree, but I should first note the limited scope of our disagreement. We agree that-even under the standard the majority would use-there has been no colorable showing discernible from the district court's opinion here. I am not convinced that the district court was using the standard the majority would use-it found "relevant" evidence which in no way demonstrated a desire to alleviate political support-but this disagreement is itself of limited relevance since we are reversing on this issue anyway.
This said, I turn to my disagreement with the majority's position that a desire on the part of the Attorney General to diminish political support for registrants on one side of a political debate is improper. Motive can be improper in two ways: it can have no rational basis under the statutory scheme being enforced, or it can in and of itself be violative of the Constitution. See p. 935 infra. I think that the discussion of "The meaning of FARA," pp. 937-945 infra, demonstrates that Congress was more concerned with the registration of agents inimical to American interests than those not, and the whole purpose of the Act is to "alleviat(e) political ... support" for registrants, especially unfriendly ones, by showing for whom they are working. It follows that there would be no statutorily improper motive here.
As for constitutionally improper motive, I can again only refer to what I say later: that the purpose of the Act is to require registration and disclosure from foreign agents, that this disclosure is required because it will "undermine" the speaker's credibility, and that the courts have consistently held this requirement to be constitutional. See pp. 935-936 infra.
(T)he bill is intended to label information of foreign origin so that hearers and readers may not be deceived by the belief that the information comes from a disinterested source. Such legislation implements rather than detracts from the prized freedoms guaranteed by the First Amendment. No strained interpretation should frustrate its essential purpose.
Viereck v. United States, 318 U.S. 236, 251, 63 S.Ct. 561, 568, 87 L.Ed. 734 (1943) (Black, J., dissenting on other grounds). True, what is involved here is not the constitutionality of the statute on its face, but its constitutionality as allegedly applied. But I think that the same factors that make the statute itself constitutional also make the Attorney General's application of it here constitutional: the Government's interest is great, the infringement on the registrant attenuated and minor. See note 25 infra. The Act itself may skew domestic "debates over foreign policy," as the majority says at pp. 956-957, infra, since foreign agents generally may be more inclined to adopt one set of views than another, so again it will not do to say that it is only the Attorney General's uneven application of the Act that runs afoul of the Constitution. I see no way to conclude that FARA is constitutional and the Attorney General's application of it in the situation hypothesized unconstitutional. So long as the registration and "alleviation of political support" (i.e., disclosure) are sought for considerations consistent with the statute-for foreign policy, international political, and national security reasons-I do not think there is motive violative of the First Amendment. (Note, therefore, that a showing that FARA was being used solely, say, to undermine views which might keep the Administration from being reelected would suffice.) The majority concedes that the Attorney General may "target those alleged agents deemed most dangerous or powerful (i.e., saboteurs, terrorists)," while denying that this targeting may be done "to manage the information put before the American people in debates over foreign policy." Opinion of Wald, J. at pp. 1-2. But the danger and power of an agent is definable only in political terms, and the whole point of the Act is "to manage the information put before the American people in debates on foreign policy."
I fear finally that, because the Attorney General's motives for bringing suit under FARA will invariably involve political considerations, the majority's formulation will make the selective prosecution defense, and the discovery of the sensitive documents also invariably involved, too common. Yet the selective prosecution defense has hitherto been rarely invoked and is even more rarely successful, further evidence that the concurrence's formulation is an incorrect one.
21
See mem. op. at 6, J.A. at 117
22
See, e.g., cases cited at note 104 infra. See also Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962); People v. Mantel, 88 Misc.2d 439, 388 N.Y.S.2d 565, 568 (Crim.Ct.1976)
23
The power the Attorney General has under FARA to require registration partly or entirely on the basis of foreign policy, international political, and national security considerations inevitably raises equal protection and First Amendment issues. However, it seems pointless to deal at length with these issues here since FARA's constitutionality is well-settled. It has been on the books for over 40 years, and cases involving it have been before the federal courts at every level-including the Supreme Court-without there ever being a holding of unconstitutionality. On several occasions, constitutional challenges at best indistinguishable-and probably much stronger-than those defendant could raise here have been explicitly rebuffed. See Attorney Gen. v. INAC, 530 F.Supp. 241 at 253 (S.D.N.Y.1981), aff'd, 668 F.2d 159 (2d Cir. 1982) (citing Viereck v. United States, 318 U.S. 236, 251, 63 S.Ct. 561, 568, 87 L.Ed. 734 (1943) (Black, J., dissenting)); Attorney Gen. v. INAC, 346 F.Supp. 1384, 1390-91 (S.D.N.Y.), aff'd mem., 465 F.2d 1405 (2d Cir.), cert. denied, 409 U.S. 1080, 93 S.Ct. 679, 34 L.Ed.2d 669 (1972) (citing Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090 (1959); Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959); Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633 (1961); Communist Party of the U. S. v. Subversive Activities Control Bd., 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1960); Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965)); United States v. Peace Information Center, 97 F.Supp. 255, 260 (D.D.C.1951) ("The power over external relations of the United States is extensive. It authorizes the Federal Government to deal with all phases of this subject. It comprizes (sic) not only authority to regulate relations with foreign countries, but also to prohibit any disturbance or interference with external affairs"). See also Viereck v. United States, 318 U.S. 236, 251, 63 s.ct. 561, 568, 87 l.ed. 734 (1943):
As the House and Senate Committees considering the (FARA) Bill said, it "does not in any way impair the right of freedom of speech, or free press, or other constitutional rights." Resting on the fundamental constitutional principle that our people, adequately informed, may be trusted to distinguish between the true and the false, the bill is intended to label information of foreign origin so that hearers and readers may not be deceived by the belief that the information comes from a disinterested source. Such legislation implements rather than detracts from the prized freedoms guaranteed by the First Amendment. No strained interpretation should frustrate its essential purpose.
(Black, J., dissenting); Narenji v. Civiletti, 617 F.2d 745 (D.C.Cir.1979), cert. denied, 446 U.S. 957, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980) (discussed at note 25 infra ); United States v. Elliott, 266 F.Supp. 318 (S.D.N.Y.1967).
24
See preceding note
25
Thus, to the extent the balance struck here between The Irish People's claims and governmental necessity must be scrutinized, the Attorney General has acted permissibly. As was noted in the related proceedings in the Second Circuit:
No such showing ("that disclosure would expose ... members to economic reprisal, loss of employment, physical coercion, etc., and that the disclosure would have little or no bearing on the information the state was attempting to obtain") appears here. Unlike NAACP (v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) ), there is a strong governmental interest supporting the disclosure sought and, in such cases, the (Supreme) Court has required production. See Uphaus v. Wyman, 360 U.S. 72 (79 S.Ct. 1040, 3 L.Ed.2d 1090) ... (1959); Barenblatt v. United States, 360 U.S. 190 (79 S.Ct. 1081, 3 L.Ed.2d 1115) ... (1959). This is a case in which a balance between individual and governmental interests must be struck as in all cases when First Amendment rights are asserted to bar governmental interrogations. Barenblatt, supra. Here the balance tilts strongly in favor of the Government.
The purpose of the Act is to protect the interests of the United States by requiring complete public disclosure by persons acting for or in the interests of foreign principals where their activities are political in nature....
The Act is founded upon the indisputable power of the Government to conduct its foreign relations and to provide for the national defense and so falls within the inherent regulatory power of Congress....
....
And so, here disclosure of defendant's activities bears a substantial relation to a legitimate interest which is asserted by the Government to justify the disclosure. The governmental interest may fairly be said to outweigh any possible infringement of the First Amendment rights of the defendant's members or contributors.
Attorney Gen. v. INAC, 346 F.Supp. 1384, 1390-91 (S.D.N.Y.), aff'd mem., 464 F.2d 1405 (2d Cir.), cert. denied, 409 U.S. 1080, 93 S.Ct. 679, 34 L.Ed.2d 669 (1972) (footnotes omitted) (emphasis added). See also FEA v. Algonquin SNG, Inc., 426 U.S. 548, 96 S.Ct. 2295, 49 L.Ed.2d 49 (1976); Buckley v. Valeo, 424 U.S. 1, 66-68, 71-72, 80-81, 96 S.Ct. 612, 657-658, 659-660, 663-664, 46 L.Ed.2d 659 (1976) (upholding disclosure requirements of the Federal Election Campaign Act of 1971 since they "directly serve substantial governmental interests" outweighing any "burden that they place on individual rights," id. at 68, 96 S.Ct. at 658); Zerilli v. Smith, 656 F.2d 705 (D.C.Cir.1981) (also supporting a "balancing" approach in a similar context) (discussed at pp. 952-953 infra ). A greater deference should be given the political branches in the foreign relations context. See, e.g., Narenji v. Civiletti, 617 F.2d 745, 748 (D.C.Cir.1979), cert. denied, 446 U.S. 957, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980) (requiring, in the context of classifications among aliens, only a "rational basis" for such classifications since foreign policy considerations may be involved) (quoting Mathews v. Diaz, 426 U.S. 67, 81-82, 96 S.Ct. 1883, 1892, 48 L.Ed.2d 478 (1976) ("Any rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution") and Harisiades v. Shaughnessy, 342 U.S. 580, 588-89, 72 S.Ct. 512, 518-19, 96 L.Ed. 586 (1952) ("Such matters (which are "vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government") are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference")).
See also note 20 supra.
26
22 U.S.C. § 611(c) (1976) (emphasis added)
27
Id. § 611(g) (emphasis added)
28
Id. § 611(j)
29
Id. § 611(l )
30
Section 612(a) states: "No person shall act as an agent of a foreign principal unless he has filed with the Attorney General a true and complete registration statement and supplements thereto as required ... or unless he is exempt from registration under the provisions of this subchapter."
31
Id. § 612(f)
32
Id. § 613
33
The lack of interest which Congress had in "nonpolitical" and "private" matters is restated in the legislative history of this section. See S.Rep.No.1061, 87th Cong., 1st Sess. 1 (1961), U.S.Code Cong. & Admin.News 1961, p. 3219. The Attorney General specifically endorsed this legislation. Id. at 3-4
34
22 U.S.C. § 621 (1976) (emphasis added)
35
Id. § 616(b) (emphasis added)
36
Id. § 616(c) (emphasis added)
37
See Exec. Order No. 9176, 7 Fed.Reg. 4127 (1942)
38
H.R.Rep.No.153, 74th Cong., 1st Sess. (1935)
39
Id. at 13, 20, 23, 24
40
Id. at 7
41
Id. at 23-24
42
H.R.Rep.No.1381, 75th Cong., 1st Sess. (1937)
43
Id. at 1-2
44
Id. at 2
45
S.Rep.No.1783, 75th Cong., 3d Sess. (1938)
46
Id. at 1-2
47
S.Rep.No.913, 77th Cong., 1st Sess. (1941)
48
Id. at 9
49
Id. at 1 (emphasis added). This statement of purpose has been incorporated by the Department of Justice in its own pamphlet on FARA. See p. 945 infra
50
Id. at 11
51
H.R.Rep.No.1547, 77th Cong., 1st Sess. (1941)
52
Id. at 2
53
Id. at 4 (emphasis added)
54
See Letter from President Roosevelt to the House of Representatives, 9 February 1942, reprinted in 88 Cong.Rec. 1139 (1942)
The final version of the bill passed by the Senate and Congress in 1941 was, except for these sections, identical to the one rejected by President Roosevelt earlier that year. The House and Senate Reports at that time incorporated the earlier House and Senate Reports by reference. H.R.Rep.No.2038, 77th Cong., 2d Sess. 3 (1942); S.Rep.No.1227, 77th Cong., 2d Sess. 3 (1942).
55
Ironically, the original version passed by Congress was more deferential to the Soviet Union than some legislators had wanted. One proposed amendment to the original bill would have expressly mentioned "the Communist Party of the United States, the German-American Bund, and Kyffhauserbund" as "persons" within the meaning of the Act. After an extensive debate on the floor of the House this amendment was rejected. The rationale behind the rejection of this amendment, like the rationale of the entire bill, was expressly rooted in foreign policy and political considerations. Specifically, those speaking against the amendment cited the necessity of not offending the Russians at a time when we were fighting a common enemy; those supporting the amendment cited the need to recognize that, although we were fighting Nazi Germany together, the interests of the United States and Stalinist Russia remained diametrically opposed. See 88 Cong.Rec. 797-806 (1942)
56
Ch. 263, § 3(f), 56 Stat. 254 (1942)
57
H.R.Rep.No.2038, 77th Cong., 2d Sess. 2-3 (1942); S.Rep.No.1227, 77th Cong., 2d Sess. 2-3 (1942)
58
22 U.S.C. § 613(f) (1976)
59
Id
60
H.R.Rep.No.3112, 81st Cong., 2d Sess. 53 (1950)
61
H.R.Rep.No.2980, 81st Cong., 2d Sess. 1 (1950), U.S.Code Cong.Serv. 1950, p. 3886
62
See, e.g., H.R.Rep.No.1470, 89th Cong., 2d Sess. 2-3 (1966), U.S.Code Cong. & Admin.News 1966, pp. 2397, 2398
63
Id. at 3 (emphasis added), U.S.Code Cong. & Admin.News 1966, p. 2399
64
H.R.Rep.No.1470, 89th Cong., 2d Sess. 4 (1966), U.S.Code Cong. & Admin.News 1966
65
The House Report adopted, with only minor changes, the section-by-section analysis of S.Rep.No.143, 89th Cong., 1st Sess. 6-16 (1965)
66
H.R.Rep.No.1470, 89th Cong., 2d Sess. 4 (1966), U.S.Code Cong. & Admin.News 1966, p. 2400. The bill was apparently prompted also by the behavior of "foreign sugar lobbyists" and "others whose conduct was criticized as a result of the Senate hearings."
67
Id. at 7 (1966), U.S.Code Cong. & Admin.News 1966, p. 2403. The passage was taken from S.Rep.No.143, 89th Cong., 1st Sess. 9 (1965)
68
H.R.Rep.No.1470, 89th Cong., 2d Sess. 14 (1966), U.S.Code Cong. & Admin.News 1966, p. 2410. The passage was taken from S.Rep.No.143, 89th Cong., 1st Sess. 13 (1965). The section referred to is now at 22 U.S.C. § 616 (1976)
69
H.R.Rep.No.1470, 89th Cong., 2d Sess. 14 (1966), U.S.Code Cong. & Admin.News 1966, p. 2410
70
Id. at 15-21
71
S.Rep.No.143, 89th Cong., 1st Sess. (1965)
72
Id. at 1
73
Id
74
Id. at 2
75
Id
76
Id
77
Judge Haight so found in Attorney Gen. v. INAC, 530 F.Supp. 241 at 258-260, 262-264 (S.D.N.Y.1981), and was affirmed by the Second Circuit on 5 January 1982, 668 F.2d 159
78
318 U.S. 236, 63 S.Ct. 561, 87 L.Ed. 734 (1943)
79
Id. at 241, 63 S.Ct. at 563 (emphasis added)
1
Senate Report No. 1783, House Report No. 1381, 75th Cong., 3d Sess
2
The House Committee hearings, which are available in manuscript form only, show the same broad purpose. In explaining the Bill to the House Committee, its author pointed out that it was particularly aimed at firms, groups, or businesses, used "as a means for that particular country or political party to hide its identity" and that the Bill covered "all activities of all kinds, that is, all propaganda activities, no matter from what source it emanates." The Congressional Committee, whose Chairman was the author of this Bill, had discovered through hearings, that business enterprises had been utilized as a means for propagandizing, and that many persons including the petitioner here had published articles in various magazines, concealing their identity behind pseudonyms. The purpose of these activities, the Committee found, had been to influence "the policies, external and internal, of this country, through group action. They were employing the same method that they had employed in Germany for the purpose of obtaining control of the government over there."80
80
Id. at 250-51, 63 S.Ct. at 567-68 (emphasis added in note 2)
81
97 F.Supp. 255 (D.D.C.1951)
82
Id. at 258-59 (quoting H.R.Rep.No.1381, 75th Cong., 1st Sess. 2 (1937))
83
Id. at 259 (quoting Viereck, 318 U.S. at 241, 63 S.Ct. at 563)
84
Attorney Gen. v. INAC, 346 F.Supp. 1384 (S.D.N.Y.), aff'd mem., 465 F.2d 1405 (2d Cir.), cert. denied, 409 U.S. 1080, 93 S.Ct. 679, 34 L.Ed.2d 669 (1972)
85
Id. at 1390 (footnote omitted)
86
Id. at 1391. This passage was quoted approvingly, albeit in a different context, by Judge Haight in his opinion. Attorney Gen. v. INAC, 530 F.Supp. 241 at 258 (S.D.N.Y.1981), aff'd, 668 F.2d 159 (2d Cir. 1982)
87
Attorney Gen. v. INAC, 530 F.Supp. 241 at 245 (citing Viereck v. United States, 318 U.S. at 251, 63 S.Ct. at 568 (Black, J., dissenting))
88
Hearings Before the Senate Comm. on Foreign Relations: Activities of Non-Diplomatic Representatives of Foreign Principals in the United States, 88th Cong., 1st Sess. 70-73 (Part I) (1963), reprinted in J.A. at 145-48
89
U. S. Dep't of Justice, The Foreign Agents Registration Act of 1938 as Amended and the Rules and Regulations Prescribed by the Attorney General 7 (undated). This repeats the statement of "POLICY AND PURPOSE" given in S.Rep.No.913, 77th Cong., 1st Sess. 1 (1941). See pp. 939-940 supra
90
Besides the case involving the IRA before us, the other conspicuous recent use of FARA was to require Billy Carter's registration as an agent of Libya in 1980
91
Note also that apparently "the U. S. government has a long standing policy against granting visas to IRA members." Hosenball, Irish Burlesque, The New Republic, 3 March 1982, at 10. While this policy is constitutionally distinguishable, it would be at least anomalous to hold that visas could be denied for motives which are improper in requiring registration
92
613 F.2d 988 (D.C.Cir.1979), cert. denied, 446 U.S. 982, 100 S.Ct. 2961, 64 L.Ed.2d 838 (1980)
93
521 F.2d 1188, 1195 (9th Cir. 1975), cert. denied, 424 U.S. 955, 96 S.Ct. 1431, 47 L.Ed.2d 361 (1976) (involving alleged failure to file income tax forms)
94
Mem. op. at 3, J.A. at 114
95
See Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); United States v. Elliott, 266 F.Supp. 318 (S.D.N.Y.1967)
96
United States v. Elliott, 266 F.Supp. 318, 324 (S.D.N.Y.1967)
97
P. 946 infra
98
530 F.Supp. 241 (S.D.N.Y.1981), aff'd, 668 F.2d 159 (2d Cir. 1982)
99
Attorney Gen. v. INAC, 668 F.2d 159 at 160 (2d Cir. 1982)
100
The alleged three-link IRA-INAC-The Irish People relationship is discussed at note 2 supra
101
501 F.2d 1207 (2d Cir. 1974)
102
Mem. op. at 17-20
103
Id. at 20 (citing Berrios, 501 F.2d at 1211-12) (emphasis added)
104
They were cited and discussed at pp. 3-4 of the memorandum opinion, J.A. at 114-15. They are: United States v. Peskin, 527 F.2d 71, 85-86 (7th Cir. 1975), cert. denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976); United States v. Oaks, 508 F.2d 1403, 1404 (9th Cir. 1974); United States v. Berrios, 501 F.2d 1207, 1211-12 (2d Cir. 1974); United States v. Berrigan, 482 F.2d 171, 177 (3d Cir. 1973); United States v. Falk, 479 F.2d 616, 620-21 (7th Cir. 1973) (en banc)
105
See Peskin, 527 F.2d at 85-86; Oaks, 508 F.2d at 1404, and later proceeding at 527 F.2d 937, 940 (9th Cir. 1975), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1191 (1976); Berrios, 501 F.2d at 1211; Berrigan, 482 F.2d at 173, 179; Falk, 479 F.2d at 619-23. Indeed, it was Berrios on which Judge Haight relied in his own application of the two-pronged selective prosecution test in Attorney Gen. v. INAC, 530 F.Supp. 241 at 254 (S.D.N.Y.1981), aff'd, 668 F.2d 159 (2d Cir. 1982). See preceding paragraph in text and note 11 supra. It should also be noted that Peskin and Berrigan held there was no selective prosecution defense shown because of a failure to show improper motivation, so the courts there need not have decided the selection question anyway
106
613 F.2d at 1003-04
107
Falk, 479 F.2d at 620
108
See note 104 supra
109
501 F.2d at 1211 (emphasis added)
110
Id. at 1212 (emphasis added)
111
482 F.2d at 177, 181
112
613 F.2d at 1003-04
113
508 F.2d at 1404
114
Id. at 1405
115
479 F.2d at 619-23
116
Defendant's Answer, J.A. at 6-7
117
Indeed, the Attorney General further claims in his brief at p. 9 n.8 that among those registrants are Betty Williams and Mairead Corrigan, founders and leaders of the Community of the Peace People and the recipients of the Nobel Peace Prize for their efforts in Northern Ireland. The identities of all these registrants and their foreign principals are contained in the Report of the Attorney General to the Congress of the United States on the Administration of the Foreign Agents Registration Act of 1938, as Amended, for the Calendar Year 1979, 386-89 (1980), reprinted in J.A. at 151-54. We note that the State Department has been similarly even-handed in its denial of visas to extreme spokesmen on both sides of the Irish question. Hosenball, Irish Burlesque, The New Republic, 3 Mar. 1982, at 10-11
118
We do not, however, rule out the possibility that on remand the district court may find adequate evidence of selection and improper motive. We say only that there is no indication in its opinion that it has found any so far
119
Defendant contends that, even were the classified materials irrelevant to its selective prosecution defense, they are nonetheless relevant for other defenses. See Brief for the Defendant-Appellee at 27-28. It does not appear, however, that the district court has made such a finding so far. And, for the reasons discussed in this section, if such a finding were made it would not necessarily follow that dismissal would be the proper remedy for nondisclosure
120
Mem. op. at 6, J.A. at 117
121
345 U.S. 1, 12, 73 S.Ct. 528, 534, 97 L.Ed. 727 (1953)
122
142 F.2d 503 (2d Cir. 1944)
123
Id. at 506
124
345 U.S. at 9-10, 73 S.Ct. at 532-33 (emphasis added)
125
Id. at 11, 73 S.Ct. at 533
126
Id. at 12, 73 S.Ct. at 534
127
142 F.2d at 506
We note that defendant argues that it would be especially unfair to allow the Attorney General to proceed with his suit while invoking the state secrets privilege, when, as here, "defendant (is) in a civil enforcement action that may result in criminal penalties as well." Brief for Defendant-Appellee at 19. However, this is irrelevant since we can reach the question of whether the Government's actions necessitate a dismissal of criminal prosecution when and if such prosecution is brought. Moreover, defendant would be subject to criminal penalties only if he chose to violate the statute willfully. See 22 U.S.C. § 618(a) (1976).
128
The Rule provides that "the court in which the action is pending may take such orders in regard to the failure (to comply with a production order) as are just," and lists several possibilities "among others." Dismissal with prejudice is but one sanction available under Rule 37, and this ultimate sanction is neither greatly favored nor lightly invoked by the courts. Besides SociEetEe Internationale, the case discussed in the text at p. 952, infra, see Emerick v. Fenick Indus., Inc., 539 F.2d 1379, 1381 (5th Cir. 1976) (dismissal is "a sanction of last resort"); Dorsey v. Academy Moving & Storage, Inc., 423 F.2d 858 (5th Cir. 1970); Anderson v. Nosser, 438 F.2d 183 (5th Cir. 1971), modified on other grounds, 456 F.2d 835, cert. denied, 409 U.S. 848, 93 S.Ct. 53, 34 L.Ed.2d 89 (1972); Bon Air Hotel, Inc. v. Time, Inc., 376 F.2d 118, 121 (5th Cir. 1967), cert. denied, 393 U.S. 815, 859, 89 S.Ct. 225, 131, 21 L.Ed.2d 179, 127 (1968) ("(t)he dismissal of an action with prejudice is a drastic remedy and should be applied only in extreme circumstances"); Independent Prods. Corp. v. Loew's Inc., 283 F.2d 730, 733 (2d Cir. 1960) (concluding, in an analysis of SociEetEe Internationale, that "(t)he dismissal of an action with prejudice or the entry of a judgment by default are drastic remedies, and should be applied only in extreme circumstances"). See also Loral Corp. v. McDonnell Douglas Corp., 558 F.2d 1130, 1133 (2d Cir. 1977); Gill v. Stolow, 240 F.2d 669, 670 (2d Cir. 1957) (overturning dismissal under Rule 37(d): "general principles cannot justify denial of a party's fair day in court except upon a serious showing of willful default"); 8 C. Wright & A. Miller, Federal Practice and Procedure § 2284 (1970); Annot., 2 A.L.R. Fed. 811, 819-22 (1969)
129
A production order is generally needed to trigger Rule 37(b). See, e.g., 8 C. Wright & A. Miller, Federal Practice and Procedure § 2282 (1970), and cases cited therein. The Attorney General argues that the 8 August 1980 order was "tantamount to a production order," Brief for Plaintiff-Appellant at 12, since it imposed the penalty of dismissal contingent on the continued failure of the plaintiff to produce state secrets-something he clearly could not do consistently with his office and trust. Therefore, he concludes, the sanctions for failure to comply are governed by Rule 37(b)(2). See SociEetEe Internationale v. Rogers, 357 U.S. 197, 207, 78 S.Ct. 1087, 1093, 2 L.Ed.2d 1255 (1958); 8 C. Wright & A. Miller, Federal Practice and Procedure § 2282 (1970). We note the tension between defendant's assertion that the district court's instruction to the government to produce evidence or drop the suit was not tantamount to a production order, and its second assertion that if the evidence is not produced the suit must be dropped
130
Fed.R.Civ.P. 26(b)(1). See Wehling v. Columbia Broadcasting Sys., 608 F.2d 1084, 1087 (5th Cir. 1979). But cf. note 135 and accompanying text infra
131
Of course, if non-disclosure would deny defendant due process, then even if Rule 37 supported non-disclosure it could not be allowed. It seems to us, however, that due process is required by Rule 37 itself when it instructs the judge to take such actions as are "just."
132
I.e., the merits of plaintiff's selective prosecution defense can still be adjudicated even if these particular documents are not turned over to it. See pp. 954-955 infra
133
We note that even in criminal cases Rule 16(d)(2) of the Federal Rules of Criminal Procedure states:
Failure to Comply with a Request. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule ("Discovery and Inspection"), the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. The court may specify the time, place and manner of making the discovery and inspection and may prescribe such terms and conditions as are just.
Thus, it is apparent that even in a criminal context the court is to undertake some balancing of the interests and consideration of the circumstances involved.
134
357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958)
135
Id. at 207, 78 S.Ct. at 1093. Also indicating that Rule 37 governs dismissal even where material is privileged are: Emerick v. Fenick Indus., Inc., 539 F.2d 1379 (5th Cir. 1976); Thomas v. United States, 531 F.2d 746 (5th Cir. 1976); Independent Prods. Corp. v. Loew's Inc., 283 F.2d 730 (2d Cir. 1960)
136
357 U.S. at 208, 78 S.Ct. at 1094
137
Other cases recognizing that the lack of bad faith of the defaulting party should be taken in to account include Emerick, Bon Air Hotel, Dorsey, Anderson, and Gill, cited at note 128 supra
138
656 F.2d 705 (D.C.Cir.1981)
139
Id. at 707
140
Id. at 711-12
141
608 F.2d 1084, 1088 (5th Cir. 1979) (citing Comment, Penalizing the Civil Litigant Who Invokes the Privilege Against Self-Incrimination, 24 U.Fla.L.Rev. 541, 547 (1972); Note, Use of the Privilege Against Self-Incrimination in Civil Litigation, 52 Va.L.Rev. 322, 335 (1966))
142
Black Panther Party v. Smith, 661 F.2d 1243, 1270-74 (D.C.Cir.1981); United States v. U. S. Currency, 626 F.2d 11, 14-18 (6th Cir.), cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 290 (1980) ("Our focus must turn, then, to whether ... there may be 'a solution which both protects the privilege and permits the ... case to go forward'," id. at 14; "Clearly, appellees should not be compelled to choose between the exercise of their ... privilege and the ... subject of this ... proceeding. On the other side of the coin, however, the government should not be compelled to abandon the ... action which Congress, by enacting the statute, obviously intended to create. Therefore, the courts must seek to accommodate both the constitutional right against self-incrimination as well as the legislative intent behind the (statute)," id. at 15; "Indeed, 'because dismissal is a severe sanction, its use must be tempered,' " id. at 16; "There are several alternatives, short of outright dismissal, which might be appropriate here. The court is of the opinion that the court below, in its discretion, may examine the possible approaches and, perhaps with the cooperation of the parties, select that means which 'strikes a fair balance ... and ... accommodates both parties'," id.) (citations omitted); Lyons v. Johnson, 415 F.2d 540, 541-42 (9th Cir. 1969), cert. denied, 397 U.S. 1027, 90 S.Ct. 1273, 25 L.Ed.2d 538 (1970)
Finally, it is interesting to note that in United States v. Auhagen, 39 F.Supp. 590, 591-92 (D.D.C.1941), one of the first cases brought after FARA's enactment, the District Court for the District of Columbia ruled, in a criminal action no less, that defendant's interest in "every reasonable opportunity to make his defense" could not outweigh the fact that the "difficulties involved in taking the deposition (he requested) are very great if not insurmountable."
143
P. 951 supra
144
Note that we are not asserting that dismissal is never proper in a civil context, nor that the hardship undergone by civil parties sued by the Government is necessarily less than that undergone by criminal defendants. However, we do assert that in civil cases especially the proper approach to be taken by courts is one which balances the legitimate interests of both parties, and that the hardship to defendant will generally be less than in criminal cases (here, this is certainly true)
Cf. Westinghouse Elec. Corp. v. City of Burlington, 351 F.2d 762, 769 (D.C.Cir.1965) ("There is no logical reason to set up two different privileges, one for civil and one for criminal cases. The defendant in a criminal case may have a greater stake than a party in a civil case, but that would not always be so .... The ... balance should be struck in each case, civil and criminal, in deciding whether disclosure 'is essential to a fair determination of a cause ....') (citing Roviaro v. United States, 353 U.S. 53, 61, 77 S.Ct. 623, 628, 1 L.Ed.2d 639 (1957)"). See also 4 J. Moore, Federal Practice P 26.61 (6.-4) at 26-317 (2d ed. 1981).
145
No. 76-1518, mem. op. at 4 (D.D.C. 13 July 1979), J.A. at 50
146
Attorney Gen. v. INAC, 346 F.Supp. at 1389. See also Loral Corp. v. McDonnell Douglas Corp., 558 F.2d 1130, 1133 (2d Cir. 1977) ("Courts of equity have the power and duty to adapt measures to accommodate the needs of the litigants with those of the nation, where possible")
147
See, e.g., Spiegel, Inc. v. FTC, 494 F.2d 59 (7th Cir.), cert. denied, 419 U.S. 896, 95 S.Ct. 175, 42 L.Ed.2d 140 (1974), where the Seventh Circuit upheld a hearing examiner's quashing of petitioner's subpoenas duces tecum since the court found that "the evidence sought was of no avail to Spiegel." Id. at 64. It was held there that even if the evidence demonstrated what petitioner said it would demonstrate, it was irrelevant, and that therefore the quashing of the subpoenas could not have been erroneous
148
596 F.2d 58 (2d Cir.), cert. denied, 444 U.S. 903, 100 S.Ct. 217, 62 L.Ed.2d 141 (1979)
149
357 U.S. at 203, 78 S.Ct. at 1091. The Court in Reynolds similarly stressed the availability of alternatives to the disclosure sought. 345 U.S. at 11, 73 S.Ct. at 533
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539 S.W.2d 684 (1976)
STATE of Missouri, Plaintiff-Respondent,
v.
Bruce Wayne COX, Defendant-Appellant.
No. 37160.
Missouri Court of Appeals, St. Louis District, Division Three.
July 6, 1976.
McIlrath, Black & Williams, Flat River, for defendant-appellant.
*685 John C. Danforth, Atty. Gen., Preston Dean, Sheila K. Hyatt, Asst. Attys. Gen., Jefferson City, John B. Berkemeyer, Pros. Atty., Hermann, for plaintiff-respondent.
KELLY, Judge.
Bruce Wayne Cox was convicted in the Circuit Court of Gasconade County of the offense of stealing property of the value of at least $50.00, § 560.156 RSMo 1969 and sentenced to two years in the custody of the Missouri Department of Corrections. § 560.161.1(2) RSMo 1969. A timely Motion for New Trial was filed and overruled, and he thereafter filed his Notice of Appeal within the time specified by Rules 28.03 and 81.04 V.A.M.R.
On appeal no challenge is made to the sufficiency of the evidence to support the verdict of the jury and a short statement of the evidence viewed most favorably in support of the verdict will suffice. On October 17, 1973, appellant and James Harold Cooper were living in rooms above the Town Tavern in Gerald, Missouri. Thomas Phelan and Richard Overturf spent the evening with them. Overturf who had lived in Bland, Missouri, was familiar with Mester's Package Liquor Store which was located in Bland and conceived the idea that the four of them could steal some money from the liquor store. Pursuant to this plan the four young men travelled to Bland in appellant's auto. Upon arriving in Bland, Phelan and the appellant went to the back door of the liquor store and engaged Mr. Ross Mester, the elderly proprietor of the liquor store, in conversation about an old truck parked in the vicinity of the liquor store while Overturf entered the front door of the liquor store and stole sixty-seven dollars cash from the cash register. While the theft was being perpetrated Cooper remained in the appellant's car. The stolen money was divided among the four young men after they left the scene. Shortly after the incident State troopers stopped the appellant's car in Sullivan, Missouri, with the four young men therein and a search of their persons brought to light the stolen monies.
On appeal three points are presented in support of appellant's prayer that his judgment of conviction be reversed and the cause remanded for a new trial. These are: the trial court erred First, in not granting his request for a continuance in order to retain other counsel; Second, in not granting a continuance after it learned of his dissatisfaction with his trial counsel before the jury was impanelled and after it learned that his trial counsel also represented one of the State's witnesses, James Harold Cooper; and Third, in not granting his Motion for New Trial on the basis of newly discovered evidence tending to prove his innocence. We conclude that this judgment must be reversed and the cause remanded for a new trial for the reason appellant was denied his Sixth Amendment right to counsel under the peculiar circumstances of this case because his trial counsel was representing a prosecution witness who appeared and gave testimony implicating appellant in the commission of the crime charged.
Sometime after the theft from the liquor store in Bland, Missouri, appellant and James Cooper went to the law offices of Mr. Joseph Neaf and retained him to represent them in charges which were filed against them by reason of this theft. Both appellant and Cooper were subsequently charged in separate Informations with the theft from the liquor store, but Cooper went to trial first and was convicted of the offense in December 1974. Although Mr. Neaf did not appear at the time sentence was imposed on Cooper for this crime, he was, at the time of this trial, still working on Cooper's case.
On February 26, 1975, the prosecuting attorney filed in the Circuit Court of Gasconade County, Division No. II a Motion to Endorse Additional Witness and mailed a copy of this Motion to Mr. Neaf, appellant's counsel of record. The witness sought to be endorsed was James Harold Cooper. Mr. Neaf did not advise appellant of the pendency of this Motion.
Appellant, having become disenchanted with Mr. Neaf's representation, on March 4, 1975, went to the offices of his present *686 counsel on appeal, Mr. Black, and discussed with him the possibility of Mr. Black representing him in the trial of his case. Mr. Black advised him that until Mr. Neaf was no longer in the case he could not represent appellant. The following evening, March 5, 1975, appellant called Mr. Neaf and advised him of his desire that Mr. Neaf withdraw from his case. Mr. Neaf agreed and told appellant to meet him in the courthouse on Friday, March 7, 1975, the date the cause was set for trial, and they would get it settled and worked out.
On March 7, 1975, appellant met Mr. Neaf at the courthouse and following a short discussion Mr. Neaf went into the judge's chambers. Shortly thereafter Mr. Neaf exited from the judge's chambers and told appellant that both of them would have to talk to the judge about this change of counsel. Appellant and Mr. Neaf then went to the chambers of the trial judge and prior to the time the venire was sworn for voir dire examination the trial judge, in chambers, made a record which reflects that a few minutes previous to the making of the record, appellant informed the trial court that he had talked with two attorneys other than Mr. Neaf and had made arrangements to be represented by Mr. Black. The trial court said that "by implication, at least, the Defendant, pro se, requested a continuance of the trial until Mr. Black could be here." At that point the trial court informed the appellant that inasmuch as he was at that time represented by Mr. Neaf and Mr. Neaf was present and apparently ready for trial, his request for continuance would be denied; that the case would go to trial and he could either proceed with the matter pro se or ask Mr. Neaf to continue representing him.
Appellant explains his reason for agreeing to go forward with Mr. Neaf by testifying at the evidentiary hearing on his Motion for New Trial that after consulting with Mr. Neaf when he was told that the case was going to trial despite his desire to hire other counsel as follows: "rather than go in on my own to go ahead and take him in because, like, I don't know the legal terms and things. I thought he could do a better job of it than I could."
At the conclusion of the voir dire examination of the venire, the trial court took up the Motion to Endorse Additional Witness in the presence of, but out of the hearing of, the jury. While the appellant was apparently present in the courtroom, the record does not reflect that he participated in the discussions relative to this Motion or if he even had any knowledge of its existence at that time. The trial court inquired of Mr. Neaf if he had received notice of the Motion and Mr. Neaf acknowledged he had. The trial court thereupon advised Mr. Neaf that he was going to sustain the Motion, whereupon the following colloquy took place:
"MR. NEAF: Your Honor, I do represent Mr. Cooper in another case. I would like to speak to him briefly before he's called upon to testify, to advise him of his rights.
THE COURT: Well, certainly he can speak to you and you can speak to him, if you care to. I see nothat I have any control over that. When do you anticipate calling him?
MR. BERKEMEYER: Oh, about the third or fourth witness, I believe. I'm curious as to which case he's referring to. If you are referring to the previous trial, I believe that's over with.
MR. NEAF: Your Honor, I still would like to talk to him.
MR. BERKEMEYER: I've got no objection to your talking to him."
Neither the defense counsel nor the prosecutor made the trial judge fully aware of the fact that this witness, James Harold Cooper, had been charged and convicted of Stealing arising out of this same set of circumstances in Division No. 1 of the Circuit Court of Gasconade County, and that Mr. Neaf had been the counsel of record who represented Cooper throughout that trial. There is nothing in the record to indicate that the trial court was aware of this circumstance until after the Motion for New Trial had been filed and evidentiary hearing thereon conducted.
*687 The record is clear, however, that at no time prior to the filing of the Motion for New Trial, was there any indication that any request for a continuance had been made to the trial court on the grounds that the appellant's trial counsel was faced with a conflict of interest if Cooper was to appear as a prosecution witness.
Appellant has not preserved this point for review. Nevertheless, we choose to exercise our discretion and review this point on the basis of "plain error," Rule 27.20(c), State v. Crockett, 419 S.W.2d 22, 28 (Mo.1967), because it involves an alleged violation of appellant's Sixth Amendment right to representation by counsel whose assistance is untrammeled and unimpaired by a lawyer's simultaneous representation of a client with interest antagonistic to those of the accused. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), Whitlock v. United States, 478 F.2d 1087 (8th Cir. 1973); Anno. "Propriety and prejudicial effect of Counsel's representing defendant in criminal case notwithstanding counsel's representation of prosecution witness," 27 A.L.R.3d 1431.
An attorney who represents both the defendant and a prosecution witness in the case against the defendant is representing conflicting interests. There is however, no deprivation of constitutional rights if the defendant knowingly consents to representation by an attorney who also represents a prosecution witness. Ciarelli v. State, 441 S.W.2d 695, 697[2] (Mo.1969). The consent essential to obviate the apparent deprivation of constitutional rights must of necessity be a consent with a knowledge of the facts and voluntarily given. United States v. LaVallee, 282 F.Supp. 968, 971 (D.C.E.D. N.Y.1968), is a case similar to the one we have under consideration. In LaVallee the defendant did not learn that his attorney represented a conflicting interest until after the trial had commenced, and it was there held that it could not be said that he assented to it by his silence. "It is understandable that a criminal defendant, not necessarily familiar with all of his constitutional rights, and not informed of the same by the trial judge when the dual representation became apparent, might not interrupt his trial to request that his attorney be relieved even if he was made aware during the course of the trial that a prosecution witness was a client of his attorney." United States v. LaVallee, supra, l.c. 971.
Here, appellant and Cooper both retained Mr. Neaf at a time when there was no apparent conflict of interest in dual representation; however, once it became apparent that the State was seeking leave to endorse Cooper as a prosecution witness the conflict issue surfaced. Mr. Neaf, nevertheless, did not inform appellant nor the trial court of this potential and voiced no opposition to the Motion to Endorse Additional Witness. Appellant, according to his testimony, first learned that Cooper was to be a witness against him "When he testified that day in Court. On Friday when he came in and testified against me."
Appellant here had been forcefully denied a request for continuance to have new counsel appear in his behalf and told in no uncertain terms that the case was going to trial on that date. He was further told by the trial court that he could either defend himself or accept the services of Mr. Neaf. His own counsel did not advise him that Cooper was going to be a witness against him despite the fact counsel knew since February 26, 1975, that the State intended to call Cooper to the stand. Faced with the alternative of trying the case himself, this nineteen year old defendant, untrained in the law, was hardly afforded any choice other than to proceed to trial with counsel he had sought to replace because, rightly or wrongly, he felt was not properly representing him. There is no evidence that when the witness Cooper appeared appellant was advised that there was a potential conflict of interest and that he could at that time object to the continued representation by his counsel on that grounds. Under these circumstances we hold that it cannot be said he consented to representation by counsel who had a conflict of interest.
We hold, that under the facts in this record, appellant was deprived of effective *688 assistance of counsel by reason of the violation of his Sixth Amendment rights to a counsel free from any possible conflict of interest, and reverse the judgment and remand the cause to the Circuit Court for a new trial.
The other points raised by appellant are not likely to arise on retrial so we do not reach them in arriving at our decision.
Reversed and remanded for a new trial.
SIMEONE, P. J., and GUNN, J., concur.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 96-10020
Summary Calendar
__________________
DAVID LYNN WALLEN,
Plaintiff-Appellant,
versus
EDWARD G. OWENS, Warden, ET AL.,
Defendants-Appellees.
- - - - - - - - - -
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:95-CV-92
- - - - - - - - - -
April 3, 1996
Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:*
David Lynn Wallen appeals the dismissal for frivolousness of
his civil rights complaint asserting various constitutional
violations surrounding his prison disciplinary hearing and
punishment. Wallen argues the merits of his claim. We have
carefully reviewed his arguments and the record. For essentially
the same reasons as explained by the magistrate judge in his
report and recommendation, we conclude that the court did not
*
Pursuant to Local Rule 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 Local Rule
47.5.4.
No. 96-10020
-2-
abuse its discretion in dismissing the complaint under 28 U.S.C.
§ 1915(d).
Wallen argues that the prison rulebook and his prison
disciplinary records were improperly used at the Spears**
hearing and the magistrate judge improperly ended the hearing as
Wallen attempted to explain further the alleged constitutional
violations. Our review reveals no error. Wallen also argues
that error ensued from the denial of his written motion to amend
his complaint. Wallen had the right to amend his complaint once
before the service of a responsive pleading. See Fed. R. Civ. P.
15(a). The claims which Wallen desired to add to his complaint
have been considered by this court, and the claims are without
merit. Therefore, any error by denying Wallen the right to amend
his complaint was harmless. See Fed. R. Civ. P. 61.
AFFIRMED.
**
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
| {
"pile_set_name": "FreeLaw"
} |
689 So.2d 1026 (1995)
Anthony MUNGIN, Appellant,
v.
STATE of Florida, Appellee.
No. 81358.
Supreme Court of Florida.
September 7, 1995.
Rehearings Denied February 8, 1996 and March 6, 1997.
*1027 Nancy A. Daniels, Public Defender and Steven A. Been, Assistant Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Attorney General and Curtis M. French, Assistant Attorney General, Tallahassee, for appellee.
*1028 PER CURIAM.
Anthony Mungin, a prisoner under a sentence of death, appeals his conviction of first-degree murder and the penalty imposed. We have jurisdiction based on article V, § 3(b)(1) of the Florida Constitution.
We affirm both the conviction and the death sentence.
Betty Jean Woods, a convenience store clerk in Jacksonville, was shot once in the head on September 16, 1990, and died four days later. There were no eyewitnesses to the shooting, but shortly after Woods was shot a customer entering the store passed a man leaving the store hurriedly with a paper bag. The customer, who found the injured clerk, later identified the man as Mungin. After the shooting, a store supervisor found a $59.05 discrepancy in cash at the store.
Mungin was arrested on September 18, 1990, in Kingsland, Georgia. Police found a.25-caliber semiautomatic pistol, bullets, and Mungin's Georgia identification when they searched his house. An analysis showed that the bullet recovered from Woods had been fired from the pistol found at Mungin's house.
Jurors also heard Williams rule[1] evidence of two other crimes. They were instructed to consider this evidence only for the limited purpose of proving Mungin's identity.
First, William Rudd testified that Mungin came to the convenience store where he worked on the morning of September 14, 1990, and asked for cigarettes. When Rudd turned to get the cigarettes, Mungin shot him in the back. He also took money from a cash box and a cash register. Authorities determined that an expended shell recovered from the store came from the gun seized in Kingsland.
Second, Thomas Barlow testified that he saw Meihua Wang Tsai screaming in a Tallahassee shopping center on the afternoon of September 14, 1990. Tsai had been shot while working at a store in the shopping center. A bullet that went through Tsai's hand and hit her in the head had been fired from the gun recovered in Kingsland.
The judge instructed the jury on both premeditated murder and felony murder (with robbery or attempted robbery as the underlying felony), and the jury returned a general verdict of first-degree murder.
In the penalty phase, several witnesses who knew Mungin while he was growing up testified that he was trustworthy, not violent, and earned passing grades in school. Mungin lived with his grandmother from the time he was five, but Mungin left when he was eighteen to live with an uncle in Jacksonville. An official from the prison where Mungin was serving a life sentence for the Tallahassee crime testified that Mungin did not have any disciplinary problems during the six months Mungin was under his supervision. Harry Krop, a forensic psychologist, testified that he found no evidence of any major mental illness or personality disorder, although Mungin had a history of drug and alcohol abuse. Krop said he thought Mungin could be rehabilitated because of his normal life before drugs, his average intelligence, and his clean record while in prison.
The jury recommended death by a vote of seven to five. The trial judge followed the jury's recommendation and sentenced Mungin to death. In imposing the death penalty, the trial judge found two aggravating factors: (1) Mungin had previously been convicted of a felony involving the use or threat of violence to another person;[2] and (2) Mungin committed the capital felony during a robbery or robbery attempt and committed the capital felony for pecuniary gain.[3] The trial judge found no statutory mitigation and gave minimal weight to the nonstatutory mitigation that Mungin could be rehabilitated and was not antisocial.
*1029 Mungin raises nine issues on this direct appeal.[4]
I. GUILT PHASE
We first address Issue 2, where Mungin argues that the evidence was not sufficient to support first-degree murder. The trial judge instructed the jury on both premeditated and felony murder, and the jury returned a general verdict of first-degree murder. We agree with Mungin only that the judge erred in denying his motion for judgment of acquittal as to premeditation.
Premeditation is "a fully formed conscious purpose to kill that may be formed in a moment and need only exist for such time as will allow the accused to be conscious of the nature of the act he is about to commit and the probable result of that act." Asay v. State, 580 So.2d 610, 612 (Fla.), cert. denied, 502 U.S. 895, 112 S.Ct. 265, 116 L.Ed.2d 218 (1991).
In a case such as this one involving circumstantial evidence, a conviction cannot be sustainedno matter how strongly the evidence suggests guiltunless the evidence is inconsistent with any reasonable hypothesis of innocence. McArthur v. State, 351 So.2d 972, 976 (Fla.1977). A defendant's motion for judgment of acquittal should be granted in a circumstantial-evidence case "if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt." State v. Law, 559 So.2d 187, 188 (Fla.1989).
The State presented evidence that supports premeditation: The victim was shot once in the head at close range; the only injury was the gunshot wound; Mungin procured the murder weapon in advance and had used it before; and the gun required a six-pound pull to fire. But the evidence is also consistent with a killing that occurred on the spur of the moment. There are no statements indicating that Mungin intended to kill the victim, no witnesses to the events preceding the shooting, and no continuing attack that would have suggested premeditation. Although the jury heard evidence of collateral crimes, the jury was instructed that this evidence was admitted for the limited purpose of establishing the shooter's identity.
Although the trial judge erred in denying the motion for judgment of acquittal as to premeditation, we do not reverse Mungin's first-degree murder conviction because the judge correctly denied the motion as to felony murder.
The evidence shows that Mungin entered the store carrying a gun, that $59.05 was missing from the store, that money from the cash box was gone, that someone tried to open a cash register without knowing how, and that Mungin left the store carrying a paper bag. We find that this evidence supports robbery or attempted robbery, and there is no reasonable hypothesis to the contrary.
Because the evidence does not support premeditation, it was error to instruct the jury on both premeditated and felony murder. See McKennon v. State, 403 So.2d 389 (Fla.1981) (finding error to instruct on robbery as it relates to felony murder where there was no basis in the evidence for the robbery instruction). However, the error was clearly harmless in this case. The evidence supported conviction for felony murder and the jury properly convicted Mungin of first-degree murder on this theory.
*1030 While a general guilty verdict must be set aside where the conviction may have rested on an unconstitutional ground[5] or a legally inadequate theory,[6] reversal is not warranted where the general verdict could have rested upon a theory of liability without adequate evidentiary support when there was an alternative theory of guilt for which the evidence was sufficient. Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991). The Supreme Court explained this distinction in Griffin as follows:
Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to lawwhether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite, the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence, see, Duncan v. Louisiana, 391 U.S. 145, 157, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968). As the Seventh Circuit has put it:
"It is one thing to negate a verdict that, while supported by evidence, may have been based on an erroneous view of the law; it is another to do so merely on the chanceremote, it seems to usthat the jury convicted on a ground that was not supported by adequate evidence when there existed alternative grounds for which the evidence was sufficient." United States v. Townsend, 924 F.2d 1385, 1414 ([7th Cir.] 1991).
Griffin, 502 U.S. at 59-60, 112 S.Ct. at 474.
Based upon the foregoing, we find no reasonable possibility that the erroneous instruction contributed to Mungin's conviction, and thus the error was harmless. State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Therefore, Mungin is not entitled to relief on this basis.[7]
II. PENALTY PHASE
When Mungin was tried for the instant case, he was serving a life sentence as an habitual offender for the Tallahassee crime. As his first penalty phase issue (Issue 4), Mungin argues that fundamental error occurred when a defense witness testified during the penalty phase that inmates serving life sentences are eligible for conditional release and could be freed from prison in as little as five years. Glenn Young, a correction/probation officer at the Cross City Correctional Institution, had supervised Mungin after his arrival at the prison. During questioning by defense counsel, Young said, "[L]ife doesn't really mean life. I mean, it means life, but there are inmates that are released with a life sentence."
Mungin maintains that this testimony presented an erroneous picture of what happens to inmates serving life sentences. He did not, however, make a contemporaneous objection to preserve this issue.
Any error that occurred was not fundamental. See State v. Smith, 240 So.2d 807, 810 (Fla.1970) (defining fundamental error as error that goes to the foundation of the case or to the merits of the cause of action). Young's testimony did not go to the foundation of the case. We also note that Mungin *1031 invited this testimony because Young was his witness. Although the State sought to capitalize on this apparently unexpected testimony, defense counsel elicited on redirect examination that inmates serving life sentences typically are not eligible for early release. Further, the trial court correctly instructed the jury on the law at the time for sentences in capital cases: death or life in prison with a minimum mandatory term of twenty-five years. Thus, we find no merit to this issue.
Mungin argues in Issue 6 that the trial judge should have specifically instructed the jury that Mungin's age at the time of the crimetwenty-fourcould be considered in mitigation. See § 921.141(6)(g), Fla.Stat. (1991). Instead, the trial court gave the general instruction that jurors could consider "[a]ny aspect of the defendant's character or record and any other circumstances of the offense."
This Court has held that, under certain circumstances, the general instruction on mitigation is sufficient to allow a jury to rely on the evidence and assign whatever weight it wishes to a defendant's age. Cave v. State, 476 So.2d 180, 187-88 (Fla.1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2907, 90 L.Ed.2d 993 (1986); see also Smith v. State, 492 So.2d 1063, 1067 (Fla.1986) ("We do not establish a maximum age below which the instruction must always be given.").
We have observed that "age is simply a fact, every murderer has one." Echols v. State, 484 So.2d 568, 575 (Fla.1985), cert. denied, 479 U.S. 871, 107 S.Ct. 241, 93 L.Ed.2d 166 (1986). How a defendant's age is viewed may differ from case to case. Compare Huddleston v. State, 475 So.2d 204, 206 (Fla.1985) (age of twenty-three was mitigating factor) with Lara v. State, 464 So.2d 1173, 1179 (Fla.1985) (age of twenty-five did not require instruction on age as a mitigating circumstance). The better practice may be to give the specific instruction on age, but, under the circumstances of this case, the judge did not abuse his discretion in failing to give the instruction. Nothing about Mungin's age constitutes mitigation for this crime. The record reflects that Mungin had no neurological impairment, did well in school, and was about one credit short of graduation from high school. He left home at age eighteen to live with an uncle in Jacksonville. Although Mungin had used drugs and alcohol, there was no evidence to suggest that he was under the influence of either substance at the time of the crime. Thus, we find no error on this issue.
In Issue 7, Mungin argues that the trial judge erred in failing to find and give some weight to unrebutted nonstatutory mitigation. We find this issue to be without merit.
Our decision in Campbell v. State, 571 So.2d 415, 419 (Fla.1990), requires a sentencing court to expressly evaluate in its written order each mitigating circumstance proposed by the defendant to determine whether the evidence supports it and whether any proposed nonstatutory mitigation is truly mitigating. Mungin says that the trial judge did not specifically evaluate the substance of the evidence from relatives and others who knew him during high school and that the sentencing order does not mention his good prison record or Dr. Krop's testimony that Mungin had used alcohol and drugs for about four years.
The sentencing order reflects that the trial judge heard the testimony of witnesses who knew Mungin through his high school years, but attached "no significance or value" to this testimony because most of the witnesses had had little or no contact with Mungin since he was eighteen years old. We have reviewed the record and do not believe that the trial judge abused his discretion in dismissing this evidence as irrelevant to his sentencing decision.
Further, the sentencing order's reference to the fact that Mungin was capable of rehabilitation encompasses his prison record and the reference to Dr. Krop's findings on Mungin's mental state encompasses drug and alcohol use.
We find no merit to Issue 5 (jury instructed on and found merged aggravating factor of robbery and pecuniary gain). We also find that Issue 8 is without merit because we uphold the merged aggravating factor of robbery and pecuniary gain and we find that the *1032 trial judge appropriately evaluated the mitigation. Under a proportionality review, the death sentence is warranted.
The points raised in Mungin's final issue (Issue 9)whether his conviction and death sentence are unconstitutionalare either not preserved or without merit.
Accordingly, although we do not find premeditation, we find sufficient evidence of felony murder and affirm Mungin's conviction of first-degree murder. We also affirm the death sentence.
It is so ordered.
GRIMES, C.J., and OVERTON, SHAW, KOGAN, HARDING and WELLS, JJ., concur.
ANSTEAD, J., dissents with an opinion.
ANSTEAD, Judge, dissenting.
I would grant rehearing in this case and reverse and remand for a a new trial based upon our conclusion that the evidence was insufficient to sustain a finding of premeditation. Relying on McKennon v. State, 403 So.2d 389 (Fla.1981), we concluded that the trial court erred in instructing the jury on both premeditated and felony murder because the evidence presented by the State was insufficient to support premeditation. Majority op. at 1028. Indeed, our decision in McKennonwhere we found evidence similar to the evidence presented in this case insufficient to support robbery as an underlying predicate to felony murdersupports the further conclusion that the trial court's error here was not harmless.
In McKennon, the defendant was indicted for first-degree murder and found guilty after a jury trial. On appeal, he challenged his conviction on grounds that the trial court erred in instructing the jury on robbery as an underlying predicate for felony murder where there was insufficient evidence to support a robbery instruction. 403 So.2d at 390. The State contended that a discrepancy in the amount of money shown in bookkeeping records and the amount contained in the cash register of the barbershop after the murder constituted a sufficient basis for the robbery instruction. Id. We expressly rejected the State's argument in McKennon and found that the trial court had erred in giving the instruction because "[t]he purported bookkeeping discrepancy did not prove beyond a reasonable doubt that any funds were taken from the [victim] and hence was insufficient to prove commission of a robbery." Id. at 391.
Likewise, Mungin was not even charged with robbery or attempted robbery. And, similar to the paucity of evidence of robbery which we found to be insufficient in McKennon, the essence of the State's felony murder theory herewith robbery or attempt as the underlying predicateis a $59.05 bookkeeping discrepancy. Moreover, the prosecutor twice explicitly reminded the jury during closing argument that Mungin was not charged with robbery and told them that they did not have to find Mungin guilty of robbery in order to convict him of first-degree murder. Instead, the State focused on premeditation and treated the alternative "felony murder" theory as nothing more than a weak backup. While it may be that the evidence of robbery against Mungin, unlike McKennon, is enough to meet the threshold standard of sufficiency, the evidence is thin at best and certainly not strong enough to render the trial court's error in instructing the jury on premeditation harmless beyond a reasonable doubt.
Furthermore, I also would grant rehearing in this case because I believe that the United States Supreme Court's decision in Griffin v. United Statesupon which the majority relies for finding the error here to be a harmless onesimply makes no sense. Rather, there is a solid body of caselaw which states that where a jury is instructed that it can rely on any of two or more independent grounds to support a single count, and one of those grounds was improper, as the premeditation theory was here, a general verdict of guilt must be set aside because it may have rested exclusively on the improper ground. See Yates v. United States, 354 U.S. 298, 311-12, 77 S.Ct. 1064, 1072-73, 1 L.Ed.2d 1356 (1957); Stromberg v. California, 283 U.S. 359, 369-70, 51 S.Ct. 532, 536, 75 L.Ed. 1117 (1931); see also Zant v. Stephens, 462 U.S. 862, 881, 103 S.Ct. 2733, 2744-45, 77 *1033 L.Ed.2d 235 (1983) ("One rule derived from the Stromberg case is that a general verdict must be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient, because the verdict may have rested exclusively on the insufficient ground.") (emphasis added).
In Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), the Supreme Court again reiterated the Stromberg rule and emphasized the importance of its application in the context of a jury's verdict in a capital sentencing proceeding.
With respect to findings of guilt on criminal charges, the Court consistently has followed the rule that the jury's verdict must be set aside if it could be supported on one ground but not on another, and the reviewing court was uncertain which of the two grounds was relied upon by the jury in reaching the verdict. See e.g., Yates v. United States, 354 U.S. 298, 312 [77 S.Ct. 1064, 1073, 1 L.Ed.2d 1356] (1957); Stromberg v. California, 283 U.S. 359, 367-368 [51 S.Ct. 532, 535, 75 L.Ed. 1117] (1931). In reviewing death sentences, the Court has demanded even greater certainty that the jury's conclusions rested on proper grounds. See, e.g., Lockett v. Ohio, 438 U.S. [586], at 605 [98 S.Ct. 2954, 2965, 57 L.Ed.2d 973] ("[T]he risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty is... unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments"); Andres v. United States, 333 U.S. 740, 752 [68 S.Ct. 880, 885-886, 92 L.Ed. 1055] (1948) ("That reasonable men might derive a meaning from the instructions given other than the proper meaning of § 567 is probable. In death cases doubts such as those presented here should be resolved in favor of the accused"); accord, Zant v. Stephens, 462 U.S. 862, 884-885 [103 S.Ct. 2733, 2746-2747, 77 L.Ed.2d 235] (1983). Unless we can rule out the substantial possibility that the jury may have rested its verdict on the "improper" ground, we must remand for resentencing.
Id. at 376-77, 108 S.Ct. at 1866-67 (footnote omitted). Nevertheless, as noted by the majority, it appears that the Supreme Court has retreated from the Stromberg rule in cases where one of the alternative theories of guilt underlying a conviction is improper because it is based on insufficient evidence. See Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991).
In Griffin, the defendant was charged with drug-conspiracy offenses and the jury returned a general verdict of guilt. The Seventh Circuit affirmed the defendant's convictionas did the Supreme Courtrejecting her argument that "the general verdict could not stand because it left in doubt whether the jury had convicted [the defendant] of conspiring to defraud the IRS, for which there was sufficient proof, or of conspiring to defraud the DEA, for which (as the Government concedes) there was not." Id. at 48, 112 S.Ct. at 468. Without mentioning the court's previous statements in Zant v. Stephens or Mills, Justice Scalia concluded for the majority in Griffin that the Griffin case was not subject to the rule set out in Stromberg and Yates and later cases. Rather, Justice Scalia found the error at issue in Griffin to be distinguishable from the errors requiring reversal in Stromberg and Yates because, unlike those early cases, in Griffin "one of the possible bases of conviction was neither unconstitutional as in Stromberg, nor even illegal as in Yates, but merely unsupported by sufficient evidence." 502 U.S. at 56, 112 S.Ct. at 472. As the majority in this case notes, Justice Scalia explained the distinction as follows:
Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to lawwhether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence.
*1034 Id. at 59, 112 S.Ct. at 474. It is with this reasoning that I most respectfully take issue. Certainly, jurors are well equipped to analyze evidencethat's their job as fact finders. Obviously, jurors instructed to determine whether a murder was premeditated will attempt to do so. However, jurors are not well equipped to second guess the trial court. Indeed, jurors are prohibited from doing so. Nevertheless, that is exactly what Justice Scalia and the majority assume the jury must have done here in finding the error harmless.
The rationale of the majority blindly presumes that the jury in this case retired to deliberate as to Mungin's guilt, after being specifically instructed on premeditation and felony murder, and then wholly disregarded the instruction on premeditation, having agreed amongst themselves that the trial court must have been mistaken in instructing them on that theory because the evidence was legally insufficient to support it. Clearly, that is not what the jury did here, or what any reasonable jury would do. In fact, this juryas are all jurieswas instructed that they must follow the trial court's instructions and that such instructions are not to be disregarded.
In my view, the Griffin court's distinction between "legal error" and "insufficiency of proof" is one that has absolutely no practical or meaningful difference. No matter what you call it, the trial court here erroneously submitted this case to the jury on the theory of premeditationwhich was the main focus of the State's case against Munginand there is simply no way that we can know or conclude that the error did not contribute to the jury's verdict. In fact, given the State's emphasis and strong reliance on the premeditation theory, and disparagement of the robbery theory, it is highly likely that the jurors relied on the improper premeditation theory in finding guilt.
In this case the State, having failed to carry its burden of proving premeditation at trial and barely meeting its burden as to felony murder, not only emphasized in its closing argument to the jury that Mungin was guilty of premeditated murder, but virtually dismissed the felony murder theory from the jury's consideration. The trial court then compounded the error by improperly allowing the jury to consider the insufficient premeditation theory. We have "no reason to think that [the jury's] own intelligence and expertise ... save[d] them from that error," id. at 59, 112 S.Ct. at 474, given that the State's presentation of its case and argument alone raise a strong likelihood that the jury relied on the improper theory of premeditation as the basis for its general verdict of guilt. Nor do we have reason to think that the possibility of the jury relying on the improper premeditation theory of guilt to support its verdict was a "remote" one. See Griffin, 502 U.S. at 59, 112 S.Ct. at 474. Rather, while there arguably may be sufficient evidence in this case to support Mungin's conviction on the alternative legal ground of felony murder, we have every reason to think that the jurors in this case rejected that evidence and rested their verdict on premeditation, just as the State urged them to do.
Interestingly, our own district courts also find the United States Supreme Court's questionable reasoning in Griffin unpersuasive. The district courts continue to recognize the "reversible error" standard of Mills and consistently apply it. Several recent decisions illustrate this point. For instance, in Tape v. State, 661 So.2d 1287 (Fla. 4th DCA 1995), the Fourth District held that it was required to vacate the defendant's conviction for attempted first-degree murder and remand for a new trial:
We sua sponte vacate the conviction for attempted first degree murder based on State v. Gray, 654 So.2d 552 (Fla.1995), which applies to all cases pending on direct review or not yet final. While this issue was not raised, no one may be convicted of a nonexistent crime. See Achin v. State, 436 So.2d 30, 31 (Fla.1982). In Gray, the supreme court held that there is no crime of attempted felony murder. In this case the defendant was convicted of attempted first degree murder, but the state argued both felony murder and premeditated murder to the jury. In Mills v. Maryland, 486 U.S. 367, 376, 108 S.Ct. 1860, 1866, 100 L.Ed.2d 384, 395 (1988), the United States *1035 Supreme Court articulated the well settled rule that a criminal jury verdict must be set aside if it could be supported on one ground but not on another and the reviewing court is uncertain which of the two grounds was relied upon by the jury in reaching its verdict. It is not possible with the evidence and argument in this case to determine which theory the jury used as its basis for the conviction. Therefore, we are compelled to reverse the conviction.
Id. at 1288.
Similarly, in Lamb v. State, 668 So.2d 666 (Fla. 2d DCA 1996), the Second District reversed the defendant's conviction for attempted murder in light of our decision in State v. Gray, 654 So.2d 552 (Fla.1995). Relying in part on United States v. Garcia, 907 F.2d 380, 381 (2d Cir.1990) (holding that because "there was insufficient evidence for one of the theories, then the verdict is ambiguous and a new trial must be granted"), (emphasis added), the district court explained:
The [trial] court instructed the jury as to Count I on attempted second degree murder (depraved mind) and attempted third degree murder (felony murder) and lesser included offenses. The jury found the appellant guilty as charged. Because both attempted second degree murder and attempted third degree murder were charged in the same count, and the record does not otherwise show that he was convicted of attempted second degree murder, we cannot determine upon which offense the jury convicted him.
The State of Florida no longer recognizes the crime of attempted felony murder. State v. Gray, 654 So.2d 552 (Fla. 1995); State v. Grinage, 656 So.2d 457 (Fla.1995). Because Gray must be applied to all cases pending on direct review or not yet final at the time it was decided, we must reverse the conviction. However, because it is impossible to determine which of the two theories of attempted murder the jury accepted, remand for retrial on the charge of attempted second degree murder is required. Humphries v. State, 676 So.2d 1 (Fla. 5th DCA 1995), citing United States v. Garcia, 938 F.2d 12 (2d Cir.1991).
Lamb, 668 So.2d at 667.
And most recently, the Fifth District in an en banc decision vacated a defendant's attempted first-degree murder conviction and remanded for a new trial because the jury's guilty verdict may have rested on a nonexistent crime. Allen v. State, 676 So.2d 491 (Fla. 5th DCA 1996). In so doing, the district court explained that the outcome was controlled by the Mills line of cases:
The State argues that Allen's conviction for murder is controlled by Murray v. State, 491 So.2d 1120 (Fla.1986). In Murray the defendant was charged with attempted first-degree murder and the jury convicted him of the lesser included offense of attempted manslaughter with a firearm. The defendant sought reversal on appeal, pointing to the fact that the jury had been improperly instructed that attempted manslaughter could be based on culpable negligence as well as on an act or procurement. See Taylor v. State, 444 So.2d 931 (Fla.1983) (holding that a conviction of attempted manslaughter must be based on a showing of an act or procurement rather than mere culpable negligence). The supreme court affirmed Murray's convictions on two grounds. Not only did it find that the issue of jury instructions had not been properly preserved for appeal, but also the court independently reviewed the record and found that ample and sufficient evidence existed to support a conclusion that the shooting of the victim "was the result of an act of petitioner done with the requisite criminal intent and was not mere culpable negligence." Murray, 491 So.2d at 1122.
We have carefully reviewed Murray and hold that to the extent it may be in conflict with our opinion, Murray is implicitly overruled by the supreme court's holding in Gray that Gray is to be applied to "all cases pending on direct review or not yet final." Gray, 654 So.2d at 554 (citing Smith v. State, 598 So.2d 1063, 1066 (Fla. 1992)); see also State v. Grinage, 656 So.2d 457, 458 (Fla.1995) (reiterating that the holding in Gray "is applicable to all cases *1036 pending on direct review or not yet final at the time of the Gray opinion."). On appeal, the question for this court is not whether evidence exists which would support conviction upon the valid theory, but rather is whether it is possible that the conviction was based upon the invalid theory and nothing in the record establishes otherwise. We also note that Murray appears to be in conflict with the United States Supreme Court's decision in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988) which held that "[w]ith respect to findings of guilt on criminal charges ... the jury's verdict must be set aside if it could be supported on one ground but not on another, and the reviewing court [is] uncertain which of the two grounds was relied upon by the jury in reaching the verdict." 486 U.S. at 376, 108 S.Ct. at 1866. This is so because the jury is the sole arbiter of the facts. Even if there is evidence in the record supporting conviction on the alternative legal ground, we, as an appellate court, cannot determine if the jury accepted that evidence. Accordingly, we reverse Allen's attempted first-degree murder conviction. Because it is impossible to determine which of the two theories the jury accepted, remand for retrial on the charges of attempted premeditated murder is required. See United States v. Garcia, 938 F.2d 12 (2d Cir.1991), cert. denied, 502 U.S. 1030, 112 S.Ct. 868, 116 L.Ed.2d 774 (1992); see also Lamb v. State, 668 So.2d 666 (Fla. 2d DCA 1996); Humphries v. State, 676 So.2d 1 (Fla. 5th DCA 1995); Thompson v. State, 667 So.2d 470 (Fla. 3d DCA 1996); Tape v. State, 661 So.2d 1287 (Fla. 4th DCA 1995); Ward v. State, 655 So.2d 1290 (Fla. 5th DCA 1995).
Id. at 492 (emphasis added). We should pay attention to the well-reasoned opinions of our appellate colleagues.
Perhaps the real solution to the uncertainty and potential injustice created by the "two issue" rule at issue herein is to recede from our holdings in previous cases that capital defendants are not entitled to special verdicts. See, e.g., Brown v. State, 473 So.2d 1260, 1265 (Fla.), cert. denied, 474 U.S. 1038, 106 S.Ct. 607, 88 L.Ed.2d 585 (1985) (holding that capital defendant is not entitled to special verdict form indicating whether first-degree murder conviction was based upon premeditated murder or felony murder); Buford v. State, 492 So.2d 355, 358 (Fla.1986) (same).[8] Instead, we should adopt the procedure we have long since mandated in civil cases allowing a defendant the option of requesting a special verdict form when facing alternative theories of liability. See Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1977).
In Scarbrough, this Court explained that allowing a defendant the opportunity to request a special verdict is an essential element to the "two issue" rule:
This raises an issue with respect to which authorities among different jurisdictions are divided. The question arises where two or more issues are left to the jury, and [sic] of which may be determinative of the case, and a general verdict is returned, making it impossible to ascertain the issue(s) upon which the verdict was founded. One line of authority holds that reversal is improper where no error is found as to one of the issues, as the appellant is unable to establish that he has been prejudiced. Berger v. Southern Pacific Co., 144 Cal. App.2d 1, 300 P.2d 170 (Cal. 1st DCA 1956); Altieri v. Peattie Motors, Inc., 121 Conn. 316, 185 A. 75 (1936); Knisely v. Community Traction Co., 125 Ohio St. 131, 180 N.E. 654 (1932); Dwyer v. Christensen, 77 S.D. 381, 92 N.W.2d 199 (1958). This is known in jurisprudence as the "two issue" rule. It is a rule of policy, designed to simplify the work of the trial courts and to limit the scope of proceedings on review. See Harper v. Henry, 110 Ohio App. 233, 169 N.E.2d 20 (Ct.App.1959).
The weight of authority to the contrary mandates a reversal where error has affected one issue unless it is clear that the complaining party has not been injured thereby. Sunkist Growers, Inc. v. Winckler & Smith Citrus Products Co., 370 U.S. 19, 82 S.Ct. 1130, 8 L.Ed.2d 305 (1962); State *1037 of Maryland v. Baldwin, 112 U.S. 490, 5 S.Ct. 278, 28 L.Ed. 822 (1884); Maccia v. Tynes, 39 N.J.Super. 1, 120 A.2d 263 (N.J.App.1956); Bredouw v. Jones, 431 P.2d 413 (Okl.1966).
We believe that the "two issue" rule represents the better view. At first thought, it may seem that injustice might result in some cases from adoption of this rule. It should be remembered, however, that the remedy is always in the hands of counsel. Counsel may simply request a special verdict as to each count in the case. See Harper v. Henry, supra. Then, there will be no question with respect to the jury's conclusion as to each. If the trial court fails to submit such verdicts to the jury, counsel may raise an appropriate objection.
Had petitioners in the instant case requested special verdicts and objected to submission of a general verdict form to the jury, it would have been necessary for the district court to determine the sufficiency of the evidence to sustain the false imprisonment count as well as the malicious prosecution count. If there was error as to either count, the district court should then remand the case for a new trial as to both counts. However, petitioners failed to meet these requirements.
Id. at 1186 (emphasis added).
In capital cases in particular, as emphasized in Mills, where a defendant faces the ultimate penalty of death, we should want to have as much knowledge about the jury's verdict as possiblenot lessin order to enhance the review process. In essence, our current rule prohibiting special verdicts in capital cases amounts to a Catch-22 for the defendant. First, we prohibit a defendant, like Mungin, who faces a first-degree murder conviction on alternative theories of guilt and possible death sentence, from even having the option of a special verdict form; yet, the trial court submits both theories to the jury. Then, on appeal, this Court will uphold the conviction even ifas is the case herethe theory upon which the State built its case suffers from an insufficiency of evidence and it is utterly impossible to tell which theory the jury utilized in reaching its verdict. In a case such as this one, there simply is no reason why a defendant should not be able to request a special verdict form.
To conclude, I dissent because I believe the majority has made a grave mistake in characterizing the trial court's error as harmless. Given the weakness of the State's felony-murder theory and the prosecutor's cursory dismissal of that theory of guilt in closing argument, we cannot conscientiously conclude that the trial court's error in improperly instructing the jury on premeditation did not contribute to the jury's verdict of guilt in this case. State v. DiGuilio, 491 So.2d 1129, 1136 (Fla.1986). We should grant rehearing in this case and remand for a new trialthe outcome of which, unlike this one, we could view with confidence.
NOTES
[1] Williams v. State, 110 So.2d 654, 659, 662 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959); see also § 90.404(2), Fla.Stat. (1991).
[2] § 921.141(5)(b), Fla.Stat. (1991).
[3] § 921.141(5)(d), (f), Fla.Stat. (1991). The trial judge recognized that these two aggravating factors merged and treated them as one aggravator. He also instructed jurors that if they found these two aggravators, they were to count them as one.
[4] Whether (1) the trial court erred in overruling a defense objection to the State's peremptory strike of a black prospective juror; (2) the evidence was sufficient to support first-degree murder; (3) the trial court erred in allowing the State to introduce irrelevant evidence that Mungin shot a collateral crime victim in the spine; (4) fundamental error occurred when a defense witness testified in the penalty phase that inmates serving life sentences are eligible for conditional release and could be released in as little as five years; (5) the trial court erred in instructing the jury on and in finding the aggravating circumstances of robbery and pecuniary gain; (6) the trial court erred in refusing to instruct the jury that Mungin's age could be considered in mitigation; (7) the trial court erred in failing to find and give some weight to unrebutted nonstatutory mitigation; (8) the death sentence is appropriate if this Court eliminates the aggravating circumstances of robbery and pecuniary gain and considers mitigation that the trial court failed to find; and (9) Mungin's conviction and death sentence are unconstitutional.
[5] See Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) (reversing general guilty verdict under a California statute that prohibited the flying of red flags on three alternative grounds, one of which violated rights guaranteed by the First Amendment).
[6] See Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957) (reversing general guilty verdict for conspiracy where one of the possible bases for conviction was legally inadequate because of a statutory time bar).
[7] Mungin raises two other guilt-phase issues. Issue 1 (whether trial court erred in overruling a defense objection to the State's peremptory challenge of a black prospective juror) has not been preserved for our review. Any error in Issue 3 (concerning introduction of evidence that Mungin shot a collateral crime victim in the spine), was harmless. The State did not dwell on or unduly emphasize where that victim was shot.
[8] It should be noted that, unlike Mungin, the defendants in these cases did not challenge the sufficiency of evidence as to either theory of guilt on appeal.
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831 F.2d 1467
CALIFORNIA ENERGY RESOURCES CONSERVATION AND DEVELOPMENTCOMMISSION, Petitioner,v.BONNEVILLE POWER ADMINISTRATION; James J. Jura, asAdministrator*; and John S.Herrington, as Secretary of theDepartment of Energy of theUnited States ofAmerica,Respondents.PUBLIC UTILITIES COMMISSION OF the STATE OF CALIFORNIA, Petitioner,v.James J. JURA, as Administrator of the Bonneville PowerAdministration*; John S. Herrington, asSecretary of the Department of Energy of the United Statesof America; and the United States of America, Respondents.
Nos. 84-7836, 85-7430, 84-7838 and 85-7470.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Nov. 13, 1986.Decided Nov. 6, 1987.
William M. Chamberlain, Sacramento, Cal., for petitioners.
Peter G. Fairchild, San Francisco, Cal., for Public Utilities Commission of the State of Cal.
L. Randall Weisberg, Portland, Or., for Bonneville Power Admin.
R. John Seibert, Department of Justice, Washington, D.C. (argued), for respondents.
On Petition for Review of Action of the Bonneville Power Administration
Before TANG, SCHROEDER and NORRIS, Circuit Judges.
SCHROEDER, Circuit Judge:
Introduction
1
These are consolidated petitions to review the Bonneville Power Administration's [BPA] interim access policy for the Pacific Northwest-Pacific Southwest Intertie, a system of high voltage lines transmitting federal and non-federal power from the Pacific Northwest to the Southwest. The petitioners are: (1) the California Public Utilities Commission (CPUC), a government entity responsible for insuring reasonable rates for the State's energy consumers, Cal.Pub.Util.Code Secs. 301-322, and (2) the California Energy Resources Conservation and Development Commission (CEC), a state agency that adopts energy policies, forecasts energy needs, and certifies construction of power plants in California, Cal. Pub. Res. Code Secs. 25200, 25216. The essence of their claim is that the access policy unlawfully excludes low cost energy generated in the Pacific Northwest and Canada from BPA's transmission lines and thus prevents that lower cost energy from reaching California electric power consumers.
2
This is the second challenge to the interim policy. In the first, we upheld it over the objections of the Los Angeles Department of Water and Power. Department of Water & Power of the City of Los Angeles v. Bonneville Power Admin., 759 F.2d 684 (9th Cir.1985). Several of the objections of these petitioners are similar to objections which we discussed in that case.
3
Before reaching the merits of petitioner's objections, however, we must first discuss a threshold jurisdictional question. The question is whether the policy can be considered final agency action that is now reviewable on the merits by this court, or whether the policy is in the nature of a rate that is not final, and therefore not yet subject to our review, until reviewed by the Federal Energy Regulatory Commission [FERC]. See 16 U.S.C. Secs. 839e(i), (k); Central Lincoln Peoples' Util. Dist. v. Johnson, 735 F.2d 1101, 1109 (9th Cir.1984). We conclude that we have jurisdiction to review because the policy is not a rate. On the merits, we find no basis for overturning the agency's actions, adopting the policy on a temporary interim basis pending implementation of a long term policy.
Facts
4
In Department of Water & Power, this court recently set forth a description of BPA's operations and the provisions of the Intertie Access Policy. See 759 F.2d at 685-90. Because they are important to this case, we will again review the background facts.
5
BPA is a federal agency that markets hydroelectric power within the Pacific Northwest and oversees distribution of power from the Pacific Northwest to California and the Southwest desert. See 16 U.S.C. Sec. 832a. Its operations are governed in part by the Pacific Northwest Electric Power Planning and Conservation Act, 16 U.S.C. Secs. 839-839h (the Regional Act). The Regional Act prescribes procedures for setting and modifying rates for the sale and transmission of energy, and requires FERC approval of rates. 16 U.S.C. Secs. 839e(i), 839e(k). It also requires BPA to establish rates that are sufficient to insure BPA's fiscal independence. 16 U.S.C. Sec. 839e(a)(1). BPA's operations are also governed by the Bonneville Project Act, 16 U.S.C. Secs. 832-832l, the Pacific Northwest Power Preference Act, 16 U.S.C. Secs. 837-837h, and the Federal Columbia River Transmission System Act, 16 U.S.C. Secs. 838-838k. See generally Blumm, The Northwest's Hydroelectric Heritage: Prologue to the Pacific Northwest Electric Power Planning and Conservation Act, 58 Wash.L.Rev. 175 (1983).
6
In the late 1960's, Congress established the Pacific Northwest-Pacific Southwest Intertie. 16 U.S.C. Secs. 838-838k. The purpose of the Intertie is to allow the Pacific Northwest and Pacific Southwest to exchange power when one region has a surplus supply and the other region has a heavy demand. BPA owns and operates most of the Intertie transmission lines above the Oregon-California border. A small group of California utilities owns the lines south of Oregon. See Department of Water & Power, 759 F.2d at 686.
7
On its lines, BPA transmits both federal "firm" and "nonfirm" power. Firm power is provided with the assurance of continued availability, and nonfirm power is provided only when supply exceeds firm power commitments. BPA also "wheels" non-federal firm and the less expensive nonfirm power for public and private utilities at established rates. See id. at 686. In selling its own firm and nonfirm power, BPA is statutorily required to give priority to purchasers within the Northwest, 16 U.S.C. Sec. 837a, and to public bodies and cooperatives, 16 U.S.C. 832c(a). Sales to purchasers outside the Northwest are limited to surplus energy, or energy "which would otherwise be wasted because of the lack of a market therefor in the Pacific Northwest at any established rate." 16 U.S.C. Secs. 837(c), (d) and 837a.
8
Because the Intertie has a limited transmission capacity, BPA must provide for allocation of Intertie capacity among competing power producers. In allocating Intertie capacity, BPA is statutorily required to give itself priority. 16 U.S.C. Sec. 837e. Any capacity in the Intertie "which is not required for the transmission of Federal energy ... shall be made available as a carrier for transmission of other electric energy." Id. Additionally, BPA "shall make available to all utilities on a fair and nondiscriminatory basis, any [excess] capacity in the Federal transmission system." 16 U.S.C. Sec. 838d.
9
Before adoption of the policies challenged here, BPA generally allowed access to the Intertie to be determined by the spot market. This meant that producers offering the most attractive prices at any given moment could make sales and obtain Intertie access until capacity was reached. On September 7, 1984, BPA promulgated an interim Near Term Intertie Access Policy to provide a more predictable mechanism for allocating Intertie capacity. 49 Fed.Reg. 44,232 (Nov. 5, 1984). The policy was adopted after a series of public hearings and publication of notices in the Federal Register. See 48 Fed.Reg. 33,515 (July 22, 1983); 49 Fed.Reg. 5,990 (Feb. 16, 1984); 49 Fed.Reg. 30,34 6 (July 30, 1984); 50 Fed.Reg. 19,781 (May 10, 1985). In 1985, the Los Angeles Department of Water and Power challenged the policy as an abuse of discretion and beyond BPA's statutory authority. This court upheld the policy. See Department of Water & Power, 759 F.2d at 695.
10
On June 1, 1985, BPA adopted a revised Near Term Intertie Access Policy. See 50 Fed.Reg. 26,827 (June 28, 1985). This policy is substantially identical to the interim policy. Both policies are challenged here and are referred to collectively as the Access Policy.
11
Under the Access Policy, assured transmission service is available for firm power sold by Pacific Northwest producers to California purchasers under BPA-approved sales contracts. Extraregional producers, including Canadian producers, cannot obtain assured service for firm power. Any capacity on the Intertie in excess of firm power needs is sold on an hourly or daily ("nonfirm") basis under one of three "conditions." Revised Near Term Intertie Access Policy, 50 Fed.Reg. at 26,830-31.
12
Condition One incorporates the Exportable Energy Agreement of 1969. This Agreement becomes operative only when river flows into Pacific Northwest dams are sufficiently high to threaten wasteful "spillover" conditions. Under this Agreement, BPA and each Northwest utility that declares a surplus of energy at BPA's "applicable rate" may sell and transmit a pro rata portion of its surplus to California purchasers. Non-regional producers, like Canadian utilities, may not use the Intertie when the Exportable Agreement takes effect. Id. at 26,831.
13
Condition Two becomes operative whenever BPA and Pacific Northwest utilities have enough surplus nonfirm energy to fill the Intertie at any price. Again, access to the Intertie is limited to BPA and Pacific Northwest producers. Each receives access to a pro rata portion of its declared surplus. Id.
14
Finally, under Condition Three, which becomes operative only when BPA and the Northwest utilities lack sufficient surplus to fill the Intertie at any price, extraregional utilities, including Canadian utilities, may gain access to the Intertie. Id.
15
Although the revised Near Term Intertie Access Policy was originally set to terminate on September 30, 1986, with the adoption of a long term policy, BPA extended the expiration date to June 30, 1987, to allow further evaluation of the long term policy. See 51 Fed.Reg. 23,819 (July 1, 1986). BPA has not yet adopted a long term policy, and the expiration of the interim policy has further been extended until June 30, 1988, or upon implementation of the long term policy, whichever occurs first. See 52 Fed.Reg. 9,530 (March 25, 1987).
16
Jurisdiction: Is the Policy a Rate?
17
CEC and CPUC argue here that BPA's adoption of the Access Policy constituted ratemaking and thus requires FERC approval before judicial review is available. The parties in Department of Water & Power did not raise this jurisdictional issue, and the court there did not address it. Since the question of jurisdiction was neither raised nor decided, this court's assumption of jurisdiction in Department of Water & Power does not establish controlling precedent on the appealability issue. See Matter of Baker, 693 F.2d 925, 925-26 (9th Cir.1982) (per curiam). Now that it is squarely presented, we must decide the issue.
18
The Regional Act requires BPA to set rates for electric power that are sufficient to cover costs and to recoup the federal investment in BPA's facilities "over a reasonable period of years." 16 U.S.C. Secs. 839e(a)(1), 832f, and 838g. The Act prescribes procedures for establishing and modifying rates. The procedures include notice in the Federal Register, public hearings with limited cross-examination, and decisions on the record. See id. Sec. 839e(i). FERC must approve rates before they become final and effective. Id. Sec. 839e(a)(2). For a brief historical discussion of federal power marketing agencies' ratemaking and review procedures, see United States v. Tex-La Elec. Co-op., 693 F.2d 392, 405-07 (5th Cir.1982).
19
Final rate determinations and other final agency actions are subject to original judicial review in this court. See 16 U.S.C. Sec. 839f(e); Public Util. Comm'n of the State of Calif. v. FERC, 814 F.2d 560, 561 (9th Cir.1987); California Energy Comm'n v. Johnson, 767 F.2d 631, 633 (9th Cir.1985); Central Lincoln Peoples' Util. Dist. v. Johnson, 735 F.2d 1101, 1108-09 (9th Cir.1984). On review, we must affirm the agency's action unless it is arbitrary, capricious, an abuse of discretion, or in excess of statutory authority. 16 U.S.C. Sec. 839f(e)(2); 5 U.S.C. Sec. 706; Department of Water & Power, 759 F.2d at 690. Additionally, BPA's interpretation of the Regional Act is to be given great weight and should be upheld if reasonable. Aluminum Co. of Am. v. Central Lincoln Peoples' Util. Dist., 467 U.S. 380, 389, 104 S.Ct. 2472, 2479, 81 L.Ed.2d 301 (1984); California Energy Resources Conservation & Dev. Comm'n v. Johnson, 783 F.2d 858, 860 (9th Cir.1986), modified, 807 F.2d 1456, 1459 (1987).
20
This court's most recent discussions of BPA ratemaking are in Atlantic Richfield Co. v. Bonneville Power Admin., 818 F.2d 701 (9th Cir.1987) (per curiam), and City of Seattle v. Johnson, 813 F.2d 1364 (9th Cir.1987) (per curiam). In Atlantic Richfield, we held that a "customer charge" imposed by BPA as part of its overall charge for energy is a rate for the sale or disposition of power and is subject to FERC review. 818 F.2d at 705. Similarly, in City of Seattle, we held that an "availability charge" imposed on certain contract customers is also a rate. 813 F.2d at 1367. The availability charge is a fee designed to recover some fixed costs associated with BPA's duty under the contracts to stand ready to deliver energy when demanded. We expressly rejected the utilities' contention that the availability charge was a penalty for not purchasing energy, rather than a rate. We reasoned that so limiting the meaning of "rate" would improperly limit FERC's authority under the Regional Act to review BPA charges. Id.
21
Neither Atlantic Richfield nor City of Seattle is apposite to the facts presented here. As we noted in City of Seattle, "[r]ates are simply the charges BPA imposes on its customers for the provision of service." 813 F.2d at 1367; see also Black's Law Dictionary 1134 (5th ed. 1979) (defining "rate" when used in connection with public utilities as "price stated or fixed for some commodity or service ... measured by a specific unit or standard"). In its rules establishing procedures for reviewing rates of other power marketing agencies, FERC itself defines a rate as "the monetary charge or the formula for computing such a charge for any electric service." 10 C.F.R. Sec. 903.2(1).
22
The Access Policy, however, does not impose any charge at all or define any formula for computing charges. Nor does it give BPA authority to increase or decrease its own established charges for energy. Because it does not do so, FERC review of the Access Policy would not further the purposes of such review, which are first to insure that BPA's regional and nonregional rates are adequate and equitable, and second to insure that nonregional rates comply with BPA's organic statutes, see 16 U.S.C. Sec. 839e(a)(2) and (k); Central Lincoln Peoples' Util. Dist. v. Johnson, 735 F.2d 1101, 1110-13 (9th Cir.1984). FERC apparently agrees, for it has stated that the Access Policy is not ratemaking subject to its approval. See 33 FERC (CCH) p 61,235, at p. 61,486 (Dec. 12, 1985).
23
In support of their argument that adoption of the Access Policy constituted ratemaking, the petitioners here rely principally on Portland General Elec. Co. v. Johnson, 754 F.2d 1475 (9th Cir.1985). In that case, we held that BPA's offer to sell energy to one class of customers at a rate approved for another class was ratemaking. Id. at 1481. We explained that "BPA's rates are not an interchangeable set of prices among which it is free to choose in any particular sale of energy.... A change in the availability provisions of the rate schedules constitutes ratemaking." Id. Similarly, in a companion case to Portland General, we held that BPA engaged in ratemaking when it agreed to purchase several regional utilities' scheduling rights to a nuclear power plant, and that agreement was "inextricably linked" to BPA's agreement to sell those same utilities federal power as replacement. California Energy Resources Conservation & Dev. Comm'n v. Bonneville Power Admin., 754 F.2d 1470, 1474 (9th Cir.) (noting that "paying the buyer to buy is the same thing as reducing the price the buyer must pay"), cert. denied, 474 U.S. 1005, 106 S.Ct. 524, 88 L.Ed.2d 457 (1985). In both cases we concluded that agency action which had the effect of changing those schedules was ratemaking in nature.
24
Unlike the action in those cases, the BPA action challenged here does not conflict with the agency's existing rate schedules. The Access Policy is a formal statement of BPA's Intertie allocation policies. It does not make BPA energy available to purchasers at charges authorized for other purchasers or in any way attempt to avoid established rates. See Near Term Intertie Access Policy: Administrator's Record of Decision, at 11-16 (Sept. 1984) (Record of Decision I); Revised Near Term Intertie Access Policy: Administrator's Record of Decision, at 11 (May 1985) (Record of Decision II).1 At most, by altering market forces the Access Policy can affect only the prices non-federal Pacific Northwest producers charge consumers. Yet the ratemaking provisions of 16 U.S.C. Sec. 839e apply only to the rates for federal energy and for the transmission of non-federal power. See 16 U.S.C. Sec. 839e(a).
25
Moreover, the parties have not pointed to any allocation provisions of established rate schedules with which the allocation policies challenged here are inconsistent. They probably cannot do so because federal power marketing agencies generally have not included resource allocation policies in rate schedules. FERC defines a rate schedule as a statement describing rates and charges for service, the type of services to which the rates and charges apply, and the classifications and other provisions which directly affect the rates and charges. 18 C.F.R. Sec. 300.1(7); 10 C.F.R. Sec. 903.2(n). This definition does not include resource allocation decisions which indirectly affect prices of non-federal energy. Rather, before the more recent adoption of formal policies through rulemaking, power allocation decisions of federal power marketing agencies have principally been made on an ad hoc basis by the exercise of the agencies' contracting authority. See Electricities of N. Carolina v. Southeastern Power Admin., 774 F.2d 1262, 1265 (4th Cir.1985); cf. City of Santa Clara v. Andrus, 572 F.2d 660, 673-74 (9th Cir.1978) (Secretary of Interior is not required to follow rulemaking procedures when disposing of federal hydroelectric power). Access has never historically been considered an aspect of rulemaking for before BPA adopted the Access Policy, it informally allowed access to the Intertie to be determined by the spot market. See Record of Decision I, at 39.
26
We consider the totality of the circumstances to determine if BPA action was ratemaking. See Portland General, 754 F.2d at 1481; California Energy Resources Conservation & Dev. Comm'n v. Bonneville Power Admin., 754 F.2d at 1474; see also City of Seattle, 813 F.2d at 1367 n. 5. Upon examination of all of these considerations, we conclude BPA's action, which followed the rulemaking procedures, did not amount to ratemaking requiring FERC review. We therefore have jurisdiction to review the Access Policy.
The Merits
27
CEC and CPUC attack the Access Policy on essentially four grounds. Three of these grounds are discussed in Department of Water & Power. They are that the Access Policy lacks factual justification, that it is discriminatory in violation of 16 U.S.C. Secs. 837e and 838d, and that it fails to conform to federal antitrust policy. We deal with those issues first. We then turn to the remaining issue not discussed in our prior opinion, namely, that the policy excludes new generating sources in violation of 16 U.S.C. Sec. 839f(d) and 837e.
A. Lack of Factual Justification
28
The petitioners argue that BPA's purported justifications for the policy lack a reasonable basis in fact and that BPA's action was therefore arbitrary, capricious, and an abuse of discretion.2 In Department of Water & Power, however, this court specifically found that the interim Access Policy was factually justified. There, we stated that "BPA has presented reliable evidence that without a policy which carefully allocates Intertie access, it will experience significant revenue shortfalls in coming years. To the extent that the IAP [the Access Policy] is designed to mitigate projected deficits, therefore, the policy is not only statutorily authorized but statutorily mandated." Department of Water & Power, 759 F.2d at 693. As the petitioners concede, the interim policy and the revised policy are identical for these purposes. They point to nothing in the record of the revised proceedings that would require reexamination of their contention. Therefore, our earlier determination forecloses review here. See Royal Development Co. v. National Labor Relations Bd., 703 F.2d 363, 368 (9th Cir.1983). CEC's contention that Department of Water & Power should not control because the court there was unaware of BPA's huge net revenues and relied on conclusory evidence is merely an assertion that the case would have been decided differently on a different record. It does not provide a basis for disregarding the decision.
B. Discrimination
29
CEC and CPUC contend that the Access Policy discriminates against extraregional utilities in violation of 16 U.S.C. Secs. 837e and 838d by denying them transmission access whenever a non-federal Pacific Northwest utility has unsold surplus available. Again, their challenge is foreclosed by Department of Water & Power. There, after specifically examining sections 837e and 838d, we stated that "BPA is required to allocate use of federally-owned transmission facilities in a manner which accords preference first to transmission of federal power and then to transmission of other Northwest-generated power." Department of Water & Power, 759 F.2d at 692-93, 695.
C. Antitrust Arguments
30
The petitioners challenge the Access Policy as failing to conform to the maximum extent possible to the federal antitrust laws and policies. We held in the Department of Water & Power case that the anticompetitive effects there challenged were justified by fiscal concerns. Department of Water & Power, 759 F.2d at 693. In addition, we observed in a footnote that the antitrust laws were not applicable to BPA. Id. at 693 n. 12. We did not in that decision discuss to what extent BPA may be required to consider the policies of the antitrust laws, though we did stress the monopoly power which it had been given. Id. at 693.
31
BPA is required to consider some federal antitrust policies when providing for allocation of Intertie capacity. Congress specifically articulated its intent that BPA operate its transmission lines in part "to prevent the monopolization thereof by limited groups." 16 U.S.C. Sec. 832a(b).3 This need to consider the interests of preserving competition, however, does not override BPA's statutory obligations, repeatedly expressed in 16 U.S.C. Secs. 832f, 838g, and 839e(a)(1), to be fiscally self-supporting.
32
The aspect of the policy which the petitioners attack here and which was not dealt with in our prior decision in Department of Water & Power is the pro rata allocation formula for surplus nonfirm energy. Under the Access Policy, firm energy needs are satisfied first and any remaining capacity is used for nonfirm energy. Under Conditions One and Two, Intertie capacity for surplus nonfirm energy is allocated daily or hourly among BPA and Pacific Northwest producers so that each receives a pro rata portion of its declared surplus. Under Condition Three, capacity for surplus nonfirm power is allocated among BPA, Northwest producers, and extraregional producers again based on a pro rata portion of each producer's declared surplus. Revised Near Term Intertie Access Policy, 50 Fed.Reg. at 26,830-31. The result is a regularly shifting, horizontal division of the market for surplus nonfirm energy; each eligible producer is temporarily granted sole access to a specified share of the capacity, which it may either use or allow to remain unused without fear of competition by other producers.
33
CEC and CPUC argue that this pro rata allocation formula is an abuse of discretion because it is anticompetitive and BPA's stated justifications could be achieved by a less anticompetitive alternative. They assert that BPA should be required to adopt a policy whereby it would first allocate to itself whatever capacity is needed to satisfy its revenue obligations, and then allow the remainder capacity to be filled by competitive, spot market transactions rather than by the pro rata formula.
34
The alternative which petitioners now propose was apparently not, however, directly raised during the notice and comment proceedings for the policy on review here. The agency did not evaluate it and we have no record on which to review the petitioner's contentions. See Kunaknana v. Clark, 742 F.2d 1145, 1149 (9th Cir.1984); see also Association of Data Processing Serv. Orgs. v. Board of Governors of the Fed. Reserve Sys., 745 F.2d 677, 684 (D.C.Cir.1984). During these interim phases of its action BPA and interested parties were concerned with the broader questions of its authority to allocate the Intertie as proposed.4 In the circumstances presented here, where we deal only with a temporary policy, and administrative proceedings on a long term policy are ongoing, we should defer consideration of the alternative proposed by CEC and CPUC until the agency has been given an opportunity to analyze and act upon the alternative in its Long Term Policy.
35
We have reviewed the record to determine the reasonableness of BPA's evaluation of the alternatives it did have an opportunity to consider. There were two such alternatives, and both bear a close relationship to the alternative petitioners now propose.
36
One was that BPA reserve sufficient Intertie capacity for itself before providing any access to non-federal producers. The proponents of this alternative were concerned that BPA obtain the maximum revenues possible. See Record of Decision I, at 9. BPA rejected this proposal for the interim Near Term Policy because it believed that it could satisfy its revenue obligations without adopting such an extreme policy. The agency noted that the Access Policy's provisions for firm access would enable it to increase revenues by insuring that firm energy would be sold at firm energy rates. See id. at 9-11. It also believed that its role as a federal steward for transmission services would be best served by sharing the Intertie with Pacific Northwest producers. See id. The agency again rejected the alternative in its revised policy when its experience in recovering revenues under the initial Near Term Policy showed its revenue expectation to be justified. See Record of Decision II, at 18. Given these justifications and the experience under the initial policy, the agency's decision to reject this alternative in favor of the adopted allocation formula was rational. See Motor Vehicles, 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983).
37
Other parties expressed concern that the allocation formula was anticompetitive and recommended that BPA retain its practice of allowing spot market transactions to determine access to the Intertie for surplus nonfirm energy. See Record of Decision I, at 35-36. In response, BPA found that the monopsony power of California buyers prevented the market from being competitive even under the spot market practice and that the distressed prices stemming from the monopsony power resulted in BPA revenue shortfalls. See id. at 2, 40. It also found that a pro rata formula would help to equalize Intertie benefits between Pacific Northwest producers and California buyers of energy. See id. at 39-41. Finally, the agency remarked that the proposed policy was not as anticompetitive as the opponents asserted because it opened up a new market for firm energy and because other market forces still worked to encourage Pacific Northwest sellers to retain prices competitive with alternate forms of energy. See id. at 36-44. After several months experience with the interim policy, BPA reevaluated the anticompetitive effects in promulgating the revised policy. Based on data of non-federal prices provided by the parties, it found that although its revenues had increased as a result of firm energy sales over the Intertie, Pacific Northwest prices had not risen significantly. See Record of Decision II, at 1, 7-8. The agency explained that Pacific Northwest producers must still compete with other energy sources. See id. at 8. Also, the allocation mechanism results in overestimation of available Intertie capacity and, therefore, producers must remain price competitive to make sales. See id.
38
To counter concerns that the pro rata formula would result in unused Intertie capacity from higher prices, BPA initially proposed an economic override provision that would allow it to reduce the pro rata share of a non-federal producer if that producer's share would go unused because of its rates. See Record of Decision I, at 33-35. Almost all parties that commented on this provision, including both Pacific Northwest and California parties, objected to this provision as being too intrusive of the business practices of the parties. See id.; Record of Decision II, at 41-43. Given the widespread objection to what was intended to be a mitigation provision in favor of California energy buyers, BPA's rejection of the economic override alternative was reasonable.
39
On the basis of the record before us, we cannot say that the agency's interim decision to allocate the Intertie as undertaken in the Access Policy is arbitrary, capricious, or an abuse of discretion. Rather, the record shows that among the alternatives proposed and considered, BPA adopted what it reasonably believed would be a predictable, fair, and nondiscriminatory basis for allocating the Intertie while insuring adequate BPA revenues.
D. Exclusion of New Generating Sources
40
With the exception of two specific sources, the Access Policy denies access for firm power to Pacific Northwest resources not operational on September 7, 1984. See Revised Near Term Intertie Access Policy, 50 Fed.Reg. at 26,828-29. CEC argues that this exclusion discriminates against utilities which develop new generating sources in violation of 16 U.S.C. Secs. 837e and 839f(d).5 Because CEC represents California energy interests, it has standing to challenge the overall exclusion of new generating sources which may result in higher prices to California consumers. See California Energy Resources Conservation & Dev. Comm'n v. Johnson, 783 F.2d 858, 860 n. 2 (9th Cir.1986), modified, 807 F.2d 1456 (1987); California Energy Resources Conservation & Dev. Comm'n v. Bonneville Power Admin., 754 F.2d 1470, 1473 (9th Cir.), cert. denied, 474 U.S. 1005, 106 S.Ct. 524, 88 L.Ed.2d 457 (1985).
41
Section 9(d) of the Regional Act requires that in providing transmission access BPA not discriminate against a utility on the basis of independent development of resources. 16 U.S.C. Sec. 839f(d).6 From this language CEC finds a statutory obligation to provide Intertie access to all new generating sources. Section 9(d), however, specifically states that the duty to provide nondiscriminatory service is "subject to ... any other obligations under existing law." Id. BPA points to two other obligations to justify its decision to exclude newly operational resources under the interim and revised Near Term policies.
42
The first is BPA's statutory obligation under the Regional Act to use its "authorities ... to protect, mitigate, and enhance fish and wildlife" in the Columbia River basin. 16 U.S.C. Sec. 839b(h)(10)(A); see Record of Decision I, at 82-85; see also Forelaws on Board v. Johnson, 743 F.2d 677, 682 (9th Cir.1984), cert. denied, --- U.S. ----, 106 S.Ct. 3293, 92 L.Ed.2d 709 (1986).7 During notice and comment proceedings, interested parties expressed concern that the policy "not enable or encourage resources which adversely affect anadromous fish." Record of Decision I, at 66. BPA was legitimately concerned lest its allocation policy encourage new development harmful to fish and wildlife.8 By excluding new generating sources in its interim and revised Near Term policies, BPA could avoid encouraging harmful development while it evaluated less restrictive alternatives. BPA could also pursue its statutory obligation to be fiscally self-supporting while it developed an alternative.9
43
Additionally, under the National Environmental Policy Act [NEPA], 42 U.S.C. Secs. 4321-4361, BPA must prepare an environmental impact statement before undertaking any action that would significantly affect the quality of the environment. See Forelaws on Board v. Johnson, 743 F.2d 677, 681-82 (9th Cir.1984), cert. denied, --- U.S. ----, 106 S.Ct. 3293, 92 L.Ed.2d 709 (1986). Because of the uncertain impact of the allocation policy on the environment, the agency reasonably concluded that it should exclude new generating sources in the interim and revised Near Term policies.
44
CEC nevertheless recites 16 U.S.C. Sec. 837e in support of its assertion that the exclusion provision exceeds statutory authority. That section provides that the Intertie "shall be made available as a carrier for transmission of [non-federal] electric energy." 16 U.S.C. Sec. 837e.10 CEC argues that it mandates access to all new sources regardless of environmental impact. The legislative history of the subsequently enacted Regional Act makes clear, however, that environmental concerns are to be given a heightened priority and that the Regional Act "creates a new obligation on the region, the BPA, and other Federal agencies to protect, mitigate and enhance fish and wildlife." 126 Cong.Rec. 29809 (1980) (statement of chief sponsor Rep. Dingall), reprinted in United States Department of Energy, Legislative History of the Pacific Northwest Power Planning and Conservation Act 138 (1981); see 16 U.S.C. Sec. 839(6); see also 126 Cong.Rec. 27825 (1980) (statement of Rep. Bonker) ("The language in this bill--if interpreted according to the historical development and record of this legislation--will insure that power needs and fish needs are considered equally in the allocation of available water resources. That is the intent of Congress."), reprinted in Legislative History at 190. The Regional Act's focus on preservation and conservation modifies BPA's preexisting directives emphasizing widespread use of energy, sound business principles, and the lowest rates possible. See Blumm, The Northwest's Hydroelectric Heritage: Prologue to the Pacific Northwest Electric Power Planning and Conservation Act, 58 Wash.L.Rev. 175, 232-35 (1983).
45
We deal here with an interim ban. The petitioners do not point to any planned source which has yet been affected adversely. Although we do not purport to decide whether an absolute exclusion of new generating sources would be reasonable in a long term access policy, the present interim exclusion of new generating sources is not facially invalid.
46
The petitions are DENIED.
NORRIS, Circuit Judge, dissenting:
47
I am troubled by Judge Schroeder's opinion in this obviously important case. While it may be that Department of Water and Power of the City of Los Angeles v. Bonneville Power Administration, 759 F.2d 684 (9th Cir.1985), forecloses appellants' claims that the BPA's Interim Access Policy arbitrarily favors the BPA itself and discriminates against Canadian utilities in violation of the statutory mandate,1 that case does not foreclose a challenge to the BPA's policy of discriminating against Pacific Southwest utilities and energy consumers in favor of Pacific Northwest utilities.
48
The BPA's pro rata allocation scheme for available intertie capacity--a scheme which if implemented by a private party would plainly violate the antitrust laws--paternalistically restricts price competition among Northwest utilities and denies Southwest utilities and energy consumers the benefit of free market pricing for surplus energy offered for sale by privately-owned Northwest utilities. The interim access policy's interference with free market pricing simply creates a cartel for the Northwest utility companies in the sale of power to the Southwest.2 The BPA's statutory mission, however, does not extend to acting as the guardian angel for Northwest utilities in their market relationship with Southwest utilities. If Northwest energy companies believe that the Southwest utilities are exercising some sort of unfair monopsony power, let them sue under the applicable antitrust laws. It is not the mission of the BPA to fight this battle for the Northwest utilities through the promulgation of a regionally biased access policy.
49
I can see no statutory authority under which the BPA is authorized to discriminate so clearly in favor of Northwest utilities and against Southwest utilities and energy users. Indeed, the relevant statutory language appears to point the other way. The anti-competitive, pro-Northwest utility slant of the pro rata intertie access plan seems plainly incompatible with the statutory language requiring that the BPA be "fair and non-discriminatory" in its treatment of all utilities, 16 U.S.C. Sec. 838d, as well as the clear understanding recognized in Department of Water & Power that the purpose of the intertie was to benefit both the Northwest and Southwest, 759 F.2d at 694.
*
James J. Jura, the current Administrator of the Bonneville Power Administration, is substituted for his predecessor in office pursuant to Fed.R.App.P. 43(c)(1)
1
To the extent that the petitioners argue that adoption of the Access Policy contemporaneously altered the rates that apply to nonfirm energy, they are incorrect. Although BPA previously used its "spill rate" as the "applicable rate" under the Exportable Energy Agreement, its decision to apply the "standard rate" instead is specifically anticipated by the applicable rate schedule NF-83. See 33 FERC (CCH) p 61,235, at p. 61,489. That schedule provides that nonfirm energy shall be sold at the standard rate, unless BPA "offer[s], at its discretion, to schedule Nonfirm Energy at the Spill Rate." By electing to exercise this discretion, BPA did not change any rates
2
BPA's justifications include:
1
to "assure[ ] that BPA has use of its portion of the Pacific Intertie as necessary for BPA's power marketing program";
2
to "enhance[ ] BPA's ability to recover revenue that otherwise would be lost if BPA failed to manage prudently its portion of the Pacific Intertie"; and
3
to "respond[ ] to the recent influx of requests for more space on the Pacific Intertie than there is available capacity."
Near Term Intertie Access Policy, 49 Fed.Reg. at 44,233.
3
This statutory language is more specific than the Federal Power Commission's broad authority to issue public utility securities if "compatible with the public interest," an authority which the Supreme Court held to incorporate from other sections of the Federal Power Act an obligation to consider federal antitrust policies. See Gulf States Util. Co. v. Federal Power Comm'n, 411 U.S. 747, 756-59, 93 S.Ct. 1870, 1876-78, 36 L.Ed.2d 635 (1973); see also Otter Tail Power Co. v. United States, 410 U.S. 366, 374, 93 S.Ct. 1022, 1028, 35 L.Ed.2d 359 (1973) (rather than insulate electric power companies from antitrust policies, the Federal Power Act intended to incorporate antitrust concerns)
4
In its Record of Decision for the revised policy, BPA specifically stated that it elected in the interim proceedings to focus on questions regarding its statutory authority to allocate the Intertie capacity because it had never adopted an allocation policy before. See Record of Decision II, at 3. In the wake of this court's decision in Department of Water & Power upholding the interim policy, BPA did not reanalyze all of its prior decisions. See id
5
CPUC does not raise a similar challenge
6
In full, section 9(d) provides:
(d) Disposition of power which does not increase amount of firm power Administrator is obligated to provide to any customer
No restrictions contained in subsection (c) of this section shall limit or interfere with the sale, exchange or other disposition of any power by any utility or group thereof from any existing or new non-Federal resource if such sale, exchange or disposition does not increase the amount of firm power the Administrator would be obligated to provide to any customer. In addition to the directives contained in subsections (i)(1)(B) and (i)(3) of this section and subject to:
(1) any contractual obligations of the administrator,
(2) any other obligations under existing law, and
(3) the availability of capacity in the Federal transmission system,
the Administrator shall provide transmission access, load factoring, storage and other services normally attendant thereto to such utilities and shall not discriminate against any utility or group thereof on the basis of independent development of such resource in providing such services.
16 U.S.C. Sec. 839f(d).
7
Section 4(h)(10)(A) provides:
The Administrator shall use the Bonneville Power Administration fund and the authorities available to the Administrator under this chapter and other laws administered by the Administrator to protect, mitigate, and enhance fish and wildlife to the extent affected by the development and operation of any hydroelectric project of the Columbia River and its tributaries in a manner consistent with the plan, if in existence, the program adopted by the Council under this subsection, and the purposes of this chapter. Expenditures of the Administrator pursuant to this paragraph shall be in addition to, not in lieu of, other expenditures authorized or required from other entities under other agreements or provisions of law.
16 U.S.C. Sec. 839b(h)(10)(A).
8
The Access Policy also restricts access by existing resources when it will result in a use of resources that adversely affects fish and wildlife. See Revised Near Term Intertie Access Policy, 50 Fed.Reg. at 26,829. CEC does not contend that BPA lacks authority to establish this condition for access
9
The Near Term Policy expressly indicates that the Long Term Policy will eliminate the total exclusion of new generating sources in favor of a less restrictive exclusion. As anticipated, the Long Term Policy will exclude new resources "if construction or operation of these resources will adversely impact fish and wildlife resources." See Revised Near Term Intertie Access Policy, 50 Fed.Reg. at 26,830 (emphasis added)
10
Sec. 837e. Transmission lines for other electric energy; rates
Any capacity in Federal transmission lines connecting, either by themselves or with non-Federal lines, a generating plant in the Pacific Northwest or Canada with the other area or with any other area outside the Pacific Northwest, which is not required for the transmission of Federal energy or the energy described in section 837h of this title, shall be made available as a carrier for transmission of other electric energy between such areas. The transmission of other electric energy shall be at equitable rates determined by the Secretary, but such rates shall be subject to equitable adjustment at appropriate intervals not less frequently than once in every five years as agreed to by the parties. No contract for the transmission of non-Federal energy on a firm basis shall be affected by any increase, subsequent to the execution of such contact, in the requirements for transmission of Federal energy, the energy described in section 837h of this title, or other electric energy.
16 U.S.C. Sec. 837e.
1
Parenthetically, it also seems to me that the panel in Department of Water & Power may have wrongly decided the Canadian issue. The exclusion of Canadian power, though arguably unobjectionable in its discrimination against Canadian producers, also discriminates against Southwest energy purchasers--intended beneficiaries of the intertie. That issue may be important enough to merit en banc consideration
2
To the extent that Northwest utilities are under no obligation to use their pro rata share of intertie access, the BPA's interim plan also acts as a restriction on output. Output restrictions, like restrictions on price competition, raise prices above the competitive market level. Thus, the interim access policy--suppressing both prices and output--is a double curse for Southwest utilities and energy consumers
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226 F.2d 714
BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY ANDAGRICULTURAL AND MECHANICAL COLLEGE, et al., Appellants,v.Alexander P. TUREAUD, Jr., a Minor, By Alexander P. Tureaud,Sr., His Father and Next Friend, Appellees.
No. 15540.
United States Court of Appeals Fifth Circuit.
Oct. 26, 1955.
W. Scott Wilkinson, Shreveport, La., L. H. Perez, New Orleans, La., L. W. Brooks, C. V. Porter, and J. R. Fuller, Baton Rouge, La., for appellant.
A. P. Tureaud, New Orleans, La., and Robert L. Carter, New York City, for appellee.
Before RIVES and CAMERON, Circuit Judges, and DAWKINS, District Judge.
PER CURIAM.
1
After long and serious study of the petition for rehearing the majority of the court has reached the conclusion that a rehearing should be granted. These are some of the considerations which have led to that conclusion:
2
The complaint alleged that the action of the Supervisors and other administrative officers of L.S.U., in refusing to admit plaintiff as a student at L.S.U., in the category which he sought, pursuant to the state Constitution and statutory provisions, was violative of the Fourteenth Amendment to the Federal Constitution, and for this reason a statutory court of three judges, 28 U.S.C.A. § 2281 et seq. should be convoked to hear the case. The trial judge held, in effect, that he alone had jurisdiction, and not the three-judge court, under the well settled doctrine of equal facilities, and found at the hearing, when the case was first tried, the facts in detail to show that courses and facilities of Southern University (devoted exclusively to the colored race) were greatly inferior to those of L.S.U. He therefore concluded that the refusal to admit plaintiff was violative of the Fourteenth Amendment. D.C., 116 F.Supp. 248.
3
On appeal, this court, one member of the panel dissenting, held that the judge below was without jurisdiction sitting alone, and remanded the case for the convocation of the statutory court. Board of Sup'rs of La. State University, etc. v. Tureaud, 5 Cir., 207 F.2d 807.
4
On application of plaintiff, the Supreme Court granted certiorari and by a per curiam opinion (covering three cases, Nos. 9, 85 and 595) 347 U.S. 971, 74 S.Ct. 783, 784, 98 L.Ed. 1112, said: 'The petitions for writs of certiorari are granted. The judgments are vacated and the cases are remanded for consideration in the light of the Segregation Cases decided May 17, 1954, Brown v. Board of Education, etc., 347 U.S. 483, 74 S.Ct. 686 (98 L.Ed. 873), and conditions that now prevail'.1 The mandate issued by the Clerk of the Supreme Court to the Clerk of this court June 28, 1954 added to the foregoing judgment the phrase, 'Vacated without Costs'. The very use of the word 'vacate' (which indicates only to make vacant), instead of the word 'reverse', which carries the implication of disapproval,2 is significant of the fact that the Supreme Court was not finding fault with our decision and judgment when the case was formerly before us, but was merely nullifying our judgment in order that we might follow the mandate contained in the Supreme Court's decision. That mandate was that we consider the whole case in the light of two things, the Segregation Cases and 'conditions that now prevail'. The inclusion of the phrase, 'without costs', fortifies that concept of the effect of the Supreme Court holding because successful litigants recover costs. Upon receiving this mandate we passed it along in identical terms of the District Court in order that the consideration of these two new factors might be given by the trier of the facts as ordered by the Supreme Court.
5
When the case was first on appeal, plaintiff changed his position entirely, abandoned his request for a three-judge court, and relied solely upon the fact question of equal facilities and the findings of the trial court; but at no time did he offer to amend his pleadings to conform thereto. His position before the Supreme Court, when he applied for certiorari, was again modified to conform with the expediencies of the situation, also in the original complaint. When the case went back to the District Court on the action of this court pursuant to the Supreme Court's mandate, plaintiff did nothing but file a motion for reinstatement of the preliminary injunction, assigning no grounds at all. The case was set down on the motion calendar alone, as distinguished from the merits, and was heard as such. The motion was sustained without any further allegations or proof either that there had or had not been any change in the conditions that now prevail from those which existed when the complaint was filed, and without giving the Supervisors any opportunity to introduce any pertinent proof which may be embraced within the purview of the two Supreme Court decisions.
6
Of course, the vacating by an appellate court of a judgment is not necessarily the same thing as a complete reversal and remand for a new trial, it being well settled that the latter requires all previous evidence to be reintroduced to have effect. Madden Furniture, Inc., v. Metropolitan Life Ins. Co., 5 Cir., 127 F.2d 837; Shell Petroleum Corp. v. Shore, 10 Cir., 80 F.2d 785. As shown above, the vacation of the judgment of this court without costs indicates a desire primarily to place the record in such shape that the case might be tried again solely on the ground that new criteria of decision had been introduced, to-wit, the decision in the Segregation Cases and the consideration to be given to 'conditions that now prevail', as spelled out in the Segregation Cases. It may be that the effect of the Supreme Court's order was that the trial should proceed as unfinished, contemplating the use of the former evidence if considered by either side as applicable, together with the introduction of further evidence. Whatever the order may mean, considering the unusual turn the case took after plaintiff switched his positions, and the background of the many other cases with which the court was dealing at the time, it is not reasonable to conclude that the disposition by the Supreme Court, in a matter of such importance, can be treated as having completely done away with all statutory and jurisprudential rules of procedure and pleading.
7
The cases relied upon by Judge Rives in his dissent on the first appeal, and by Judge Wright, Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114; McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149; Wichita Falls Junior College Dist. v. Battle, 5 Cir.,204 F.2d 632, and others were presented in such a manner, either because of stipulations or other developments, as to involve only issues of fact-- that is, were the facilities equal? Here, however, in view of the plaintiff's switch in position, the issues contained in the pleading clearly embrace that of conflict between the Fourteenth Amendment and the state constitutional and statutory provisions, and the injunction has been granted by one judge on that ground, as well as the action of the administrative officials thereunder. Certainly nothing said by the Supreme Court can be construed as meaning that the Act of Congress vesting jurisdiction solely in a three-judge court under those circumstances can be ignored so as to permit a single District Judge, acting alone, to declare the provisions of a state constitution and statute violative of the federal Constitution and to grant an injunction, no matter how plainly such conflict may appear in the light of other Supreme Court decisions. It is our view that the recent decisions of the Supreme Court belong in the realm of stare decisis, but not of res judicata, in subsequent cases involving the same issues; for the Act of Congress depriving a District Court of one judge of the power to issue such an injunction requires that it be done only by the statutory court.
8
Further, it seems likely that, in such a case as the one before us, plaintiff is bound to invoke the jurisdiction and procedure which Congress laid down in the statute. In those cases specifically decided on the merits by it, the Supreme Court has committed to the District Judges the responsibility of enforcing its decree.3 But in cases such as this, which remain to be decided on the merits, it is not reasonable or consistent that the Supreme Court could, or intended, to set at naught the Act of Congress, which has plenary power over the jurisdiction of District Courts. Such an interpretation would mean that, in spite of that statute, all a plaintiff would have to do would be to allege that he was a member of the colored race who had been denied admission to enter public school, offer himself in evidence and ask a District Judge for a mandatory injunction, which, under settled principles of law, is never issued preliminarily or in a doubtful case, Sawyer v. U.S. Steel Co., 90 U.S.App.D.C. 416, 197 F.2d 582; Youngstown Sheet & Tube Co. v. Sawyer, D.C., 103 F.Supp. 569; O'Malley v. Chrysler Corp., 7 Cir., 160 F.2d 35; Kelly v. Dowd, 7 Cir., 140 F.2d 81; Donnelly Garment Co. v. Dubinsky, 8 Cir., 154 F.2d 38; Patton v. Administrator of Civil Aeronautics, D.C., 112 F.Supp. 817, to compel his admission. Certainly no member of the white race could obtain such relief from such a source by similar procedures. In any case there must be conclusive proof that the complainant has been excluded solely because of his race; and these and other questions, as we have demonstrated above, must be decided by the statutory court of three judges.
9
Of course, where the constitutional question has been conclusively settled, and the plaintiff invokes its application contrary to that settled law, a single judge may dismiss the pleading, if there be no other issue, as disclosing no cause of action. The cases relied upon by Judge Rives in his specially concurring opinion, and by Judge Wright, who tried the case below, clearly support this principle. However, they cannot, in our opinion, be considered authority for the converse of that proposition-- that is, that a single judge may enforce by mandatory injunction a demand against a state officer claiming to act under color of state law, where the right to relief depends upon proof by the plaintiff of facts necessary to sustain such a demand. It is well to note also that the Supreme Court could easily have settled the question of the necessity of convening a statutory court by simply saying that it was not necessary; but it significantly saw fit not to do so, although confronted with the decision of this court that it was necessary, merely vacating our judgment without costs and declining to reverse our decision on the subject. Similarly, the Supreme Court could have ordered that the judgment of the District Court be reinstated. But it did not do either of those things, but used the mildest of words in setting aside our judgment with the clear intention that the whole case be considered in the light, not only of the evidence theretofore introduced, but of the new criteria of decision which had been introduced in the Segregation Cases and in the admonition that consideration should be given to conditions now prevailing.
10
Undoubtedly the states still have the authority to prescribe the qualifications for admission to public schools, applicable to all candidates regardless of color. This being true, each applicant must allege and prove that he is qualified. In this situation it is difficult to perceive how a court can deal with a single plaintiff's case on the theory of a class action in such a manner as to subject the Board of Supervisors to contempt citation if they should deny to other applicants, not actual parties to the action, admission solely because they are Negroes. Not only would each applicant have to prove his color, but he would also be bound to prove his individual qualifications and to prove that he has offered to furnish a showing as to such matters to the proper school authorities.
11
In this record, there is no proof to sustain the allegation that there are many others besides complainant, too numerous to make parties, having the identical status and possessing the necessary qualifications for admission to the same college and courses. Certainly there can be no such all-inclusive injunction covering all members of an alleged class without proof that the others desire to be so represented in substantial numbers or have requested plaintiff so to represent them. Such facts cannot be assumed. 3 Moore's Federal Practice, 3418, et seq.; Rule 23, Fed.Rules Civ.Proc. 28 U.S.C.A.; Weeks v. Bareco Oil Co., 7 Cir., 125 F.2d 84.
12
It is also manifest that there is a serious question as to whether plaintiff is properly in court. Representation by 'next friend', as he alleges, is unknown to Louisiana Law which is controlling. If both his parents are living and are still married, his father must bring the suit in his own name for the benefit of the son. LSA-Civil Code, Articles 216, 221, 222, 235. If the mother is dead, or the parents are judicially separated or divorced, the father must legally qualify as tutor and so bring the action. Louisiana Code of Practice, Articles 108, 109; LSA-Civil Code, Articles 334 and 335. (Dart's Code, 1932 Ed. and authorities in footnotes). This plaintiff's pleadings say nothing about such facts, and the state law is clear that a minor (under twenty-one years) cannot stand in judgment in the courts. (See above Louisiana authorities.)
13
This case is so complicated by plaintiff's pleadings and by his reversals of position not supported by amendments to the pleadings, and also by the order and mandate of the Supreme Court and the new elements introduced into the case by them and by the Segregation Cases, all of which we are admonished to consider, that it is apparent that the only way the matter can be straightened out and full justice done the parties is to set aside the judgment of the District Court appealed from and to remand the case with instructions to allow amendments to the pleadings or the filing of another complaint so as to present the issues set forth in the Segregation Cases and conditions that now prevail. It is of great importance that the issues presented in this case be defined and determined in complete conformity with procedural law, and that they be not permitted t0 rest upon assumptions or inferences which may serve to plague this and other courts in similar cases which may arise.
14
The Petition for Rehearing is granted and the order heretofore entered by this court affirming the judgment of the lower court is set aside.
15
RIVES, Circuit Judge, dissents.
16
CAMERON, Circuit Judge.
17
I have concurred in the Per Curiam opinion this day filed and adopt as a special concurrence the views expressed by me in the dissenting opinion filed herein on August 23, 1955 (225 F.2d 435).
1
Emphasis is supplied here and in every instance where portions of quotations are emphasized unless otherwise specifically indicated
2
'Reverse, the general term, implies a changing to a contrary position, direction, order, etc.', Webster's New World Dictionary, College Edition
3
It is significant that the statutory court of three judges has functioned in carrying out the mandates of the Supreme Court. In No. 2, Briggs v. Elliott, 349 U.S. 294, 75 S.Ct. 753, remanded by the Supreme Court to the District Court for the Eastern District of South Carolina, and No. 3, Davis, et al. v. School Board of Prince Edward County, Virginia, remanded to the District Court for the Eastern District of Virginia, with instructions in each instance to admit plaintiffs to the schools from which they had been respectively excluded. The three-judge court in each instance heard the evidence and declined to order immediate admission of those litigants because of conditions then prevailing
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213 Md. 564 (1957)
132 A.2d 601
MARTIN ET AL.
v.
CARL ET AL.
[No. 208, October Term, 1956.]
Court of Appeals of Maryland.
Decided June 6, 1957.
Before COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ., and KINTNER, J., Associate Judge of the Second Judicial Circuit, specially assigned.
Submitted on brief by Alger Y. Barbee and Harper M. Smith for the appellants.
Submitted on brief by James E. Artis, Harvey H. Holland, Jr., Allen Jones, Jr., Donald K. Staley, Ralph G. Shure and William J. Brannan, Jr., for the appellees.
Order overruling demurrer and decree for injunction affirmed, with costs to appellees.
KINTNER, J., by special assignment, delivered the opinion of the Court.
This is an appeal from an order of the Circuit Court for Montgomery County overruling the appellants' demurrer to the amended bill of complaint and from a decree of that court *567 granting an interlocutory injunction. No question has been raised on the right to appeal from what in form is an interlocutory decree and, as it appears that the case was fully heard on the merits and the rights of the parties completely adjudicated, we shall treat the decree as final.
Martin's Dairy, Inc., a Maryland corporation, was chartered in 1947. It had an authorized capital stock of 1500 shares. It was a family corporation, the stockholders being six brothers and sisters, each of whom held 185 shares or a total of 1110 shares issued and outstanding, leaving 390 unissued shares. The company owned real estate, a dairy plant, chattel property used in connection therewith and operated in Montgomery County. A balance sheet of October 30, 1955, showed a net worth of $121,129.87.
The appellants, Calvin S. Martin as president and David F. Martin a director, apparently dominated and controlled the company, though they held but a third of the stock. The other four (three sisters and a brother), holding two-thirds of the stock, were dissatisfied and determined to sell all of their stock. A provision of the charter required a stockholder wishing to sell first to offer his stock to the corporation. One of the questions in the case is whether this requirement was complied with.
The four dissatisfied holders, after rejection by the corporation of their offers to it of their stock, contracted to sell their 740 shares to William F. Carl and Sarah F. Carl, his wife, two of the appellees. Thereupon a reorganization of the corporation took place and William F. Carl replaced Calvin S. Martin as president. The latter, having refused to turn over the corporation's books, records, accounts, money and chattel property to the new management, this bill was filed.
The original plaintiffs were the four stockholders, their purchasers and their new directors. A demurrer to the bill was sustained on the ground that the corporation was a necessary party. Thereupon the appellees were allowed to amend by adding the corporation as a party plaintiff. A demurrer to the amended bill was overruled and the appellants re-filed their answer to the amended bill.
*568 The first question raised by this appeal is the correctness of the ruling on the demurrer. There can be no doubt that the corporation was a necessary party. Its property rights were affected as a result of the confusion caused by the conflicting claims of the majority and minority stockholders.
It is argued that the bill is rendered multifarious by joining the corporation as a plaintiff. Under the present rules (Maryland Rules of Procedure 313 d 1, 2) joinder of parties and causes of action have become a matter of convenience and fairness. In the present case the rights of the parties are all affected by the alleged wrongful acts of the appellants and a single remedy suffices for all. Nor is there any unfairness to the appellants. They are called upon only to defend a single course of conduct which it is alleged affects the appellees in different ways.
It is argued that the appellees have an adequate remedy at law, namely mandamus. Talley v. Dadds, 161 Md. 558, is cited as authority. That case held that where the only issue is the validity of the election of officers of a corporation equity has no jurisdiction. But in the present case much more is involved. The four majority stockholders have contracted to sell all of their stock to Mr. and Mrs. Carl for $160,000. That contract is conditioned upon certain things being done by the sellers: they are to secure the election of a board of directors desired by the purchasers; they are to see that all corporate records and all other data bearing upon the affairs of the corporation are turned over to the new directors; they are to put the new directors in full control so that they may have thirty days to audit the accounts and determine whether the balance sheet of October 30, 1955, substantially represents the condition of the company. The bill alleges that the appellants have removed from the corporation's place of business all of the corporate books and business records, and the whereabouts of the same are unknown. There is also a charge of mismanagement of the corporation's business and concealment of its affairs to the detriment of the majority stockholders. We therefore hold that the equity court had jurisdiction and the demurrer to the amended bill *569 was properly overruled. Roland Pk. Shop. Center v. Hendler, 206 Md. 10; Lupton v. Wholesale Corporation, 143 Md. 333.
The case then proceeded to trial on the amended bill, answer and testimony. A directors' meeting had been held on April 20, 1956, attended by the directors, other than these appellants, at which it was decided that the corporation was not financially in a position to purchase the stock of the appellees. It is contended that the meeting was not properly called. We find that the appellants had due and timely notice of the meeting and refused to attend. It is clear that their action here and later was a part of their plan to block the majority stockholders from taking over control of the company.
On August 17, 1956, a stockholders' meeting was held with two-thirds of the stock represented. The appellants, though duly notified, did not attend. Three new directors were elected. A resolution was passed ratifying the action taken on April 20, 1956, declining to purchase the appellees' stock. A meeting of the new board of directors was held on August 30, 1956. Although duly notified, the appellants did not attend. At this meeting William F. Carl was elected president. A resolution was passed directing the new board to take over the management of the company. On August 31, 1956, the new board made demand on the appellants to turn over all of the books and records, property and physical assets of the corporation. Upon the refusal of the appellants so to do, this suit was filed.
The appellants' whole course of conduct, and indeed their whole case, is predicated on the illegality of the corporate action in rejecting the stock option. We have said that the directors' meeting of April 20, 1956, was legally called. The offers of four stockholders to sell their stock to the corporation were submitted. Two arguments are made in this connection: (1) that the charter provides that the corporation be given ninety days to consider the offers; and (2) that in case of a dispute as to price, arbitration could be demanded. But the first of these provisions could be waived, and the second would be of no effect if the corporation rejected the offers. They were rejected absolutely.
*570 The appellees as stockholders, directors and officers have come into control of the corporation by virtue of their ownership of two-thirds of the stock. There is no claim that fraud or other wrongful conduct was used against the appellants. The majority has the right to determine the policies of the corporation and the minority must submit to their judgment so long as they act in good faith and within the law. 13 Am. Jur., Corporations, Sec. 422.
Retention by the appellants of the books, records, money and chattel property of the corporation under these circumstances is clearly wrong. The decree directing the injunction to issue, ordering the appellants to return such corporate property and restraining them from exercising any of the functions of management or interfering with control of duly elected officers, is affirmed.
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7 F.3d 436
1994 A.M.C. 2994
UNITED TEXAS TRANSMISSION COMPANY, Plaintiff-Appellant,v.UNITED STATES ARMY CORPS OF ENGINEERS, Etc., et al.,Defendants-Appellees.
No. 91-4638.
United States Court of Appeals,Fifth Circuit.
Nov. 18, 1993.
Dennis M. Dylewski, Susan G. Douglass, Charles M. Clark, Calvin, Dylewski, Gibbs, Maddox, Russell & Verner, Houston, TX, for United Texas Transmission Co.
John H. Cheatham, III, Washington, DC, for amicus curiae INGAA.
Robert B. Cooper, David J. Muchow, Arlington, VA, for amicus curiae, American Gas Assoc.
John Moeller, Dallas, TX, for amicus curiae, TINGPA/Delhi Gas Pipeline Corp.
Fred R. Disheroon, Dirk D. Snel, Atty., Appellate Sect. Env. & Nat. Res. Div., U.S. Dept. of Justice, Washington, DC, Lavon L. Jones, Asst. U.S. Atty., Beaumont, TX, Susan V. Cook, Land & Natural Resource Div., Washington, DC, for U.S. Army Corps of Engineers.
Thad Heartfield, Beaumont, TX, Jack Nolan Price, Austin, TX, Guy N. Goodson, Benckenstein, Oxford & Johnson, Beaumont, TX, for Jefferson County Drainage.
Appeal from the United States District Court for the Eastern District of Texas.
Before JONES and WIENER, Circuit Judges, and LITTLE,* District Judge.
WIENER, Circuit Judge:
1
We write today to resolve a long-standing dispute as to the party responsible for the costs of relocating sections of two pipelines which, pursuant to permits issued by the United States Army Corps of Engineers (the Corps), ran under the Hillebrandt Bayou (the bayou) in Southeast Texas. At all relevant times, the pipelines were owned by the United Texas Transmission Company (UTTCO). Their relocation was required to conform with a project to widen and deepen the bayou. This project was a joint endeavor of Jefferson County Drainage District NO. 6 (Drainage District) and the Corps. UTTCO refused the Corps' order to relocate the lines until UTTCO received assurances that it would receive reimbursement for costs and expenses of relocation. In turn, the Corps revoked UTTCO's permits to cross under the bayou, a navigable stream, and this litigation ensued.
2
The district court granted summary judgment in favor of the Corps and the Drainage District, holding that UTTCO could be compelled to pay for the entire relocation of the pipelines under the permits. The court also held that, in the face of UTTCO's refusal to comply with the Corps' order to relocate the pipelines, the Corps' revocation of UTTCO's permits was not an abuse of its discretion. Even though we view the case in a different manner than did the district court, we affirm.
3
* FACTS AND PROCEDURAL HISTORY
4
Historically, Southeast Texas in general and Jefferson County in particular have been plagued by destructive floods. Man's attempts to alter drainage patterns in the area have been legion but less than wholly successful. Specifically, since 1912, numerous efforts have been instituted to curb the problems resulting from the flooding of the bayou.
5
The instant widening and deepening project was instituted under the aegis of the Flood Control Act of 1965, which authorized many such projects throughout the country.1 These projects are conducted as joint efforts between local sponsors, such as the Drainage District (with local funds furnished for the particular improvement), and the Corps (with funds appropriated by Congress).
6
In 1972, the United States and the Drainage District entered into a "Local Cooperation Agreement." Under that agreement, the Drainage District was to work with the Corps and was to provide all the necessary lands, easements, and rights of way necessary for the project. In addition, the Drainage District agreed to make "all necessary alterations and relocations of structures and utilities" that were necessary for the project.
7
In 1951 and 1956, UTTCO's predecessor in ownership of the pipelines was granted permits from the Corps to lay two gas pipelines under the bed of the bayou. When UTTCO acquired the pipelines it succeeded to these permits (and to easements across lands abutting the bayou--lands through which portions of the pipelines ran). The permits were issued by the Corps pursuant to § 10 of the Rivers and Harbors Act of 1899 (hereafter, § 10 permits). The language of p (f ) of the instant § 10 permits is relevant to our inquiry. That paragraph provides, in pertinent part:
8
(f ) That if the future operations by the United States require an alteration in the position or the structure or work herein authorized ... the owner will be required upon due notice from the Secretary of the Army, to remove or alter the structural work or obstructions caused thereby without expense to the United States....2
9
The scope of the Corps' authority under p (f ) to demand relocation of the pipelines at the expense of the permit holder is at the heart of this lawsuit.
10
In 1987, UTTCO was informed by the Corps that the pipelines would have to be relocated to accommodate the flood control project. UTTCO instituted the preparation of a preliminary estimate of the cost of the necessary relocations. When the results were received, the Corps and the Drainage District were advised by UTTCO that it was prepared to go forward with the relocation as soon as it received assurance from the Drainage District that UTTCO would be reimbursed for the entire cost of relocation--approximately $1,060,000. Initially, the Corps agreed with UTTCO's assertion that the Drainage District was responsible for at least some of the cost of the pipeline relocations. Later, however, the Corps took the position (with the Drainage District) that, under the language of the permits, the Corps could require UTTCO to relocate the pipelines and absorb the entire cost.3
11
When UTTCO made clear that it was not prepared to relocate the pipelines without assurances of reimbursement, a stalemate developed. The parties corresponded and met frequently, each attempting to convince the other that it had to pay for the relocations. These efforts failed, however, with a result that the flood control project was delayed by UTTCO's unflagging refusal to relocate its pipelines until it received assurances of reimbursement.
12
In February 1989, the Corps notified UTTCO that its § 10 permits had been suspended and advised UTTCO of its right to require a public hearing. According to that notification, appropriate action on the permits--which could include reinstatement, modification, or revocation--would be taken only after such a hearing (if one were requested). The public hearing was held in June 1989. The principal matter discussed was whether the Corps' use of its asserted authority to force UTTCO to move its pipelines at its own expense would be in the "public interest." UTTCO continued to refuse to bear the relocation cost, arguing that the Corps had no authority to order such a relocation. UTTCO also continued to maintain that under the Cooperation Agreement the Drainage District was obligated to pay for any required relocations.
13
After the public hearing but before the Corps took formal action on the permits, UTTCO filed the instant lawsuit, naming the Corps and the Drainage District as defendants. The lawsuit was filed in July 1989, and in it UTTCO sought monetary, injunctive, and declaratory relief. Essentially, UTTCO sought a determination that it could not be forced by the Corps to pay for the relocation of the pipelines.
14
In August 1990, over a year after this suit was filed, the Corps formally considered the status of UTTCO's § 10 permits. The Corps noted that UTTCO had been notified repeatedly of the need to relocate the pipelines, but that UTTCO had consistently refused to comply. The Corps also asserted that it had authority to revoke the permits of a recalcitrant permit holder such as UTTCO, citing a string of precedents which held that a permit holder does not have a vested interest in the permit. As for UTTCO's argument that the Corps had no authority to order relocation of facilities situated outside the boundaries of the stream as they existed when the § 10 permits were issued, the Corps found:
15
The permits do not provide that future operations be within the stream bed of the Hillebrandt Bayou, or that the owner must be given assurance of compensation for such pipeline relocation on the fastlands [i.e., the lands outside of the original stream banks]. On the contrary, permit conditions state that the owner will be required to remove or alter the structural work for future operations without expense to the United States.
16
The Corps then revoked the permits, issuing its opinion on August 13, 1990.
17
The district court granted summary judgment in the instant case in August 1991. In its opinion, the court stated that "no dispute whatsoever exists as to the facts involved in the claims upon which summary judgment is granted."4 That court found--at least implicitly--that some parts of the pipelines which had to be relocated lay inside the original boundaries of the streams and other parts of the pipelines which had to be relocated lay outside of those boundaries.5 The court then held that UTTCO could be forced to pay the costs of accomplishing the required relocations of parts of the pipelines, including parts located outside the original banks of the bayou. Specifically, the court held that the work outside the original banks was incidental to the work inside the original banks, and that UTTCO could thus be forced to pay for the entire relocation.6 The court also held that, inasmuch as UTTCO had improperly refused to obey the Corps' order to relocate the pipelines, the Corps was authorized, under the language in p (f ) of the § 10 permits, to revoke the permits and order the pipelines removed.
18
The district court summarized its view of the case and the arguments that UTTCO was making, stating:
19
[T]his court opines that apparently the plaintiff pipeline owner here wishes to reap the benefits of conducting business over navigable waterways, without bearing any of the burdens. The court assumes the pipelines were constructed over the Hillebrandt Bayou because that was the most direct and profitable route for the transmission of natural gas. For over thirty years, pipeline owners have been profiting from the federal government's generous permission to cross a navigable waterway. Now flood control for a substantial portion of southeast Texas is at stake, and the plaintiff wants the taxpayers to subsidize its relocation of its pipelines so the plaintiff can profitably transmit natural gas. Not only is such a position not good law, it is not good sense.7
20
The court denied UTTCO's summary judgment motion, granted those of the Drainage District and Corps, and ordered removal of UTTCO's pipelines. UTTCO timely appealed. We are advised that during the pendency of this appeal, both of UTTCO's pipelines were removed from the bayou and were not re-installed.8
II
ANALYSIS
21
As all must know by now, we review the record on appeal from a district court's grant of summary judgment "under the same standards which guided the district court."9 The standards we apply are set out in the Supreme Court trilogy of Anderson v. Liberty Lobby, Inc.,10 Celotex Corp. v. Catrett,11 and Matsushita Electric Industrial Co. v. Zenith Radio Corp.12 In our review of this case, we consider two issues of law: whether UTTCO could have been forced to absorb the entire cost of relocating its pipelines if it had done so; and whether the Corps abused its discretion in revoking UTTCO's § 10 permits after UTTCO refused to relocate sections of its pipelines as ordered by the Corps.
A. Responsibility for Relocation Costs
22
1. Types of Relocation Orders and Responsibility for Costs
23
There are essentially four factual situations that could be encountered when the Corps orders relocation of pipelines running under a navigable stream pursuant to a § 10 permit. The orders could require relocation of pipelines (1) wholly within the original banks of the stream; (2) wholly outside the original stream banks (e.g., when a stream is widened but not deepened, or at least not enough to require relocation of the portion of the pipeline lying beneath the original stream bed); (3) almost entirely inside the original stream banks but with some incidental involvement of relatively insignificant portions of the pipeline or related facilities located outside the original boundaries; or (4) both inside and outside the original stream banks, with substantial work in each area.13
24
Under our interpretation of the permit language, the correlative rights and obligations of the permit holder and the Corps differ significantly, depending on which type of relocation situation is implicated in the particular order. As the question whether the Corps properly revoked UTTCO's permits is dependent on the specific rights and duties that appertain under the type of relocation that is encountered in the instant § 10 orders, we shall first elaborate seriatim on the particular rights and duties that flow from each of the four possible types of relocation.
25
a) Wholly within the Original Banks of the Bayou
26
As noted above, one of the aspects of this litigation which is not disputed is that permit-holders must pay for the movement of any portion of a pipeline that is located within the original permit area. The cases relied on by UTTCO in its brief to this court and its representations at oral argument confirm acknowledgement of this proposition. Solely for the sake of clarity and perspective, then, we reiterate the truism that the pipeline owner must bear the cost of relocation work within the original permit area, i.e., the boundaries of the bayou existing when the § 10 permits were granted.
27
In Tenneco, Inc. v. Greater LaFourche Port Commission,14 on which UTTCO principally relies, we stated:
28
Tenneco agrees that it is financially responsible for pipeline alterations necessary to accommodate changes in the channel that are made within the right of way purchased from the State--that is, changes within the bayou's original boundaries. Tenneco objects to paying for those changes occasioned by the channel's encroachment onto [the abutting owner's] property and onto Tenneco's easement there.15
29
UTTCO attempts to align itself with Tenneco. In discussing Tenneco and United States v. 597.75 Acres of Land16 in its brief to this court, UTTCO states that "when a pipeline owner is compelled to relocate a portion of its pipeline within the permitted area (i.e., the portion lying between the banks of the waterway at the time of permit issuance) pursuant to a permit condition, then any relocation of portions of the pipelines lying outside the permitted area cannot be the subject of a claim for compensation when the latter is merely incidental to the required relocation within the Bayou." If nothing else, then, UTTCO agrees with the principle that the pipeline owners must pay for alterations to portions of the pipelines within the bayou's channel as it existed when the § 10 permits were granted; UTTCO simply insists that all alterations necessitated by the instant relocation orders were to portions of the pipelines located outside the original boundaries of the bayou, and therefore must be paid for by the Drainage District--or at least not by UTTCO.17
30
The pipeline owner's responsibility for all costs of relocation inside the permit area derives from the language of p (f ) of the permits. That paragraph states that "if future operations of the United States require alteration in the position of the structure or work herein authorized, ... the owner will be required to remove or alter the structural work or obstructions caused thereby without expense to the United States."18 This permit language clearly gives the Corps19 the authority to order the relocation of the pipelines inside the boundaries of the original permit area at the expense of the pipeline owners. As stated before, this is not in dispute; only relocations in the areas outside of the original banks of the bayou--the abutting lands through which the pipeline owner had acquired private easements--is disputed in the instant case. As noted, UTTCO insists that no relocation was required between the banks of the bayou as they existed at the times the permits were issued.20
31
b) Wholly outside the Original Banks of the Bayou
32
The Corps and the Drainage District argue that, pursuant to the Corps' authority under the § 10 permits, it may order the relocation of pipelines in areas outside the original boundaries of the bayou as well as the area within those boundaries, i.e., between the original banks; and that these relocations too must be made without cost to the government. We do not agree. The clear language of the permits that the Corps issued to UTTCO's predecessor limits the permit's coverage to the "work herein authorized"--i.e., the work authorized by the permits within the original bounds of the bayou. Thus, the language of the permits literally limits the Corps' authority to impose the costs of relocation on the holder of the permits to those costs properly allocated to relocation work in the area between the banks of the bayou as they existed at the time the permits were granted.
33
In the alternative the Corps and the Drainage District argue that the costs of relocation work outside the original banks can properly be assessed to permit holders under the "navigational servitude" possessed by the government. In their briefs to this court both the Corps and the Drainage District cite several cases that discuss the expansive powers of the federal government under the navigational servitude.21 In addition, the parties argue at length about whether "navigation" per se is a requisite to invoking that servitude, and whether the work involved in this project is properly viewed as implicating "navigation."
34
The "navigational servitude" is an aspect of the sovereignty of the United States, "grounded in the power of the Federal Government to regulate commerce,"22 entitling the government to exert a dominant servitude in all lands below the ordinary high water mark of navigable streams.23 As noted in Coastal Petroleum Co. v. United States, "[t]his navigation servitude is an extremely old concept--owners of property or property rights within navigable waters take those rights fully cognizant of their limited nature."24 One facet of the situation at issue in this case--that concerning portions of pipelines situated outside the original river banks--is by definition not within navigable waters and thus cannot be subject to the servitude. We find the question whether the project involved navigation to be irrelevant to our consideration. Even if we were to find the navigational servitude applicable, the Corps would still not here be authorized to assert the servitude outside the original banks of the bayou and therefore cannot order UTTCO to bear the expense of relocating those portions of the pipelines not located between the original banks of the bayou.
35
UTTCO held easements on the private lands (the "fastlands," i.e., those lands that are contiguous to but outside the original banks of the bayou) under the surface of which the pipelines passed. The instant project involved both (1) deepening the original permit channel, thereby affecting that section of pipelines lying in that portion of the bed of the bayou situated between the original banks, and (2) widening the bayou, thereby affecting substantial portions of the pipelines lying outside and on either side of the original banks. The proposition that the navigational servitude extends beyond the original banks of the stream (outside the navigable waters of the United States) is insupportable--as is the "bootstrap" proposition that the very act of widening the bayou brings "within navigable waters" the land previously lying outside the original banks but affected by the widening, thereby making it subject to the servitude retroactively.
36
The land outside the banks was not taken by exercise of the navigational servitude so that the bayou could be widened (for it could not have been), but was purchased from the landowners. In fact, title to that land was acquired subject to UTTCO's own pipeline easements! There is no merit to the Corps' argument that it can simply take private property rights (here, UTTCO's easements across private riparian property) that are not subject to a navigational servitude without compensating the owner for the property right thus taken. Yet that would be the precise result if we were to allow the Corps to obliterate UTTCO's easements on the fastlands by (1) acquiring those lands from private owners, (2) widening the bayou to encompass those lands, and (3) applying the navigational servitude thereto retroactively for purposes of forcing owners of pre-existing easements, such as UTTCO, to relocate their pipelines and other facilities at those owners' cost.
37
Unlike its non-property right in the permits to cross the bayou, UTTCO's easements in private property contiguous to the bayou but outside the banks do constitute property rights. Here, UTTCO does not contest the Corps' ability to order the relocation of portions of the pipelines that are situated in the fastlands and must be moved to accommodate the widening of the bayou; UTTCO (like any farmer whose property is burdened by UTTCO's easement and lies in the way of the widening project) simply asks for compensation for the costs it will incur in relocating its pipelines within the affected areas.
38
c) Relocation Outside the Banks that is Incidental to Relocation Inside the Banks
39
As we have observed, no one seriously contests the rule that the cost of relocating the portion of a pipeline lying between the original banks of the bayou (i.e., the work that was either "herein authorized" under p (f ) of the permits or covered by the navigational servitude) must be borne by the pipeline owner. On the other hand, when the project requires the relocation of portions of the pipelines lying not between the original banks but in easements in the fastlands, the relocation costs generally must be borne by the appropriating governmental unit. We say generally, however, because there is one recognized exception: When the permit holder is required to relocate its facilities between the original banks of the waterway at no cost to the government, the permit holder will also be responsible for those costs incurred for work outside the original banks when such work is only incidental to the alterations required to be made between the original banks.
40
In 597.75 Acres,25 the district court stated that "a reasonable interpretation [of the permits] would also require that such incidental work on adjoining lands as is necessary to accomplish [the relocation within the waterway's banks] be effected at [the permit holders'] expense."26 In Tenneco, we elaborated on this point, stating that incidental alterations include "changes the pipeline company must make 'necessary to accomplish [the] purpose' of relocation within the riverbed."27 We continue to recognize this exception, first discussed in 597.75 Acres and reiterated in Tenneco. In other words, when a project requires relocation work to be done principally within the original boundaries of the stream (the work "herein authorized" by the permits or within the bounds of the pre-existing navigational servitude) but some incidental work must be done in adjacent areas outside the banks as well (as a consequence of the work required inside the banks), the permit holders will be responsible for the entire cost of relocation of the pipelines.
41
d) Substantial Relocation Both Inside and Outside the Permitted Area
42
The final situation that might be involved when the Corps orders relocation is that in which the permit holder might be required to make substantial relocations of portions of the pipelines both within and without the original banks of the stream. We today hold that when the scope of the government project requires substantial work (as distinguished from incidental work), not only within the original banks but outside as well, the sponsoring governmental agency or subdivision shall be responsible for all reasonable costs incurred by the permit holder in relocating those portions of its facilities situated outside the original permit boundaries, i.e., outside the original stream banks. Of course, the permit holder will remain responsible for the costs attributable to the relocation work within the permit area.
43
This result flows naturally from the reasoning set forth in the foregoing analysis of the first three types of relocation orders. In fact, it is the corollary implicit in the "incident of work" rule of Tenneco and 597.75. On one end of the spectrum, the language of p (f ) of the § 10 permits clearly allows the Corps to force the pipeline owner to bear the cost of relocations inside the original riverbanks. On the other end, the government is clearly obliged to pay the expense of substantial relocations wholly outside the original banks. Obviously, each such case will require a factual determination concerning what portion of the relocation costs pertains to the work within the original permit area and what portion pertains to the work outside that area, for the expenses shall be borne accordingly. Only when essentially all relocation work is between the banks of the stream will the permit holder be responsible for costs attributable to outside work, and then only for that which is truly incidental to the bulk of the project, i.e., that within the banks. We caution, however, that no such "incidental" exception exists for the obverse situation in which the relocation order requires work on facilities situated almost wholly outside the stream banks. In such situations the permit holder remains responsible for costs attributable to any work between the stream banks, no matter how incidental, given the permit's language.
44
2. The Type of Relocation Situation Involved Here
45
At oral argument to this court, counsel for UTTCO represented several times that all of the alterations to the pipelines involved in the instant case were to occur outside of the original permit area; that no portions of the pipelines lying within the banks of the bayou would be affected.28 After a thorough review of the record, however, we find that assertion contradicted by (1) the evidence presented to the district court at the summary judgment hearing, (2) the findings made by the district court, and most importantly, (3) the findings of and evidence considered by the Corps in its proceedings for administrative revocation of the permits. Apparent from all of that--and contrary to UTTCO's assertions--are the conclusions that some portions of the required relocation work would necessarily involve segments of the pipelines situated under the bed of the bayou as it existed at the times the permits were granted, i.e., inside the original permit area, and that such work would be substantial, not merely incidental. The same is true of relocation work outside the original permit area. Thus, the type of relocation ordered is that described in subsection d) above: substantial relocation both inside and outside the permitted area. It follows inescapably, then, that UTTCO would have been responsible for all costs and expenses allocable to work inside the original banks of the bayou, but would have been entitled to reimbursement from the Corps or the Drainage District--or both--for the costs and expenses allocable to relocation work outside the permit area.
46
From the underdeveloped summary judgment record, however, it appears that UTTCO never attempted to show precisely how much of the pipelines involved in the instant case lay within the original permit boundaries and how much lay outside those boundaries. Even less determinable at this juncture is just what fraction of the total relocation cost that UTTCO would have incurred if it had obeyed the relocation order of the Corps would have been allocable to the inside work and what fraction would have been allocable to the outside work.
B. The Revocation of UTTCO's Permits
47
In reviewing the Corps' revocation of UTTCO's permits, we must ask whether the Corps "acted in an arbitrary and capricious fashion, abused its discretion or otherwise acted not in accordance with law."29 This inquiry in turn requires a review of the findings of the Corps and the record made by that agency. "If the agency decision cannot be sustained on the administrative record, then the case should be remanded to the agency for further consideration."30
48
The Corps revoked the permits because UTTCO refused to relocate the pipelines without assurances of compensation from the Corps or the District or both. In its Statement of Findings that accompanied the revocation orders, the Corps stated:
49
The permits do not provide that future operations be within the streambed of Hillebrandt Bayou, or that the owner must be given assurance of compensation on the fastlands. On the contrary, permit conditions state that the owner will be required to remove or alter the structural work for future operations without expense to the United States.
50
Clear from the first part of this finding is the premise that if the facts revealed that some portions of the pipelines were within the permit area and those portions required relocation, the Corps would have the right to order such relocation at UTTCO's expense. It follows that if UTTCO then refused to comply with the Corps' relocation order, the Corps could not be found to have abused its discretion by revoking the permits.
51
Our inquiry thus must begin with the fact question whether the Corps had substantial evidence to determine that some of the required relocation work would necessarily occur within the original boundaries of the bayou. At oral argument, counsel for UTTCO asserted that the Corps had never made a finding that any of the alterations would have to be made inside the original banks of the bayou. In its findings, however, the Corps stated:
52
The project specifications set out in the enclosure 25 are in accordance with the Corps' regulation ... which requires pipelines to be at least five (5) feet below the bed of the waterway. Both of UTTCO's pipelines fall within this safety zone. Encl. 25. Thus, the Secretary of the Army has the authority to seek removal or alteration of the pipelines in accordance with condition (f ).31
53
Enclosure 25 of the findings includes two plats of the pipelines. Those diagrams clearly demonstrate that a significant part of the pipeline relocation would occur within the original permit area.
54
In addition to the statement quoted above, we have located several other places in the findings of the Corps at which the fact is recognized, at least implicitly, that some of the required relocation work would be within the bayou's original boundaries.32 Interestingly, the Corps' findings often quote correspondence from UTTCO in which it asserted a willingness to pay for alterations that it recognized needed to be made inside the original permit area.
55
Coupled with the clear fact that portions of the subject pipelines lay within the original banks of the stream bed (so that UTTCO's refusal to relocate those sections of the pipelines in compliance with the Corps order would justify revocation of the permits), is the undeniable (and undenied) proposition that the Corps has the absolute authority to order relocations in the fastlands too. This flood control project was authorized by Congress, and the Corps had the unquestionable authority to determine the specifications--including the new placement of UTTCO's pipelines--for implementation of the project. As noted above,33 UTTCO has never questioned the Corps' authority to order relocation in the fastlands; instead, UTTCO has merely denied any obligation to pay for the relocations in those areas which, it asserted at different points in the litigation, comprised the entire relocations.
56
The inescapable picture that emerges is that UTTCO thus engaged in the strong-arm tactic of refusing to relocate its pipelines in the face of the clear authority of the Corps to order the relocation. UTTCO opted to play an unwarranted game of hardball when, without any legal right to do so, it demanded that the Drainage District assure reimbursement for the entire relocation costs--an allocation of costs that could never be correct in view of the fact that portions of the pipelines unquestionably were within the original stream bed. On the other hand, the Corps and the Drainage District were playing some hardball of their own: they were demanding that UTTCO bear the entire cost of relocating the pipelines even though substantial portions of the pipelines that had to be relocated lay in the fastlands, where UTTCO was not responsible for the cost of relocations.
57
If UTTCO had only complied with the Corps' order (even under formal protest), relocated the pipelines, and sued for compensation for the portions of its private easements that were taken and for the costs associated with the relocation in the fastlands, then under the reasoning set out above, UTTCO clearly would have been entitled to recover. UTTCO did not, however, follow this course. Instead, UTTCO delayed the project by demanding assurances of full compensation--to which it was not entitled--before it would begin work on the relocation. As it turns out, UTTCO's recalcitrance constitutes a valid cause for the Corps to revoke the § 10 permits. As UTTCO never challenged the Corps' authority to order the relocation, but nevertheless refused absolutely to relocate the pipelines, we cannot say that the Corps abused its discretion by revoking UTTCO's permits.
58
There is no provision of federal law to which UTTCO can point that would sanction the type of self help in which it engaged in this case. We have no choice, therefore, but to recognize that the Corps held the stronger hand (which it played with aplomb) and to affirm the district court's decision.
III
CONCLUSION
59
UTTCO does not--because it cannot--challenge the authority of the Corps to order relocation of UTTCO's pipelines to accommodate the subject drainage project. For the reasons set forth above, we have concluded that UTTCO was without legal justification in refusing to relocate its pipelines in response to those orders of the Corps. Thus the Corps did not abuse its discretion in revoking UTTCO's § 10 permits.
60
As a consequence of those permit revocations, UTTCO lost the option to relocate its pipelines, leaving itself no alternative but to remove those portions, both within and without the original permit areas, that needed to be moved so that construction of the project could proceed. And, whether in recognition of the valid revocation of the § 10 permits by the Corps, or in compliance with the district court's judgment that is here being appealed, or for some other reason or reasons that are not apparent to us, UTTCO did in fact remove its pipelines from the bed of the bayou and from the fastlands.
61
Had UTTCO timely relocated its pipelines pursuant to the orders of the Corps, thereby preventing revocation of the § 10 permits that had allowed the pipelines to cross the bayou in the first place, UTTCO might have been successful in recovering, through the instant litigation, the costs incurred in relocating those portions of the pipelines that were situated outside the original stream bed--costs that clearly would not have been merely incidental to relocating the portions of the pipelines situated inside the original stream bed. But unfortunately for UTTCO, that was not the course of action it pursued; so we must affirm the judgment of the district court. In so doing, we do not speculate on any other remedies that UTTCO may even now retain against the Corps or the Drainage District.
62
AFFIRMED.
*
District Judge of the Western District of Louisiana, sitting by designation
1
P.L. No. 89-298, 79 Stat. 1073 (Oct. 27, 1965)
2
Emphasis added
3
UTTCO has maintained throughout the course of this litigation that, when the Drainage District began to run low on funds, it developed the plan to have the Corps use its perceived authority under the § 10 permits to force pipeline owners to absorb the costs of relocations, thereby relieving the District of its obligation to do so under the Cooperation Agreement provision for the District to provide easements and relocations. We are concerned here with the Corps' authority under § 10 permits and not why it may have chosen to exert that authority
4
UTTCO v. Corps, 772 F.Supp. 952, 954 (E.D.Tex.1991)
5
That court stated that "UTTCO has agreed that it is possible it does not have a claim against the federal government for the costs of relocating those parts of the pipelines located within the navigable waterway."
6
Id. (quoting and discussing United States v. 597.75 Acres of Land, 241 F.Supp. 796, 799 (W.D.La.1965))
7
772 F.Supp. at 955
8
A letter filed jointly by the parties on June 10, 1993, at our request, confirms our understanding that the removal of UTTCO's pipelines was completed by July 1992, before argument was heard on this appeal, but after the parties' briefs were filed with this court
9
Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir.1988)
10
477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)
11
477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)
12
475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)
13
For reasons explained below, a fifth possible way that the Corps could order relocation of a pipeline--a relocation outside of the original banks of the stream that would have an incidental effect inside the original banks--will be grouped with the fourth possibility for purposes of this analysis
14
427 F.2d 1061 (5th Cir.1970)
15
Id. at 1064
16
241 F.Supp. 796 (W.D.La.1965)
17
This point was made by UTTCO even more explicitly in its response to the Corps and the Drainage District's motions for summary judgment. UTTCO argued:
Further, UTTCO never refused to relocate the pipelines without expense to the United States. Though [sic] not required to do so by the permit itself, UTTCO in fact expressly agreed to relocate portions of its pipelines within the Bayou that needed to be relocated (if any) at its own expense. UTTCO also agreed to relocate even the portions of the pipelines lying outside the Corps' jurisdiction in privately owned fastlands at no cost to the federal government, provided that the Drainage District provide assurance that it would [pay for the relocations].
(Footnote omitted).
18
Emphasis added
19
At oral argument, counsel for UTTCO argued that this flood control project is local and thus is not a "future operation[ ] of the United States." We disagree. This project was primarily for the benefit of the citizens of the area, but certainly there is flood control benefit beyond the immediate region of the Hillebrandt Bayou. That this project is a "future operation of the United States" is evidenced by its authorization by act of Congress, substantial funding coming from the federal government, and the work of the Corps on the project
20
But see section II.A.2., infra
21
See United States v. Alaska, --- U.S. ----, 112 S.Ct. 1606, 118 L.Ed.2d 222 (1992); United States v. Cherokee Nation of Okla., 480 U.S. 700, 707, 107 S.Ct. 1487, 1491, 94 L.Ed.2d 704 (1987); United States v. Twin City Power Co., 350 U.S. 222, 224, 76 S.Ct. 259, 260, 100 L.Ed. 240 (1955); Lambert Gravel Co. v. J.A. Jones Constr. Co., 835 F.2d 1105, 1110 (5th Cir.1988)
22
Lambert Gravel, 835 F.2d at 1110 (quoting Coastal Petroleum Co. v. United States, 524 F.2d 1206, 1210, 207 Ct.Cl. 701 (1975))
23
See Cherokee Nation of Okla., 480 U.S. at 704, 107 S.Ct. at 1489
24
524 F.2d 1206, 1209 (5th Cir.1975) (emphasis added) (citing United States v. Kansas City Life Ins. Co., 339 U.S. 799, 808, 70 S.Ct. 885, 890, 94 L.Ed. 1277 (1950), and Gibson v. United States, 166 U.S. 269, 17 S.Ct. 578, 41 L.Ed. 996 (1897))
25
241 F.Supp. 796
26
Id. at 799
27
427 F.2d at 1066 (quoting 597.75 Acres, 241 F.Supp. at 799)
28
This has been UTTCO's contention throughout this litigation. For example, the footnote we omitted from UTTCO's response to the Corps' and the Drainage District's motion for summary judgment, see supra note 17, asserts: "In point of fact, no such relocation [inside the original banks] was ever required."
29
See Bowles v. United States Army Corps of Eng'rs, 841 F.2d 112, 116 (5th Cir.1988) (citing 5 U.S.C. § 706(2)(A))
30
Id. (citing Camp v. Pitts, 411 U.S. 138, 142-43, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973))
31
Emphasis added
32
For example, discussing a letter UTTCO sent to the Corps in August 1988, the Corps noted in its findings that "UTTCO further stated that almost all of such costs arise from the proposed widening of the Hillebrandt Bayou, and that only a small portion of the area from which UTTCO was advised to relocate is within the boundaries of the Bayou, and then only as an incident to the widening of the Bayou." At another point in the Corps' findings, it discussed UTTCO's assertion that a partial relocation of the pipelines, of the portions of pipeline within the original boundaries, would be senseless
33
See supra note 17
| {
"pile_set_name": "FreeLaw"
} |
. . . .
.
.
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Deer sir:
.
Wo
are In rooolpt of 0-u actor of ii0v':k
u I 6,
1941, In bhloh you rocgast tl 01,.io oi this department
na to the Epolication of tb TQ f3sXha ifauoo TQX Law to
the ?&tete 02 ViXllkm Gil art Svi ,,. ,~~akL. ;_
d?ii??’
Divins OzcOutod~
&id trust'nae to
trustee:WED to rmn-
a son of the trwteo,
the trust property
of the trust prop-
the p~o~mrty was to
Tot3trii~tagroo-
.
oonkirma o&2Inistrationof this trust for tho i
-:
Honorable George I& Sheppard, Page 2
$@I tern!spacifiod herein, but ehould.thamid
Villim Gilbert 3ivins die intcs?A.o~and'laava~
a wldoivor child or ohildre3, tber;meld trust
properties shall vost in,his la:$il hcifa~accor+
$ng to.ti:ala\;- of descent and distribution.iti .:
!Iaxas,subject tG the co~tinuaC's&inietration.,of
thls'trust for the full tam specifiedherelhf .-
should the said %lll~ Gilbert.Bloina, art’er.
~.’ attaining his mjorlty, execute his lant irill’ ai .” : :
%este33ent,(ozG the'said 'iiilliaai Gil>art i3iViriS" .,.~
shall ufter:attaininghis mjority, hava full'.
. xi&t, pozer iii&crut!iority to dis@,ijse'of 'the'
trust propoztlas.byv~ill, subjaat to the oon-
Sinued .a~~z&~iatration of the tru$t'estete‘.for
$$a tom .hczainspcoified) devisi&-tie tr’ust
propqxtie,-,haroin,raferraCto, aha thax~ftar
-die.priortomtho expiration of tbit:trwt, then
..a11 'such.t.r.ust propertics hala by’ the’'%ustde '
.um?ar4his agramant shall vast in.suoh &avisoas
nnd benefiqiaries,subjeot to tha cotittiusa aa-
.plnistra~ionc$ thi.strust for the .ful.l'.tern
.?~pa.cl.f.iel
hcxqiq. .. ‘,.
** ‘.
. ,
!ihe-said~i?illie~Gilbert E)ivinsdied &-Xay 23,
‘1440 cfter .havingobtainad tha age of -&w&y-ona‘yfars,’
lea?& a .will.whioh. provides in paxt,~a~~folI~t+~~e~.
.. in.; *, ... ..
.
-%3UXXD:~I give, .daoiseand:beGuesth.uzto.
sty-6r6ther..GLITST: TiILSC?T
BITETS'andtis-sister.‘
'b~Rk.~I~,~~:BI-~~:Stshara and shaS3 aliEe,~'all
6f
&y-proparty:of.e+erykind lendoh&actor/ ~esl~
-personalfor-otherwisean8 ~~hal~tler(sitrlatch,:of
$hi.ch:I.nay .~ia.saizadend possessod,]fo be their.
co~wproparty', .aavisingthe mm8 to.,thm without
~apy',.cans.t.raint
.or suggestion, to ~$a'hal~;~
mnaf;ed,,
mtalncd, :sold,.disposcdof,': or o,tb~eer~~:if+.~use;
.'
:as.thoiti~OT~I
goo& juogaent'tlay diot&ta.
t
,‘!...:.”
,.. :,
-Tha.p,rohlmOf f@SsGGing the %x?S inbd,t6IKo tax
to a oasa as present& hore,has never been passed od by tho
oourts of this.State. Eere tha graator gave to the doccaant
the poser of appointrzent over oartain trust proportisa. ii
2
Eonorable,GeorzeH. Sheppard, Paso 3
: -
the aeoodcnt inlled to exercise said power then tiuiiier
the
original tru3t~aSreeE?ontthe proporty~wasto pass to Gllvor ..
Wilson Blvius an& Xary L:ilosDivlno. Rowever, the decedent
left a will in which h3,aevised nll,of his property of every
-2.
...klnBwhatsoever to the s8ee indivi8ual3,Gllvs~,\‘UsonBiv&ns
.. and.,&yy Elles Rivlne.
Artiole 7117.of’thoRevised Givii~Statutes reaas
in pak aa folloWs: .
.,. .. . :. .,
“All property within the jurisalctionof
this Stats, reel pr p?orsondl.,
aorpozateOi In-
corporat3,and any interest there+ InoluCilng
property passinS mdor a Senoral pmcr of ap-
pointmnt exerclsetl by the deoedent bywlU.,
. which shall-pass absolutely or in.trust
iy*wlll or by the laws of aoscont or Qistrlbu-
tlon of this or auy other-State, ; . . shall:, . ‘..
upon p~eslrS.to 02 for the use OS any Person,
corporat$n, or association, be subjoat to a
. tax fok‘tho benefit of the State’s General Rev-
., .. enue Fund,,In accor&ume with the io~lc~$~.~ _*
--.
‘-~classiflcatlon. . .R _...
:. :
Qf”cour3emkthe abovo*quotobprovkloi-‘of‘I;he
will of the dec-3&M is aonstruoa so as to tiotbo an eser-
ciao of the power.of appointmat granted hiz~‘hythe donor .
but..tilncluae only the said decedent% other property, then
the;propcrtyin trust paaaes to the saia Oliver Hlson Rlvins
ahd Kary Eiles Elvins under the to&s- of tho irrevoctible
trust anQ 20 tax woula~bo due on the acatbof. the.decedenL
“~l:aagfacts as to the testator’s intent would.have‘ta’bo‘t&eh
Into oon3laemtlon to .doter,-lmwhether.or:uot~he&HmiIed
that his will should be au exercise oi the powor of ep.polnt-
nent gr&ed him.
..
Eowever, a&me that the salC deccaoift&ki ‘emr-
oise said pc-mr of eppol?ltnentin his will a,?dthat he oppolnt-
cd Oliver Wilson Rivino a& iIaryLY,lcsB.vins, the :3m3 IU-
dividualawho woul? have xeoelved:‘the pkopertyhnd :he.feiled
to oxercinc the pom2. The question then Is would the Texas
lrLl3ritanco tax, iiriiolo7117, supra, whkch taxes property
‘paosinS.upouthe exercise of a power of appolntnez~t by will
.applyunaer the oircuxst3ucesof this csna? .~
2 _...
:.
-
--
- ,&.-A-
Honorable diorza HI,Sheppard,P3ge 4
.
Me belleve‘thstthe anmor to this questlo is
controlledby.~thacase of Arnold v. Southern Pine Lumbar
co., 133 a. x. 917. In that (l3a3pzo?azty m13 deeded to
.a hu3bimd in trust foslhis wife for life nod Shax+s granted
the,pouer of rtp;olnt3anteither by deed or alll. In.the
eveat ~38 did not exercise said po~os the pro@erty viesto
pass to her cblldzen.,.she left a wlIl In which,she left
aU. of her property to her children. It was contondcd that
'by seld will the deoedeut hod erazclsed ths peer of appoint-
ment end t&t the ohllaren too4 the progsrty fro,?:her Sub-
jeot to the dcbts'~ofher estate. The court overruled thle
oOotaIktiO?l
Md St&Cd aE fOIlOV3: .
.
.q.’ yj. XeUsee Ties given no prororty lntar-
est in the lend,-but V&S mroly ths dei;osltary
of the nsked.leseltitle, holding it in trust for :._.
the real owners of the benofiaial intereot..
_- ., :
:
*(5).For'uhsn, then, was he hol~ln~.t.hat
which remlued after the tsrr&uStiou of the life
cstate of his rulfe? ~vldently for the children, .? _.
or xhousoever she z&&t Sppoint. Those who tight
take by the eppolntzantwere not-then eaeaoeptlble
of aacertslrment,car do&d they be %ill the ,.-.
power m3~axecutea. %6 ~ri~htwhich W&E. to aolte
into eris+ce Upon tne8ggoistmIztbeI= mile '.
: 8188;t&erefore,so.contlr~~ent and uucsrteln~that
it did not ri‘ttaln
to the.dignity ck"en .astzte. ..
h-encethe olllybatieflclaIInterest comeyaa by,'
the'&ed beyond th,elife estatesof Lirg.Sillaoe ;'
xqa3that 'conferradupon the children. Tney then
had a oxsentrldht 'o? futura cnjoyxakt, subject
to be u-o& bytt;?eemsution of the r,cxrerby ...'
I::rs.
?iallz?-%e contlwcncy r;hichconironted. ..
then was oaa which eli;htdcfeot ~3 e;ristlnSright,
‘ikaer
not-one upon vihlchIts origin x%uId de3ca.d. :
the 8uthoritiosreferred to upon tha forner ey-
pesl this conti2ssncydid not prevent the rami+
der fron bacozlng a vest@. one. Set &xold -L So.
Fine Lbr. Co., I23 3. 1:.lI.G.2,
nnd.caaas @zara :
CitGd.~ ., ._
Honorable George E. khoppard, Page.5
. .
by virtue of'their orlRlnal title. birs..ITallace
could not t&e augthing Sroz their intcrestac-
qUi%d under ths deed, exospt by appointing so100
other person to the estate, .'.'. .;
.
"The lntdxest whioh one his in an estate
.'is neasureo'by the'older and better title."
(Undersoorl~ ylrs)
': .'
Apply& the holding of the oourt to 'thefacts
in our cam Oliver Kllson Elvins sod hkry i!ilcs3lvins
orlglnallywere given a vested remainder In the property
. subject to being defeated by the decedent having passed
the property to a thlrd.partyby the exercise of the power
of appointment. ibis he did not do. Therefore ‘tlxprop-
erty in this case~passed under the terms of thv.trmt agrae-
Inent. The question arises, however, 'whether'ornot the.
s8me is taxable ufder the wortlingof our tax statute, supra,
due to the fact that the power of appoliltmntwas,exercloed,
as we assumd, and the property passed to.Oliver Zllson
Blvlns and lktry Xlles Elvins because the deoadert did not .
-appointa third party. This point was passed on by thr
: 5ldrd Circuit Court of Appeals in the case oS.Wear v. Ckm-
-.-misslonor of Internal Revenue, 65 .Te& (;iG)665. ‘me Fed- .-
eral Lot elso~tsxes'npropertypassing under 'age&ral power
OS appofntient exercised by the decedeot by valll.'...n
The court stated as follows:_~ _, _, .,' i
; . i
Vhat'question is predictted on the law of
'Pennsylvaniathat, 'IS the douse of the power *
exorcise it lu such a tuner that the property
pusses exactly as It would have passed .lSthe
povierhad not been exercised,the property will
be treated as passing under the w-sillof the donor.'
. . . ._~ :
i
Vhf3 real .question,ai we venture to 'putit,
ia whether the exeroise of a g,cne$Lpo:?-ercf ap-
pointment ia a la&ul subject OS Sedersl-taxe-
tion, to be neasuredlby t.he.v&e OS property vinioh
under state la;ipasses. ii?':iu:thkcase,not from
the decedcut donee OS the power but froratho donor.
._ ..
R.. . .
930 subject of the tax In this case ~1s the
exercise of a general power of appointnent;'The
..
Honorible George 8. Sheppard, Page 6
tax 1s not on tha property OS the pmer dut 1s
on the exercise oS tho pv.?er1tselS. , ,
*An&, further the Congress has, ln some
situations,powr 40 tax transmlsslonof prop?-
erty etfeoted by death even the@ by the'fau
of tho decedent's domicile such property lo not
part of his estate. Fidolity&h;i.ladclphle Trust
Co. v. lZcCau#n (C.C.A.) 34 F, !2d) SOP, @2?
..
“. .‘. .:
. .,
'We .have not been convinced .thaton the
aeath of .theQonee nothing happened lp rospeot
to the 'property of the povfer~8. ln xespeot to
the daughters' right to the property by the ex-
erolse of the po??er. Eefore Its exercise t.he
daughters OS tho deoedent, the twice pamed ze.-
olplents, had under ~Pennsylvania :Jq:f an e3tat.e
in the property'of the povfer. But~:it was a de.-
Seaslbls estate.,not unlike the interest of a -.
-beneSlolary fn a polloy of l$.S $rm&ice .vi&e.re
the insured .has:xescrved, yet has not exerolse$
the right to ohange the bencSi.clary,,melx
estate was liable ~tobe whol1.ytake.navzy $roG
them by the exe~rolseof the power in J?a~?r. pf
others. So long as -the don69 :livcd and retains8
oontrol.over ,thedispositionSp t.pe.propqrty.$he
aaughtars ran -that:xisk,vihlchpas akin -to-the
risk of a change OS beneflolax-J.es -ina .polloyof
,: insurQnco..rot until the donee .disddid ~that
ri3% disappear..%Jntil then he :stood:lntheir
3VQY..Tharofore :ltwas upon his .death -v$thdut
exercising the .poVwer adverse to ~them@at. ..the
estate of the daughters becme :lndoSeasible.. *...
And such a .tnzc, we :hold, the -fe,deralgovqrnmqnt,
under its sovereign poivcr to -levyta,ses, .may:lfliF
fnl1.yimpose upon the exercise-oz,.a .p.Wer.ec&,ect-
Ing such a change.,.. ,...(I i ;~
Under the reasoning of the above case ,the.Texas
inheritancetax would be due untierthenfaots you present.
Honorable George E. Sheppard, Pa&6 7
However, the Point was again passed on. The second Circuit
Court of Appeals in the ease OS Grlunell Y. CorzissiouerOS
Internal Pevenue, 70 Fad. (26) 705, held ccztra to the U&r
ease, supra, The oourt held that as the proplortydid not"'
pass upon the exercise of the povler.dSappointmnt but’xather
passed under the will of the orlg.inaldonor t.hesaci9was pot
-taxableas Property passin% under a general pomr of %appoi,ut-.
msnt excroised oy the,decedentby will.” (Underscoringourr)
Eecauso of the confliot In the t%:oabove mentioned
Fedora1 cases the Supreme Court OS the United States granted
*awrit of certiorari. See Fielvcringv. Grinnell,234 Up .S,
153, 79 I,.XX. 825. The oourt Btatatia3 So1lo~s.:
*(Thecrucial words arc ‘property,pdssin~ .~.
under a general power 0S appointment exercised
by the daoedcnt by will;* Analysis of this c1.ause”
discloses three distinct requisites--(l)-theox-
lstenoe ai a goneral pwlar of appolntnsnt; (2) .an .
exercise of that povrarby the decetlentby.will;
and (3) the passing OS the property in’virtuo of
ouch exercise. Clearly, the 6enersl pzvar-existed
and was exercised;and this Is notdisputed; Eut
it is equally clear that no property passed under
the powor or as a result of Its ersxciso since
that result was defiaite$y rejected by.the.bcne-
Slciaries. . .
Yi’egranted the writ of certiorariin.~thi’s’
case because oS~an.e.l.le.~ad
conS1ict aith,Uear.~y.
: Commissionerof ‘InternalRevenue [C..C.h.‘3d).65:P.
(2d) 665, and Leev, CommissioneroS.Intcmal:E6v-
enu6, 61 ‘App.D. C. 33, 57 F. (2d) 39~9.~~The.rea-~
soning and,oonclusionsof those oourts and.of’the-.
ocurt below cannot bs.re’conclled..%e are:of-.tho ..
opinion that, to the extent of the conflict;the
view of the former is wrong and that ,oS..the.oourt-
below Is right, cod we hold accordingly.” ~,..
‘Under the abo-~0holding OS the Su:rene,6ourtoS
the United States ani¶the othor.authorit,iescitedherein,
It is our opinion that ,the,propurtypassing to Oliver Wilson
Bivins and Kary Eiles Bivino passefiunderthe trust agree-
ment and IS not subjeot to the Texas Inheritancetax.upon ~,
,.the death of ths decedent, Y;illitin
Gilbert Zivins.. ”
;. :
_
Honorable qeorgs IL Sheppard,Page 8
i
We trtistthat the forogolng is suffiaientto en-
/ lighten you in this matter. I
.
I
I
.
i ‘.
1..
.
.__
i
| {
"pile_set_name": "FreeLaw"
} |
865 F.2d 1267
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Daniel BELL, Plaintiff-appellant,v.BRONSON PLASTICS, a division of Bronson Specialties, Inc., aMichigan Corporation, International Molders andAllied Workers Union, Local 120,Defendants-appellees.
No. 88-1306.
United States Court of Appeals, Sixth Circuit.
Jan. 9, 1989.
Before KEITH and KRUPANSKY, Circuit Judges; and LAWRENCE P. ZATKOFF, District Judge*.
PER CURIAM.
1
Plaintiff-appellant, Daniel Bell (Bell), has appealed the decision of the district court granting summary judgment in favor of defendants-appellees, Bronson Plastics and the International Molders and Allied Workers Union, Local 120 (defendant-appellees), in this hybrid Sec. 301 action, pursuant to 29 U.S.C. Sec. 185, charging a breach of the collective bargaining agreement by Bronson and a breach of the Union's duty of fair representation. The district court determined that there did not exist any genuine issues of material fact, and accordingly, granted summary judgment against Bell.
2
A review of Bell's assignments of error, the briefs of the parties and the arguments of counsel demonstrates that the district court properly concluded that Bronson had not breached the collective bargaining agreement nor had the union breached its duty of fair representation. Accordingly, the grant of summary judgment in favor of the defendants-appellees is AFFIRMED for the reasons stated by District Judge Enslen in his order of February 29, 1988.
*
The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern District of Michigan, sitting by designation
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ORIGINAL
3Jn tbe Wniteb ~tates <!Court of jfeberal <!Claims
No. 14-949C
(Filed May 29, 2015)
NOT FOR PUBLICATION
************************ FILED
*
* MAY 2 9 2015
DENNIS SHIPMAN, * U.S. COURT OF
* FEDERAL CLAIMS
Plaintiff, *
v. *
*
THE UNITED STATES, *
*
Defendant. *
*
************************
ORDER
Pending before the Court is defendant's motion to dismiss this case for lack of
subject-matter jurisdiction, brought under Rule 12(b)(l) of the Rules of the United
States Court of Federal Claims (RCFC). Because plaintiff did not receive the
motion when originally filed due to a clerical error, the Court extended the time for
plaintiffs response. See Order (Jan. 23, 2015). After this deadline had passed, the
Court gave plaintiff a second chance to respond, cautioning him that failure to
oppose the motion would result in dismissal for failure to prosecute. Order (Mar. 9,
2015). Since this second order failed to elicit a response, dismissal under RCFC
41(b) would be warranted. But taking into consideration plaintiffs prose status,
the Court has taken the additional step of reviewing his complaint and the
government's motion to confirm whether jurisdiction over the subject matter is
lacking, and has found this to be the case .
Plaintiff Dennis Shipman was a first responder at the site of the terrorist
attacks on the World Trade Center (WTC) the morning of September 11, 2001. He
alleges that he "suffered a 'silent' heart attack in January 2014 as a direct
consequence" of the poor health care he received from Logistics Health, Inc. (LHI), a
contractor for the World Trade Center Health Program (WTCHP). Compl. at 3. The
gravamen of his complaint is that LHI wrongly denied his claim for a compensable
physical injury and misinformed him that no appeal of the determination was
possible. Compl. at 3-4. He also disputes the qualifications, treatment, and
diagnoses of LHI's physicians, and contends that an employee of the federal
agencies which administer the WTCHP spread false information about him ---
resulting in his claim being rejected by the 9/11 Victim Compensation Fund.
Compl. at 4-6. Two distinct causes of action are raised by Mr. Shipman: a due
process violation for which he seeks $500,000 in compensatory damages; and the
intentional infliction of emotional distress, for which he requests punitive damages
of $1.5 million. Id. at 7.
Unfortunately for Mr. Shipman, the government is correct that his complaint
does not concern matters within our jurisdiction under the Tucker Act, 28 U.S.C.
§ 1491. While a prose plaintiffs filings are to be liberally construed, see Erickson v.
Pardus, 551 U.S. 89, 94 (2007), this lenient standard cannot save claims which are
outside this court's jurisdiction from being dismissed. See, e.g., Henke v. United
States, 60 F.3d 795, 799 (Fed. Cir. 1995). We do not have jurisdiction over claims
between private parties, see Ambase Corp. v. United States, 61 Fed. Cl. 794, 796
(2004), which precludes us from entertaining the allegations against LHI. The
plaintiffs claim that he was denied due process (or equal protection) is also barred
because the constitutional provision guaranteeing due process is not money
mandating. LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995). 1 The
Tucker Act expressly limits our jurisdiction to "cases not sounding in tort," 28
U.S.C. § 1491(a)(l), and thus the intentional infliction of emotional distress claim is
barred. See McKenzie v. United States, 524 F. App'x 636, 638 (Fed. Cir. 2013) (per
curiam). Moreover, it is well established that this Court lacks authority to grant
punitive damages. See, e.g. , Garner v. United States, 230 Ct. Cl. 941, 943 (1982);
Vincin v. United States, 199 Ct. Cl. 762, 765 (1972). Finally, plaintiff fails to
identify any money-mandating provisions of law that would support our jurisdiction
over the matters in his complaint.2
For the foregoing reasons, the Court GRANTS defendant's motion to dismiss
this case for lack of subject-matter jurisdiction pursuant to RCFC 12(b)(l). The
Clerk shall close the case.
IT IS SO ORDERED.
v~
Judge
1 Only in the limited circumstance of an alleged illegal exaction may a due process
violation come within the jurisdiction of this court. See Aerolineas Argentinas v.
United States, 77 F.3d 1564, 1572-73 (Fed. Cir. 1996).
2 The statutes he mentions in passing are 42 U.S.C. § 1983, which does not even
apply to federal government officials; the Americans with Disabilities Act, 42 U.S.C.
§ 12101 et seq.; and the Administrative Procedure Act, 5 U.S.C. § 500 et seq.
Compl. at 5.
-2-
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0265p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
│ No. 14-2247
v. │
>
│
EMMANUEL GYAMFI, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:13-cr-20055—George C. Steeh, District Judge.
Decided and Filed: October 19, 2015*
Before: ROGERS and DONALD, Circuit Judges; ROSE, District Judge.
_________________
COUNSEL
ON BRIEF: William W. Swor, Detroit, Michigan, for Appellant. Stephanie M. Gorgon,
UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
BERNICE BOUIE DONALD, Circuit Judge. In the Detroit Metropolitan Airport,
Customs and Border Patrol (“CBP”) officers stopped Appellant Emmanuel Gyamfi (“Gyamfi”)
while he was traveling to Detroit from Ghana. They found at least one kilogram of heroin neatly
*
This decision was originally issued as an “unpublished decision” filed on October 19, 2015. The court has
now designated the opinion as one recommended for full-text publication.
The Honorable Thomas M. Rose, United States District Judge for the Southern District of Ohio, sitting
by designation.
1
No. 14-2247 United States v. Gyamfi Page 2
packed in the inner lining of Gyamfi’s suitcase, allegedly without his knowledge. Gyamfi was
indicted and charged with importing heroin, in violation of 21 U.S.C. § 952(a), and possession
with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). At trial, four CBP officers
testified that Gyamfi appeared “nervous” while responding to questions about his travel plans
and the contents of his suitcase. The jury found Gyamfi guilty, and the district court sentenced
Gyamfi to seventy-two months in prison. On appeal, Gyamfi contends that the district court
improperly admitted conclusory testimony as to his mental state without laying a proper
foundation. We disagree and AFFIRM the conviction.
I.
On January 8, 2013, Gyamfi arrived at the Detroit Metropolitan Airport after a long trip
from Ghana. When he arrived at the primary customs checkpoint, CBP Officer David Myers
asked Gyamfi some basic questions about the purpose of his trip. As Gyamfi attempted to
explain his travel itinerary, he began to stutter. Unable to understand Gyamfi’s words, Officer
Myers directed Gyamfi to the secondary customs checkpoint. There, CBP Officer David
Crocker also interrogated Gyamfi about the purpose and details of his trip. Again with a “thick
and pronounced” stutter, Gyamfi attempted to explain that he was on his way to visit a cousin in
Connecticut, but that he had changed his original departure date because his daughter fell ill
when he had initially planned to leave. Appellant’s Br. 2. Officer Crocker selected Gyamfi’s
baggage for inspection and escorted Gyamfi to the baggage control area, where three officers,
Dawn Matthews, Seth Russell, and Nathan Evers, interrogated Gyamfi about the suitcase’s
contents.
After the officers emptied the suitcase of its visible contents, Officer Evers picked up the
suitcase and noticed that it still seemed to have something in it. Officer Russell then ran the
suitcase through an X-ray machine, which revealed images of an oddly shaped “green blob”
inside the suitcase. CBP Supervising Officer Christopher Anaya then joined the investigation.
Appellant’s Br. 3.
While Officer Evers placed Gyamfi in handcuffs, Officer Russell dismantled the suitcase,
cut through its lining, and discovered a wrapped package containing 1.8 kilograms of heroin.
Officers Evers and Anaya escorted Gyamfi to a “search room” where Officer Anaya asked
No. 14-2247 United States v. Gyamfi Page 3
Gyamfi a series of questions about whether he knew about the drugs in his suitcase. Gyamfi
denied knowing anything about the contents and later testified at trial that his wife purchased the
suitcase secondhand.
At trial, the government introduced testimony from Officers Myers, Crocker, Matthews,
Evers, Russell, and Anaya, who all had interacted with Gyamfi on the day of his arrest. Four of
the six officers consistently and similarly described Gyamfi as “nervous.”
Government’s direct examination of Officer Crocker:
Q. And prior to even speaking to him, did you make any observations about
him?
A. He seemed to be a little nervous, and his movements were sort of
exaggerated . . . .
Q. What about the way he presented to you caused you to send him over [to]
inspection?
A. Just the fact that he seemed nervous and fidgety, and also that he had
changed his ticket before his travel . . . .
Government’s direct examination of Officer Matthews:
Q. Can you describe the defendant’s appearance when he initially came to
you with the suitcase?
A. When he was brought over to our area, I noticed he was sweating a lot and
he was walking—as he was walking up to us with his head down, and
when he place[d] his bags on the belt, I noticed his hands were trembling,
and he seemed like he was either upset or nervous . . . .
Q. And as you were questioning him, can you describe generally his
demeanor?
A. He was still nervous. As I was speaking to him[,] he was still wiping off
his face and his brow with the paper towel, and he put it in his hands and
moved it back and forth almost like a wringing type of fashion [sic].
Q. In your experience are people generally nervous at baggage control
secondary?
Defense: Objection. Irrelevant. What other people are is irrelevant.
Court: Ms. Prasad?
Government: I’ll move on.
No. 14-2247 United States v. Gyamfi Page 4
Q. And he’s speaking with his language impediment?
A. Yeah. He was stammering, kind of like tripping over his own words, and I
just figured that was because he was a little nervous . . . .
Government’s direct examination of Officer Evers:
Q. When you came in contact with the defendant at the baggage control
secondary, describe his demeanor.
A. He was escorted to us by Officer Crocker, and he appeared very nervous.
He was sweating very bad. He was kind of stumbling when he walked
over to us.
Q. Did he maintain eye contact with you?
Defense: Objection. Relevance. I mean, you know, I have not objected
prior, but this really is all kind of—excuse the expression—voodoo
testimony. It is sort of like Cam[u]s’ trial where we’re talking
about whether or not he loved his mother, cried at his mother’s
funeral. What he appeared to the officers is irrelevant.
Government: I strenuously disagree with that, your Honor. How he appeared
and what he said is really relevant to the heart of this case.
Court: The objection is overruled . . . .
Q. Officer Evers, did you ask him why he was so nervous?
A. Yes, I did . . . .
Q. In fact, at any point did you ask him whose clothes are these?
A. When I pulled the items out, a lot of the items appeared that they were not
going to fit him, and some were female items. So I remember asking him,
because he was so nervous[,] I thought he was going to pass out . . . .
Government’s direct examination of Officer Anaya:
Q. Can you describe the defendant’s demeanor at this point in the process?
A. Once we started dismantling the bag, I remember looking over at him. He
dropped his head. We call it the wind going out of your sails. It’s was
[sic] just, you know, like giving up motion [sic], something like that.
Defense: Objection. Move to strike all the speculation, the commentary
material. This witness is not been [sic] offered to—offer any kind
of opinion.
Government: Well, your Honor, he was describing what he observed.
Defense: He went beyond describing with a whole bunch of editorial is what
we call it, and things of that nature.
No. 14-2247 United States v. Gyamfi Page 5
Government: I can move on.
Court: All right [sic] . . . .
II.
Gyamfi makes three arguments on appeal: (1) that the district court abused its discretion
in admitting the CBP officers’ testimony because it failed to meet Federal Rule of Evidence
701’s foundational requirements; (2) that the district court abused its discretion in admitting the
CBP officers’ testimony because it made legal conclusions; and (3) that the district court abused
its discretion in admitting the CBP officers’ testimony because it was irrelevant evidence of
Gyamfi’s character, which is impermissible under Rule 404.
A.
The standard of review is in dispute. The government contends that this Court must
review Gyamfi’s conviction and sentence for plain error because it contends that Gyamfi failed
to preserve his arguments by properly objecting to the contested admissions of officers’
testimony. See United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004) (“If a party does not
clearly articulate any objection and the grounds upon which the objection is based, when given this
final opportunity to speak, then that party will have forfeited its opportunity to make any objections
not previously raised and thus will face plain error review on appeal.”) Although Gyamfi made three
objections, we need not determine whether Gyamfi’s counsel sufficiently preserved the arguments he
now makes on appeal, because Gyamfi’s arguments fail whether we apply plain error review or the
more demanding abuse of discretion scope of review.
B.
Gyamfi first argues that the government failed to establish a proper foundation under
Rule 701 to admit officers’ testimony “describing their perception of Gyamfi’s physical
demeanor.” Appellant’s Br. 4. Gyamfi contends that describing his appearance as “nervous”
was a psychological observation that caused the jury to adopt certain legal conclusions regarding
Gyamfi’s state of mind—namely, that he knew that his suitcase contained heroin. What was
missing, Gyamfi asserts, was the officers’ first-hand knowledge to support their “particular
interpretations” of his body language. Appellant’s Br. 19. To be clear, Gyamfi agrees that the
No. 14-2247 United States v. Gyamfi Page 6
trial court properly admitted the officers’ opinion testimony regarding their objective
observations of his physical appearance; rather Gyamfi’s arguments on appeal concern the
officers’ testimony that he was “nervous” during the interrogation. Appellant’s Reply Br. 6.
Rule 701 states that testimony in the form of a lay person’s opinion may be admitted only
if the testimony meets the following requirements: (a) it is rationally based on the witness’
perception; (b) it is helpful to clearly understanding the witness’ testimony or to determining a
fact in issue; and (c) it is not based on scientific, technical, or other specialized knowledge within
the scope of Rule 702. See id. advisory committee’s notes. The party offering the testimony
under Rule 701 must establish that all three requirements are satisfied. United States v.
Freeman, 730 F.3d 590, 595-96 (6th Cir. 2013) (vacating a conviction due to evidentiary errors
concerning a case agent’s testimony).
In Freeman, we concluded that, in order to satisfy Rule 701(b), an officer describing a
particular event must limit testimony to his or her “own sensory and experiential observations.”
730 F.3d at 595, 597. Speaking outside of these personal observations can potentially lead to
“merely tell[ing] the jury what result to reach” or, worse, spoon-feeding the jury the
government’s theory by using hearsay or otherwise unreliable conclusory statements. Id. at 597
(citation omitted); see also United States v. Albertelli, 687 F.3d 439, 447 (1st Cir. 2012)
(recognizing the possible dangers with testimony given by an agent, such as “effectively
smuggl[ing] in inadmissible evidence,” “drawing inferences that counsel could do but with . . .
the imprimatur of testifying as a law enforcement officer,” “usurp[ing] the jury’s function by
effectively testifying as to guilt,” and speculating). This is particularly unhelpful when a
witness, lay or expert, forms conclusions for a jury that the jurors were competent to reach on
their own. Freeman, 730 F.3d at 597.
We have also held, however, that testimony about the appearance of a person is “a typical
example of Rule 701 evidence.” United States v. Kaufman, 92 F. App’x 253, 256-57 (6th Cir.
2004) (affirming the admission of an officer’s testimony describing that the defendant “appeared
nervous during his interview”). Additionally, testimony related to a person’s manner of conduct
is categorized as a prototypical example of Rule 701 evidence. See Asplundh Mfg. Div. v.
Benton Harbor Eng’g, 57 F.3d 1190, 1196 (3d Cir. 1995).
No. 14-2247 United States v. Gyamfi Page 7
Gyamfi turns to our decision in Freeman for support, arguing that the CBP officers
similarly lacked sufficient personal knowledge to testify because they “did not establish what
personal experiences or first-hand knowledge led them to reach their interpretations” of
Gyamfi’s demeanor as “nervous.” See Appellant’s Br. 19. Yet, the facts in Freeman are
materially different from the facts in this case. In Freeman, a defendant appealed his conviction
on the ground that the district court erred by permitting a Federal Bureau of Investigation
(“FBI”) agent to interpret the meaning of statements made during phone calls that the FBI
intercepted and played to the jury. Freeman, 730 F.3d at 592-94. For instance, the agent
interpreted the phrase “We get rich, Ohio” to mean that the defendant was looking forward to
being paid for the victim’s murder. Id. at 593. The agent also interpreted “the count was fifty-
six twenty” to mean $5,620, in reference to money paid for killing the victim. Id. at 594. The
testimony was improper under Rule 701, because the testimony was based on a recorded
conversation in which the agent had no personal involvement or first-hand experience. Id. at
596-97.
However, unlike the FBI agent in Freeman, the CBP officers here had the benefit of
physical presence and active participation in the encounters with Gyamfi—that were unique and
separate from anything that a juror could observe in court. In fact, the officers merely described
their “own sensory and experiential observations,” distinct from any broad conclusions or
allegations directed to the merits of the case. For instance, the officers’ testimony included
statements that Gyamfi was “fidgety,” that his movements were “exaggerated,” that his hands
were “trembling,” that he was “tripping over his own words,” that he was “sweating very bad,”
and ultimately that he appeared “nervous”—all of which a person observes and understands
based on experiences from everyday life. Appellant’s Br. 19-20. Therefore, the district court did
not abuse its discretion, nor did it commit plain error in finding a sufficient personal knowledge
basis for admission of the officers’ testimony.
C.
Second, Gyamfi argues that the district court’s admission of the officers’ testimony
describing Gyamfi’s “nervousness” was improper because the testimony prevented the jury from
reaching its own conclusion. Gyamfi contends that the officers’ testimony improperly raised the
No. 14-2247 United States v. Gyamfi Page 8
inference that Gyamfi knew that he had heroin in his suitcase. Consequently, he argues that the
testimony “affected the jury’s ability to fairly assess all the facts in evidence” because it “directly
contradicted Gyamfi’s defense that he neither owned the suitcase” nor knew anything about the
heroin contained therein. Appellant’s Br. 23. We disagree.
The issue here in some ways overlaps with the one raised regarding the officers’ alleged
lack of personal knowledge. Gyamfi compares the admission of the CBP officers’ testimony to
the impermissible admission in Freeman, but Gyamfi’s “nervousness” recounted by the officers
was indeed a perception and not a legal conclusion. Gyamfi again cites a case where this Court
found testimony interpreting recorded conversations inadmissible. Again, facts involving
interpretations of recorded encounters are wholly distinct from facts where officers interpreted
what they indeed perceived first-hand, in an encounter that cannot be re-played for a juror.
Although “nervousness” describes an emotion, the jury only considered testimony that
described any ordinary person’s everyday observations from a first-hand account. Describing
one as “nervous” is no different from describing one as “sad” or “happy,” which are all
everyday, ordinary observations. True, had the officers speculated as to why Gyamfi appeared
“nervous,” by expressly suggesting guilt, then, indeed, the testimony may have impermissibly
suggested a legal conclusion.
Although one may infer knowledge of heroin possession based on the description of
“nervousness,” criminal guilt is still far from the only inference one could draw. Alternatively,
one could attribute Gyamfi’s nervousness to the fact that he is thousands of miles away from
home, that he is in a foreign country, or due to apprehension about forgetting something on the
plane. In other words, one could reasonably imagine someone looking “nervous” at an airport
without having done anything wrong.
Further, Gyamfi argues that describing Gyamfi’s gestures as a “giving up motion” was in
the form of an impermissible psychological and legal conclusion that a witness is not qualified to
make. The description does not establish the mental state of the charged offense—knowledge—
but rather the demeanor of Gyamfi. Describing what someone else knows in fact requires expert
witness qualifications. The distinction, although admittedly subtle, between lay and expert
witness testimony is that lay testimony results from a process of reasoning that is familiar in
No. 14-2247 United States v. Gyamfi Page 9
everyday life, while expert testimony results from a process of reasoning that can be mastered
only by specialists in the field. United States v. Kilpatrick, 798 F.3d 365, 385 (6th Cir. 2015).
Because a gesture expressing “giving up” is a familiar expression in everyday life, the officers in
this case could have reasonably perceived the gesture or motion without having a mastery of a
particular specialty.
The description also does not qualify as a legal conclusion. A “giving up” description
could have equally described a person in a police interrogation giving up in response to a host of
interactions—i.e., giving up out of frustration of being interrogated although innocent of
committing any crime. In other words, the officers’ testimony did not “flatly conclude[] that Mr.
Gyamfi’s physical expression indicated a particular mental state,” as Gyamfi suggests.
Appellant’s Br. 24.
D.
Third, Gyamfi argues that the district court abused its discretion in admitting the CBP
officers’ testimony because it was improper character evidence under Rule 404. This argument
also fails, mostly for reasons already stated.
Rule 404 states that “evidence of a person’s character or character trait is not admissible
to prove that on a particular occasion the person acted in accordance with the character or trait.”
Without citing any case law that would even slightly support the notion that one’s “nervousness”
can qualify as a character trait, Gyamfi fails to demonstrate that observing an ordinary
manifestation of a human emotion that is reactionary in nature could qualify as a character trait.
As the government accurately points out, it did not offer the officers’ testimony of Gyamfi’s
“nervousness” to prove that Gyamfi acted “in accordance with [his] character,” but to describe
his appearance on January 8, 2013. Of course, had the officers testified that Gyamfi appeared to
be a “terrorist” or a “thief” or a “drug dealer,” then admission of such testimony would have
been problematic. This was not the case here.
III.
For the foregoing reasons, we AFFIRM Gyamfi’s conviction.
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13624 ELEVENTH CIRCUIT
FEBRUARY 8, 2010
Non-Argument Calendar
JOHN LEY
________________________
ACTING CLERK
D. C. Docket No. 08-00323-CR-J-34-JRK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRED COOLER,
a.k.a. Snap,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 8, 2010)
Before TJOFLAT, BIRCH and FAY, Circuit Judges.
PER CURIAM:
Clyde M. Collins, Jr., appointed counsel for Fred Cooler in this direct
criminal appeal, has moved to withdraw from further representation of the
appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals
that counsel’s assessment of the relative merit of the appeal is correct. Because
independent examination of the entire record reveals no arguable issues of merit,
counsel’s motion to withdraw is GRANTED and Cooler’s conviction and sentence
are AFFIRMED.
2
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860 So.2d 78 (2003)
STATE of Louisiana
v.
Creighton L. WUNEBURGER.
No. 03-KA-490.
Court of Appeal of Louisiana, Fifth Circuit.
October 15, 2003.
*80 Jennifer L. Pate, Louisiana Appellate Project, Baton Rouge, LA, for Appellant, Creighton L. Wuneburger.
Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Court, Parish of Jefferson, Terry M. Boudreaux, Thomas J. Butler, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and SUSAN M. CHEHARDY.
SUSAN M. CHEHARDY, Judge.
On October 18, 2001, the Jefferson Parish District Attorney's Office filed a bill of information charging Creighton L. Wuneburger and Jodie L. Barrios with one count of armed robbery in violation of La. R.S. 14:64.[1] On October 19, 2001, defendant was arraigned on the charges and entered a plea of not guilty. On January 29, 2002, defendant proceeded to trial by jury. After a one-day trial, the twelve-person jury unanimously found defendant guilty as charged.
On February 19, 2002, defendant's motion for new trial was heard and denied. After defendant waived the statutory sentencing delays, the trial judge sentenced him on his armed robbery conviction to 50 years at hard labor without benefit of parole, probation or suspension of sentence. That same day, the State filed a habitual offender bill of information alleging defendant was a third felony offender. Defendant *81 denied the allegations of the habitual offender bill.
On March 18, 2002, after a hearing, the trial judge found that the State had proven that defendant was a third felony offender with three violent felony offenses. After defendant waived sentencing delays, the trial judge vacated defendant's underlying armed robbery sentence and sentenced defendant to life imprisonment without benefit of parole, probation, or suspension of sentence. On appeal, defendant seeks review of his adjudication as a third-felony offender and his life sentence, which he alleges is excessive.[2]
Facts
In the early morning hours of May 17, 2001, Alicia Jones and her infant daughter were visiting her then-husband, Richard King, at his place of employment, the E-Z Serve Convenience Store at 3751 Barataria Boulevard in Marrero. At about 4:00 a.m. that morning, a woman walked into the store to pay for gas and purchase cigarettes. Subsequently, a man entered the store, talked briefly to the woman, and exited. Moments later, the same man re-entered the store, grabbed Jones by the hair and put a sharp object to her throat. The man demanded money from the cash register. After King opened the cash register, the man took the money then he and the woman left in a white van. Jones phoned the police, who arrived shortly thereafter.
Detective Kevin Decker of the Robbery Division of the Jefferson Parish Sheriff's Office ("JPSO") investigated the robbery. Detective Decker, after reading the initial report, learned that a deputy, who had responded to the robbery, reviewed the video surveillance tape and recognized the female suspect as Jodie Barrios. Detective Decker prepared a six-picture photographic lineup that contained a photograph of Barrios. When Detective Decker showed the lineup separately to Jones and King, they both positively identified Barrios as being the woman in the store during the robbery.
Detective Decker obtained an arrest warrant for Barrios. When he arrived at Barrios' home to execute the warrant, he observed a full-sized white Ford van parked outside of her house. Detective Decker learned that Mark Hilton, who was present at Barrios' residence, owned the van. Further, Hilton gave Detective Decker and JPSO Sergeant Scott Fontaine permission to search the van. In the van, the officers found two utility knives, which are also commonly known as "box-cutters," similar in description to the weapon used during the robbery.
When interviewed, Hilton stated that he was asleep at Barrios' home on the morning of May 17, 2001 when he awoke and realized that his keys and phone were missing from his pocket. When he walked outside, he saw his van being backed into Barrios' yard. When he yelled at the people in his van, the male driver stopped the van and quickly exited through the passenger door. Hilton then saw Barrios in the passenger seat of the van. After exchanging words with Barrios, Hilton retrieved his keys and phone from Barrios and left her house.
Detective Decker then interviewed Barrios and her houseguest, Pandora Brennan, who both implicated defendant, Creighton Wuneburger, in the armed robbery. Brennan told Detective Decker *82 that, at approximately 4:00 a.m. on May 17, 2001, she was in her room at Barrios' home when defendant and Barrios left to go to the store. A short time later, the two returned with handfuls of money. When Brennan asked where they had gotten the money, defendant responded they had just robbed a local convenience store.
After receiving that information, Detective Decker compiled a photographic lineup, which included a photograph of defendant. When King and Jones separately viewed the photographic lineup, they both positively identified defendant as the perpetrator. Based on all of the information gathered in his investigation, Detective Decker swore out an arrest warrant for Creighton Wuneburger on May 21, 2001.
About five months later, on October 9, 2001, Detective Decker was advised that defendant had been arrested pursuant to his warrant and was incarcerated on the charge. The detective, after advising defendant of his constitutional rights and obtaining a waiver of those rights, interviewed the defendant.
In his statement to Detective Decker, which was played to the jury at trial, defendant admitted that he and Barrios went to the E-Z Serve in a white van belonging to Hilton. He walked into the store and grabbed a woman in the store, and, with a box cutter to her throat, demanded money from the man behind the counter. After taking the money, defendant and Barrios returned to Barrios' home. After hearing the evidence, including testimony from witnesses, the jury unanimously found the defendant guilty as charged of armed robbery.
In his first assignment of error, defendant argues that the trial court erred adjudicating him a third felony offender. He contends that the trial court erred in finding him to be a third felony offender because, at the time of one of his prior guilty pleas, the trial court failed to correctly inform him of the nature of the charge to which he was pleading guilty.
In the instant case, the State filed a habitual offender bill of information alleging defendant to be a third felony offender. Although defendant did not file a written response challenging the validity of his prior guilty plea as required by La. R.S. 15:529.1(D)(1)(b), he did orally object at the habitual offender hearing to the failure of the trial judge to correctly inform defendant of the nature of the charge in one of his prior convictions. Therefore, because defendant objected at the habitual offender hearing, he has preserved the issue for review. State v. Sanders, 00-1369 (La.App. 5 Cir.2/28/01), 784 So.2d 19, 21.
In State v. Hollins, 99-278 (La. App. 5 Cir.8/31/99), 742 So.2d 671, writ denied, 99-2853 (La.1/5/01), 778 So.2d 587, this Court, citing, State v. Shelton, 621 So.2d 769 (La.1993), summarized the burden of proof in habitual offender proceedings as follows:
Where a prior conviction resulted from a guilty plea, the State must show that the defendant was advised of his constitutional rights and that he knowingly waived those rights prior to the guilty plea, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 [(1969)].... If defendant denies the allegations of the bill of information, the State has the burden of proving the existence of the prior guilty pleas and that defendant was represented by counsel. Once the State meets this burden, defendant must produce some affirmative evidence of an infringement of his rights or of a procedural irregularity. Thereafter, the State must prove the constitutionality of the plea.
*83 In proving the constitutionality of the plea, the State must produce either a `perfect' transcript of the Boykin colloquy between the defendant and the trial judge or any combination of (1) a guilty plea form, (2) a minute entry, or (3) an `imperfect' transcript. If anything less than a `perfect' transcript is presented, the trial court must weigh the evidence submitted by the defendant and the State to determine whether the State met its burden of proof that defendant's prior guilty plea was informed and voluntary. (Citations omitted).
State v. Hollins, 742 So.2d at 685.
At the habitual offender hearing, the State sought to prove that defendant had two prior felony convictions: a 1992 guilty plea to attempted simple robbery in Docket No. 92-1052 in the Twenty-Fourth Judicial District Court and a 1996 guilty plea to attempted armed robbery under Docket No. 95-6486 in the Twenty-Fourth Judicial District Court. At the hearing, Sergeant Virgil McKenzie, an expert latent fingerprint examiner with the Jefferson Parish Sheriff's Office, testified that defendant's fingerprints, taken shortly before the habitual offender hearing, were "identical" to the fingerprints on the arrest register and the bill of information for the underlying armed robbery conviction (Docket No. 01-5491), the fingerprints on the bill of information for the predicate attempted armed robbery conviction (Docket No. 95-6486), and the fingerprints on the arrest register for the predicate attempted simple robbery conviction (Docket No. 92-1052). Further, the State introduced into evidence the district court record for the underlying armed robbery conviction (Docket No. 01-5491), the predicate attempted armed robbery conviction (Docket No. 95-6486), and the predicate attempted simple robbery conviction (Docket No. 92-1052).
Thereafter, defendant introduced a copy of the transcript of the guilty plea proceeding for defendant's 1992 conviction.[3] Defendant points out that, during the trial judge's guilty plea colloquy, the trial court mistakenly indicated that defendant was pleading guilty to "14:27:65, an armed robbery or attempted armed robbery" when, in fact, defendant was pleading guilty to attempted simple robbery.[4] The trial judge further stated, "The maximum sentence I can impose is three and a half years at hard labor, without the possibility of probation, parole or suspension of sentence for the crime of armed robbery or attempted armed robbery."
At the close of the habitual offender hearing, the trial judge found that record as a whole reflected that defendant was aware that he was charged with and pled guilty to attempted simple robbery. The court noted that the bill of information in case No. 92-1052 indicated that defendant was charged with the violation of La. R.S. 14:27:65, in that he did attempt to rob Joseph Barron on February 8, 1992. The trial judge also noted that the "Boykin form" in case No. 92-1052, which was signed by defendant, defendant's counsel, *84 and the trial judge, indicates that defendant was pleading guilty to La. R.S. 14:27:65. Further, the "Boykin form" provides that the maximum sentence that defendant could receive was three and a half years at hard labor. Most importantly, on the "Boykin form," the defendant acknowledged that "my attorney and the trial judge have explained the nature of the crime to which I am pleading guilty...." Finally, the trial judge noted that the hard labor commitment/minute entry reflected that defendant pled guilty to attempted simple robbery.
Here, with respect to defendant's guilty plea in Docket No. 92-1052, the State presented evidence of the existence of defendant's guilty plea and, further, that he was represented by counsel for that guilty plea. The State met its burden so the burden shifted to the defendant to produce some affirmative evidence of an infringement of his rights or of a procedural irregularity. In this case, defendant alleges that an infringement of his rights occurred because the trial court mistakenly referred to the charge as "an attempted armed robbery."[5] The burden then returns to the State to prove the constitutionality of the plea.
In proving the constitutionality of the plea, the State must produce either a `perfect' transcript of the Boykin colloquy between the defendant and the trial judge or any combination of (1) a guilty plea form, (2) a minute entry, or (3) an `imperfect' transcript. State v. Hollins, supra, 742 So.2d at 685. If anything less than a `perfect' transcript is presented, the trial court must weigh the evidence submitted by the defendant and the State to determine whether the State met its burden of proof that defendant's prior guilty plea was informed and voluntary. Id.
In this case, the State presented a minute entry and guilty plea form for defendant's 1992 guilty plea. Defendant presented the `imperfect' transcript of the proceedings. The trial judge then weighed the entirety of the evidence submitted and found that the State met its burden that defendant's 1992 guilty plea was informed and voluntary. We have reviewed the record as a whole and find no error in the trial judge's ruling.
In his second assignment of error, defendant contends that his sentence is excessive, arguing that a downward departure from the mandatory life sentence was warranted. At trial, defendant objected to the sentence as being excessive and argued that his family background, which included an alcoholic mother, the suicide death of his sister, and the loss of his father at an early age, as well as his own history of drug abuse, justified a deviation from the mandatory life sentence.
The United States and Louisiana Constitutions both prohibit the imposition of excessive or cruel punishment. U.S. Const. amend. VIII; La. Const. art. I, § 20. The Louisiana Supreme Court has recognized that a mandatory minimum sentence under the Habitual Offender Law may still be reviewed for constitutional excessiveness. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Dorthey, 623 So.2d *85 1276 (La.1993); State v. Cushinello, 01-109 (La.App. 5 Cir.7/30/01), 792 So.2d 926, 929, writ denied, 01-2505 (La.9/20/02), 825 So.2d 1159.
When a trial court determines that the minimum sentence mandated by La. R.S. 15:529.1 makes no "measurable contribution to acceptable goals of punishment," or that the sentence amounts to nothing more than "the purposeful imposition of pain and suffering" and is "grossly out of proportion to the severity of the crime," the trial judge must reduce the sentence to one that would not be constitutionally excessive. State v. Dorthey, 623 So.2d at 1280; State v. Ventress, 01-1165 (La.App. 5 Cir.4/30/02), 817 So.2d 377, 383. However, it is presumed that the mandatory minimum sentence under the Habitual Offender Law is constitutional. State v. Johnson, 709 So.2d at 676; State v. Harbor, 01-1261 (La.App. 5 Cir. 4/10/02), 817 So.2d 223, 226.
In order to rebut the presumption of constitutionality, the defendant must clearly and convincingly show that he is "exceptional, which ... means that because of unusual circumstances this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case." State v. Harbor, 817 So.2d at 227. When evaluating whether the defendant has met his burden, the trial court must be mindful of the goals of the Habitual Offender Law, which are to deter and punish recidivism.
Further, if the trial court finds clear and convincing evidence that justifies reducing the mandatory minimum sentence, the court cannot impose whatever sentence it may feel is appropriate. Rather, the trial court must impose the longest sentence that is not constitutionally excessive with specific reasons to explain why that sentence is the longest sentence that is not constitutionally excessive. Johnson emphasized that a downward departure from the minimum sentence mandated by La. R.S. 15:529.1 should only occur in "rare situations." State v. Johnson, 709 So.2d at 677.
At the enhanced sentencing, the trial court considered defendant's family history and prior drug abuse and noted that neither was an excuse for his behavior. The trial court further noted that defendant's convictions, all of which were crimes of violence, had escalated in seriousness from his first conviction for attempted simple robbery, to his second conviction for attempted armed robbery and finally, to his third conviction for armed robbery. Finally, the trial judge, after referring to State v. Dorthey, supra, noted that "the Court can find no reason to deviate from the provisions of [the Habitual Offender Statute], with regard to the sentence mandated to someone who is a third felony offender, in which the three felonies are crimes of violence."
Based on our review of the record, we do not find that defendant has shown that he is "exceptional" requiring a downward departure from the mandatory life sentence. The fact that his offenses have escalated in seriousness appears to show that his criminal conduct is becoming worse, and, as such, he is exactly the type of offender that the Habitual Offender Statute intends to punish so severely. See, State v. Lindsey, 99-3256 c/w 99-3302 (La.10/17/00), 770 So.2d 339, 343, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001).
Finally, our review of the record for errors patent, according to La.C.Cr.P. art. 920, reveals none requiring remand in this case. Accordingly, defendant's habitual *86 offender adjudication and enhanced sentence are affirmed.
AFFIRMED.
NOTES
[1] On January 31, 2001, the charge against Barrios was amended to accessory after the fact to armed robbery, a violation of La. R.S. 14:25:64. Barrios was not tried with defendant and is not a party to the instant appeal.
[2] Defendant filed his motion for appeal after his conviction and original sentencing but before his multiple offender sentencing. The resulting prematurity was cured, however, by the subsequent re-sentencing. State v. Balser, 96-443 (La.App. 5 Cir.11/14/96), 694 So.2d 351.
[3] We note that the exhibit folder contains a second copy of the July 13, 1992 guilty plea proceeding in Docket No. 92-1052, which the court reporter, in an attached letter, purports is the "corrected" copy of the transcript. Unfortunately, the "corrected" transcript was not introduced into evidence at the trial court level. Further, the district court record was not properly supplemented with this "corrected" transcript. Documents not properly placed in evidence cannot be considered on appeal. The court of appeal has no jurisdiction to receive new evidence. Phillips v. Space Master Intern., Inc., 96-877 (La.App. 5 Cir.5/14/97), 696 So.2d 64, 69.
[4] We note that the trial judge referred to the correct statute number.
[5] A plea cannot be considered voluntary unless the defendant has notice of the essential nature of the charge against him. State v. Anderson, 00-1737 (La.App. 1 Cir.3/28/01), 784 So.2d 666, 680, writ denied, 01-1558 (La.4/19/02), 813 So.2d 421. The voluntariness of a guilty plea does not depend on whether the trial judge specifically informed the accused of each and every element of the crime. Rather, the defendant must establish that his lack of awareness resulted in an involuntary plea. State v. Hampton, 97-667 (La.App. 5 Cir.3/11/98), 709 So.2d 318, 320, writs denied, 99-2408 (La.2/4/00), 754 So.2d 223 and 01-0083 (La.9/14/01), 796 So.2d 679.
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439 So.2d 454 (1983)
Malvin SAMPSON, Plaintiff-Appellant,
v.
LINCOLN PARISH SCHOOL BOARD, Defendant-Appellee.
No. 15582-CA.
Court of Appeal of Louisiana, Second Circuit.
September 20, 1983.
*455 Culpepper, Teat & Caldwell by James D. Caldwell, Jonesboro, for plaintiff-appellant.
T.J. Adkins, Dist. Atty. by R.W. Farrar, Jr., Asst. Dist. Atty., Ruston, for defendant-appellee.
Before HALL, MARVIN and SEXTON, JJ.
HALL, Judge.
After notice and a hearing, the appellant was removed from his position as a permanent school bus operator by the Lincoln Parish School Board for failure to keep his transfer equipment in a safe, comfortable, and practical operating condition, one of the grounds for removal specified by LSA-R.S. 17:493.[1] Appellant filed a petition for judicial review in the district court, which affirmed the action of the school board. On appeal to this court the appellant contends that the district court erred in affirming the school board's decision to terminate him for the following reasons: (1) appellant was not given proper notice of the charges against him prior to the hearing; (2) insufficient evidence, mostly hearsay, was offered to establish the charge which is the stated basis for appellant's termination; and (3) appellant's termination was actually based on another charge not proven at the hearing.
By letter of February 4, 1982 from the superintendent of schools, appellant was suspended with pay pending a hearing on the charges contained in the letter. The specific charges listed in the letter were:
"... (1) failure to keep your transfer equipment in a safe, comfortable, and practical operating condition, (2) conduct unbecoming a school bus operator and a female student...."
On February 9 appellant's attorney wrote the superintendent of schools requesting that the charges be made more specific and that he be furnished additional information. The attorney wrote another letter to the superintendent on February 15, again requesting additional information prior to the hearing which had by then been scheduled for February 24. The attorney also requested a closed meeting and that the testimony be recorded. By letter of February *456 17 the superintendent replied, advising that the additional information had been furnished to appellant and referring appellant's attorney to the Lincoln Parish District Attorney who was representing the school board.
Appellant was represented by his attorney at the hearing. The attorney objected to the hearing going forward because he had not been furnished with the specific details of the charges as requested. The objection was overruled and the hearing proceeded. The school board called several witnesses who were cross-examined. Appellant testified on his own behalf.
At the conclusion of the hearing a school board member asked appellant's attorney if he felt he had been given ample time or opportunity to ask all the things he wanted to ask or bring out anything that he wanted to bring out. The attorney replied that he did not want any time for any additional testimony or evidence concerning the charge relative to the operating condition of the bus but wanted the opportunity to have a handwriting expert look at the note which appellant was alleged to have given to a female student and which was the basis for the other charge.
The school board voted by a unanimous 11 to 0 vote to dismiss the appellant as a school bus driver for failure to keep his bus in a safe, comfortable, and practical operating condition. No action was taken on the other charge and the validity of the other charge is not involved in this appeal.
The standard of judicial review of a school board's action is whether there is a rational basis for the board's determination supported by substantial evidence insofar as factually required. The reviewing court must neither substitute its judgment for the judgment of the school board nor interfere with the board's good faith exercise of discretion. The court's inquiry should be limited to a determination of whether the action of the school board was in accordance with the authority and formalities of the tenure law, was supported by substantial evidence, or, conversely, was an arbitrary decision and thus an abuse of discretion. Howell v. Winn Parish School Board, 332 So.2d 822 (La.1976); Allen v. LaSalle Parish School Board, 341 So.2d 73 (La.App.3d Cir. 1976), writ refused 343 So.2d 203 (1977).
Appellant contends that the written charge stated in the superintendent's letter was an insufficient explanation of the nature of the charge facing him and did not constitute due process notice because it merely tracked the conclusionary language of the statute without reciting the facts on which the charge was based sufficiently to enable appellant to prepare his defense. Appellant cites Serignet v. Livingston Parish School Board, 282 So.2d 761 (La.App. 1st Cir.1973) which holds that charges tracking the statute contained in the dismissal notice do not fulfill the statutory requirements and are mere conclusions and that the notice must contain a specific recitation of facts sufficient to afford the dismissed teacher an opportunity for rebuttal.
The substance of the testimony concerning the charge for which the appellant was ultimately terminated related to appellant's failure to have his bus repaired and available for inspection and use prior to the beginning of school and for a month thereafter, a breakdown of the bus after it was put in use, and lack of proper heating in the bus during the cold winter days shortly preceding notice to appellant of his suspension. The evidence showed that there was correspondence and discussion with appellant concerning the situation at the beginning of school and that the heater problem was discussed with him a day or two before the notice of suspension was sent to him. There is no indication that appellant was surprised by any of the specific details of his failure to properly maintain his bus brought out at the hearing. There is no showing that appellant was prejudiced by any failure to have been furnished more detailed information as to the facts on which the charge was based.
The fact that there was no prejudice and that appellant was afforded ample opportunity to prepare for and present his defense is further demonstrated by the colloquy *457 mentioned earlier in this opinion between a school board member and appellant's attorney at the conclusion of the hearing. Counsel specifically stated that he did not want any delay for any additional testimony or evidence in connection with the charge.
As found by the trial court, the proceeding against the appellant was conducted in accordance with the statute and appellant was not prejudiced by any lack of notice.
Appellant contends that the factual finding that his school bus was not in proper operating condition is not supported by substantial evidence and should be overturned. The essence of appellant's argument is that the school board presented only hearsay evidence of the improper operating condition of his school bus.
Contrary to appellant's argument, there is sufficient, substantial, competent evidence supporting the finding that appellant failed to maintain his bus in safe, comfortable, and practical operating condition. It was established that in June 1981 appellant put his bus in a repair shop for extensive repairs. Appellant was unable to pay for the repairs and, therefore, was not able to get his bus out of the shop in time for the required safety inspection by state police on July 30, at which time all of the other school buses were inspected. He did not have his bus available for inspection on August 10 when the state police set up another inspection for buses that did not pass the first inspection. Without notifying school authorities, appellant failed to pick up the children on his route on the opening day of school, August 25. The school board loaned appellant a bus until appellant got his bus out of the shop which appellant promised to do by September 8. Appellant turned in the school board bus on September 19 but when he still did not have his bus on September 21 the school board was required to furnish a bus and a driver for about five days. Finally, on September 28, appellant brought his bus to the school board grounds. The carbon monoxide machine was broken, but the bus was temporarily inspected and approved pending repair of the machine. Appellant was advised by letter that he should keep his bus operational and comfortable at all times or otherwise board action would be necessary. The following day, appellant's bus broke down and it was necessary for the school board to send out another bus and a driver that afternoon.
In early February 1982, in the course of their investigation of the incident in which appellant was alleged to have given an objectionable note to a young female student passenger on the bus, which was the basis for the second charge, and an investigation of another incident involving a fight on the bus, school officials heard complaints from a number of students about the bus being cold and lacking heat during the cold winter days. When school officials discussed the heating matter with the appellant, he admitted that the heaters on the bus were not working properly. In view of his admission the school officials did not believe it necessary to make an inspection of the bus. At the hearing appellant testified that the three heaters on the bus were working but that when operating they caused his batteries to run down and his lights to go out. Appellant testified that it is cold in the back of the bus where the heaters, which are located in the front of the bus, do not reach. He stated that he had bought another heater around Christmas time for installation at the rear of the bus, but had not yet had it installed.
There was evidence that a number of judgments, garnishments, and wage assignments had been filed against appellant, in addition to the evidence that he was not able to timely pay for the repairs done to the bus during the summer prior to the opening of school.
In sum, the evidence established that appellant failed to keep his bus in a safe, comfortable, and practical operating condition during a substantial part of the school year prior to the time he was suspended. In spite of previous leniency on the part of the school officials and warnings that board action would be necessary if he failed to properly maintain the bus, appellant operated the bus without proper heating during *458 severely cold winter days. Undoubtedly appellant's failure to properly maintain his bus was due at least in part to his financial inability to do so. There was substantial evidence supporting the board's decision to discharge the appellant on this statutory ground, and the decision was not arbitrary or unreasonable.
Appellant contends that although the school board voted to discharge the appellant on the charge relating to the operating condition of the bus, the board was improperly influenced by the second charge involved in the hearing which was "conduct unbecoming a school bus operator and a female student". The basis of the second charge was a handwritten note which was handed by the appellant, a black man, to a young white female student who was a regular passenger on the school bus. The note is not in the record but the indication from the record is that it was of sexual or amorous content. There was considerable testimony concerning the note at the hearing. The school board sought to establish that the note was written by the appellant. Appellant denied writing the note and testified that he found the note on the seat of the bus, read it, and later gave it to the young student to whom it was addressed. The evidence at the hearing was clearly insufficient to establish that appellant wrote the note and was plainly insufficient to establish "immorality" or any other statutory grounds for removal of appellant from his position because of the note incident.
The transcript of the school board's deliberations reveals that it was conscientious in attempting to arrive at a fair decision. The evidence concerning the charge of conduct unbecoming a school bus driver was considered, discussed, and clearly rejected by the board as being insufficient. The evidence relating to the charge of failure to properly maintain the bus was carefully considered and discussed on its own merits.
As noted by the trial court:
"The School Board indicated through its deliberations its desire to be fair to the petitioner and to arrive at a fair conclusion. Therefore, the Court specifically finds that the School Board's conclusions from the factual findings were not arbitrary and these conclusions did not constitute an abuse of the School Board's discretion."
For the reasons assigned, the judgment of the district court affirming the action of the Lincoln Parish School Board and dismissing appellant's petition for judicial review is affirmed, at appellant's costs.
Affirmed.
NOTES
[1] LSA-R.S. 17:493
"A permanent school bus operator shall not be removed from his position except upon written and signed charges of willful neglect of duty, or incompetence, or immorality, or drunkenness while on duty, or physical disability to perform his duties, or failure to keep his transfer equipment in a safe, comfortable and practical operating condition, or of being a member of or contributing to any group, organization, movement or corporation that is prohibited by law or injunction from operating in the state of Louisiana, and then only if found guilty after a hearing by the school board of the parish in which the school bus operator is employed. An additional ground for the removal from office of any permanent school bus operator shall be the abolition, discontinuance or consolidation of routes, but then only if it is found as a fact, after a hearing by the school board of the parish, that it is in the best interests of the school system to abolish, discontinue, or consolidate said route or routes. All hearings hereunder shall be private or public, at the option of the operator or operators to be affected thereby. At least fifteen days in advance of the date of the hearing the school board shall furnish the affected operator or operators a copy of the written grounds on which said abolition, discontinuance or consolidation of routes is sought. The operator or operators affected shall have the right to appear in their own behalf and with counsel of their selection, and be heard by the board at the hearing. Nothing herein shall impair the right of the parties to appeal to a court of competent jurisdiction...."
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-31211
Summary Calendar
__________________
RODNEY C. CURRY,
Plaintiff-Appellant,
versus
DAVID GREEN, Dr.,
Defendant-Appellee.
- - - - - - - - - -
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 94-CV-4154
- - - - - - - - - -
May 1, 1996
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
Rodney C. Curry appeals the grant of summary judgment for
Dr. David Green in his civil rights suit arising from the medical
care he received by Green. Green argues that Curry's notice of
appeal is untimely. We conclude that the district court did not
abuse its discretion in extending the period for timely filing of
notice of appeal pursuant to Fed. R. App. P. 4(a)(5).
Curry's motion for leave to supplement his original
appellate brief is DENIED. Curry's request for the appointment
of counsel is DENIED.
*
Pursuant to Local Rule 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 Local Rule
47.5.4.
No. 95-31211
-2-
We have carefully reviewed the record and appellate
arguments. For essentially the same reasons as explained in the
magistrate judge's report, we conclude that the district court
did not err in granting summary judgment for Green. See Varnado
v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
AFFIRMED.
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***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
LOUIS D. CORNEROLI v. RONALD W.
KUTZ ET AL.
(AC 39507)
DiPentima, C. J., and Alvord and Eveleigh, Js.
Syllabus
The plaintiff sought to recover damages from the defendant attorney and
the defendant law firm for their alleged legal malpractice in connection
with their representation of the plaintiff in a probate matter involving
the plaintiff’s claim to the proceeds of a sale of a certain painting. The
painting had been purchased for $3 by the plaintiff’s cousin, D. After D
died, the plaintiff entrusted the painting to B, who, unbeknownst to
the plaintiff, sold the painting to A for approximately $1.2 million. A
subsequently sold the painting to an unknown purchaser for millions
of dollars more than what he paid for it. After the plaintiff learned about
the sales of the painting, he brought an action for, inter alia, fraud and
conversion in New York against B, A, and the unknown purchaser, which
the New York court dismissed as to all parties except B. Subsequently,
after commencing an action against, inter alia, the plaintiff, B, and A,
the estate of D reached a settlement agreement for $2.4 million with A,
and withdrew its claim against the plaintiff. The plaintiff brought a
probate action claiming that he was entitled to 50 percent of the settle-
ment because of an alleged former business partnership with D. The
Probate Court granted the estate’s motion to disallow the plaintiff’s
claim, and, thereafter, the defendants, on behalf of the plaintiff, filed
an appeal of the Probate Court’s decision in the Superior Court. The
estate filed a motion to dismiss the appeal for lack of subject matter
jurisdiction on the ground that the appeal was untimely, which the trial
court granted, and this court affirmed the dismissal. Subsequently, the
plaintiff filed the present legal malpractice action on the basis of the
defendants’ failure to timely prosecute the appeal from the Probate
Court on his behalf. The trial court granted the defendants’ motion for
summary judgment and rendered judgment thereon, from which the
plaintiff appealed to this court. On appeal, he claimed, inter alia, that
it was improper for the trial court to require expert testimony on the
issue of causation and, in the alternative, the testimony of his expert,
M, on the issue of causation was sufficient to defeat summary judg-
ment. Held:
1. The trial court properly rendered summary judgment in favor of the
defendants on the basis of its conclusion that there was insufficient
expert testimony on the issue of causation: Connecticut law generally
requires the plaintiff in a legal malpractice action arising from prior
litigation to prove, through expert testimony, that but for the alleged
breach of duty, it was more likely than not that he would have prevailed
in the underlying cause of action, and, in the present case, the plaintiff
failed to prove that, had the defendants filed a timely appeal from the
decision of the Probate Court, he was more likely than not to prevail
on appeal to the Superior Court, as the opinions of M regarding causation
were based on possibility, not probability, and M’s testimony, thus, failed
to clearly express an opinion that had the defendants timely filed the
appeal to the Superior Court, the plaintiff was more likely than not
to prevail; furthermore, even if M expressed his opinions in terms of
reasonable probabilities rather than possibilities, there was an inade-
quate basis for any opinion by M on the issue of causation, as the Probate
Court’s decision relied on the preclusive effect of the New York action,
and because M was unfamiliar with the substance of that action, he had
no basis on which he could opine, beyond mere speculation, as to what
the result of an appeal to the Superior Court would have been.
2. This court declined to review the plaintiff’s claim that the trial court
improperly considered the defendants’ reply brief in support of the
motion for summary judgment, which, contrary to its certification, was
not received by the plaintiff’s counsel prior to the morning of the hearing
on the defendants’ motion for summary judgment, that claim having
been raised for the first time on appeal to this court and having been
inadequately briefed; moreover, the plaintiff could not prevail on his
claim that the trial court improperly permitted the defendants to file
their surreply, as the record was clear that the defendants sought and
received the court’s permission to file the surreply.
Argued January 9—officially released July 17, 2018
Procedural History
Action to recover damages for legal malpractice, and
for other relief, brought to the Superior Court in the
judicial district of Middlesex, where the court, Auri-
gemma, J., granted the defendants’ motion for summary
judgment and rendered judgment thereon, from which
the plaintiff appealed to this court. Affirmed.
Daniel H. Kennedy III, with whom was R. Bartley
Halloran, for the appellant (plaintiff).
Cristin E. Sheehan, with whom, on the brief, was
Michelle Napoli-Lipsky, for the appellees (defendants).
Opinion
ALVORD, J. The plaintiff in this legal malpractice
action, Louis D. Corneroli, appeals from the summary
judgment rendered by the trial court in favor of the
defendants, Ronald W. Kutz and Kutz & Prokop, LLP.
On appeal, the plaintiff claims that the court improperly
(1) rendered summary judgment in favor of the defen-
dants on the basis of its conclusion that there was
insufficient expert testimony on the issue of causation,
and (2) considered certain documents filed by the
defendants. We affirm the judgment of the trial court.
The plaintiff’s present appeal marks yet another chap-
ter in a saga of extensive litigation over the last twenty
years. The litigation arises out of the serendipitous pur-
chase of an original John Singer Sargent painting by the
plaintiff’s late cousin, Salvatore D. D’Amico (decedent).
The defendants represented the plaintiff in a probate
matter involving the plaintiff’s claim to the proceeds of
the sale of that painting, and in subsequent appeals to
the Superior and Appellate Courts.
In its memorandum of decision, the trial court set
forth the following findings of the Probate Court. ‘‘The
decedent frequented tag sales in hopes of finding under-
valued assets. At some point in 1978, he acquired for
$3 a painting which turned out to be an original [John
Singer] Sargent painting called ‘Carmencita Dancing’
worth several million dollars. The problem encountered
by the decedent was that he was unable to get the
painting authenticated and thus was unable to realize
the full value of the painting during his lifetime. At some
point, the decedent’s cousin, Louis Corneroli, began
working with the decedent, driving him around and also
becoming involved in his various projects, including the
effort to authenticate the Sargent painting. Mr. Cor-
neroli contends that he and the decedent had a partner-
ship in which they agreed to work on matters together
and equally split the profits realized from their activity.
The estate of Salvatore D. D’Amico strenuously denies
any such partnership. . . .
‘‘After the decedent died, Mr. Corneroli took posses-
sion of the painting and entrusted it to Mark Borghi,
who owned and operated an art gallery in New York
and who was in a better position to have the painting
authenticated than Mr. Corneroli. . . . Unbeknownst
to Mr. Corneroli, Mr. Borghi sold the painting to a Mr.
[Warren] Adelson, another art dealer who specialized
in Sargent paintings, for approximately $1.2 million.
Mr. Adelson turned around and sold the painting for
millions more than what he paid for it, again without
the knowledge of Mr. Corneroli. At some point, Mr.
Corneroli learned of the sale of the painting and filed
the Corneroli Complaint in New York, suing Mr. Borghi,
Mr. Adelson and John Doe, the still unknown purchaser
of the painting, alleging, inter alia, fraud, conversion
and breach of contract claims. Judge Ira Gammerman,
of the Supreme Court of the state of New York, after
hearing testimony from Mr. Corneroli on the Corneroli
complaint, found that Mr. Corneroli testified that he
had an agreement with Mr. Borghi under which the
parties were to divide the sales price of the sale of
the painting with Mr. Borghi receiving half and Mr.
Corneroli receiving half. . . . Mr. Corneroli freely
acknowledged during the trial that both the decedent
while living and his estate had a 50% interest in the
painting. . . . The Corneroli complaint, however,
alleged that Mr. Corneroli was the sole owner of the
painting. . . .
‘‘After hearing the testimony of Mr. Corneroli, the
New York court dismissed the case as to all parties
except Mr. Borghi. It is crystal clear from the transcript
that the claim against Mr. Adelson was dismissed ‘with
prejudice.’ . . . . The New York court further found
the potential recovery from Mr. Borghi in Mr. Cor-
neroli’s favor to be approximately $313,000, which was
roughly one quarter of the sales price of the sale of
the painting from Mr. Borghi to Mr. Adelson. . . . Mr.
Corneroli acknowledged that he received about that
amount in either paintings or cash in July, 2003, and
that the parties thereafter returned to Connecticut to
open an estate for the decedent so that the estate could
pursue its share.
‘‘The administrators of the newly-opened estate of
D’Amico took a vastly different view of the history than
Mr. Corneroli. Based on their belief that Mr. Corneroli
had denied knowledge as to the location of the painting
shortly after the death of the decedent and further had
not disclosed that he had given the painting to the New
York art dealer until shortly before the proceedings in
New York occurred, the estate took the position that
there never was any partnership and that Mr. Corneroli
had absconded with the painting after the decedent
died. The estate filed a lawsuit in federal court in
December, 2003, which suit was dismissed without prej-
udice. A new suit was filed in July, 2005, in which the
estate sued, inter alia, Mr. Corneroli, Mr. Borghi and
Mr. Adelson, alleging that the painting had been stolen
by Mr. Corneroli and that title never passed due to this
fact. The estate sought a declaratory judgment that it
was the owner of the painting, a replevin of the painting
back to the estate and damages from Mr. Corneroli for
his alleged misdeeds. Mr. Corneroli filed an answer with
special defenses to the complaint in which he generally
alleged that his actions were taken as a partner of the
decedent and that he did not steal the painting. Mr.
Corneroli did not, however, file a counterclaim or seek
to join the [estate] in its claims against the other defen-
dants, including Mr. Adelson.
‘‘A two day mediation to resolve the case occurred
on December 11 [and] 12 at New Britain Superior Court.
Counsel for Mr. Corneroli attended on the first day but
did not return for the second day. The remaining parties
reached an agreement on the second day, which
involved Mr. Adelson paying the [estate] the sum of
$2.4 million. In a lengthy agreement put on the record,
the [estate] indicated that the settlement was subject
to the [estate] obtaining a release of Mr. Corneroli and
the Probate Court approving the settlement as well. It
does not appear any formal notice was provided to Mr.
Corneroli of the settlement, however, his attorney was
called in connection with executing a release, which
was refused. The Probate Court hearing occurred and
the settlement was approved by the Probate Court. The
case against Mr. Corneroli was withdrawn. Thereafter,
Mr. Corneroli, in reviewing the probate file, learned
about the settlement amount for the first time. He filed
a claim with the estate dated August 23, 2007, in which
he stated that he was a partner with the decedent in
attempting to get the painting authenticated and that
their agreement was that any funds received as a result
of getting the painting authenticated would be split
equally and thus he was entitled to receive 50 [percent]
of the 2.4 million settlement.’’ (Emphasis omitted; foot-
note omitted.) The estate moved to disallow the plain-
tiff’s claim as untimely.
The Probate Court assumed for purposes of deciding
the motion that the plaintiff’s claim of partnership was
true, but nonetheless granted the estate’s motion to
disallow the plaintiff’s claim. The court concluded that
‘‘if, in fact, a partnership existed, the New York action
represented the one opportunity it had to obtain a recov-
ery in this matter against Mr. Adelson,’’ and ‘‘the dis-
missal of the New York action against Mr. Adelson,
with prejudice, indicates to the court that Mr. Cor-
neroli’s future opportunity to pursue a claim against
Mr. Adelson, either individually or as part of a partner-
ship, has been forever precluded.’’ The court further
determined that the plaintiff or, alternatively, the part-
nership, ‘‘had no claim against Mr. Adelson,’’ and ‘‘upon
the conclusion of the New York litigation, the last
remaining asset of any ‘partnership’ was the $300,000
claim against Mr. Borghi, which Mr. Corneroli testified
to, but which could not be the subject of any award
. . . as the estate was not a party plaintiff in the action.
Mr. Corneroli cannot claim any interest in that claim
as he received his judgment in that amount against Mr.
Borghi already.’’
On the basis of its conclusion that ‘‘the New York
litigation fully and finally resolved any issues of partner-
ship assets and . . . the fruits of the litigation brought
thereafter by the estate in no way can be determined
to be considered a partnership asset as a matter of law,’’
the court characterized the plaintiff’s claim against the
estate as an attempt to claim ‘‘an interest in a partner-
ship asset which, as a matter of law, is not a partnership
asset.’’ The Probate Court granted the estate’s motion
to disallow the plaintiff’s claim and, on March 27, 2008,
sent notice of its decision to the parties and counsel.
On June 4, 2008, the defendants, on behalf of the
plaintiff, filed an appeal of the Probate Court’s decision
in the Superior Court. The estate moved to dismiss the
appeal for lack of subject matter jurisdiction, claiming
that the appeal was untimely. The court granted the
motion and dismissed the appeal as untimely.1 This
court affirmed the dismissal, and our Supreme Court
declined to hear the matter. See Corneroli v. D’Amico,
116 Conn. App. 59, 67, 975 A.2d 107, cert. denied, 293
Conn. 928, 980 A.2d 909 (2009).
In 2012, the plaintiff filed this legal malpractice action
on the basis of the defendants’ failure to timely prose-
cute the appeal from the Probate Court on his behalf.
In his fourth amended complaint, the plaintiff alleged
that the defendants were negligent in their representa-
tion of him in the underlying probate matter, and that
‘‘[h]ad the defendants filed a timely appeal, the plaintiff
would have had a reasonable basis for a successful
outcome of the de novo appeal.’’
On April 28, 2016, the defendants moved for summary
judgment, arguing that no genuine issue of material fact
existed because the plaintiff had ‘‘failed to disclose any
expert who can opine on the issue of proximate cause,
a necessary element in any legal malpractice action.’’
On July 27, the court issued a memorandum of decision,
in which it granted the defendants’ motion. This
appeal followed.
I
The plaintiff first claims that the trial court improp-
erly rendered summary judgment in favor of the defen-
dants on the basis of its conclusion that there was
insufficient expert testimony to create a genuine issue
of material fact as to causation. Specifically, he argues
that it was improper for the court to require expert
testimony on the issue of causation, and that even if it
were proper, his expert’s testimony on the issue of
causation was sufficient to defeat summary judgment.
We disagree.
The following procedural history is relevant to our
resolution of this claim. During discovery, the plaintiff
disclosed two experts: (1) Attorney John A. Berman, a
retired probate judge, and (2) Professor Jeremy
McClane, a professor at the University of Connecticut
School of Law.2
During his deposition, Professor McClane testified
that he is an expert on partnership law. He extensively
opined on the issue of partnership in the underlying
probate matter, testifying as to his belief that there was
‘‘a reasonable basis for a successful outcome of the
appeal’’ because there was ‘‘both a reasonable basis
that Corneroli would have been able to show that there
was a partnership and that the painting was partnership
property and that any disposition or any money coming
out of a disposition of that painting was also partnership
property . . . .’’ When questioned on the issue of cau-
sation, the following colloquy occurred:
‘‘[The Defendants’ Counsel]: Can you state to a rea-
sonable degree of probability that the result of any
appeal—of the outcome of an appeal in the Superior
Court would have been different as opposed to [the
Probate Court’s] decision?
***
‘‘[Professor McClane]: I mean, it’s hard to say what
the outcome of a litigation would be just because there
are so many moving parts, so many things involved, the
skill of the lawyers, you know, what the jury thinks of
the witnesses, but I think that there is certainly a very
good chance that the outcome would have been differ-
ent than what was indicated in [the Probate Court’s]
opinion.
‘‘[The Defendants’ Counsel]: But can you say to a
reasonable degree of probability that it’s more likely
than not the outcome would have been different?
***
‘‘[Professor McClane]: I think there’s a very good
chance the outcome would have been different. I don’t
know that I can say more likely than not. I’m not saying
it is or it isn’t. I just don’t think I can really say simply
because, you know, if you were to believe everything—
if a finder of fact were to believe everything that is in
all of this testimony and all of these document, then I
think, yes, there’s a—it’s likely that the outcome would
be different because I think they would understand that
this is a partnership asset and the claim is really about
liquidating the partnership asset and getting the value
for it. But I can’t opine on whether or not people are
going to believe one set of testimony over another.
‘‘[The Defendants’ Counsel]: Okay. So sitting here
today, you can’t testify—you can only testify you believe
there’s a very good chance the outcome would have
been different, not that it’s more likely than not it would
have been different?
***
‘‘[Professor McClane]: I can say that if at a trial every-
body believed—that all of the testimony of Mr. Cor-
neroli were believed, then I think it’s more likely
than not.
‘‘[The Defendants’ Counsel]: And what are the
chances that all of his testimony would be believed?
***
‘‘[Professor McClane]: I don’t have the crystal ball to
say that, unfortunately.’’
On April 28, 2016, the defendants moved for summary
judgment. In their memorandum in support of the
motion, the defendants argued that no genuine issue
of material fact existed with respect to the issue of
causation because ‘‘neither of the plaintiff’s disclosed
experts have offered testimony that the plaintiff would
have prevailed on legal and/or factual grounds had the
probate appeal been timely commenced and had the
Superior Court conducted a trial de novo on the merits
of [the] plaintiff’s claims.’’ With respect to Professor
McClane’s testimony on the issue of causation, the
defendants argued that he ‘‘could not state to a reason-
able degree of probability that the outcome of a timely
appeal would have differed from [the Probate Court’s]
decision.’’ The defendants highlighted Professor
McClane’s testimony that: (1) it was ‘‘hard to say what
the outcome of a litigation would be just because there
are so many moving parts’’; (2) he did not know if he
could say ‘‘more likely than not’’ that the outcome would
have been different; (3) he was not ‘‘saying it is or it
isn’t’’ more likely than not; (4) he could not opine as
to whether a fact finder would believe ‘‘one set of testi-
mony over another’’; and (5) he did not ‘‘have the crystal
ball’’ to evaluate the chances of the fact finder believing
the plaintiff’s testimony. The defendants noted that the
Probate Court assumed for purposes of its analysis that
a partnership existed between the plaintiff and the dece-
dent with respect to the painting, and that Professor
McClane could not ‘‘articulate any basis on which the
Superior Court would have reached a different result.’’
The defendants further argued that Professor McClane’s
testimony spoke to ‘‘possibilities, not probabilities,
which is legally insufficient to meet the burden of
proof,’’ and accordingly, the plaintiff had failed to estab-
lish a prima facie case of legal malpractice.
The trial court rendered summary judgment in favor
of the defendants on July 27, 2016. In its memorandum
of decision, the court concluded that ‘‘Professor
McClane could not state to a reasonable degree of prob-
ability that the outcome of a timely appeal would have
differed from [the Probate Court’s] decision,’’ and high-
lighted his testimony that he did not know if he could
say ‘‘more likely than not’’ that the outcome would have
been different, and that he was not ‘‘saying it is or it
isn’t’’ more likely than not. The court further concluded
that ‘‘Professor McClane failed to offer any testimony
as to his bases for challenging the decision of [the
Probate Court].’’ Specifically, the court noted that Pro-
fessor McClane’s testimony did not provide a basis for
challenging the Probate Court’s conclusion that the
New York action represented the plaintiff’s only oppor-
tunity to recover against Adelson under any legal the-
ory. The court concluded: ‘‘[N]either [Professor
McClane’s] deposition testimony nor his affidavit pro-
vide any basis to support the opinion that Mr. Corneroli
would probably have prevailed in his de novo probate
appeal. To the contrary, Professor McClane testified
that he was not familiar with the substance of [the
Probate Court’s] opinion or Mr. Corneroli’s litigation
history vis-a`-vis the painting at issue. The opinion of
the Probate Court was rational, logical and based on
Mr. Corneroli’s prior litigation with respect to the paint-
ing. In order to decide contrary to the opinion of [the
Probate Court], a Superior Court Judge would certainly
need a good reason. Professor McClane has completely
failed to articulate such [a] reason. Thus, he provided
no basis for any opinion as to causation. Without such
a basis there is no genuine issue of material fact. Sum-
mary judgment enters in favor of the defendants.’’
We begin with the applicable standard of review and
principles of law that guide our analysis. ‘‘Practice Book
§ 17-49 provides that summary judgment shall be ren-
dered forthwith if the pleadings, affidavits and any other
proof submitted show that there is no genuine issue as
to any material fact and that the moving party is entitled
to judgment as a matter of law. In deciding a motion
for summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving
party. . . . The party moving for summary judgment
has the burden of showing the absence of any genuine
issue of material fact and that the party is, therefore,
entitled to judgment as a matter of law. . . . Our
review of the trial court’s decision to grant the defen-
dant’s motion for summary judgment is plenary. . . .
Summary judgment in favor of a defendant is proper
when expert testimony is necessary to prove an essen-
tial element of the plaintiff’s case and the plaintiff is
unable to produce an expert witness to provide such
testimony. . . .
‘‘Malpractice is commonly defined as the failure of
one rendering professional services to exercise that
degree of skill and learning commonly applied under
all the circumstances in the community by the average
prudent reputable member of the profession with the
result of injury, loss, or damage to the recipient of those
services . . . . Generally, a plaintiff alleging legal mal-
practice must prove all of the following elements: (1)
the existence of an attorney-client relationship; (2) the
attorney’s wrongful act or omission; (3) causation; and
(4) damages. . . .
‘‘The essential element of causation has two compo-
nents. The first component, causation in fact, requires
us to determine whether the injury would have occurred
but for the defendant’s conduct. . . . The second com-
ponent, proximate causation, requires us to determine
whether the defendant’s conduct is a substantial factor
in bringing about the plaintiff’s injuries. . . . That is,
there must be an unbroken sequence of events that tied
[the plaintiff’s] injuries to the [defendant’s conduct].
. . . This causal connection must be based [on] more
than conjecture and surmise. . . . [N]o matter how
negligent a party may have been, if his negligent act
bears no [demonstrable] relation to the injury, it is not
actionable . . . .
‘‘The existence of the proximate cause of an injury
is determined by looking from the injury to the negligent
act complained of for the necessary causal connection.
. . . In legal malpractice actions arising from prior liti-
gation, the plaintiff typically proves that the . . . attor-
ney’s professional negligence caused injury to the
plaintiff by presenting evidence of what would have
happened in the underlying action had the [attorney]
not been negligent. This traditional method of pre-
senting the merits of the underlying action is often
called the case-within-a-case. . . . More specifically,
the plaintiff must prove that, in the absence of the
alleged breach of duty by her attorney, the plaintiff
would have prevailed [in] the underlying cause of action
and would have been entitled to judgment. . . . To
meet this burden, the plaintiff must produce evidence
explaining the legal significance of the attorney’s failure
and the impact this had on the underlying action.’’ (Cita-
tions omitted; emphasis omitted; footnote omitted;
internal quotation marks omitted.) Bozelko v. Papas-
tavros, 323 Conn. 275, 282–84, 147 A.3d 1023 (2016).
We first address the plaintiff’s argument that it was
improper to require expert testimony on the issue of
causation because the ‘‘probability of success of the
underlying case is an ultimate issue.’’ According to the
plaintiff, ‘‘[i]t would be inappropriate for Mr. Corneroli
to disclose an expert on the underlying issue, as the
court can directly decide the merits of the underlying
case.’’ This argument is entirely without merit.
Section 7-3 (a) of the Connecticut Code of Evidence
provides in relevant part: ‘‘Testimony in the form of an
opinion is inadmissible if it embraces an ultimate issue
to be decided by the trier of fact, except that . . . an
expert witness may give an opinion that embraces an
ultimate issue where the trier of fact needs expert assis-
tance in deciding the issue.’’ In regard to the issue of
causation in legal malpractice cases, our Supreme Court
recently ruled that ‘‘although there will be exceptions
in obvious cases, expert testimony . . . is a general
requirement for establishing the element of causation
in legal malpractice cases. Because a determination of
what result should have occurred if the attorney had not
been negligent usually is beyond the field of ordinary
knowledge and experience possessed by a juror, expert
testimony generally will be necessary to provide the
essential nexus between the attorney’s error and the
plaintiff’s damages.’’ (Footnotes omitted.) Bozelko v.
Papastavros, supra, 323 Conn. 284–85. In Bozelko, our
Supreme Court recognized the need for expert assis-
tance to decide the issue of whether an attorney’s
alleged malpractice caused the claimed injury. In light
of the holding in Bozelko, we reject the plaintiff’s argu-
ment that it is improper to permit an expert to testify
as to his opinion on causation in a legal malpractice
case.3 See also Dixon v. Bromson & Reiner, 95 Conn.
App. 294, 299–300, 898 A.2d 193 (2006) (‘‘in a legal
malpractice case such as this, an expert witness is nec-
essary to opine whether the defendant’s alleged breach
of care proximately caused the plaintiff’s alleged loss
or damages’’).4
Because we have concluded that, to defeat summary
judgment, the plaintiff was required to present expert
testimony to prove causation, we must now examine
the substance of Professor McClane’s testimony to
determine whether summary judgment was proper.
‘‘Expert opinions must be based upon reasonable proba-
bilities rather than mere speculation or conjecture if
they are to be admissible in establishing causation. . . .
To be reasonably probable, a conclusion must be more
likely than not. . . . Whether an expert’s testimony is
expressed in terms of a reasonable probability that an
event has occurred does not depend upon the semantics
of the expert or his use of any particular term or phrase,
but rather, is determined by looking at the entire sub-
stance of the expert’s testimony.’’ (Internal quotation
marks omitted.) Drew v. William W. Backus Hospital,
77 Conn. App. 645, 662–63, 825 A.2d 810, cert. granted,
265 Conn. 909, 831 A.2d 249 (2003) (appeal withdrawn
December 22, 2003).
As we have noted, Connecticut law generally requires
the plaintiff in a legal malpractice action arising from
prior litigation to prove, through expert testimony, that
but for the alleged breach of duty, it was more likely
than not that he would have prevailed in the underlying
cause of action. In this case, the plaintiff was required
to prove that, had the defendants filed a timely appeal
from the decision of the Probate Court, he was more
likely than not to prevail on appeal to the Superior
Court. On appeal to this court, the plaintiff argues that
‘‘Professor McClane’s deposition testimony and expert
disclosure make it clear that he believes with a reason-
able probability that Mr. Corneroli would have prevailed
in the de novo probate appeal.’’ We disagree.
Reviewing in its entirety Professor McClane’s testi-
mony, and viewing that testimonial evidence in a light
most favorable to the plaintiff, we conclude that the
plaintiff failed to produce the expert testimony neces-
sary to prove the essential element of causation in his
legal malpractice action. The substance of Professor
McClane’s testimony on the issue of causation can be
summarized as follows: (1) he found it ‘‘hard to say
what the outcome of a litigation would be just because
there are so many moving parts’’; (2) there was ‘‘cer-
tainly a very good chance’’ that the plaintiff would have
prevailed on appeal from the Probate Court; (3) even
though he thought that there was a ‘‘very good chance’’
that the plaintiff would have prevailed on appeal, he
did not know that he could ‘‘say more likely than not’’;
(4) he was not saying that ‘‘it is or it isn’t’’ more likely
than not that the plaintiff would prevail on appeal; (5)
he could not ‘‘opine on whether people are going to
believe one set of testimony over another’’; (6) if, at a
trial, ‘‘all of the testimony of Mr. Corneroli were
believed,’’ it was ‘‘more likely than not’’ that he would
prevail; and (7) he did not have a ‘‘crystal ball’’ to opine
on the chances of the fact finder believing all of the
plaintiff’s testimony. It is clear from this testimony that
Professor McClane’s opinions regarding causation were
based on possibility, not probability. Those possibilities
depended on the ‘‘many moving parts’’ that Professor
McClane described, which included: (1) the skill of the
lawyers; (2) the jury’s opinion of the witnesses; (3) the
likelihood of the fact finder believing the testimony
and documents; (4) the jury’s understanding that the
painting was a partnership asset; (5) the jury’s under-
standing that ‘‘the claim is really about liquidating the
partnership asset and getting the value for it’’; and (6)
the likelihood of ‘‘everybody’’ believing the testimony
of the plaintiff. Professor McClane’s testimony fails to
clearly express an opinion that had the defendants
timely filed the appeal to the Superior Court, the plain-
tiff was more likely than not to prevail.5
Furthermore, even if we were to assume that Profes-
sor McClane expressed his opinions in terms of reason-
able probabilities rather than possibilities, we conclude
that there was an inadequate basis for any opinion by
Professor McClane on the issue of causation. The Pro-
bate Court largely based its decision on its observation
that ‘‘if, in fact, a partnership existed, the New York
action represented the one opportunity it had to obtain
a recovery in this matter against Mr. Adelson.’’ As the
trial court noted, Professor McClane failed to review
the New York decision. Professor McClane testified that
he understood the plaintiff’s involvement in the New
York litigation and he understood that the plaintiff’s
claim against Mr. Adelson was dismissed with preju-
dice, but that, in addition to not reading the New York
court’s decision, he also did not: (1) read the transcripts
of that case; (2) review the evidence presented in that
case; or (3) know what the cause of action was in
that case. When questioned about his opinion as to the
Probate Court’s conclusion that the New York action
precluded the probate claim, the following colloquy
occurred:
‘‘[The Defendants’ Counsel]: And in the last paragraph
of page three, exhibit 4, it begins, quote, ‘The plain
conclusion reached by this court, however, is that if,
in fact, a partnership existed, the New York action rep-
resented the one opportunity it had to obtain a recovery
in this matter against Mr. Adelson,’ close quote. Do you
see that?
‘‘[Professor McClane]: Yes, I do.
***
‘‘[The Defendants’ Counsel]: Do you agree as to
that conclusion?
‘‘[Professor McClane]: I don’t actually have any basis
on which to evaluate that conclusion, simply because
I don’t know what the action—what the specific cause
of action was in New York.
‘‘For example, were they suing for a breach of a
contract of sale between the partnership and Mr. Bor-
ghi? In that case, then that claim is obviously foreclosed.
But if there was another sort of duty, some kind of
unlawful conversion or something like that, then that’s
not foreclosed by the New York action.
‘‘But, again, I just don’t know, right. So I don’t want
to speculate.
‘‘[The Defendants’ Counsel]: And you’re not here to
testify about the effect of that decision; correct?
‘‘[Professor McClane]: Yeah.’’ (Emphasis added.)
The question with respect to the issue of causation
is whether, on appeal, the plaintiff was more likely than
not to prevail. The result in the Probate Court was
determined in large part by the preclusive effect of the
New York action. Professor McClane conceded that to
opine on the preclusive effect of the New York action,
he would have to engage in speculation. Since the Pro-
bate Court’s decision relied on the preclusive effect
of the New York action, and Professor McClane was
unfamiliar with the substance of that action, he had no
basis on which he could opine, beyond mere specula-
tion, as to what the result of an appeal to the Superior
Court would have been.6 See, e.g., Weinstein v.
Weinstein, 18 Conn. App. 622, 636–37, 561 A.2d 443
(1989) (where expert did not examine books or records
of business, trial court did not abuse discretion by refus-
ing to allow testimony regarding valuation of business
because there was insufficient basis for opinion on
that issue).
We conclude that the defendants established the lack
of a genuine issue of material fact concerning the issue
of causation, such that they were entitled to judgment
as a matter of law. Even viewing the evidence in the
light most favorable to the plaintiff, we conclude that
he failed to present evidence that would raise such an
issue. Accordingly, the court properly rendered sum-
mary judgment in favor of the defendants.7
II
The plaintiff also claims that the trial court improp-
erly: (1) considered the defendants’ reply brief in sup-
port of the motion for summary judgment, and (2)
permitted the defendants to file a surreply brief in fur-
ther support of the motion for summary judgment.
These claims are meritless.
The following procedural history is relevant to our
resolution of these claims. The defendants filed their
motion for summary judgment and supporting memo-
randum on April 28, 2016. On June 6, the plaintiff filed
his memorandum in opposition to the defendants’
motion for summary judgment. On June 14, the defen-
dants filed a reply brief in further support of their
motion for summary judgment. On the last page of the
reply brief, the defendants’ counsel certified that a copy
was ‘‘mailed or electronically delivered on this 14th day
of June, 2016, to all counsel . . . .’’
On June 20, the court heard argument on the defen-
dants’ motion for summary judgment. At that time, the
plaintiff’s counsel represented to the court that
although the defendants’ counsel certified that a copy
of the reply brief ‘‘was e-mailed and sent via mail to
both my office and [co-counsel’s] office,’’ they had not
received a copy. Counsel further represented that she
discovered that the reply brief had been filed that morn-
ing when a paralegal checked the court docket prior
to the hearing. Counsel argued that this was prejudicial,
as she had not yet researched any of the cases cited
in the defendants’ reply brief. Counsel requested the
court’s permission to file a surreply brief within one
week, stating: ‘‘[W]e’re okay moving forward with the
argument today, but we would like a chance to respond
without them then responding again, but I think out of
fairness.’’8 The court granted the request of the plain-
tiff’s counsel to file a surreply brief within a week of
the hearing.
On June 27, as permitted by the court, the plaintiff
filed a surreply brief in opposition to the defendants’
motion for summary judgment. The plaintiff attached
to his surreply, as exhibit B, an affidavit of Professor
McClane, which stated:
‘‘On March 31, 2016, I sat for a deposition by Defen-
dants’ counsel in Hartford, Connecticut. . . .
‘‘I was questioned by the Defendants’ counsel as to
the probability that Mr. Corneroli would have been suc-
cessful on his appeal from Probate Court had the Defen-
dants filed a timely appeal. I testified that there was a
reasonable basis for a successful outcome of that appeal
and that there was a very good chance the outcome
would have been different than it was in the Probate
Court. I believe it was reasonably probable. . . .
‘‘When queried as to whether it was ‘more likely than
not’ I did not understand the terminology in the context
of the pending legal malpractice action. As I now under-
stand the Defendants’ position, I am comfortable that
my reasonable probability standard well exceeds more
likely than not. . . .
‘‘It was my opinion on March 31, 2016, and it is still
my opinion, that it is more likely than not that Mr.
Corneroli would have been successful had the Defen-
dants filed a timely appeal.’’
On June 30, the defendants filed their own surreply
brief in further support of the motion for summary
judgment. The defendants argued that exhibit B to the
plaintiff’s surreply constituted a ‘‘sham affidavit,’’ an
‘‘affidavit in opposition to a motion for summary judg-
ment that contradicts the affiant’s prior deposition testi-
mony,’’ which the court should reject. The defendants
acknowledged that Connecticut courts had not
expressly adopted the sham affidavit rule but cited
cases in which courts had applied the ‘‘underlying ratio-
nale for the rule’’ in deciding motions for summary
judgment. The defendants argued that the affidavit was
an attempt to ‘‘submit contradictory testimony from
[the plaintiff’s] own expert to avoid the entry of sum-
mary judgment,’’ and that the affidavit was improper,
untimely, lacked credibility, and could not ‘‘be
explained as the result of confusion.’’ The defendants
argued that the affidavit was an attempt to materially
alter Professor McClane’s testimony and, alternatively,
violated the court’s scheduling order as the introduction
of additional testimony from an expert after expert
discovery concluded.
On July 1, the plaintiff filed an objection to the defen-
dants’ surreply. The plaintiff cited Practice Book § 11-
10,9 which requires a party seeking to file a surreply
to obtain permission from the court, and argued that
because the defendants had failed to seek permission
to file their surreply, it was not properly before the
court. Also on July 1, the defendants filed a caseflow
request, in which they requested the court’s permission
to file a surreply. The defendants listed as a reason for
the request: ‘‘Plaintiff’s counsel offered an affidavit from
his expert which contradicts prior testimony. Defen-
dants request that the court give due consideration to
a surreply addressed to issues raised by the plaintiff’s
brief including the expert affidavit.’’ On July 18, the
court overruled the plaintiff’s objection.10
The plaintiff argues, for the first time on appeal, that
the court improperly considered the defendants’ reply
brief, which, contrary to its certification, was not
received by the plaintiff’s counsel prior to the morning
of the hearing on the defendants’ motion for summary
judgment. We conclude that the plaintiff has aban-
doned, by failing to adequately brief, this claim. The
plaintiff devotes three sentences of his brief to this
issue, in which he does not cite or analyze any case
law but merely makes bare factual assertions. See foot-
note 7 of this opinion. Furthermore, ‘‘[t]o review claims
articulated for the first time on appeal and not raised
before the trial court would be nothing more than a
trial by ambuscade of the trial judge.’’ (Internal quota-
tion marks omitted.) Bragdon v. Sweet, 102 Conn. App.
600, 607, 925 A.2d 1226 (2007). Accordingly, we decline
to review this claim.
The plaintiff also argues that the court improperly
permitted the defendants to file the June 30 surreply.
Specifically, he argues that, because the defendants
‘‘neither made any oral request nor filed a request for
leave for permission to make such a filing’’ pursuant
to Practice Book § 11-10, the surreply ‘‘was not properly
before the court.’’ We disagree.
Practice Book § 11-10 (c) provides: ‘‘Surreply memo-
randa cannot be filed without the permission of the
judicial authority.’’ The record here is clear that the
defendants sought, and received, the court’s permission
to file the surreply. After it considered the plaintiff’s
objection, the court overruled the objection and granted
the defendants permission to file the surreply.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 45a-186 (a) requires the filing of an appeal in the
Superior Court no later than thirty days after the mailing of the Probate
Court’s decision. See Corneroli v. D’Amico, 116 Conn. App. 59, 67, 975 A.2d
107, cert. denied, 293 Conn. 928, 980 A.2d 909 (2009).
2
Although, in his expert disclosure, the plaintiff represented that Attorney
Berman would opine on the issue of causation, at his deposition, Attorney
Berman was unable to do so. When asked if he had an opinion ‘‘as to whether
it is more probable than not that the Superior Court would have decided
in Mr. Corneroli’s favor,’’ Attorney Berman responded: ‘‘I do not have. That
would be—I didn’t prepare for that answer or that question.’’ He further
testified that he could not ‘‘answer whether or not [the plaintiff] would
prevail.’’
In its memorandum of decision, the court concluded that Attorney Ber-
man’s testimony was ‘‘insufficient to establish a prima facie case on the
issue of causation,’’ and noted his concessions ‘‘that he does not know and
cannot predict whether [the Probate Court’s] decision would have been
upheld or reversed on appeal,’’ and that he was ‘‘not prepared to opine as
to whether it was more probable than not that the Superior Court would
have found in Mr. Corneroli’s favor on appeal.’’ On appeal to this court, the
plaintiff does not challenge the court’s conclusions as to Attorney Berman.
Furthermore, the plaintiff’s counsel conceded during oral argument before
this court that Attorney Berman only opined as to the applicable standard
of care. Accordingly, we address the plaintiff’s claim only as it relates to
the opinions of Professor McClane.
3
The plaintiff similarly argues that by rendering summary judgment in
favor of the defendants, the trial court decided an issue of fact as to whether
Professor McClane’s opinion as to causation was sufficient. This argument
also is without merit, because as we have explained, to defeat summary
judgment in his legal malpractice case, the plaintiff was required to present
expert testimony on the essential element of causation. See Bozelko v.
Papastavros, supra, 323 Conn. 284–85.
4
The plaintiff now contends that the trial court’s statement that ‘‘to decide
contrary to the opinion of [the Probate Court], a Superior Court judge would
certainly need a good reason,’’ indicates a misunderstanding of the nature
of a de novo appeal from the Probate Court. Specifically, the plaintiff argues
that since the appeal of a probate decision to the Superior Court ‘‘is not a
challenge to the Probate Court’s decision’’ but, rather, is ‘‘a new action,’’ a
plaintiff in a probate appeal to the Superior Court ‘‘has no duty to demon-
strate any flaws in the Probate Court decision.’’ We do not understand the
court’s statement to indicate a misunderstanding of the nature of a de novo
appeal. The court’s statement merely recognizes that, to create a genuine
issue of material fact to defeat summary judgment, the plaintiff’s expert
must opine that the plaintiff more likely than not would have prevailed on
appeal to the Superior Court, and explain the bases for that opinion. That
necessarily would require Professor McClane to provide a ‘‘good reason’’
as to why the Superior Court would ‘‘decide contrary to the opinion of [the
Probate Court] . . . .’’
Furthermore, the plaintiff did not request an articulation on this point,
and ‘‘[t]o the extent that the [trial] court’s decision is ambiguous . . . it
was [the appellant’s] responsibility to seek to have it clarified.’’ (Internal
quotation marks omitted.) DiRienzo Mechanical Contractors, Inc. v. Salce
Contracting Associates, Inc., 122 Conn. App. 163, 169, 998 A.2d 820, cert.
denied, 298 Conn. 910, 4 A.3d 831 (2010). ‘‘In the absence of a motion for
articulation . . . it would be sheer speculation for this court to assume
that the trial court applied the incorrect legal standard.’’ (Citation omitted;
internal quotation marks omitted.) Daly v. DelPonte, 27 Conn. App. 495,
507, 608 A.2d 93 (1992), rev’d on other grounds, 225 Conn. 499, 624 A.2d
876 (1993).
5
The plaintiff also argues that the trial court improperly found that an
expert must employ the phrase ‘‘more likely than not’’ as to the issue of
causation. The court, however, in its memorandum of decision, cited this
court’s decision in Drew v. William W. Backus Hospital, supra, 77 Conn.
App. 663, acknowledging that the sufficiency of an expert’s testimony does
not depend on his use of any particular term or phrase. We, therefore, reject
the factual premise of the plaintiff’s argument.
6
During his deposition, Professor McClane also opined that there was ‘‘a
reasonable basis for a successful outcome of the appeal,’’ because there
was ‘‘a reasonable basis that Corneroli would have been able to show that
there was a partnership and that the painting was partnership property and
that any disposition or any money coming out of a disposition of that painting
was also partnership property . . . .’’ Professor McClane further testified
that although he was aware that the Probate Court, for purposes of deciding
the motion to disallow the claim against the decedent’s estate, assumed
that a partnership did in fact exist between the plaintiff and the decedent,
in his opinion, this assumption was ‘‘internally inconsistent’’ with some of
the conclusions that the Probate Court reached in that decision. The plaintiff
now argues that this testimony demonstrates Professor McClane’s opinion
that it was reasonably probable that the plaintiff would have prevailed had
the defendants filed a timely appeal. In light of our conclusion that Professor
McClane did not have an adequate basis for his opinions, we need not
address this argument.
7
The plaintiff also argues that the trial court: (1) improperly opined that
the Probate Court’s decision was rational and logical ‘‘without any review
or knowledge of evidence’’ presented during the probate proceedings; (2)
improperly rendered summary judgment in favor of the defendants without
any information regarding the evidence that would be presented at a de
novo trial; and (3) failed to ‘‘contemplate’’ that new evidence, not presented
to the Probate Court, may exist and be presented during a de novo trial to
the Superior Court. We conclude that the plaintiff has abandoned these
claims through inadequate briefing.
‘‘It is well settled that [w]e are not required to review claims that are
inadequately briefed. . . . We consistently have held that [a]nalysis, rather
than mere abstract assertion, is required in order to avoid abandoning an
issue by failure to brief the issue properly. . . . [F]or this court judiciously
and efficiently to consider claims of error raised on appeal . . . the parties
must clearly and fully set forth their arguments in their briefs. We do not
reverse the judgment of a trial court on the basis of challenges to its rulings
that have not been adequately briefed. . . . The parties may not merely
cite a legal principle without analyzing the relationship between the facts
of the case and the law cited. . . . [A]ssignments of error which are merely
mentioned but not briefed beyond a statement of the claim will be deemed
abandoned and will not be reviewed by this court.’’ (Internal quotation
marks omitted.) Benedetto v. Dietze & Associates, LLC, 159 Conn. App. 874,
880–81, 125 A.3d 536, cert. denied, 320 Conn. 901, 127 A.3d 185 (2015). The
plaintiff has devoted just over a page of his brief to these three arguments,
in which he does little more than briefly recite various factual assertions
and one general principle of probate law. Accordingly, these claims are
briefed inadequately, and we decline to review them.
8
The plaintiff’s counsel at no time objected to the court’s consideration
of the defendants’ reply brief, nor moved to strike the reply brief.
9
Practice Book § 11-10 (c) provides: ‘‘Surreply memoranda cannot be filed
without the permission of the judicial authority.’’
10
In its memorandum of decision, the trial court refused to consider the
affidavit. The court cited the decision of the United States Court of Appeals
for the Second Circuit in Perma Research & Development Co. v. Singer Co.,
410 F.2d 572, 578 (2d Cir. 1969), in which that court said: ‘‘If a party who
has been examined at length on deposition could raise an issue of fact
simply by submitting an affidavit contradicting his own prior testimony, this
would greatly diminish the utility of summary judgment as a procedure for
screening out sham issues of fact.’’ The trial court went on to conclude that,
even if it were to ‘‘overlook the improbability of Professor McClane’s claim
that when he was deposed, he did not understand what ‘more likely than
not’ meant, neither his deposition testimony nor his affidavit provide any
basis to support the opinion that Mr. Corneroli would probably have pre-
vailed in his de novo probate appeal,’’ as Professor McClane testified that
he was not familiar with the substance of the Probate Court’s opinion or
the New York litigation vis-a`-vis the painting.
The plaintiff now argues that the court erred by refusing to consider the
affidavit. This claim warrants only a brief analysis. It is within the trial
court’s discretion whether to accept or decline supplemental evidence in
connection with a motion for summary judgment. Nieves v. Cirmo, 67 Conn.
App. 576, 587 n.4, 787 A.2d 650, cert. denied, 259 Conn. 931, 793 A.2d 1085
(2002). Although the court permitted the plaintiff to file a surreply for the
purpose of responding to the defendants’ reply brief, the plaintiff went
beyond merely responding to the defendants’ reply brief and attached an
affidavit containing statements by Professor McClane, a witness that the
defendants would not have the opportunity to redepose prior to the court’s
decision on the motion for summary judgment. This court will not, on
appeal, disturb the trial court’s discretion to refuse to consider supplemental
evidence submitted after full briefing and argument on a motion for sum-
mary judgment.
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OPINION
No. 04-10-00890-CV
CITY OF LAREDO,
Appellant
v.
Gilbert BUENROSTRO,
Appellee
From the 49th Judicial District Court, Webb County, Texas
Trial Court No. 2009-CVQ-000813-D1
Honorable Jose A. Lopez, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Steven C. Hilbig, Justice
Delivered and Filed: October 26, 2011
REVERSED AND RENDERED
Appellee Gilbert Buenrostro was employed by The City of Laredo for fifteen years as a
police officer in the Laredo Police Department. The City terminated appellee’s employment, and
following an administrative hearing before the Firefighters’ and Police Officers’ Civil Service
Commission (the “Commission”), the Commission upheld the City’s decision. Appellee
appealed to the district court and later moved for a traditional summary judgment on two
grounds: (1) evidence admitted against him at the hearing before the Commission should have
04-10-00890-CV
been excluded as violative of his rights under the Fourth Amendment and (2) no substantial
evidence supports the Commission’s findings. The trial court rendered summary judgment in
favor of appellee, ordered that appellee be reinstated to the position or class of service from
which he was suspended, and ordered the City to pay appellee all wages and benefits lost as a
result of his suspension. The City now appeals. For the reasons stated below, we reverse the
trial court’s judgment and render judgment affirming the Commission’s order.
BACKGROUND
The following background is taken from the transcript of the hearing before the
Commission. During his employment by the City as a patrol officer, appellee was married to
Raquel Buenrostro. Raquel had worked for the Laredo Police Department as a dispatcher until
2000. Early in the evening of November 15, 2008, Raquel took her husband’s workplace keys
without his knowledge or consent, entered the police substation, and found a cell phone used by
her husband. Sometime between 9:00 p.m. and 11:00 p.m. on that same evening, appellee and
Raquel argued after she confronted him about his possession of the cell phone, which had been
given to him by his mistress Fannie Garcia. The telephone was registered in Garcia’s name. The
phone contained photos of a sexual nature of appellant and Garcia, semi-nude photos of Garcia,
and a video of Garcia and appellee engaged in sexual activities. Appellee later told Garcia his
wife had found the phone, and the next day, Garcia reported the phone as stolen.
After the argument of November 15, appellee left his house and parked in the lot of a
Target. Realizing he did not have a charger for his other cell phone, appellee decided to return to
his house to retrieve the charger and the phone Garcia gave him. The door to his house was
barricaded by a wooden 2x4 plank because the lock was broken. According to appellee, he did
not want to talk to Raquel, ask her any favors, or frighten or intimidate her. So, he decided to
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04-10-00890-CV
“force the door open.” As he was attempting to open the door, Raquel refused him entry and
called 911. Appellee kicked in two doors, but then realizing he had inflicted “too much”
damage, he left “because his charger was not worth all the trouble.” Raquel cancelled the call to
the police; however, a police sergeant came to the house and spoke with her. After the officer
left, Raquel asked the officer to return so she could give him appellee’s uniform, service
equipment, and clothing because she did not want her husband back in the house.
The next morning, appellee returned to his house and knocked on the door. Raquel asked
appellee to leave, he refused, and she called 911. Officer Michael Botello arrived at the house at
about 7:55 a.m. and saw appellee sitting on a box reading the newspaper. Botello testified
appellee had bloodshot eyes, and appellee said he had been drinking all night long. Botello
asked appellee to speak with his partner, Officer Sanchez, while Botello spoke with Raquel.
Botello said Raquel was crying, shaking, and scared. She told him appellee was kicking the door
and trying to get inside the house. Botello said he heard children crying in the background.
After about twenty minutes, the police officers decided it was in everyone’s best interest
if appellee left the premises to sober up. The officers allowed appellee to rest inside his truck.
After the officers left, appellee pulled his truck into the driveway, got out of the truck, and closed
and locked both the drive-in and walk-in gates. He then proceeded to drive his truck forward and
backwards, crashing into the fence. Raquel again called 911. This time, when the police arrived,
they arrested appellee for assault, but later changed the charge to making terroristic threats.
On November 18, 2008, Raquel called Deputy City Manager Cynthia Collazo1 stating
she had a complaint against a police officer and that she had something to show Collazo.
Because Raquel said she was caring for her infant and was “concerned for herself,” Collazo
1
Collazo oversees the Laredo Police Department, as well as other City departments.
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04-10-00890-CV
agreed to meet Raquel at Raquel’s house. The next day, Collazo and Assistant Police Chief
Gilberto Navarro met with Raquel, who appeared nervous and upset. Raquel said she had a cell
phone with pictures and a hand-written transcript of text messages from the phone. Raquel
showed Collazo some photos on the cell phone that depicted a man wearing a Laredo Police
Department uniform and a woman engaging in oral sex and other photos of a woman who was
partially clothed. Raquel told her that the incidents depicted in the photos occurred during the
man’s working hours. At this time, Collazo was not aware the phone had been reported as
stolen.
Navarro contacted Laredo Police Department Internal Affairs investigator Gilbert
Magana, who came to Raquel’s house. Raquel expressed her concern that the images on the
phone would be erased or tampered with. Navarro handed the phone to Magana and instructed
him to take the phone to the police station and download the pictures. At the police station,
Magana examined the photos and downloaded them. When he realized the date and time stamp
on the photos were not being copied, he photographed the images on the phone that included
imprinted dates and times, which he believed reflected the moment the images were created or
taken. The phone also contained a video file of appellee wearing his police uniform and
engaging in oral sex with Garcia. During his review of the video, Magana heard background
noise that included a dispatcher’s voice transmitting over appellee’s mobile radio. After
examining appellee’s work attendance records, Magana confirmed the video and several of the
photos of appellee and Garcia were taken during appellee’s on-duty hours. Some of the photos
were taken inside the police station, including the restroom, lounge area, and by a staircase.
During a pre-termination interview with the Chief of Police, appellee reviewed the photos, but
said he could not recall whether he was on-duty or off-duty when they were taken.
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04-10-00890-CV
Appellee was charged with several violations of the Rules and Regulations of the
Firefighters’ and Police Officers’ Civil Service Commission of the City of Laredo. After the
police department terminated appellee’s employment, he appealed the decision to the
Commission.2 Chief of Police Maldonado testified at the hearing before the Commission that
the photos alone may not have warranted termination; however, the terroristic threats charge
alone would have. The Chief stated that the totality of the circumstances led him to decide
appellee’s employment should be terminated. At the hearing before the Commission, appellee
testified he occasionally used the cell phone during work hours and while on patrol but during
his twenty-minute break time. He said he took his breaks in the police department building or at
Garcia’s house. He said the photos and video were transferred from one phone to another during
his breaks. After hearing all the evidence, the Commission determined that just cause existed for
appellee’s termination and ordered that appellee “be suspended without pay as a classified
employee of the [Laredo Police Department], for an indefinite period, effective the date of the
order to that effect by Police Chief Carlos R. Maldonado.”
In his motion for summary judgment before the district court, appellee argued the
standard set forth in O’Connor v. Ortega, 480 U.S. 709 (1987), regarding the “reasonableness”
of an employer’s search of an employee’s property was not satisfied. Appellant contends the
City’s search of his cell phone was unreasonable under O’Connor and, therefore, illegal. Absent
consideration of the photos and video downloaded from the phone, 3 appellant concludes the
City’s decision to terminate his employment was not supported by substantial evidence. The
City asserts appellee did not preserve this particular Fourth Amendment argument because he
2
Less than two hours after appellee received notice of his termination, the District Attorney decided not to prosecute
the terroristic threat offense because Raquel withdrew her charge against appellee.
3
Although Collazo said she was shown only six or eight photos while at Raquel’s house, the letter of termination
listed fifteen images, with date and time stamps, and one “movie,” also with a date and time stamp.
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04-10-00890-CV
failed to raise it at the hearing before the Commission. The trial court granted appellee’s motion
for summary judgment. On appeal, we do not consider whether appellant’s Fourth Amendment
argument was preserved because, as discussed further below, even without the photos and video
there was substantial evidence to support the Commission’s decision.
SUBSTANTIAL EVIDENCE
A decision by the Commission is appealable to a district court for trial de novo. TEX.
LOC. GOV’T CODE ANN. § 143.015(b) (West 2008). Trial de novo means review is limited to
whether the Commission’s decision is free of the taint of illegality and supported by substantial
evidence. See Firemen’s & Policemen’s Civil Serv. Comm’n v. Brinkmeyer, 662 S.W.2d 953,
955-56 (Tex. 1984). The reviewing court must inquire whether the evidence introduced before it
shows facts in existence at the time of the administrative decision that reasonably support the
decision. Id. at 956. Substantial evidence review is a limited standard of review, requiring “only
more than a mere scintilla,” to support the Commission’s determination. R.R. Comm’n of Tex. v.
Torch Operating Co., 912 S.W.2d 790, 792–93 (Tex. 1995).
Although the trial court must hear and consider evidence to determine whether reasonable
support for the administrative order exists, the Commission itself is the primary fact-finding
body, and the question to be determined by the trial court is strictly one of law. Id. Accordingly,
the reviewing court may not substitute its judgment for that of the agency on controverted issues
of fact. Id. When substantial evidence supports either affirmative or negative findings the
administrative order must stand, notwithstanding the Commission “may have struck a balance
with which the court might differ.” Id. The trial court may not set aside an administrative order
merely because testimony was conflicting or disputed or because it did not compel the result
reached by the Commission. Id. “Resolution of factual conflicts and ambiguities is the province
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04-10-00890-CV
of the administrative body and it is the aim of the substantial evidence rule to protect that
function.” Id. The reviewing court is concerned only with the reasonableness of the
administrative order, not its correctness. Id. If there is substantial evidence that supports the
order, the court is bound to follow the discretion of the administrative body. Id. Appellee had
the burden of demonstrating that the Commission’s order was not supported by substantial
evidence. Id.
As its basis for terminating appellee’s employment, the City alleged the following:
(1) Violations of the Rules and Regulations of the Firefighters’ and Police
Officers’ Civil Service Commission: conduct prejudicial to good order and
violation of an applicable fire or police department rule or special order;
(2) Violations of Professional Conduct that require (a) obedience to any law;
agency policy, rule, or procedure; and all lawful orders; and (b) all officers to not
engage in conduct or activities on-duty or off-duty that reflect discredit on the
officers, tend to bring the agency into disrepute, or impair its efficient and
effective operation;
(3) Violations of the Laredo Police Department Rules or Special Orders that (a)
require reports and written communications to reflect the truth; (b) require the on-
duty and off-duty conduct and behavior of members to be governed by ordinary
rules of good conduct and behavior; (c) prohibit public intoxication either on-duty
or off-duty and prohibit driving a motor vehicle while under the influence of
alcohol; (d) require members, while on sick leave, to remain at their place of
residence unless it is necessary to go to the doctor, a pharmacy, or the hospital;
and (e) require members to be attentive to their duties; not leave their beats or
assigned areas except in the line of duty, upon a supervisor’s authorization, or at
the end of a scheduled tour of duty; and not devote any of their on-duty time to
any activity other than that which relates to their duty assignment.
(4) Violation of the Texas Criminal Law Manual: terroristic threat.
The Chief of Police stated his decision to terminate appellee’s employment was based on the
unanimous recommendation to terminate made by the Laredo Police Department Disciplinary
Review Board, whose report found terroristic threats, conduct unbecoming an officer, violations
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04-10-00890-CV
of restrictions on activities while on sick leave, lack of truthfulness, and lack of attentiveness to
duties.
The evidence before the Commission in support of this decision established the
following. Appellee was granted sick leave for the purpose of caring for a sick child, but
although the child was at home with a minor cold, appellee did not stay home to care for her
because he “left the residence only to return later irate and kicking at the two doors to the
residence.” When he was given the chance later to change his leave from “sick leave” to “annual
leave,” he did not do so.4 A police officer responding to Raquel’s 911 call detected alcohol on
appellee’s breath, noticed his blood shot eyes, and noticed his slurred and “broken” speech.
Appellee disobeyed the officer’s orders to stay inside his truck and off the property to sleep off
the effects of the alcohol by operating his vehicle from the street into the driveway. Once in the
driveway, appellee’s “behavior was erratic as [he] kept driving forwards and backwards in the
driveway” and crashed into the fence as he backed his truck up against the house. Appellee was
arrested for terroristic threats. Appellee said he was not threatening his wife with his truck; he
was only trying to position the truck under a tree so he could sleep in the shade. He admitted he
had one or two beers, but denied he was intoxicated.
Although some of the evidence was conflicting, resolution of factual conflicts and
ambiguities was within the province of the Commission, not the trial court. We conclude that
even absent consideration of the cell phone photos and video, the record contains “more than a
scintilla” of evidence to support findings that appellee violated various departmental
4
Appellee explained he did not change the records because he thought his sergeant would not give him “annual
leave.”
-8-
04-10-00890-CV
requirements, rules, and regulations. Therefore, the trial court erred in rendering summary
judgment in favor of appellee. 5
CONCLUSION
For the reasons stated above, we reverse the trial court’s order and render judgment
affirming the Commission’s order.
Sandee Bryan Marion, Justice
5
The City’s remaining issues on appeal do not need to be addressed because they are not dispositive. See TEX. R.
APP. P. 47.1.
-9-
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507 F.Supp.2d 764 (2007)
MSD ENERGY, INC. and Stephen Smith, Inc., Plaintiffs
v.
Richard J. GOGNAT, Timothy A. Gognat; Roy Knappe, Jr.; and Global Geodata, LLC, Defendants.
No. 5:07-CV-7.
United States District Court, W.D. Kentucky, Paducah Division.
August 30, 2007.
*765 *766 *767 B. Todd Wetzel, Wells & Wetzel, Princeton, KY, David L. McCarl, John P. Lange, Denver, CO, for Plaintiffs.
Chris L. Ingold, Irwin & Boesen, P.C., Denver, CO, Richard C. Roberts, J. Duncan Pitchford, Whitlow, Roberts, Houston *768 & Straub, PLLC, Paducah, KY, for Defendants.
MEMORANDUM OPINION
THOMAS B. RUSSELL, District Judge.
Timothy Gognat ("Timothy") filed a Partial Motion to Dismiss claims against him. (Docket # 6). Plaintiffs jointly responded (Docket # 16), and Timothy replied. (Docket # 19). Richard Gognat ("Richard"), Roy Knappe, Jr. ("Knappe"), and Global Geodata, LLC, ("Geodata") also filed a joint Motion to Dismiss. (Docket # 5). Plaintiffs again jointly responded (Docket # 15), and Richard, Knappe, and Geodata filed a joint Reply. (Docket # 18). The Court now GRANTS IN PART AND DENIES IN PART both Timothy's Motion to Dismiss and Richard, Knappe, and Geodata's joint Motion to Dismiss.
BACKGROUND
This case arises from a dispute over oil rights between Plaintiffs and Defendants. MSD Energy, Inc., ("MSD") and Third Party Defendant, Chet J. Ellsworth ("Ellsworth"), the president of MSD, have worked to acquire various working interests in oil and gas leases within Kentucky for eight years. In the course of business, MSD and Ellsworth assigned to Knappe, Timothy, and Richard each a .75% royalty interest in oil and gas leases owned by MSD in Caldwell County, Kentucky. The assignment contract allowed MSD to rescind the assignment if a claim was asserted by the assignees against the assignors. Subsequently, MSD and Ellsworth continued developing their business and interests in oil and gas leases in Kentucky.
MSD is a Wyoming corporation doing business in Colorado, Kentucky, and elsewhere. MSD is owned by Ellsworth, a Florida resident, and Ms. Ellsworth, also a Florida resident, serves as its secretary. Mr. Smith is a Colorado resident conducting business in Colorado, Kentucky, and elsewhere. Mr. Smith is the sole owner and manager of Steven Smith, Inc. (hereinafter "SSI"), a Wyoming corporation. Mr. Smith remains a party to the Colorado lawsuit opposite Timothy. Timothy, Richard, and Knappe are all residents of Colorado, and Geodata is a Colorado limited liability company.
On December 19, 2005, Timothy filed an action against MSD, Ellsworth, Joanne Ellsworth, and Stephen Smith ("Mr. Smith") (collectively the "Colorado defendants") in Colorado courts alleging that Ellsworth had breached a promised joint venture agreement with Timothy regarding the acquisition of oil and gas leases in western Kentucky, misappropriated Timothy's trade secrets, and had been unjustly enriched. Timothy alleges that, through the arrangement of Mr. Smith, he met with Mr. Smith, Ellsworth (in his individual capacity and on behalf of MSD), and Ms. Ellsworth (secretary of MSD). Timothy claimed that he assisted the Colorado defendants in developing information regarding the location of oil and gas deposits. Timothy claims that he provided this information with the intention of forming a joint venture with the Colorado defendants to acquire mineral rights leases in the identified areas, but that the Colorado defendants represented that the information provided by Timothy was not useful to them. According to Timothy, the Colorado defendants then acquired rights in the areas identified by Timothy without including him as a joint venturer. He filed the Colorado lawsuit to recover his share of profits from the acquisition of mineral rights identified through his research and alleged trade secrets. Since he sought to recover interests in the oil and gas leases acquired by the Colorado defendants, Timothy *769 filed notices of lis pendens referring to the Colorado lawsuit on properties in Kentucky owned by the Colorado defendants.
The Colorado court dismissed the Colorado lawsuit as to all defendants except Mr. Smith on August 1, 2006. The Court determined that it lacked personal jurisdiction over all the nonresident Colorado defendants: Ellsworth, Ms. Ellsworth, and MSD. On August 9, 2006, the Colorado court determined that the notices of lis pendens filed in connection with the Colorado lawsuit were invalid. The notice of lis pendens were not removed by Timothy for three months, after Mr. Smith filed a Motion for Contempt seeking their release.
Although Richard and Geodata were not filing plaintiffs in the Colorado lawsuit, Plaintiffs allege that they also caused the Colorado lawsuit to be filed. Timothy admits working with a partner to develop oil and gas leases; Plaintiffs submit that this partner is Richard. Richard and Timothy are the sole and founding members of Geodata. Geodata's business includes the acquisition of oil and gas leases in the western Kentucky area, in competition with MSD. Plaintiffs have identified emails between Richard and Timothy speaking of "our" lawsuit and referring to the Colorado lawsuit. Timothy confirmed that Richard had some role in the filing of the Colorado lawsuit, admitting that he discussed the lawsuit with Richard.
Plaintiffs filed the instant action alleging that Timothy, Richard, and Geodata improperly caused the Colorado lawsuit to be filed against Ellsworth, Ms. Ellsworth, and MSD. Plaintiffs also seek relief from Timothy, Richard, and Geodata for allegedly improperly causing the notices of lis pendens to be filed against Ellsworth, Ms. Ellsworth, and MSD. The case was originally filed in Lyon Circuit Court in Kentucky, but has been removed to this Court. According to Plaintiffs, the dismissed Colorado lawsuit and related notices of lis pendens were filed in order to sully Plaintiffs' contractual and business relationships, preventing MSD from entering certain contractual arrangements in Kentucky and allowing Geodata to gain a competitive edge. As a result, Plaintiffs allege, Geodata secured several deals in the Kentucky area to the benefit of Richard and Timothy, and to the detriment of Plaintiffs. Plaintiffs claim that Defendants caused the lawsuit to be filed with the intent to interfere with Plaintiffs' potential business deals, not to pursue Timothy's legitimate rights.
In Count I of the Complaint, Plaintiffs allege that Timothy's filing of the Colorado Complaint and Richard's and Geodata's encouragement of the filing of the Colorado Complaint and notices of lis pendens constitute and abuse of process. In Count II, the Plaintiffs assert that Timothy, Richard, and Geodata are liable for slander on Plaintiff's titles to mineral interests in western Kentucky because they caused the Colorado Complaint and notices of lis pendens to be filed. In Count III, Plaintiffs allege that Timothy, Richard, and Geodata are liable for tortious interference with Plaintiffs' contract, based on their allegedly improper motivation for causing the Colorado Complaint and notices of lis pendens to be filed. Plaintiffs, in Count IV, also allege liability for the civil conspiracy of Timothy, Richard, and Geodata to commit the acts set forth in Counts I, II, and III. Lastly, Plaintiffs request this Court to issue a declaratory judgment allowing MSD to rescind the royalty interests it assigned to Timothy, Richard, and Knappe.
The Defendants claim that the instant suit should be dismissed for several reasons. Richard, Knappe, and Geodata jointly move for the dismissal of the suit *770 because this Court lacks personal jurisdiction to rule upon Plaintiffs' claims against Richard, Knappe, and Geodata. Timothy claims that, while this Court may have jurisdiction to rule on Plaintiffs' claims against him, it should abstain from ruling because of the parallel rulings and jurisdiction of the Colorado court. All Defendants also move to dismiss Plaintiffs' claims for failure to state a claim on which relief may be granted. While Defendants challenge that Plaintiffs have failed to properly state all claims against Richard, Knappe, and Geodata, Timothy concedes that Plaintiffs' request for a declaratory judgment against him is properly set forth.
STANDARD
I. Dismissal for Failure to State a Claim
"When considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the district court must accept all of the allegations in the complaint as true, and construe the complaint liberally in favor of the plaintiff." Lawrence v. Chancery Court of Tenn., 188 F.3d 687, 691 (6th Cir.1999) (citing Miller v. Currie, 50 F.3d 373, 377 (6th Cir.1995)). Denial of the motion is proper "unless it can be established beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Achterhof v. Selvaggio, 886 F.2d 826, 831 (6th Cir.1989) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Nonetheless, unwarranted factual inferences or legal conclusions masquerading as fact will not prevent a motion to dismiss. Blakely v. United States, 276 F.3d 853, 863 (6th Cir.2002). A "complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Andrews v. Ohio, 104 F.3d 803, 806 (6th Cir.1997) (citing In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir.1993)).
II. Abstention
Federal courts may abstain from hearing duplicative litigation under exceptional circumstances. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Factors relevant to whether abstention is proper include
(1) whether state court has assumed jurisdiction over an res or property;
(2) whether federal forum is less convenient to parties;
(3) avoidance of piecemeal litigation;
(4) order in which jurisdiction was obtained;
(5) whether state or federal law provides rule of decision;
(6) adequacy of state court action to protect federal plaintiff's rights;
(7) relative progress of state and federal proceedings; and
(8) presence of absence of concurrent jurisdiction.
Karakas v. McKeown, 783 F.Supp. 1028, 1031 (E.D.Mich.1992).
The federal court determining whether to abstain is to consider the interests of wise judicial administration and federal-state comity. Kawecki ex rel. Marlowe v. County of Macomb, 367 F.Supp.2d 1137, 1148 (E.D.Mich.2005). Abstention is only proper in the presence of a parallel state court proceeding. Baskin v. Bath Township, 15 F.3d 569, 571-72 (6th Cir.1994); Crawley v. Hamilton County Comm'rs, 744 F.2d 28, 31 (6th Cir.1984). Actions are considered parallel if the parties are substantially similar and the claims arise from the same material *771 facts. Romine v. Compuserve Corp., 160 F.3d 337, 340 (6th Cir.1998).
III. Dismissal for Lack of Personal Jurisdiction
In determining whether it may exercise personal jurisdiction over a defendant, a federal district court sitting in a diversity-of-citizenship case must conduct a two-step inquiry: "(1) whether the law of the state in which the district court sits authorizes jurisdiction, and (2) whether the exercise of jurisdiction comports with the Due Process Clause." Brunner v. Hampson, 441 F.3d 457, 463 (6th Cir.2006). The Kentucky Long Arm statute allows personal jurisdiction over nonresident defendants in nine enumerated situations, including when a defendant "transact[s] any business in this Commonwealth," "caus[es] tortious injury by an act or omission in this Commonwealth," or "caus[es] tortious injury in this Commonwealth by an act or omission outside this Commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue fro goods used or consumed or services rendered in this Commonwealth. . . ." Ky.Rev. Stat. § 454.210(a)(1), (3), and (4). Courts have held that the Kentucky Long Arm statute authorizes federal district courts in sitting in Kentucky to exercise personal jurisdiction over defendants to the full extent allowed under the Due Process Clause. Aristech Chem. Int'l v. Acrylic Fabricators, 138 F.3d 624, 627 (6th Cir. 1998) (citing Wright v. Sullivan Payne Co., 839 S.W.2d 250, 253 (Ky.1992)); Lexmark Int'l, Inc. v. Laserland, Inc., 304 F.Supp.2d 913, 915 (E.D.Ky.2004) (citing Wilson v. Case, 85 S.W.3d 589, 592 (Ky. 2002)). "Therefore, the two-step inquiry employed by the Federal Circuit collapses into a single inquiry of whether jurisdiction violates federal due process." Lexmark, 304 F.Supp.2d at 915 (citing Akro Corp. v. Luker, 45 F.3d 1541, 1544 (Fed. Cir.1995)).
The Sixth Circuit applies a three-part test to determine whether the requirements of due process are met for the purposes of specific personal jurisdiction.
First, the defendant must purposefully avail himself of the privilege of acting in the
forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant's activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.
Id. See also Brunner, 441 F.3d at 463.
The requirement that a defendant must "purposefully avail" himself of Kentucky laws "ensures that a defendant will not be haled into a jurisdiction solely as a result of `random,' `fortuitous,' or `attenuated' contacts." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). The defendant must enjoy some privileges of acting within the state and reasonably expect being haled into court in that state. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958).
Due process may also be satisfied through general personal jurisdiction when the cause of action did not arise directly from the defendant's activities in the forum state. "[D]ue process is not offended by a State's subjecting [a defendant] to its in personam jurisdiction when there are sufficient contacts between the State and the [defendant]. . . ." Helicopteros Nacionales de Colombia, S.A., v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 80 *772 L.Ed.2d 404 (1984) (internal citations omitted). Sufficient contacts for general personal jurisdiction must be "continuous and systematic general business contacts." Id. at 416, 104 S.Ct. 1868 (citing Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 438, 72 S.Ct. 413, 96 L.Ed. 485 (1952)).
ANALYSIS
I. Motion to Dismiss Claims against Richard, Knappe, and Geodata for Failure of Personal Jurisdiction
Defendants Richard, Knappe, and Geodata moved to dismiss the Plaintiffs' claims arguing that this Court had no personal jurisdiction over them. Richard, Knappe, and Geodata first noted that Plaintiffs did not specify the section of the Kentucky Long Arm statute which would give them jurisdiction. The Court holds that no separate inquiry of personal jurisdiction under the Kentucky Long Arm statute is required. See Lexmark, 304 F.Supp.2d at 915. The Court need only analyze its personal jurisdiction over Richard, Knappe, and Geodata under the requirements of the Due Process Clause.
A. General Personal Jurisdiction
Plaintiffs claim that the Court has general personal jurisdiction over Richard, Knappe, and Geodata because of their business in oil leases in Kentucky. Plaintiffs claim that Geodata does sufficient business in Kentucky oil leases to satisfy the requirement of continuous and systematic business requirements for general personal jurisdiction. In support of this argument, Plaintiffs cite to contractual mineral interests acquired by Geodata in Kentucky around 2006. However, Geodata is a Colorado limited liability company with its principal office in Colorado. All Geodata directors, agents, and employees live in Colorado. Geodata does not place any goods into the stream of commerce in Kentucky, and its connection to Kentucky is limited to several mineral royalty contracts unrelated to, the claims in this case. These contracts, while some contact with the state of Kentucky, are not sufficiently extensive to satisfy the general personal jurisdiction standard of continuous and systematic contact.
Plaintiffs also alleged that, if the Court exercised general personal jurisdiction over Geodata, it could also exercise personal jurisdiction over Richard as a person controlling Geodata. Audiovox Corp. v. Moody, 737 S.W.2d 468, 470 (Ky.App. 1987). Because Richard is not the sole controller of Geodata, Plaintiffs have not alleged facts in support of piercing the corporate veil, and primarily because Geodata is not subject to general personal jurisdiction before this Court, the Court does not have general personal jurisdiction over Richard.
B. Specific Personal Jurisdiction
Richard, Knappe, and Geodata argue that the Court may not exercise specific personal jurisdiction over them because this case is merely based on lis pendens filed by Timothy and relating to a Colorado suit to which they were not parties. Plaintiffs allege that the suit is not merely based on the lis pendens, but on the Defendants' participation and assistance in Timothy's Colorado lawsuit, their alleged conspiracy with Timothy to damage Plaintiffs' interests, and from Defendants' interests in Kentucky real property.
Plaintiffs allege that Richard and Geodata supported and conspired with Timothy in the Colorado suit. Plaintiffs allege that Richard and Geodata are directly liable for their assistance to Timothy in preparation for his case and their threats to sue in similar suits in Kentucky and Colorado. Plaintiffs also argue that Richard and Geodata *773 are liable to the extent that Timothy is liable because they conspired with him to file the Colorado lawsuit and Kentucky lis pendens. See Gemini Enters., Inc. v. WFMY Television Corp., 470 F.Supp. 559, 564 (M.D.N.C.1979). In particular, Plaintiffs note documents by Richard mentioning that the Colorado suit affected his joint interests, presumably with Timothy and Geodata.
Plaintiffs also contend that specific personal jurisdiction may be conferred by Geodata's interest in real property in Kentucky and Richard's interest as a member of Geodata. The parties agree that Geodata has an overriding royalty interest in some oil leases in Kentucky. An overriding royalty interest constitutes real property under .Kentucky law. Kentucky Bank & Trust Co. v. Ashland Oil & Transp. Co., 310 S.W.2d 287, 288 (Ky. 1958). Under the Kentucky Long Arm statute, it is clear that a defendant's real property in the forum state may give rise to specific personal jurisdiction. However, because Plaintiffs do not allege that the Colorado lawsuit or lis pendens underlying the instant matter arise from Geodata's real property holdings in Kentucky, this is not sufficient to establish the Court's personal jurisdiction over Geodata or Richard.
Richard and Geodata note that any advice given or documents written by Richard were after the Colorado suit and Kentucky lis pendens were filed. Furthermore, Richard and Geodata argue that no conspiracy or direct tortious acts on their part were alleged in the Complaint. The Court finds that conspiracy and cooperation by Richard and Geodata were alleged sufficiently in the Plaintiffs' complaint. Because the Court is required to take all allegations in the Complaint as true for purposes of the Motion to Dismiss for Failure of Personal Jurisdiction, the Court declines to dismiss the matter on this basis. It is possible that Plaintiffs will show the existence of collaboration between Richard and Timothy in filing the Colorado suit, and such activities were properly alleged in the Complaint.
II. Abstention on Claims against Timothy
Timothy seeks for the Court to abstain in judgment of the claims against him because of the remaining declaratory judgment claims remaining in the Colorado litigation between himself and Stephen Smith in his individual capacity. This argument is premised on Timothy's assertion that Stephen Smith, Inc., a Plaintiff in this case, is a mere alter-ego to Smith the individual or is in privity with him. Because Timothy, and both the Stephen Smith person and corporation reside in or near Colorado, Timothy argues that the federal forum is inconvenient. He claims that, though other issues are adjudicated concurrently in this Court, the claims between himself and Stephen Smith will be decided through piecemeal litigation without abstention. Timothy correctly notes that Colorado law applies to some claims and that Colorado first obtained jurisdiction over this matter. The Colorado court is fit to decide the case and has already disposed of several motions in the matter ahead of this Court.
Plaintiffs claim that no parallel action exists which would persuade this Court to abstain. Plaintiffs note that the parties differ in the Colorado action from the named parties in this action.[1] Furthermore, *774 Plaintiffs note that the interests differ in the Colorado action from the present action. The Colorado action is set to determine whether rescission of Timothy's interests is proper. The present action is set to determine whether the filing of the Colorado action and the related lis pendens are proper. Although the actions are related, they are not parallel as required for abstention. Therefore, the Court denies Timothy's motion for abstention.
III. Failure to State a Claim on Which Relief May Be Granted
A. Abuse of Process Claims
Richard, Geodata, and Knappe first assert that claims of abuse of process against them should be dismissed because the Colorado litigation and Kentucky lis pendens underlying this suit were filed by Timothy only. Because claims of civil conspiracy remain in this matter and, taking Plaintiff's allegations as true, may extend Timothy's liability to Richard and Geodata, the Court will not dismiss the abuse of process claims for this reason.
Defendants next contend that they are immune from any liability relating to the Colorado litigation because Timothy had a First Amendment right to petition the court for redress in the matter. The parties agree that Colorado law should apply to this issue, because the alleged abuse of process took place in relation to the Colorado litigation.[2] The First Amendment provides citizens with "the right to petition the government for redress of grievances [which] necessarily includes the right of access to the courts." Protect Our Mountain Environment, Inc. v. District Court in and for Jefferson County, 677 P.2d 1361, 1365 (Colo.1984) (hereinafter "POME"). "The First Amendment right to petition has been applied to immunize various forms of administrative and judicial petitioning activity from legal liability in subsequent litigation." Id. Defendants contend that Timothy is immune from liability for filing the Colorado lawsuit because, although it was unsuccessful, he is constitutionally granted the right to pursue his interests in court.
Plaintiffs claim that this matter fits within the "sham" exception to the immunity granted in POME. To show that Defendants are not immune to abuse of process claims under the "sham" exception, Plaintiffs must show that the Colorado suit was "baseless litigation" and "that the petitioning activity was conducted primarily for harassment or other improper purpose." Id. at 1367. In other words, Plaintiffs must show that the Defendants are not immune for their promotion of the Colorado lawsuit because
(1) the defendant's administrative or judicial claims were devoid of reasonable factual support, or, if so supportable, lacked any cognizable basis in law for their assertion; and (2) the primary purpose of the defendant's petitioning activity was to harass the plaintiff or to effectuate some other improper objective; and (3) the defendant's petitioning activity had the capacity to adversely affect a legal interest of the plaintiff. Id. at 1369.[3]
As determined in the Colorado lawsuit in response to Plaintiffs Smith and MSD's counterclaims in that suit, the primary *775 purpose of Timothy's Colorado claims were not to harass or pursue an improper objective. The Colorado suit established that Timothy's claims were not a "sham" under the POME standards and that he was immune from liability for making them.[4] Because Plaintiffs were both involved in or parties to the Colorado suit, they are bound by the Colorado court's rulings under the principles of collateral estoppel and res judicata. Therefore, the Court holds that Plaintiffs' abuse of process claims regarding the filing of the Colorado lawsuit are dismissed.
Plaintiffs also make abuse of process claims regarding the filing of the lis pendens in Kentucky. The Plaintiffs remain bound by the Colorado court's ruling that "[w]hile there was no cognizable legal basis for [Timothy] to file the lis pendens, there is likewise no reasonable basis to conclude that [Timothy] filed the lis pendens to harass or accomplish some other inappropriate objective." However, even if the Court applies Kentucky law to the lis pendens which engaged Kentucky process, Kentucky law is clear that a claim for abuse of process cannot stand. "The lis pendens is merely a notice required by a statute to protect the interests of any subsequent purchasers. It is filed without intervention of the judicial authority and brings neither the property nor any parties before the court. Since there is no process, there can be no abuse of process." Bonnie Braes Farms, Inc. v. Robinson, 598 S.W.2d 765, 766 (Ky.Ct.App.1980). Therefore, the claims of abuse of process arising out of the lis pendens filed in Kentucky are also properly dismissed.
B. Slander of Title Claims against Timothy, Richard, and Geodata
Because Plaintiff's titles which they claim were slandered are in Kentucky, the Court applies Kentucky law to this claim. Defendants note that the Plaintiffs "must plead and prove that the defendant[s] knowingly and maliciously communicated, orally or in writing, a false statement which has the effect of disparaging the plaintiff's title to property; he must also plead and prove that he has incurred special damage as a result." Id. (citing Ideal Savings Loan & Bldg. Ass'n v. Blumberg, 295 Ky. 858, 175 S.W.2d 1015 (1943) and Hardin Oil Co. v. Spencer, 205 Ky. 842, 266 S.W. 654 (1924)). "[I]f special damage has not been incurred, the action is not maintainable." Id. Special damages must be alleged with specificity. Fed. R. Civ. Pro. 9(g). In this matter, however, Plaintiff's did allege specifically the types of damages suffered due to the alleged slander, namely "(a) the diminution of the fair market value of their various leasehold and oil and gas rights and interests in western Kentucky, (b) the incurrence of attorney's fees and court costs, and (c) the loss of profits and lost business opportunities in the form of lease acquisitions and lease sales . . ."
Defendants contend that, because the lis pendens were asserted in good faith, they are not actionable. Hardin, 266 S.W. at 655. Whether the lis pendens were filed in good faith or bad remains an issue of fact and does not warrant dismissal of this claim at this time. For these reasons, the Court declines to dismiss Plaintiffs slander of title claims.
C. Tortious Interference with Contracts against Timothy, Richard, and Geodata
Kentucky law again applies to this claim, because Plaintiffs allege that *776 Defendants' actions interfered with Kentucky contracts. Defendants claim that allegations of tortious interference with contractual relations must fail because mere allegation of interference is insufficient. "[A] party may not recover . . . in absence of proof that the opposing party `improperly' interfered with his prospective contractual relation." E. Kentucky Resources v. Arnett, 892 S.W.2d 617, 619 (Ky.App.1995). However, the Complaint alleges that the lis pendens notice was filed "wrongfully and maliciously [to] create[] a cloud upon Plaintiffs' title to the various oil and gas rights and interests owned and possessed by Plaintiffs in western Kentucky." This presents and issue of fact as to whether Timothy's interference was "improper" and the Court cannot dismiss the claim at this time.
D. Civil Conspiracy of Timothy, Richard, and Geodata
Defendants challenge the civil conspiracy claims on the basis of insufficient pleading. Defendants allege that special damages must be plead with specificity to support a conspiracy claim, as do the elements of agreement and concerted action. The Court finds no support for Defendants claim that specific pleading of special damages is required. However, Plaintiffs "must allege the existence of (1) two or more persons, (2) an object to be accomplished, (3) an agreement on the object or course of action, and (4) one or more overt acts and (5) damages as a proximate result thereof." Houston v. Mile High Adventist Academy, 846 F.Supp. 1449, 1457-58 (D.Colo.1994) (quoting Schneider v. Midtown Motor Co., 854 P.2d 1322, 1326 (Colo.App.1992)). In their Complaint, Plaintiffs allege certain overt acts, an agreement between Richard and Timothy on behalf of Geodata to pursue actions against Plaintiffs, and the goal to be accomplished. While these allegations may not be detailed, they do provide Defendants with adequate notice of the claims against them. Fed. R. Civ. Pro. 8(e)(1). Therefore, the Court does not dismiss this claim at this time.
E. Declaratory Judgment Regarding All Defendants
While Timothy concedes that the declaratory judgment proceedings should continue against him, the other Defendants challenge the propriety of declaratory judgment at this time. In deciding whether to use its discretion to issue a declaratory judgment, the Court considers five factors:
(1) whether the judgment would settle the controversy;
(2) whether the declaratory judgment action would serve a useful purpose in clarifying the legal relations at issue;
(3) whether the declaratory remedy is being used merely for the purpose of "procedural fencing" or "to provide an arena for a race for res judicata;"
(4) whether the use of a declaratory action would increase the friction between our federal and state courts and improperly encroach on state jurisdiction; and
(5) whether there is an alternative remedy that is better or more effective. Scottsdale Ins. Co. v. Roumph, 211 F.3d 964, 968 (6th Cir.2000).
The Court finds that a declaratory judgment on the rescission of Timothy's assignment rights would at least determine the propriety of the lis pendens issued and might resolve some claims in this matter without further litigation. While it would not completely settle the claims in this matter and would somewhat encroach on decisions otherwise made by a state court, the Court finds that the matters underlying the request for declaratory judgment are so intertwined with the claims in this *777 case that a declaratory judgment may be proper. Therefore, the Court does not dismiss the petition for declaratory judgment at this time.
CONCLUSION
For the above reasons, the Court now GRANTS IN PART AND DENIES IN PART both Timothy's Motion to Dismiss and Richard, Knappe, and Geodata's joint Motion to Dismiss. The Motions to Dismiss are denied, except to the extent that Plaintiffs' claims for Abuse of Process are DISMISSED. An appropriate Order shall follow.
NOTES
[1] Timothy claims that Romine stands for the proposition that parties need not be identical. In Romine, however, the parallel suits involved class actions with different named parties but congruent classes and claims. Essentially, in Romine, the classes serving as parties were identical, though not named identically.
[2] Kentucky law, if it were found to apply to this matter, requires that the litigation was for the primary purpose of adjudicating a claim and with probable cause. Prewitt v. Sexton, 777 S.W.2d 891, 894 (Ky.1989).
[3] Plaintiffs urge the application of the Salstrom standard to this matter. Salstrom v. Starke, 670 P.2d 809, 811 (Colo.App.1983). Because Salstrom was decided before POME, the Court adopts the most recent declaration of Colorado law as applicable to this matter.
[4] The Colorado suit was eventually dismissed for failure of subject matter jurisdiction, not because Timothy's claims were determined to be without merit.
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SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
40
KAH 11-02184
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, WHALEN, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK EX REL.
DAVID P. HARRINGTON, PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
MALCOLM R. CULLY, SUPERINTENDENT, COLLINS
CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.
MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF
COUNSEL), FOR PETITIONER-APPELLANT.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (LAURA ETLINGER OF
COUNSEL), FOR RESPONDENT-RESPONDENT.
Appeal from a judgment (denominated order) of the Supreme Court,
Erie County (Christopher J. Burns, J.), entered September 16, 2011 in
a habeas corpus proceeding. The judgment dismissed the petition.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.
Memorandum: Petitioner appeals from a judgment dismissing his
petition seeking a writ of habeas corpus on the ground that he was
denied effective assistance of counsel in connection with his plea of
guilty. We affirm. It is well established that a petition for habeas
corpus relief is not a proper vehicle for raising a contention of
ineffective assistance of counsel (see People ex rel. Hinton v Graham,
66 AD3d 1402, 1402, lv denied 13 NY3d 934, rearg denied 14 NY3d 795).
Even assuming, arguendo, that petitioner’s contention had merit, we
would conclude that petitioner is not entitled to the relief sought,
i.e., immediate release (see id.; People ex rel. Smith v Burge, 11
AD3d 907, 908, lv denied 4 NY3d 701; see generally People ex rel.
Kaplan v Commissioner of Correction of City of N.Y., 60 NY2d 648,
649).
Entered: February 1, 2013 Frances E. Cafarell
Clerk of the Court
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464 F.3d 659
Rosaura PAZ, Plaintiff-Appellant,v.WAUCONDA HEALTHCARE AND REHABILITATION CENTRE, LLC, Defendant-Appellee.
No. 05-2837.
United States Court of Appeals, Seventh Circuit.
Argued February 24, 2006.
Decided September 19, 2006.
COPYRIGHT MATERIAL OMITTED John P. Madden, Margaret Megan O'Malley (argued), O'Malley & Madden, Chicago, IL, for Plaintiff-Appellant.
David B. Pogrund (argued), Stone, Pogrund & Korey, Chicago, IL, for Defendant-Appellee.
Gail S. Coleman (argued), Equal Employment Opportunity Commission, Washington, DC, for Amicus Curiae.
Before BAUER, POSNER, and WILLIAMS, Circuit Judges.
BAUER, Circuit Judge.
1
Rosaura Paz is a Hispanic woman of Mexican descent. She began working as a cook at Wauconda Healthcare and Rehabilitation Centre ("Wauconda") in December of 2000. After her employment ceased at Wauconda, she filed suit under Title VII for national origin discrimination, pregnancy discrimination, and retaliation. Wauconda moved for summary judgment on all counts, arguing that Paz was not terminated, but instead, had abandoned the job. The district court granted Wauconda's motion and denied Paz's motion for reconsideration. Because there are several issues of material fact in dispute, we conclude that summary judgment was inappropriate.
2
Our task in reviewing a summary judgment is to determine whether there are any issues of material fact that require a trial. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir.1994). We review the facts in the light most favorable to the non-moving party. FED.R.CIV.P. 56(c); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Accordingly, we present the events leading up to this suit in the light most favorable to Paz, and note, where appropriate, the conflicting facts as presented by Wauconda.
3
Paz started working as a cook for Wauconda in December of 2000. She was interviewed and hired for the job by Charlene Li, who became her supervisor. In fact, Li hired Paz on the spot and even had her work a few hours that same day. Li was Wauconda's dietary manager from October 2000 through 2003. During Paz's tenure at Wauconda, Li assigned Paz her work schedule, supervised her job duties, and evaluated her.
4
In her formal performance evaluation, Paz received an "excellent" rating in all ten categories. She had also received a merit-based pay increase.
5
Despite her success at work, Paz contends she was subjected to repeated discrimination by her supervisor. Li often made disparaging comments about Mexicans. Notably, other Wauconda employees reported that Li had said several times that "Mexicans cause problems and come to the United States to take away jobs from American people." Wauconda admitted that Li had told at least two other employees that "I am not going to hire any Mexicans as they cause too many problems." Paz testified at her deposition that, in August 2002, Li had said directly to her, "God, you people just come to [the] United States to cause so many problems and steal American people's job[s]." A co-worker had reported this comment to an assistant administrator, who in turn questioned Li. Paz also confirmed for the assistant administrator that Li had made the comment but the administrator told Paz not to tell anyone about it and that they needed to keep it confidential.
6
Paz and other Hispanic employees also reported that Li had treated the Hispanic employees less favorably than their white counterparts. Li had allowed white employees, but not Hispanic employees, to take long, frequent breaks. On one occasion, when Hispanic and white employees had been taking a smoke break together, Li had instructed the Hispanics (including Paz) but not the whites to get back to work. When Li needed something to be cleaned, she would call on one of the Hispanic employees. Li also turned off the radio whenever it was tuned to a Spanish-speaking station and one day, threw Paz's radio away.
7
At times, white employees were scheduled to have a day off after every two days on while the Hispanic employees were scheduled to work six days straight. Li made Hispanic employees perform the less desirable job duties, such as washing floors and other jobs that were considered the hardest in the kitchen but did not require the same of white employees at the same job level.
8
Paz also testified that Li started treating Paz differently after learning that Paz was pregnant. When Paz first told Li she was pregnant, Li just shook her head. The next day, Li asked Paz why she wanted more kids, explaining that two kids were enough and that three children would be too hard for Paz. Li then told Paz "[y]ou're not going to be allowed to work, to just start getting . . . . Do you know what, I think you should move to dietary aide instead of be a cook." Li explained that Paz would be better suited for the position of dietary aide since she would not be able to lift heavy objects. Paz explained that she could do her job and that she was only about one or two weeks pregnant.
9
The following day Li again approached Paz about her pregnancy. Li said to Paz, "Why don't you have an abortion?" Li said that in China, women are only allowed to have two kids, and only one girl. She explained to Paz that it was nothing to feel bad about and admitted to having had an abortion herself. Every day thereafter, Li would tell Paz that she should have an abortion.
10
Li's comments eventually wore on Paz. Paz cried to her husband and said that she was afraid Li would fire her if she did not have an abortion. After feeling that she had no choice if she wanted to keep her job, Paz told Li she had decided to have an abortion. Paz testified that Li said, "Oh, good for you" and gave her a big hug. For the next two days, Paz said that Li treated her nicely and would laugh and joke with Paz. Paz reluctantly went to the abortion clinic that weekend. The clinic staff told Paz that she was not far enough along in her pregnancy to have an abortion and she would have to come back in a few days. Paz changed her mind when she left the clinic and decided against an abortion.
11
The following Monday, Paz told Li that she had decided against an abortion. Li shook her head and walked away. Paz testified that since that day, Li had treated her differently and would find excuses to blame Paz for anything that went wrong. Li also would not allow the employees to talk about babies. Wauconda stated that when a white woman was pregnant, Li had made similar comments.
12
On October 24, 2002, Paz burned one tray of bacon out of several trays she had prepared for breakfast. According to Paz, she put the burned bacon on top of the grill and did not serve it to the residents. According to Li, Paz served the bacon to the residents. Li noticed the burned tray of bacon as soon as she entered the kitchen and began yelling at Paz. She said, "You [are] always wasting food like that. . . . [s]omebody's going to get fired the end of this month." Paz walked away from Li and started washing dishes at the sink but Li followed her and continued to yell at her. Paz asked why Li was treating her like this lately and Li responded, "You know the reason." Paz burst into tears and a co-worker asked Paz why she let Li scream at her. Paz then went to find Cheryl Morris, Wauconda's acting administrator.
13
Paz told Morris that Li had been yelling at her and had said that someone was going to get fired at the end of the month. She also detailed for Morris the way Li treated Hispanic employees and told her about Li's comments that she found offensive. Morris told Paz that she was not just the acting administrator, but represented the corporate office as well. Morris testified at her deposition that she told Paz she would take care of it.
14
Paz told Morris that she was not feeling well and asked for permission to take the rest of the day off, which Morris permitted. When Paz went to retrieve her coat and tell Li she was leaving, Li responded, "If you walk out that door, don't come back." Other Wauconda employees were present during this exchange and corroborated this statement. Paz returned to Morris and told her what Li said but Morris told her not to worry about it and to just go home.
15
Later that day, Morris spoke with Li and explained Paz's accusations. Li denied the allegations and replied with a list of complaints about Paz. At her deposition, Morris testified that she had responded to Li, "How can you sit here and tell me now that [Paz is] always late, you made a lot of concessions for her, she yells all the time, and not have anything written down . . . . I don't buy it." Still, based on Li's account of the bacon incident, Morris told Li to write Paz up for serving burned bacon.
16
The next morning, Paz arrived at work at 6:00 a.m. for her scheduled shift. Carla Janacek, a dietary aide, was performing the cooking duties that belonged to Paz. Scott Rzepka, an employee who was scheduled to be off that day, was performing Janacek's duties. Paz asked Janacek what was going on and Janacek said, "I don't know. Charlene [Li] just told me that she want me to cook." Paz went to check the work schedules posted on Li's door and saw that her name had been crossed off for the previous day and the current day. She also saw that she had not been assigned any days on the new work schedule for the following week. Paz took the schedules down, photocopied them, and replaced them on the door. These work schedules were submitted to the district court.
17
When Li arrived at work a few hours later she did not say anything to Paz. After a meeting, Li returned to the kitchen where she continued to ignore Paz. Finally, Paz confronted Li and asked her why she was scratched off the schedule and why she had not been assigned any days for the following week. Li replied, "Remember yesterday? You're fired." Paz was stunned and stood at Li's door for a few minutes waiting for an explanation but Li ignored her. Believing she was fired, Paz gathered her belongings and left. Meanwhile, Wauconda contends that Paz walked off the job.
18
Paz was unaware of the employee warning that Li had filed against Paz the previous day because Li never told her about it. The warning notice criticized Paz for burning the bacon, yelling at Li, and going to Morris "complaining about some other issues that she created to support her anger." The notice also said that when Paz returned to the kitchen on October 24 to say that she was leaving for the day, Li asked her whether that meant she was quitting. Li wrote on the notice that Paz replied, "I don't care, up to you." Paz testified at her deposition that she never said this. Wauconda employees who witnessed the exchange dispute Li's account. Paz also disputes several other items in the warning notice.
19
Paz was unaware, since Li did not tell her, that once Li told her she was fired and Paz left on October 25, Li wrote a second warning notice. In the warning notice, Li stated that "[e]mployee left the job without telling anybody. Action to be taken — suspension. Consequence should incident occur again — dismissal. Not able to get signature."
20
On Monday, October 28, Li issued a third and final notice for Paz, and again Paz was not told about it. The third warning notice was for an attendance violation and stated, "No call, no show, job abandonment." Paz, on the other hand, contends the reason she did not show up for work on Monday is because she had been fired on the previous Friday.
21
At her deposition, Li denied the discrimination allegations and also denied ever pressuring Paz to have an abortion. Li said that Morris had never spoken to her about Paz's discrimination complaint, yet Morris and Wauconda admit that such a conversation took place. Li also denied telling Paz that she was fired. Morris testified that only the administrator had the authority to fire an employee.
22
Wauconda moved for summary judgment on all counts. The district court granted Wauconda's motion and denied Paz's motion for reconsideration. This timely appeal followed.
Analysis
23
Paz argues that factual disputes in the record preclude summary judgment. Specifically, Paz contends that the disputed accounts of her last days on the job at Wauconda illustrate that there are several genuine issues of material fact. We review the district court's summary judgment ruling de novo. Abdullahi v. City of Madison, 423 F.3d 763, 769 (7th Circ. 2005). As we have explained before, summary judgment briefs that present different versions of the facts arouse our attention given the standard under the Federal Rules of Civil Procedure. See Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 753-54 (7th Cir.2006); Payne v. Pauley, 337 F.3d 767, 770 (7th Cir.2003).
24
At summary judgment, "a court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder." Payne, 337 F.3d at 770 (citations omitted). Summary judgment is not appropriate if a reasonable jury could just as easily return a verdict for the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Viewing the evidence in the light most favorable to the plaintiff, as we must, we fail to see how the district court granted summary judgment for the defendant. Several factual disputes on material matter are apparent in the record and preclude summary judgment.
25
We have long held that a plaintiff may defeat summary judgment with his or her own deposition. Williams v. Seniff, 342 F.3d 774, 785 (7th Cir.2003); see also Payne, 337 F.3d at 771-73 (evidence presented in a "self-serving" affidavit or deposition is enough to thwart a summary judgment motion provided it meets the usual requirements for evidence at summary judgment stage); Winskunas v. Birnbaum, 23 F.3d 1264, 1267 (7th Cir. 1994) (plaintiff can present deposition testimony demonstrating the existence of a genuine issue of material fact to ward off the grant of summary judgment).
26
In this case, Paz's deposition testimony is filled with genuine issues of fact based on personal knowledge, and at this stage, the parties still sharply disagree as to whether Paz was fired or abandoned her job. Further, Paz's testimony is not the only evidence that raise genuine issues of material fact; time sheets, work schedules, and co-worker testimony corroborate Paz's case. Paz contends that Li fired her the morning of October 25, 2002. She also submitted time sheets showing that her name was scratched off the work schedule on October 24 and October 25. Wauconda explains that Paz's name was scratched from the time sheet because it was Li's normal course of conduct to scratch employees names off the schedule if they did not show up for work. Yet this misses a key point — when Paz arrived at work at 6:00 a.m. on October 25 (which is corroborated by her time card), her name was already crossed off the schedule for the day, before Li had even arrived for work herself. Moreover, Li's deposition testimony contradicts that of Wauconda's acting administrator, Cheryl Morris. Li denied ever talking to Morris about Paz's allegations of discrimination. But Morris testified that such a conversation occurred. Dishonesty alone could be a sufficient basis for a jury to conclude that a defendant is covering up a discriminatory motivation for an employee's discharge. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The record here, replete with credibility questions and competing versions of the facts, demonstrates that this case should be sorted out by the trier of fact.
27
Aside from the open question as to whether Paz was fired or had abandoned her job, Paz's case survives summary judgment based on the direct evidence in the record. A Title VII plaintiff can avert summary judgment "either by putting in enough evidence, whether direct or circumstantial, of discriminatory motivation to create a triable issue or by establishing a prima facie case under the McDonnell Douglas formula." Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 719 (7th Cir.2005) (citation omitted).
28
The direct method of proof relies on direct and circumstantial evidence to show an inference of intentional discrimination. In other words, we must be able to infer from the evidence that Paz was discharged because of her national origin, pregnancy status, or in retaliation for complaining of discrimination. Logan v. Kautex Textron N. America, 259 F.3d 635, 639 (7th Cir.2001).
29
Here, a range of direct method evidence precludes a grant of summary judgment: the evidence of Li's discriminatory remarks toward Mexican workers, her comments and behavior toward Paz upon learning that Paz was pregnant, and the curious string of employee warnings against Paz, which coincided with Paz's complaints of discrimination. A trier of fact can infer intentional discrimination on the part of the employer through certain types of circumstantial evidence. For example, we have held that suspicious timing, ambiguous statements, words and actions toward other employees in the protected group, and "other bits and pieces from which an inference of discriminatory intent might be drawn" are among the types of circumstantial evidence that may illustrate an inference of discrimination on the part of the decisionmaker. Rudin, 420 F.3d at 720-21 (quotation omitted).
30
Specifically, Paz and others noted Li's remarks that "Mexicans cause problems and come to the United States to take jobs from American people." On other occasions, Li also told employees that she would not hire any more Mexicans because they just cause too many problems. These statements, combined with allegations of less favorable treatment to Hispanic employees with regard to job duties, breaks, and shift assignments, provide the type of direct method, circumstantial evidence that survives a defendant's motion for summary judgment. Further, Li's comments about Paz's pregnancy, her ability to do her job if pregnant, and repeated suggestions that Paz should have an abortion, all supply an inference of Li's animus to a protected class. Moreover, on October 24, when Li learned that Paz had accused her of discrimination, Li filed an employee warning notice for Paz (Paz's first in almost two years of work) that even referenced Paz's complaint of discrimination. Given the mosaic of direct evidence that Paz presented, we need not use the McDonnell Douglas burden-shifting test. Rudin, 420 F.3d at 720-21. See also Walker v. Bd. of Regents of University of Wis., 410 F.3d 387, 394 (7th Cir.2005) ("the key consideration is the totality of these `pieces of evidence[,] none conclusive in itself but together composing a convincing mosaic of discrimination against the plaintiff.'" (citation omitted)).
31
It is worth mentioning that the district court and Wauconda were under the mistaken belief that Paz cannot proceed under the direct method because some of Li's comments were made two months prior to her firing. Yet, how recent the comments were, how extreme, and who made the remarks are pieces of evidence that inform whether there was a "mosaic of discrimination." Walker, 410 F.3d at 394. At summary judgment, a district court cannot view the record in small pieces that are mutually exclusive of each other.
32
Finally, we note briefly that whether Li had the power to fire Paz is really a question of apparent authority, not actual authority. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 70-71, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (noting that "courts have consistently held employers liable for the discriminatory discharges by supervisory personnel, whether or not the employer knew, should have known, or approved of the supervisor's actions.") While the district court and Wauconda say that Paz did not know Wauconda's chain of command, this does not translate into a finding that Li did not have apparent or actual authority to fire her. After all, Li had hired Paz, evaluated her, assigned her work schedule, and oversaw her work duties. Further, we fail to see why, if an employee's supervisor tells her, "You're fired," the employee should run this statement up the ladder just to double-check her status, as Wauconda argues should be the case. Employers are frequently liable for employment decisions made by low and mid-level supervisors, see Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990), and a similar analysis is appropriate here.
Conclusion
33
Given the significant factual disputes in the record, the district court erred in deciding the case on a motion for summary judgment. Accordingly, we REVERSE the judgment of the district court and REMAND for trial.
| {
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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: __________
3 Filing Date: July 18, 2016
4 NO. 34,182
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellee,
7 v.
8 MATIAS LOZA,
9 Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
11 Mark T. Sanchez, District Judge
12 Hector H. Balderas, Attorney General
13 Santa Fe, NM
14 Charles J. Gutierrez, Assistant Attorney General
15 Albuquerque, NM
16 for Appellee
17 Alderman Law Firm
18 Kimberly L. Alderman-Penix
19 Denver, CO
20 for Appellant
1 OPINION
2 WECHSLER, Judge.
3 {1} Defendant Matias Loza appeals his convictions for racketeering, contrary to
4 NMSA 1978, Section 30-42-4(C) (2002, amended 2015), and conspiracy to commit
5 racketeering, contrary to Section 30-42-4(D). On appeal, Defendant first argues that
6 the district court improperly admitted evidence of uncharged crimes, wrongs, or other
7 acts. However, when, as here, the uncharged crimes, wrongs, or other acts are the
8 predicate offenses to charges of racketeering and conspiracy to commit racketeering,
9 Rule 11-404(B) NMRA is inapplicable. Defendant additionally argues that the district
10 court improperly admitted the transcript of an audio recording in which a sheriff’s
11 office detective identified four distinct voices, including Defendant’s. We conclude,
12 however, that the detective was sufficiently familiar with the recorded voices to make
13 identification under New Mexico law. We therefore affirm.
1 BACKGROUND
2 {2} Defendant was indicted for statutory violations allegedly committed during his
3 association with an organization referred to as the AZ Boys.1 The principal criminal
4 enterprise of the AZ Boys was the distribution of methamphetamine.
5 {3} In the early morning hours of November 1, 2011, Otero County Sheriff’s Office
6 Sergeant Geraldine Martinez was on routine patrol on Taylor Ranch Road near
7 Alamogordo, New Mexico. At approximately 3:30 a.m., Sergeant Martinez was
8 dispatched to investigate a possible home invasion on San Pedro Drive. While
9 proceeding to San Pedro Drive, Sergeant Martinez observed a vehicle completely
10 engulfed in flames near the intersection of San Pedro Drive and Hamilton Road.
11 Sergeant Martinez attempted to determine if the vehicle was occupied, but she was
12 unable to do so. She then proceeded as dispatched.
13 {4} Upon her arrival, Sergeant Martinez made contact with the homeowner who
14 directed her to a shed on the southwest portion of the property. While searching in
15 and around the shed, Sergeant Martinez observed Defendant lying under a trailer. She
1
16 During the course of Defendant’s trial, the State offered a substantial amount
17 of testimony and evidence to demonstrate (1) the AZ Boys’ status as a criminal
18 enterprise, (2) Defendant’s affiliation with the AZ Boys, and (3) Defendant’s
19 participation in a pattern of racketeering activities. See State v. Crews, 1989-NMCA-
20 088, ¶ 47, 110 N.M. 723, 799 P.2d 592 (describing the essential elements of
21 racketeering). This opinion discusses only the testimony and evidence necessary to
22 resolve the legal issues raised on appeal.
2
1 instructed Defendant to exit. After exiting, Defendant was “sweating heavily, and
2 appeared to be really nervous, and smelled of gas.” Defendant was taken into custody
3 and transported for medical evaluation.
4 {5} At approximately the same time, the Otero County Fire Department responded
5 to the vehicle fire observed by Sergeant Martinez. Fire department personnel
6 extinguished the fire and discovered a deceased person inside the vehicle.
7 Investigation indicated that the fire was intentionally ignited by use of an ignitable
8 liquid. The deceased person was subsequently identified as Richard Valdez, and the
9 cause of death was determined to be homicidal violence. The vehicle was identified
10 as a 2006 Suzuki station wagon purchased by a member of the AZ Boys.
11 {6} After being identified as a suspect in Valdez’s death, Defendant was
12 transported to Gerald Champion Regional Medical Center by Otero County Sheriff’s
13 Office Deputy Edward Garcia to have a blood sample drawn. While at the hospital,
14 Defendant offered Deputy Garcia $40,000 if Deputy Garcia would release Defendant
15 from custody. Deputy Garcia refused. Defendant then offered Deputy Garcia $50,000.
16 Deputy Garcia again refused. Deputy Garcia recorded this interaction on his pocket
17 recorder and reported it to his supervisor.
18 {7} Defendant was initially charged with racketeering, conspiracy to commit
19 racketeering, arson, two counts of tampering with evidence, and bribery of a public
3
1 official. With the exception of racketeering and conspiracy to commit racketeering,
2 the charges against Defendant were dismissed without prejudice and re-filed as a
3 separate cause of action. Prior to trial, the State filed notice of its intent to introduce
4 Rule 11-404(B) evidence, including evidence of murder, arson, and bribery.
5 {8} Included in this evidence and introduced at trial was an audio recording
6 downloaded from one of Defendant’s cellular telephones in which various members
7 of the AZ Boys discussed the disposal of a dead body. The disposal mechanism
8 discussed was to “torch” a car with the body inside. Otero County Sheriff’s Office
9 Detective Fabian Picazo identified the voices on the recording as those of Defendant
10 and AZ Boys members Bob Chavez, Joe Chavez, and Joe Chavez Jr. The audio
11 recording and a transcript of the discussion, which identified the individual speakers,
12 were admitted into evidence over objection.2
13 {9} Defendant was convicted in a jury trial of racketeering and conspiracy to
14 commit racketeering. This appeal followed.
2
15 Defendant objected to the admission of audio recordings downloaded from his
16 cellular telephone on the ground that the State failed to obtain an independent search
17 warrant for the contents of his cellular telephone. Defendant did not raise this
18 argument on appeal.
4
1 STANDARD OF REVIEW
2 {10} We review a district court’s admission of evidence for an abuse of discretion.
3 State v. Jaramillo, 2012-NMCA-029, ¶ 17, 272 P.3d 682. “An abuse of discretion
4 occurs when the ruling is clearly against the logic and effect of the facts and
5 circumstances of the case.” State v. Thompson, 2009-NMCA-076, ¶ 11, 146 N.M.
6 663, 213 P.3d 813 (internal quotation marks and citation omitted).
7 RULE 11-404(B)
8 {11} As a general rule, evidence of uncharged crimes, wrongs, or other bad acts is
9 referred to as character evidence or propensity evidence, and is inadmissible in
10 criminal trials. See Rule 11-404(B)(1) (“Evidence of a crime, wrong, or other act is
11 not admissible to prove a person’s character in order to show that on a particular
12 occasion the person acted in accordance with the character.”); see State v. Beachum,
13 1981-NMCA-089, ¶ 6, 96 N.M. 566, 632 P.2d 1024 (“Under Rule [11-]404[(B)],
14 evidence of other crimes, wrongs, or acts is not admissible to show that the defendant
15 had a propensity to commit those crimes.”). This rule is expressly limited by Rule 11-
16 404(B)(2), which allows the admission of character evidence if the evidence is
17 offered for “another purpose, such as proving motive, opportunity, intent, preparation,
18 plan, knowledge, identity, absence of mistake, or lack of accident.” For character
5
1 evidence to be admissible in a criminal trial, the state must “provide reasonable notice
2 of the general nature of any such evidence[.]” Rule 11-404(B)(2)(a).
3 {12} New Mexico’s Rule 11-404(B)(1) mirrors Rule 404(b)(1) of the Federal Rules
4 of Evidence and was adopted in 2012 “to be consistent with the restyling of the
5 Federal Rules of Evidence[.]” Rule 11-404 comm. cmt. Since the language of our
6 Rule 11-404(B)(1) is identical to that of federal Rule 404(b)(1), we may look to the
7 federal courts for guidance as to the proper application of the rule. See Kipnis v.
8 Jusbasche, 2015-NMCA-071, ¶ 7, 352 P.3d 687 (“When the state and federal
9 evidence rules are identical, we may rely on interpretations of the federal rule as
10 persuasive authority.”), cert. granted, 2015-NMCERT-006, 367 P.3d 852.
11 Inapplicability of Rule 11-404(B) to Charges of Racketeering and Conspiracy to
12 Commit Racketeering
13 {13} Defendant was tried on charges of racketeering, contrary to Section 30-42-
14 4(C), and conspiracy to commit racketeering, contrary to Section 30-42-4(D).
15 Defendant argues on appeal that the district court’s admission of evidence of “other”
16 crimes including murder, arson, and bribery was error. Specifically, Defendant claims
17 that “the State used evidence of the alleged homicide, arson, and bribery to show that
18 [Defendant] committed the charged offenses because he committed the other similar
19 acts.”
6
1 {14} Although Defendant was additionally charged with murder, arson, and bribery
2 in separate criminal proceedings,3 Rule 11-404(B), if applicable, would limit the
3 State’s ability to introduce evidence of these crimes in the current case. See State v.
4 Gallegos, 2007-NMSC-007, ¶ 21, 141 N.M. 185, 152 P.3d 828 (describing the
5 prejudicial effect of propensity evidence and the proper application of Rule 11-
6 404(B)). Therefore, the applicability of Rule 11-404(B) to the racketeering and
7 conspiracy to commit racketeering charges against Defendant is central to our
8 inquiry.
9 {15} Section 30-42-4(C) provides that “[i]t is unlawful for a person employed by or
10 associated with an enterprise to conduct or participate, directly or indirectly, in the
11 conduct of the enterprise’s affairs by engaging in a pattern of racketeering activity.”
12 Section 30-42-4(D) provides that “[i]t is unlawful for a person to conspire to violate
13 the provisions . . . of this section.” The racketeering statute defines “pattern of
14 racketeering activity” as “engaging in at least two incidents of racketeering with the
15 intent of accomplishing any of the prohibited activities set forth in [Section 30-42-
16 4(A)-(D)].” NMSA 1978, § 30-42-3(D) (2009). The statute further defines
3
17 Otero County District Court Cause Nos. D-1215-CR-2011-00467 and D-1215-
18 CR-2014-00063.
7
1 “racketeering” in terms of twenty-five distinct predicate offenses, including murder,
2 arson, and bribery. Section 30-42-3(A).
3 {16} Because New Mexico’s racketeering statute defines violations by reference to
4 predicate offenses, the predicate offenses are essential components of a racketeering
5 offense. Evidence of the predicate offenses is, therefore, intrinsic rather than extrinsic
6 to a racketeering charge. United States circuit courts have held that federal Rule
7 404(b) does not apply to such intrinsic evidence. See United States v. Parker, 553
8 F.3d 1309, 1314 (10th Cir. 2009) (“Because Rule 404(b) only limits evidence of
9 ‘other’ crimes—those extrinsic to the charged crime—evidence of acts or events that
10 are part of the crime itself, or evidence essential to the context of the crime, does not
11 fall under the other crimes limitations of Rule 404(b).”); see also United States v.
12 Green, 617 F.3d 233, 249 (3rd Cir. 2010) (“If uncharged misconduct directly proves
13 the charged offense, it is not evidence of some ‘other’ crime.”); see also Black’s Law
14 Dictionary 899 (9th ed. 2009) (defining “intrinsic” as “[b]elonging to a thing by its
15 very nature; not dependent on external circumstances; . . . essential”).
16 {17} While this Court has not previously determined the applicability of Rule 11-
17 404(B) to the predicate offenses of a racketeering charge, our appellate court opinions
18 determining the applicability of Rule 11-404(B) to “other” and “extrinsic” acts are in
19 accord with the United States Circuit Court holdings cited above.
8
1 {18} For example, in State v. Ruiz, the defendant was charged with multiple counts
2 of criminal sexual penetration of a minor and criminal sexual contact with a minor.
3 2007-NMCA-014, ¶ 1, 141 N.M. 53, 150 P.3d 1003. The victim was a friend of one
4 of the defendant’s daughters, and she frequented the defendant’s home. Id. ¶ 2. The
5 defendant was charged with five offenses, including one in July 1997, based upon the
6 victim’s ability to distinguish the general nature and timing of the assaults. Id. ¶ 29.
7 At trial, the state offered testimony from the defendant’s eldest daughter in which she
8 described witnessing the defendant touching the victim’s genital area in July 1997.
9 Id. ¶ 27. The defendant argued that such testimony constituted evidence of “prior bad
10 acts” and was subject to exclusion under Rule 11-404(B). Ruiz, 2007-NMCA-014,
11 ¶ 27. This Court, after determining that the witness’s testimony corroborated the July
12 1997 charged offense, disagreed with the defendant’s interpretation of Rule 11-
13 404(B) and held that “[t]he inclusion of the word ‘other’ [in Rule 11-404(B)]
14 connotes crimes, wrongs, or acts that are not the subject of the [current]
15 proceedings[.]” Ruiz, 2007-NMCA-014, ¶¶ 27-28.
16 {19} In State v. Gallegos, our Supreme Court applied a similar rationale in arriving
17 at the opposite conclusion. 2007-NMSC-007, ¶ 28, 141 N.M. 185, 152 P.3d 828. The
18 defendant was indicted on seven counts of criminal sexual contact of a minor
19 (CSCM) and three counts of aggravated indecent exposure stemming from incidents
9
1 while he was a guard at the Youth Diagnostic and Detention Center (YDDC). Id. ¶ 4.
2 The CSCM charges arose from conduct with a female YDDC resident, J.S. Id. The
3 indecent exposure charges arose from separate conduct with another female resident,
4 U.C. Id. ¶ 5. The district court denied the defendant’s motion to sever the two trials.
5 Id. ¶ 2. The defendant was convicted on one charge of CSCM and two charges of
6 aggravated indecent exposure. Id. ¶¶ 4, 6. On certiorari from this Court, our Supreme
7 Court reversed the defendant’s CSCM conviction, concluding that “we are not
8 confident the jury did not misuse the evidence pertaining to [U.C.] to convict [the
9 defendant] of CSCM.” Id. ¶ 3. Following analysis that resulted in a conclusion that
10 no Rule 404(B) exception was applicable, our Supreme Court held that “the extrinsic
11 acts of indecent exposure” committed against U.C. “would not have been
12 cross-admissible at separate trials[.]” Gallegos, 2007-NMSC-007, ¶¶ 26-36.
13 {20} The crimes of racketeering and conspiracy to commit racketeering are defined
14 by reference to predicate offenses. Rule 11-404(B) is, therefore, inapplicable to
15 evidence admitted to demonstrate these predicate offenses. Because admitted
16 evidence of murder, arson, and bribery related directly to the predicate offenses of
17 racketeering and conspiracy to commit racketeering, the district court’s admission of
18 this intrinsic evidence did not constitute an abuse of discretion.
10
1 RULE 11-901(B)(5) NMRA
2 {21} In support of its case against Defendant, the State introduced (1) an audio
3 recording recovered from Defendant’s cellular telephone and (2) a transcript of that
4 audio recording. Defendant argues that the State’s witness, Detective Picazo, lacked
5 sufficient familiarity with Defendant’s voice, as well as the voices of other members
6 of the AZ Boys, to positively identify and differentiate between four otherwise
7 unidentified voices on the admitted audio recording.
8 {22} Rule 11-901(A) provides that “[t]o satisfy the requirement of authenticating or
9 identifying an item of evidence, the proponent must produce evidence sufficient to
10 support a finding that the item is what the proponent claims it is.” With respect to the
11 identification of a person’s voice, a witness may offer an opinion “based on hearing
12 the voice at any time under circumstances that connect it with the alleged speaker.”
13 Rule 11-901(B)(5). In interpreting Rule 11-901(B)(5), this Court, citing various
14 federal court opinions, has held that “once a minimal showing has been made that the
15 witness has some familiarity with the voice he identified, his identification testimony
16 may be admitted and the jury may then determine the weight to be accorded to that
17 testimony.” State v. Padilla, 1982-NMCA-100, ¶ 5, 98 N.M. 349, 648 P.2d 807
18 (emphasis added). As an indication of the low threshold for admissibility established
19 by Rule 11-901(B)(5), Padilla discussed United States v. Smith, 635 F.2d 716, 719
11
1 (8th Cir. 1980), a case in which the testifying witness heard the appellant’s voice on
2 only two other occasions. Padilla, 1982-NMCA-100, ¶ 5.
3 {23} During the course of his investigation, Detective Picazo heard Defendant’s
4 voice numerous times. On the day of Defendant’s arrest, Detective Picazo spoke with
5 Defendant in person on two separate occasions: first, for several minutes at the
6 hospital and, subsequently, for between sixty and ninety minutes at the Otero County
7 Sheriff’s Office. Detective Picazo also monitored between six and eight of
8 Defendant’s telephone conversations during Defendant’s pre-trial incarceration.
9 These in-person conversations and monitoring activities provide sufficient foundation
10 for Detective Picazo to identify Defendant’s voice on the admitted audio recording.
11 {24} Furthermore, Detective Picazo either interviewed, or monitored telephone
12 conversations involving, the three other individuals on the admitted audio recording:
13 AZ Boys members Bob Chavez, Joe Chavez, and Joe Chavez Jr. Detective Picazo
14 conducted an in-person interview with Bob Chavez during the investigation and
15 monitored between eight and ten of Bob Chavez’s telephone conversations during his
16 incarceration. Detective Picazo monitored a similar number of Joe Chavez’s
17 telephone conversations during his incarceration and became familiar with Joe
18 Chavez Jr.’s voice during these telephone conversations.
12
1 {25} Defendant calls our attention to certain segments of the transcript in which the
2 speaker is undetermined, arguing that Detective Picazo’s inability to differentiate
3 among the speakers in all instances negates his ability to offer an opinion as to
4 identity. This argument is unpersuasive. Detective Picazo’s exposure to the voices of
5 Defendant and other members of the AZ Boys is sufficient to make the “minimal
6 showing” of familiarity required to allow Detective Picazo to offer an opinion as to
7 the identity of speakers on the admitted audio recording. Id. Any inability to do so
8 with respect to individual segments of the audio recording goes to the weight of the
9 evidence, not the admissibility. See id. (“The completeness of the identifications goes
10 to the weight of the evidence and not its admissibility.” (internal quotation marks and
11 citation omitted)).
12 {26} Because the transcript of admitted audio recordings was admissible under Rule
13 11-901(B)(5), the district court’s admission of this evidence did not constitute an
14 abuse of discretion.
15 CONCLUSION
16 {27} For the foregoing reasons, we affirm.
17 {28} IT IS SO ORDERED.
18 ________________________________
19 JAMES J. WECHSLER, Judge
13
1 WE CONCUR:
2 ________________________________
3 MICHAEL D. BUSTAMANTE, Judge
4 ________________________________
5 J. MILES HANISEE, Judge
14
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00124-CV
______________________________
MICHELLE MIMMS, Appellant
V.
OLD CANAL FINANCIAL, INC., ET AL., Appellees
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 2006-1609-B
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Michelle Mimms has filed an appeal from an order of the trial court signed September 11,
2007. The clerk's record was due to be filed on or before January 9, 2008. Appellant is not indigent,
and is responsible for paying or making adequate arrangements to pay the clerk's fees for preparing
the record. See TEX . R. APP . P. 37.3(b). On February 21, 2008, we contacted Mimms by letter,
reminding her that the record was past due, and warning that, if we did not receive an adequate
response within ten days, we would dismiss the appeal for want of prosecution pursuant to Rule
42.3(b) and (c) of the Texas Rules of Appellate Procedure. See TEX . R. APP . P. 42.3(b), (c).
As of the date of this opinion, we have received no response.
We dismiss the appeal for want of prosecution.
Josh R. Morriss, III
Chief Justice
Date Submitted: March 20, 2008
Date Decided: March 21, 2008
2
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151 S.W.3d 803 (2004)
GRANGE MUTUAL INSURANCE COMPANY, Appellant,
v.
Hon. William W. TRUDE, Jr., Judge, Appellee, and
Dale WILDER Real Party in Interest.
No. 2003-SC-0772-MR.
Supreme Court of Kentucky.
October 21, 2004.
As Modified December 1, 2004.
Rehearing Denied January 20, 2005.
*806 Whitney Dunlap, III, Burnam, Thompson, Weldon, Simons and Dunlap, PSC, Richmond, Counsel for Appellant.
William W. Trude, Jr., Judge, Owsley Circuit Court, Irvine, for Appellee.
M. Austin Mehr, Austin Mehr Law Offices, Wesley Brian Deskins, Lexington, Counsel for Real Party in Interest.
KELLER, Justice.
I. Introduction
The trial court ordered Grange Mutual Insurance Company ("Grange") to comply with sixteen discovery requests. Grange petitioned the Court of Appeals for a writ of prohibition, claiming that compliance with the trial court's order required burdensome production of irrelevant information and disclosure of privileged trade secrets. *807 The Court of Appeals found that Grange failed to prove that production of the ordered discovery would result in irreparable harm and refused to grant the writ. With regard to the relevance, we find that the discovery requests are proper, albeit with a few exceptions, because they are aimed at production of relevant information and documents. And we agree that Grange failed to show irreparable harm because it did not adequately prove that compliance with the discovery requests would require disclosure of trade secrets. Therefore, we affirm in part and reverse in part.
II. Background
Dale Wilder ("Wilder") was involved in a car accident with Sid Gabbard, who was insured by Grange. Wilder submitted a personal injury claim, and Grange assigned Erica Barnes ("Barnes") to serve as the adjuster on the claim. After negotiating with Grange for six months, Wilder was dissatisfied with the way the claim was being handled and he filed suit in the Owsley Circuit Court. Wilder's lawsuit included a personal injury claim against Sid Gabbard and a bad faith claim against Grange.
The trial court bifurcated the claims, holding the bad faith claim in abeyance until after the trial on the personal injury claim. At the conclusion of the trial of the personal injury claim, the jury returned a verdict for Wilder and awarded him approximately $26,000.00.
The bad faith claim alleges that Barnes undervalued Wilder's claim during negotiations and that she had repeatedly delayed communicating with Wilder's attorney. During pretrial preparations, Wilder submitted forty-two discovery requests to Grange. Grange objected to sixteen of those requests, citing concerns about relevancy, privacy, improper motive, trade secret privileges, and the burdensome nature of the requests. The trial court overruled Grange's objections and granted Wilder's motion to compel the discovery. Grange then requested a protective order to limit the discovery allowed, or in the alternative, to prohibit public disclosure of the discovery. The trial court denied the motion without making any findings of fact. Grange again requested a protective order, specifically asking the trial court to conduct an in camera review of the materials to be produced to determine the extent of relevancy and privilege, and again in the alternative, to seal the file to prohibit disclosure of the discovery outside of the litigation. The trial court also denied this request.
Grange then filed a petition with the Court of Appeals for a "writ of prohibition barring the Owsley Circuit Court ... from compelling ... production ... of confidential business and trade secrets, burdensome and expensive historic data of limited relevance, and irrelevant information unrelated to the issues in the case, or limiting production to relevant information subject to appropriate Protective Orders." Grange also described the relief it was seeking as a request that the Court of Appeals "craft[ ] a discovery order which gives [Wilder] all discovery which is relevant to his claims, balanced against the legitimate needs of the Petitioner to be protected against unwarranted public disclosure, undue burden and expense, and profiteering," or at the very least, "[s]eal this file," prohibit Wilder from copying the discovery, and require that Wilder return the discovery at the conclusion of the case. Grange claimed that the production of the documents would cause irreparable harm and could not be adequately remedied on appeal. The Court of Appeals denied the petition because it found that while Grange would not have an adequate remedy on *808 appeal, it had failed to prove irreparable harm. Grange now brings this appeal as a matter of right.
III. Analysis
A. Writ of Prohibition Standard
A writ of prohibition is an "extraordinary remedy and we have always been cautious and conservative both in entertaining petitions for and in granting such relief."[1] We have divided writ cases into "two classes," which are distinguished by "whether the inferior court allegedly is (1) acting without jurisdiction (which includes `beyond its jurisdiction'), or (2) acting erroneously within its jurisdiction."[2] Grange is not challenging the jurisdiction of the trial court, so we need not concern ourselves with an extensive discussion of the first class of cases.
Instead, Grange's claim falls under the second class. In that type of case, writs of prohibition "ordinarily ha[ve] not been granted unless the petitioner established, as conditions precedent, that he (a) had no adequate remedy by appeal or otherwise, and (b) would suffer great and irreparable injury (if error has been committed and relief denied)."[3] We "have consistently (apparently without exception) required the petitioner to pass the first test; i.e., he must show he has no adequate remedy by appeal or otherwise."[4] The petitioner must then also meet the requirements of the second test, i.e., by showing great and irreparable injury, alternately defined as "something of a ruinous nature,"[5] before a writ will issue. "Ordinarily if this cannot be shown, the petition will be dismissed."[6]
We have also held, however, that a showing of great and irreparable harm in this second class of cases is not "an absolute prerequisite"[7] for the issuance of a writ. The requirement may be put aside in "certain special cases ... [where] a substantial miscarriage of justice will result if the lower court is proceeding erroneously, and correction of the error is necessary and appropriate in the interest of orderly judicial administration."[8] But these "certain special cases" are exactly that they are rare exceptions and tend to be limited to situations where the action for which the writ is sought would violate the law, e.g. by breaching a tightly guarded privilege[9] or by contradicting the requirements of a civil rule.[10] In those rare cases, a court may peek behind the curtain, i.e., beyond the petitioner's failure to meet the great and irreparable harm test, at the merits of the petitioner's claim of error by the lower court.
*809 B. Appellate Review Standard
Grange claims that a denial of a writ of prohibition is examined on appeal under the de novo standard of review "where the factual underpinning for application of an articulated legal rule is so wanting as to equal, in reality, a distortion of the legal rule." Grange cites Lexington Public Library v. Clark[11] for this standard, but it does so by taking the qualifying language in its brief "where the factual underpinning for application of an articulated legal rule is so wanting as to equal, in reality, a distortion of the legal rule" out of context. The language that Grange cites reads in context as follows:
Where the challenge involves matters of fact, or application of law to facts, however, an abuse of discretion should be found only where the factual underpinning for application of an articulated legal rule is so wanting as to equal, in reality, a distortion of the legal rule. Application of any lesser standard for interlocutory intervention would ignore the extraordinary nature of the writs of prohibition and mandamus.[12]
The cited language supports an abuse of discretion standard rather than de novo review. And the cited language actually relates the standard to be applied by the court hearing the initial petition when it reaches the merits of the case, i.e., after applying the "practical and convenient formula"[13] of no adequate remedy on appeal and great and irreparable injury not the standard applied in an appeal of the grant or denial of a writ to yet a higher court.
But we must review this matter under an appellate standard. The petition for this writ was filed in the Court of Appeals, which acted as a trial court because it heard the matter as an original action. And this case is now before us as a matter of right appeal, not an original action. Since the passage of the Judicial Article in 1976, the Court of Appeals has been the appropriate forum for the original action in a petition for a writ of prohibition applicable to a circuit court, and the Supreme Court is limited to appellate review.[14] But what appellate standard de novo, abuse of discretion, or clear error to apply to which class of writ case is not perfectly clear because we have, unfortunately, failed to make an unambiguous distinction among the three standards in our recent writ cases.
This is perhaps a result of the fact that many of the seminal opinions on the subject of writs are from original writ actions in our predecessor Court i.e., when there was no intermediate appellate court that would hear the original writ action and from which an appeal could be taken. Those opinions did not need to consider the standard on appeal because there was no higher court that could entertain an appeal. But it could also be that no party has framed the issue so as to require careful attention on our part as to the standard of review that we ought to apply.
By claiming that de novo is the proper standard of review, however, Grange has placed this issue squarely before us. Though our previous decisions have not dealt with this question extensively, *810 the basic rule is simple: "Issuance of, or a refusal to issue a writ of prohibition is in the sound discretion of the court."[15] But in other cases, we have noted that "appellate review of that decision is limited to an abuse-of-discretion inquiry, except for issues of law which are reviewed de novo."[16]
Thus, it is apparent that the proper standard actually depends on the class, or category, of writ case. De novo review will occur most often under the first class of writ cases, i.e., where the lower court is alleged to be acting outside its jurisdiction, because jurisdiction is generally only a question of law. De novo review would also be applicable under the few second class of cases where the alleged error invokes the "certain special cases" exception[17] or where the error involves a question of law. But in most of the cases under the second class of writ cases, i.e., where the lower court is acting within its jurisdiction but in error, the court with which the petition for a writ is filed only reaches the decision as to issuance of the writ once it finds the existence of the "conditions precedent," i.e., no adequate remedy on appeal, and great and irreparable harm. "`If [these] procedural prerequisites for a writ are satisfied, "whether to grant or deny a petition for a writ is within the [lower] court's discretion."'"[18]
But the requirement that the court must make a factual finding of great and irreparable harm before exercising discretion as to whether to grant the writ then requires a third standard of review, i.e., clear error, in some cases. This is supported by the fact that the petition for a writ is an original action[19] in which the court that hears the petition, in this case the Court of Appeals, acts as a trial court. And findings of fact by a trial court are reviewed for clear error.[20] Therefore, if on appeal the error is alleged to lie in the findings of fact, then the appellate court must review the findings of fact for clear error before reviewing the decision to grant or deny the petition.
C. Adequate Remedy on Appeal
There is no dispute that Grange would not have an adequate remedy on appeal. As the Court of Appeals noted, Wilder has conceded this point. But for the sake of completeness we point out that there will rarely be an adequate remedy on appeal if the alleged error is an order that allows discovery. Our predecessor court noted the following:
The present petition states, and we believe it evident, that petitioners are without an adequate remedy by appeal or otherwise.... Once the information is *811 furnished it cannot be recalled.... The injury suffered by petitioners... will be complete upon compliance with the order and such injury could not thereafter be rectified in subsequent proceedings in the case. Petitioners have no other adequate remedy.[21]
As such, we agree with the Court of Appeals that Grange would have no adequate remedy on appeal.
D. Great and Irreparable Harm
The Court of Appeals based its decision on a finding that Grange failed to prove great and irreparable harm. Grange argues that it did show great and irreparable harm because the requested discovery is irrelevant and would require disclosure of trade secrets.
1. Irrelevant Discovery
Grange complains that almost all of the discovery requests at issue in this case aim to discover irrelevant information. But showing irrelevancy is not a method of proving great and irreparable injury. Mere possession of irrelevant information by an opposing party is not "something of a ruinous nature."[22]
Our predecessor court, however, held that discovery of irrelevant material could fall under the certain special cases exception,[23] allowing a court to forego the great and irreparable harm requirement in the interests of justice. Thus, we must evaluate the relevance of the requested discovery to see if its production would be "a substantial miscarriage of justice ... and correction of the error is necessary and appropriate in the interest of orderly judicial administration."[24]
To frame the issue, we note that CR 26.02 allows that "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.... It is not grounds for objection that the information sought will be inadmissible at the trial if the discovery sought appears to be reasonably calculated to lead to the discovery of admissible evidence." We also note that under CR 26.02, "[t]he question of relevancy is more loosely construed upon pre-trial examination than at the trial, and the Rule requires only relevancy to the subject matter involved in the action."[25]
a. Interrogatories No. 9 and 10(b) and Request for Production No. 10
These discovery requests[26] focus on other bad faith claims brought against *812 Grange by private plaintiffs or the Kentucky Insurance Commission. Grange argues that information and documents related to such claims is irrelevant because they cover claims against adjusters other than those involved in this case. Citing Kentucky Farm Bureau Mutual Insurance Co. v. Troxell,[27] Grange argues that discovery of other claims is limited only to claims involving the same adjusters. But Troxell addresses only the admissibility at trial of other claims, not their discoverability, and it states that evidence of other claims involving the same adjuster is admissible, which would imply that they are discoverable. The opinion does not contain the sort of limiting language that Grange implies. In fact, it does not even address in any way the admissibility or discoverability of claims involving other adjusters.
It is enough for us to note that discovery of information and documents related to similar claims involving other adjusters could reveal a pattern of bad faith conduct on the part of Grange. This would certainly be relevant to Wilder's bad faith claim, regardless of whether such information was admissible at trial. As such, Interrogatories Nos. 9 and 10(b) and Request for Production No. 10 were proper.
b. Requests for Production No. 8, 9, 20, and 29
These discovery requests[28] focus on manuals that contain Grange's internal policies and procedures for evaluating and adjusting claims. Grange's primary complaint with discovery of these items concerns their trade secret status, which is addressed separately below. But Grange also claims that these items are irrelevant.
In support of its relevance argument, Grange cites to only one case: Garvey v. National Grange Mutual Insurance Company.[29] The plaintiff in Garvey had filed *813 suit in which he claimed breach of contract, bad faith claim, and deceit based on the insurance company's refusal to provide coverage for fire damage to his business. The trial court granted a protective order that prohibited discovery of the insurance company's manuals, noting the following:
The contents of these manuals do not pertain to whether the plaintiff's present claim for loss is "covered" under the insurance contract issued by the defendant. Moreover, the fact that the defendant may have strayed from its internal procedures does not establish bad faith on the part of the defendant in handling the plaintiff's loss.[30]
The bad faith claim here is not based on whether the insurance adjuster may have strayed from internal procedures. The question is whether Grange's own policies, as described in the manuals, embody or encourage bad faith practices. And use of such manuals is not without precedent in our courts.[31] As such, we disagree with the applicability of Garvey to this case. Grange's training and policy manuals are relevant to Wilder's bad faith claim, and absent some sort of privilege or other showing of irreparable harm, they are discoverable.
c. Requests for Production No. 13, 14, 23, and 26
These discovery requests[32] focus on Grange's methodologies for setting reserves on claims that its adjusters handle. Again, Grange claims these are protected as trade secrets, which we address below. But Grange also makes the unique argument that this information is irrelevant to the case because Wilder already has discovery that lists the reserve amount set for his claim and because Wilder is only seeking this information for use in future litigation or to sell to other plaintiffs' attorneys.
The relevance of procedures for setting reserves to a bad faith claim seems obvious. Reserve setting procedures are controlled in part by statute.[33] Evidence of Grange's reserve setting procedures would help show whether Grange is following the statutory and regulatory requirements and whether the specific system for setting reserves is aimed at achieving unfairly low values. We find that this evidence is relevant to the bad faith claim.
Grange's argument that Wilder is seeking this discovery for other improper purposes, *814 i.e., use in other litigation or for sale to other attorneys, is even more difficult to swallow. Grange cites Oppenheimer Fund, Inc. v. Sanders[34] for the proposition that seeking discovery for use in other proceedings is an improper motive. But Grange's reading of Oppenheimer is far too restrictive because the evidence sought in that case was useful only in other proceedings and was not relevant to the case at hand.[35] We agree that when this is the case, then discovery of the evidence is improper.
But evidence that is relevant to the proceeding at hand, as is the case here, is discoverable despite the fact that the evidence may be useful in other contexts. That discovery might be useful in other litigation or other proceedings is actually a good thing because it furthers one of the driving forces behind the Civil Rules by allowing the cost of repeating the discovery process to be avoided and thereby encouraging the efficient administration of justice.[36] And "[e]ven though CR 1 no longer requires it ... the rules of procedure should be construed to secure the just, speedy, and inexpensive determination of every action."[37]
The exception in this group is Request for Production No. 13. The average amounts paid on other claims would only be relevant if the degree of damages or injury were comparable to Wilder's. This request, however, is so blanket as to seek primarily irrelevant records and information. As such, it falls into the certain special cases exception.
*815 d. Requests for Production No. 11, 16, and 21
These discovery requests[38] focus on the personnel files and the records and policies concerning the compensation of various Grange employees. We agree that many of the items likely to be found in personnel records (e.g., original job application, marital information, tax and dependant data, medical information, health insurance data, worker's compensations claims, and retirement account data) are irrelevant to a bad faith claim and thus are not discoverable. Thus, Wilder's discovery requests, to the extent that such truly personal items are covered, are overly broad.
Other information to be found in personnel files (e.g., related to job performance, bonuses, wage and salary data, disciplinary matters) is relevant to Wilder's claim. Job performance and disciplinary information could help show that the adjusters and their superiors had engaged in bad faith practices in adjusting Wilder's initial claim or that they had engaged in bad faith practices at other times. This information could also show Grange's knowledge or even approval of such practices. This makes those portions of the personnel records related to job performance and disciplinary matters discoverable.
Wilder claims that the compensation of Grange's employees could be keyed to obtaining low settlements, which in turn might encourage bad faith practices by adjusters and other employees. Wage, salary, and bonus data as to the employees described in the discovery requests shed light on this subject, as would the discovery requests as to how Grange's overall compensation system works. Thus, insofar as the requested personnel records relate to compensation of the employees involved and the other records relate to how Grange's overall compensation system works, they are discoverable.
e. Request for Production No. 3
This discovery request[39] focuses on advertising that Grange used from 1993 to 1997. Wilder failed to address this discovery request in his brief, which we read as a waiver of this issue.
*816 f. Request for Production No. 22
This discovery request[40] is for Grange newsletters that deal in any way with claims handling. Grange's brief mentions this discovery request only in a section title. The text following the section title focuses solely on the discovery request dealing with advertisements, without addressing the issue of newsletters. Because Grange at least mentions this request, we will not read it as having been waived. Wilder also fails to address this discovery request directly, but we read his overall argument in favor of allowing discovery related to Grange's claims handling documents as applying to this request also. On this point, we would simply note that internal company newsletters that relate to claims handling could contain evidence that shows that Grange encouraged or knew about bad faith claims handling by its adjusters, which makes those documents relevant and discoverable. Though Grange does not expressly claim these documents are covered as trade secrets, any claim that they might be is addressed below.
2. Trade Secrets
In addition to claims of irrelevance, Grange attacks Requests for Production Nos. 8, 9, 13, 14, 20, 23, 26, and 29 on the grounds that the documents requested have trade secrets status. Trade secrets enjoy substantial protection in Kentucky as embodied by the Uniform Trade Secrets Act.[41] And usually a discovery request that would require the "disclosure of a trade secret ... clearly justifies the entry of a protective order,"[42] though granting such an order would fall within the discretion of the trial court.[43]
We have previously addressed, at least in part, the issue of trade secrets in the context of a petition for writ of prohibition. In Wal-Mart Stores, Inc. v. Dickinson,[44] we noted that "[m]ost likely, disclosure of a trade secret would likewise rise to the level of irreparable harm as the potential harm could extend far beyond the case in which the disclosure is made."[45] Grange relies heavily on Wal-Mart Stores in the course of its argument that a writ of prohibition is necessary in this case. But Wal-Mart Stores is readily distinguishable from this case. Wal-Mart was seeking a writ or prohibition against the enforcement of the trial court's order allowing an inspection termed a "walk-through" of its loss prevention headquarters. We noted that "Wal-Mart makes no specific claims as to irreparable harm arising from the walk through. Rather it argues that the trial court erred in denying the protective order because its `headquarters are not open to the public and contain extremely sensitive, proprietary, confidential information and trade secrets.'"[46] We then stated that involuntary disclosure of trade secrets usually *817 amounts to irreparable harm. But we refused to grant the writ under the irreparable-harm rubric, holding that "Wal-Mart's general claims are not well taken and cannot serve to establish irreparable harm."[47] While we did subsequently grant the writ in Wal-Mart Stores, the rationale for the writ came from Bender's certain special cases exception because the trial judge had failed to make findings of fact as required by CR 34.01 in its premises inspection order not the traditional irreparable harm approach.
We have already discussed the applicability of the certain special cases exception, by way of irrelevance of the proposed discovery, above, finding that the exception does not apply to Requests for Production Nos. 8, 9, 13, 14, 20, 23, 26, and 29. The remaining question then is whether Grange has proven great and irreparable harm. The Court of Appeals has already given us a negative answer to this question of fact. So we are left to evaluate whether the Court of Appeals, which acted as a trial court in the original petition for a writ of prohibition, committed clear error. In holding that Grange "failed to also demonstrate that ... production will cause it irreparable harm," the Court of Appeals also noted the following:
The record that has been provided to us does not suggest that Grange sought to introduce specific evidence for each document, or category of documents for which it makes a claim of lack of relevance, confidentiality, or privilege, and it is not clear whether it submitted all the documents to the trial court for its review in camera. What is clear, however, is that the records were neither submitted, nor sufficiently described, to us.
After reviewing the record submitted to the Court of Appeals, we must agree.
Grange's petition for a writ of prohibition contains only broad descriptions of documents, e.g., "Grange's training and or other internally created manuals, reserve setting data, policy and procedure manuals, claims payment averages, personnel and management guidelines, wage and benefits data, and other claims programs and software,"[48] followed by the conclusory statement that these documents contain proprietary trade secrets. But such a blanket, vague claim of privilege is not enough. We have previously refused to grant a writ of prohibition when the petitioner has failed to provide "access to the documents, themselves, or to sufficient descriptions of their contents,"[49] and we continue to do so now.
Grange attempts to evade the inevitable result of this failure to prove that the documents contain trade secrets by alleging a conflict between CR 76.36(5) and the fact that the Court of Appeals found no irreparable injury because Grange "neither submitted, nor sufficiently described" the records in question. CR 76.36(5) states that "[e]vidence in support of or against the petition, other than that which may be attached to the petition and response *818 in the form of exhibits, affidavits, and counter-affidavits, will be permitted only by order of the court." Grange claims that, under this rule, the Court of Appeals should have ordered it to submit the records that would have allowed it to prove its case, and that absent such an order, it could not prove the privilege.
While we understand that Grange did not want to simply attach the records as exhibits to their petition, it is unclear that the Court of Appeals actually needed to see the records themselves. A thorough description of the records, perhaps in the form of a privilege log, would have been enough to show irreparable harm, but as we have already noted, the descriptions that Grange did provide were not enough to require that the Court of Appeals find great and irreparable harm.
But more importantly, "the burden of proving that a privilege applies rests on the party claiming its benefit."[50] If Grange felt that it was necessary for the Court of Appeals to review the documents, then it could have made a motion for a CR 76.36(5) order to allow the presentation of more evidence. Grange could even have moved the Court of Appeals to undertake an in camera review in order to determine whether discovery of the records would have caused great and irreparable harm. But Grange made no such motion. Instead, Grange now complains that the Court of Appeals failed to grant such an order sua sponte. It is not the duty of the Court of Appeals to make Grange's case for it. And its failure to do so is certainly not grounds for us to reverse the denial of the writ.
E. Trial Court's Failure to Conduct an In Camera Review
As a final matter, we address Grange's initial substantive claim that the trial court "erred as a matter of law" by not conducting an in camera review of the requested discovery. This is simply an incorrect statement of the law in Kentucky. "[T]he decision whether to engage in in camera review rests within the sound discretion of the trial court."[51] But review of the trial court's decision in this regard, even under the abuse of discretion standard, would require us to engage in the merits of Grange's request for a writ of prohibition. Because Grange failed to prove the conditions precedent for reaching the merits, we decline to review the trial court's failure to conduct an in camera review.
IV. Conclusion
The majority of the disputed discovery requests are sufficiently relevant so as not to require a writ of prohibition. But some of the discovery that Wilder seeks the advertising information under Request for Production No. 3; certain personal aspects of the personnel records under Request for Production No. 11 including original job applications, marital information, tax and dependant data, medical information, health insurance data, worker's compensations claims, and retirement account data; and records showing average amounts paid on other claims under Request for Production No. 13 is not relevant to the litigation underlying this case. As such, a writ of prohibition under Bender's certain special cases exception should issue as to those discovery requests. *819 Grange also failed to avail itself of the procedures that would have allowed it to prove its most significant claim that most of the discovery requests would require disclosure of trade secrets. Therefore, we agree with the Court of Appeals that Grange failed to make a sufficient showing of great and irreparable harm that would justify a writ of prohibition.
We affirm in part and reverse in part, and thus remand this matter to the Court of Appeals for entry of a writ of prohibition in conformity with this opinion.
All concur.
NOTES
[1] Bender v. Eaton, Ky., 343 S.W.2d 799, 800 (1961).
[2] Id.
[3] Id. at 801 (emphasis in original).
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id. (first emphasis added).
[9] See Wal-Mart Stores, Inc. v. Dickinson, Ky., 29 S.W.3d 796, 803 (2000) (noting that deposing an attorney or paralegal involved in the case would normally fall under the "certain special cases" exception because of the attorney-client privilege).
[10] See id. at 801-02 (noting that a judge's failure to include findings of fact as required by CR 34.01 in a premises inspection order met the exception); Bender, 343 S.W.2d at 803 (holding that a judge's order for production of a doctor's report was a violation of the then recently enacted Civil Rules and thus fell under the exception).
[11] Ky., 90 S.W.3d 53, 62 (2002).
[12] Id.
[13] Bender, 343 S.W.2d at 801.
[14] A circuit court may entertain an original action for mandamus or prohibition against a district court. Commonwealth v. Williams, Ky.App., 995 S.W.2d 400, 403 (1999). In that event, the Court of Appeals acts as a reviewing court and is then limited to appellate review of the circuit court's decision.
[15] Haight v. Williamson, Ky., 833 S.W.2d 821, 823 (1992).
[16] Rehm v. Clayton, Ky., 132 S.W.3d 864, 866 (2004); see also Ky. Labor Cabinet v. Graham, Ky., 43 S.W.3d 247, 250 (2001) ("As the issues on this appeal are to be decided as a matter of law, our review of the Court of Appeals decision is not confined to an abuse of discretion inquiry.").
[17] See supra notes 7-11 and accompanying text.
[18] Rehm, 132 S.W.3d at 866 (alteration in original) (quoting Peterson v. Shake, Ky., 120 S.W.3d 707, 711 (2003) (Keller, J., concurring)).
[19] See CR 81 ("Relief heretofore available by the remed[y] of ... prohibition ... may be obtained by original action in the appropriate court."); Lexington Pub. Library v. Clark, Ky., 90 S.W.3d 53, 56 ("A petition for an extraordinary writ is a separate civil action brought pursuant to CR 81, not an interlocutory appeal from the underlying action brought pursuant to CR 73.01(1).").
[20] CR 52.01.
[21] Bender v. Eaton, Ky., 343 S.W.2d 799, 802 (1961); see also Wal-Mart Stores, Inc. v. Dickinson, Ky., 29 S.W.3d 796, 800 (2000) (noting the lack of adequate remedy on appeal for disclosure of trade secrets).
[22] Bender, 343 S.W.2d at 801.
[23] Carpenter v. Wells, Ky., 358 S.W.2d 524, 527-28 (1962).
[24] Id. (emphasis in original).
[25] Maddox v. Grauman, Ky., 265 S.W.2d 939, 941 (1954).
[26] The production requests in their entirety are as follows:
Interrogatory No. 9: List by docket, file number, time or jurisdiction and case title every litigation involving allegations against you of either: (a) Violations of the Unfair Claims Settlement Practices Act or similar act; (b) Violations of the Kentucky Consumer Protection Act known as KRS 367.170, et al.; and (c) Allegations of common law bad faith, which allegations were made between July 1, 1989, and the present.
Interrogatory No. 10(b): With respect to each type of litigation identified above, state the following: ... (b) The result of the litigation, i.e., settled or verdict, and state the amounts paid for each matter, if any.
Request for Production No. 10: Any and all documents produced, generated or disseminated by you which relate to any proceeding initiated by the Kentucky Insurance Commission regarding allegations of Unfair Claims Settlement Practices Act, including any market conduct surveys or exams or any complaints filed with the Kentucky Insurance Commission which relate to claims handling practices for auto policies between 1990-2001.
[27] Ky., 959 S.W.2d 82, 85-86 (1997).
[28] The production requests in their entirety are as follows:
Request for Production No. 8: Any records or compilations, manuals, internal memorandum, documents or other communications which are maintained by you and relate to claims by insureds for unfair claim settlement practices.
Request for Production No. 9: Any manuals, handbooks, internal publications or other instructional materials or statements of policy respecting claims handling procedures which were disseminated, utilized, or produced by you, between January 1985 and September 2001 for any claims handling in the state of Kentucky.
Request for Production No. 20: Documents pertaining to programs designed to control costs (including both indemnity and allocated/unallocated claim costs), including but not limited to the following: A. Medical costs containments; B. Medical Management; C. Peer Review; D. Bill Review; and E. Computations regarding average claim or indemnity payments. This is limited to claims involving property and casualty in the State of Kentucky for the last six (6) years.
(last sentence added in the trial court's order).
Request for Production No. 29: Documents of any type which set[ ] forth Defendant Grange Insurance policies [and] philosophies on: A. Claims handling polices; B. Providing service to policy holders; C. Good/Bad Faith claims handling; D. Extra contractual damages and suits; E. Compliance with unfair claims practices and statutes; and F. Wrongful claim handling.
[29] 167 F.R.D. 391 (E.D.Pa.1996).
[30] Id. at 396.
[31] Troxell, 959 S.W.2d at 83 (noting that the trial court had allowed "evidence of company manuals used to train Farm Bureau adjusters" in a bad faith claim).
[32] The production requests in their entirety are as follows:
Request for Production No. 13: All records, data or compilations showing average amounts paid on claims by any adjusters who were involved in adjusting Plaintiff's claim, and any unit they are in, for any bodily injuries, uninsured motorist, or property damage claims for the period of time, beginning 3 years prior to the accident of April 14, 1999 until present time.
Request for Production No. 14: All documents which provide definitions, methods of calculating, criteria or guidelines for the establishment of reserves.
Request for Production No. 23: All quality controlled audits or surveys for the offices handling Plaintiff's claim including but not limited to: A. Home audits or regional audits; B. Manuals or guidelines for audits; and C. Claim handling quality criteria.
Request for Production No. 26: All annual reports of the following nature from 1990-present: A. 10K reports to the Securities and Exchange Commission. B. Reports to the shareholders or policyholders if a mutual company. C. Reports to regulators/insurance departments.
[33] See KRS 304.06-120-.06-180.
[34] 437 U.S. 340, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978).
[35] Id. at 353, 98 S.Ct. 2380.
[36] Sisters of Charity Health Systems, Inc. v. Raikes, Ky., 984 S.W.2d 464, 468 (1998) (quoting Trammel v. United States, 445 U.S. 40, 45, 100 S.Ct. 906, 912, 63 L.Ed.2d 186 (1980), quoting United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950)) ("We begin our analysis with the nearly universal rule that privileges should be strictly construed, because they contravene the fundamental principle that `the public ... has a right to every man's evidence.'"); accord Wauchop v. Domino's Pizza, Inc., 138 F.R.D. 539, 546-47 (N.D.Ind.1991) ("The risk or in this case, the certainty that the party receiving the discovery will share it with others does not alone constitute good cause for a protective order. Rule 1 of the Federal Rules of Civil Procedure requires that the Rules be construed so as to foster the just, speedy, and inexpensive determination of every civil action. Collaborative use of discovery material fosters that purpose; the sharing of discovery materials ultimately may further the goals of Rule 1 by eliminating the time and expense involved in `re-discovery.'" See Williams v. Johnson & Johnson, 50 F.R.D. 31, 32 (S.D.N.Y.1970). The efficient administration of justice should encourage such practices. Ward v. Ford Motor Co. 93 F.R.D. 579, 580 (D.Colo.1982) ("Each plaintiff should not have to undertake to discovery [sic] anew the basic evidence that other plaintiffs have uncovered. To so require would be tantamount to holding that each litigant who wishes to ride a taxi to court must undertake the expense of inventing the wheel."); accord, Baker v. Liggett Group, Inc., 132 F.R.D. 123, 126 (D.Mass.1990) (`[T]o routinely require every plaintiff ... to go through a comparable, prolonged and expensive discovery process would be inappropriate.'); Patterson v. Ford Motor Co., 85 F.R.D. 152, 154 (W.D.Tex.1980) (`The availability of the discovery information may reduce time and money which must be expended in similar proceedings, and may allow for effective, speedy, and efficient representation.'). Maintaining a suitably high cost of litigation for future adversaries is not a proper purpose under Rules 1 or 26. (alteration in original)).
[37] Seale v. Riley, Ky., 602 S.W.2d 441, 444 (1980) (Wilhoit, J., concurring); see also West v. Goldstein, Ky., 830 S.W.2d 379, 384 (1992) ("In Kentucky in 1976, Rule 1 was rewritten to accommodate the new role of the Court of Justice in developing rules, and this sentence advising how the rules should be construed was not included. Nevertheless, the continued viability of this rule of construction is assured.").
[38] The production requests in their entirety are as follows:
Request for Production No. 11: All personnel records, performance goals, job descriptions and objectives, whether in the form of personnel records, unit goals, divisional goals, regional goals, or interoffice memorandum, or any other papers or documents which describe the goals and objectives for the following employees for the time period of January 1, 1986 through the present: (a) The claims adjuster(s) who handled this claim. (b) The supervisors for (a) above. (c) The supervisors for (b) above.
Request for Production No. 16: All personnel or salary administration manuals, or other guidance manuals applicable to all adjusters or personnel involved in the claim of Plaintiff Dale Wilder which include any of the following: A. Job description; B. Salary grade classification; C. Criteria for promotion/demotion; D. Plans for adequate staff levels; E. Performance valuation and activity reviews; F. Incentive programs and retirement funds; and G. Profit sharing and stock ownership.
Request for Production No. 21: Employee handbooks including, but not limited to orientation manuals or booklets, information regarding profit sharing, stock ownership and incentive plans, Company philosophies and policies and personnel administration manuals used for employees in Kentucky.
[39] The production request in its entirety reads as follows: "Request for Production No. 3: Any and all brochures or other advertising material (video, audio, or written) used in selling the motor vehicle policies covering Shawn Gabbard and Sid Gabbard, which are used to sell to the public generally, which were used during 1993-1997."
[40] The production request in its entirety reads as follows: "Request for Production No. 22: All company distributed newsletters, whether regional, national, or local dealing with claims (whether dedicated exclusively to claims handling or partially touching on the subject)."
[41] KRS 365.880 .900.
[42] Wal-Mart Stores, Inc. v. Dickinson, Ky., 29 S.W.3d 796, 800 (2000) (citing CR 26.03(1)(g)).
[43] See CR 26.03(1) ("Upon motion by a party ... the court... may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense." (emphasis added)).
[44] Ky., 29 S.W.3d 796 (2000).
[45] Id. at 801.
[46] Id. at 800.
[47] Id. at 801.
[48] Grange spends a significant amount of time discussing its proprietary computer software programs such as Colossus. We would note that none of the discovery requests calls for the production of software. Grange appears to have misread Request for Production No. 20, which refers to "programs designed to control costs," where "program" is used in the sense of "[a]n ordered list of ... procedures to be followed," AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (4th ed.2000), not the jargonistic sense of computer software. Wilder has acknowledged this in his brief, and Grange is not required to produce its software in discovery.
[49] Lexington Public Library v. Clark, Ky., 90 S.W.3d 53, 62-63 (2002).
[50] Sisters of Charity Health Systems, Inc. v. Raikes, Ky., 984 S.W.2d 464, 469 (1998) (citing ROBERT G. LAWSON, THE KENTUCKY EVIDENCE LAW HANDBOOK § 505, p. 229 (3d ed. Michie 1993)).
[51] Stidham v. Clark, Ky., 74 S.W.3d 719, 727 (2002).
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448 F.2d 1284
Maggie Bernice OUTLAW, Administratrix of the Estate of L. J. Outlaw, Deceased, Plaintiff-Appelleev.LOUISVILLE AND NASHVILLE RAILROAD COMPANY, Defendant-Appellant.
No. 21030.
United States Court of Appeals, Sixth Circuit.
September 29, 1971.
John B. Mack, Asst. Dist. Atty., Memphis, Tenn., on the brief, for defendant-appellant; Clarence Clifton, Asst. Dist. Atty., Memphis, Tenn., of counsel.
John B. Maxwell, Jr., Memphis, Tenn., for plaintiff-appellee; Pat H. Mann, Jr., Brownsville, Tenn., on brief; Apperson, Crump, Duzane & Maxwell, Memphis, Tenn., of Counsel.
Before CELEBREZZE, McCREE and MILLER, Circuit Judges.
WILLIAM E. MILLER, Circuit Judge.
1
On April 30, 1969, plaintiff-appellee's husband was killed when a tractor, pulling a large water-filled roller, overturned, crushing him to death. The equipment had become stuck while crossing the railroad's tracks in rural Haywood County, Tennessee. The Railroad tracks crossed Steele Road, a dirt road, at a point approximately 400 feet from Highway 70. For many years Steele Road had been used to connect highway 70 with state road No. 8131. Although in recent years the middle section of Steele Road had been blocked by gaps (removable barbed wire strands), undisputed testimony was that on occasion the entire road was used. At the time of the accident the primary use of Steele Road was as an access to the houses of Johnny Jaycocks and his niece, the only people living across the railroad tracks from highway 70.
2
After unsuccessfully trying to free the tractor, the deceased sought the aid of Mr. Charlie Bullock, a neighbor. Mr. Bullock helped disengage the tractor, then departed. He did not witness the overturning but soon after departing he heard a loud noise. He then returned and found the tractor overturned in a ditch on the opposite side of the tracks with the deceased crushed beneath. There were no witnesses to the fatal accident.
3
Appellee filed a wrongful death action in a state court. Appellant removed the case to the United States District Court. The complaint contained two counts. The first alleged common law negligence in maintaining an unsafe railroad crossing. The second count charged a violation of two Tennessee statutes imposing a duty on railroads to maintain railroad crossings "on public roads or highways." The statutes read as follows:
4
T.C.A. 65-1101. Construction and repair. — All persons, or corporations, owning or operating a railroad in the state, are required to make and furnish good and sufficient crossings on the public highways crossed by them, and keep same in lawful repair at their own expense. (emphasis added). T.C.A. 65-1103. Grading and repair — Cities and towns excepted. — Every corporation or person operating a line of railroad within the state shall be required to grade to a level with the rails of said railroad and to keep in repair every public road crossing such railroad for a distance of ten (10) feet on each side of such railroad track and between the rails thereof; provided, that the provisions of this section and § 65-1104 shall not apply within the limits of any city or incorporated town. (emphasis added).
5
The jury awarded appellee $45,000 damages. We consider four issues on appeal.
6
First, appellant argues that neither TCA § 65-1101 nor TCA § 65-1103 is applicable because Steele Road is a private road and the statutes apply only to crossings on "public highways" or "public roads." The district court disagreed, charging the jury that as a matter of law the crossing in question was a "public" crossing. This instruction, in effect, directed the jury to find that appellant had violated TCA § 65-1103 since it was clear from the evidence that the crossing was not graded in accordance with the requirements of that statute. On the basis of essentially undisputed facts in the record deemed to be relevant on this issue, under our interpretation of Tennessee law, we agree with the district court's finding.
7
The Tennessee Code does not define a "public" road or a "public" highway for purposes of TCA §§ 65-1101 and 1103. Therefore, to determine the meaning of these terms under Tennessee law we must look to cases interpreting these and other Tennessee laws and to statutory definitions contained in other Tennessee statutes.
8
The purpose of these two statutes is "to make such crossings easy of approach, and as safe as possible in cases of emergency." Louisville & Nashville Ry. Co. v. State, 137 Tenn. 341, 193 S.W. 113 (1916). Citing TCA §§ 23-1501 et seq., and 54-904 to 925, appellant suggests that Tennessee adopts a three fold test of a "public" road: (1) payment of damages for a right of way; (2) taking or holding title to the road in trust for the public; and (3) maintaining the road for the public.
9
Appellee, on the other hand, contends that under Tennessee law a road is "public" if: (1) it is for the public use and benefit; (2) the right to use the road is absolute and not permissive; (3) it is maintained by the county; (4) it has been used by the public for many years; and (5) no one claims ownership.
10
As we read the Tennessee authorities, neither standard is entirely controlling, for there is no clear-cut definition of "public" as used in these statutes. In the absence of a statutory definition, there are numerous factors relied on by Tennessee courts to ascertain whether a particular road is public or private. Cf. Guinn v. Eaves, 117 Tenn. 524, 535, 101 S.W. 1154 (1906). Burkitt v. Battle, 59 S.W. 429 (Tenn.Ct.Ch.App.1900).
11
Taking a literal view of the term "public," many Tennessee authorities indicate that a road is public if open to the public. See Sumner County v. Interurban Transp. Co., 141 Tenn. 493, 213 S.W. 412 (1918); TCA § 65-1502(e). The evidence clearly suggests that Steele Road has been and is freely available for use by the public without anyone's permission.
12
Other Tennessee authorities look for some kind of public dedication in order to classify a road as public or private. This dedication need not be by "record evidence." Burkitt v. Battle, 59 S.W. 429 (Tenn.Ch.App.1900). It can be by "act of the public authorities, or the express dedication by the owner, or an implied dedication by means of the use by the public * * *, or by adverse user for a period of 20 years continuously creating a prescriptive right * * *." Standard Life Ins. Co. v. Hughes, 203 Tenn. 636, 643, 315 S.W.2d 239, 242 (1958) (interpreting term "public highway" in insurance policy). Contrary to appellant's assertions, no particular formalities, public ownership, or monetary settlement are necessary to constitute a dedication. Cf. id.: Lewisburg v. Emerson, 5 Tenn.App. 127, 132 (1927); Raht v. Southern Ry., 50 S.W. 72, 76 (Tenn.Ch.App.1897); Elkins v. State, 21 Tenn. 543 (1841). In the case at bar the testimony showed that the public had used Steele Road, without obtaining anyone's permission, for as long as anyone could remember. This indicates an implied dedication within the framework of Tennessee law.
13
Tennessee courts also view the presence or absence of an obstruction as a factor in determining whether a road is public or private. Although the placement of a gap across part of Steele Road could indicate that the road is private, there are authorities to the contrary. See, e. g., Burkitt v. Battle, 59 S.W. 429 (Tenn.Ch.App.1900); Hill v. Hoffman, 58 S.W. 929 (Tenn.1899). In the case at bar we are primarily concerned with the nature of that part of Steele Road which crosses appellant's tracks. From highway 70 on one side of the tracks to the houses on the other side of the tracks there was apparently never any obstruction preventing the public from having free access to the road. The rather recent placement of gaps farther along the road does not automatically prevent the part of the road at issue from being "public" under Tennessee law, irrespective of any change in the nature of the remainder of the road.
14
Tennessee courts also frequently consider who maintains a road as a factor in determining the status of the road. The fact that a road is maintained by public authorities tends to show that it is public. See, e. g., Current v. Stevenson, 173 Tenn. 250, 116 S.W.2d 1026 (1938); cf. Lively v. Noe, 450 S.W.2d 852 (Tenn.Ct.App.1970). But see Bashor v. Bowman, 133 Tenn. 269, 180 S.W. 326 (1915). In the case at bar it was undisputed that part of Steele Road was maintained by county authorities. Although, as appellant notes, the county authorities would also maintain "driveways" if requested by the owner, no such request was made with regard to Steele Road. On their own initiative "whenever it [maintenance] is required," county employees at county expense performed repairs on Steele Road from highway 70 to the houses on the other side of appellant's tracks.
15
Considering these undisputed factors, it is apparent that Steele Road is "public" within the meaning of Tennessee law as we interpret it. TCA §§ 65-1101 and 1103 are therefore applicable.
16
Appellant's second argument is that the district court erred in refusing to accept the decedent's status as a mere licensee to whom appellant railroad owed the duty only of refraining from willful or wanton conduct. The district court refused appellee's proffered instruction and charged the jury that the railroad was liable "if injury results from a breach of the duty to use or exercise reasonable and ordinary care for the safety of the traveling public." As authority for the view that the deceased was a mere licensee, appellant cites cases from Massachusetts, Alabama, and Illinois. McCarthy v. Boston & M. R.R., 319 Mass. 470, 66 N.E.2d 561 (Sup.Jud. Ct.1946); Alabama G.S.R. Co. v. Linn, 103 Ala. 134, 15 So. 508 (1894); Atchison, Topeka & Santa Fe Railroad Co. v. Parsons, 42 Ill.App. 93 (1891). Irrespective of the questionable relevance of non-Tennessee authority in the instant action, these cases are inapposite because they all involve a private crossing. Here, as we hold, the decedent was killed while using a public crossing. Appellant's reliance on O'Brien v. St. Louis, I. M. & Southern Ry. Co., 5 Higgins 588 (Tenn.Ct.Civ.App.1915) is also misplaced. Contrary to appellant's position, O'Brien implies that under the common law in Tennessee a person utilizing a public railroad crossing is owed a duty of ordinary care. Id. at 597. This has been the Tennessee view for many years. See, e. g., Louisville & Nashville Railroad Co. v. Evins, 13 Tenn.App. 57, 73 (1931).
17
Appellant's third objection is to the admission of alleged hearsay. Despite appellant's objections, at trial the district judge admitted Johnny Jaycocks' testimony about a conversation with an unidentified railroad employee. Approximately a year before the decedent was killed, another accident occurred at the same crossing. At the earlier mishap a truck became stuck on the same crossing and was hit by a passing train. Sometime after that accident Jaycocks, endeavoring to have the crossing repaired, spoke with the section foreman of a railroad crew engaged in working on the crossing. The jury was permitted to hear Jaycocks testify that the foreman said "Well, I can't fix it [the crossing] because I have to have orders to do it." Further, according to Jaycocks' testimony, the foreman said "[T]hese rocks won't help it a bit, they will roll all away, but the company still have to give me orders to do it before I can do anything to it."
18
In Tennessee the admission of an agent is admissible against the principal if the statement relates to an act being performed within the scope of the agent's authority. Thurmer v. Southern Railway Co., 41 Tenn.App. 354, 293 S. W.2d 600 (1956). Here Jaycocks requested repairs from the man given the responsibility for the maintenance of the crossing. The foreman's statements about the area occurred while he was supervising maintenance work on the very crossing about which Jaycocks testified. Under these circumstances, we cannot say that the district judge erred in admitting the testimony concerning the foreman's remarks.
19
Finally, appellant argues that the absence of direct proof on the precise cause of the accident required the jury to speculate on how the accident occurred. Since under Tennessee law "a verdict cannot be based on speculation, surmise or conjecture," Gilreath v. Southern Railway Co., 323 F.2d 158, 163 (6th Cir. 1963), appellant urges us to set aside the jury verdict.
20
Under Tennessee law a court of appeals, considering the validity of a jury verdict, does not weigh the evidence nor decide the credibility of the witnesses. Southern Railway Co. v. Sloan, 56 Tenn.App. 380, 407 S.W.2d 205 (1965), Interstate Life & Accident Co. v. Cox, 55 Tenn.App. 40, 396 S.W.2d 80 (1965). In the case at bar we are in the posture of a Tennessee appellate court applying Tennessee law. Erie Ry. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Consequently, our "review is limited to a determination of whether there is any material evidence to support the verdict." Southern Ry. Co. v. Sloan, 56 Tenn.App. supra at 387, 407 S.W. 2d at 209. Under this perspective we cannot disturb the jury's decision. The jury in this case was presented clear and unmistakable evidence that the railroad crossing at the time of the accident was in a hazardous state of disrepair. There is direct testimony that it was rough, uneven and replete with large holes between the rails. The approaches to the crossing were steep, coming to a high point at the tracks themselves, leaving no immediate level space on either side and thus making the crossing dangerous for normal traffic. The undisputed evidence established the fact that the equipment became lodged at the crossing because of the condition of the crossing itself. It came to a stop when the tractor was unable to pull the heavy water-filled roller across a board which was allowed to protrude above the level of the first rail, although the tractor itself had cleared the farthest rail. The testimony of the witness Bullock was that he hooked his tractor to the roller and pulled it back to a point where it was no longer hung on the protruding board. This left the rear wheels of the tractor between the rails. He then started his tractor away from the scene and momentarily thereafter he heard a "rumbling." He returned and found the tractor overturned in a ditch on the opposite side of the crossing with the deceased crushed underneath. Sometime before this occurrence it was known that a train was approaching and it was necessary to send a bystander down the tracks to signal it to a stop before reaching the crossing. The evidence also establishes that between the rails there were large rocks and pieces of black top which remained after the railroad workmen had torn it up. Preparatory to laying new rails the railroad workmen had dug trenches which parelleled the rails. In addition to the large holes in the crossing, as stated, the "cross boards," parallel to the rails "stuck up" or protruded above the rails. These facts are not only established by the testimony of witnesses who examined the crossing on the day of the accident, but are graphically portrayed by a large number of photographs which were made at the crossing shortly following the accident. These photographs were introduced in evidence and were examined by the jury.
21
From these facts a jury, in our opinion, could reasonably conclude, without indulging in guess work or speculation that the overturning of the vehicle and the deceased's death were caused when the deceased in undertaking to go forward with his heavy equipment after it was first disengaged and quickly to remove himself from a place of extreme peril was unable to keep his vehicle under control because of the rough and uneven condition of the crossing and because of the sudden and steep decline in the roadway on the opposite side. Under such circumstances, the jury could properly find that the appellant's negligence in failing to maintain the crossing was the proximate cause of the deceased's death and that the deceased was free from contributory negligence. Cf. Southern Railway Co. v. Sloan, supra.
22
Affirmed.
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17 N.Y.3d 714 (2011)
957 N.E.2d 1158
933 N.Y.S.2d 654
2011 NY Slip Op 871097
MATTER OF 677 NEW LOUDON CORP.
v.
STATE OF N.Y. TAX APPEALS TRIB.
Motion No: 2011-784
Court of Appeals of New York.
Decided October 20, 2011.
Motion for leave to appeal granted.
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463 F.Supp. 276 (1978)
John F. CSANADI
v.
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS LOCAL UNION NO. 773 and Alfonso C. Abbruzzi, President.
Civ. A. No. 77-705.
United States District Court, E. D. Pennsylvania.
October 4, 1978.
*277 Bernard V. O'Hare, Jr., Bethlehem, Pa., for plaintiff.
Stephen C. Richman, Philadelphia, Pa., for defendants.
MEMORANDUM AND ORDER
BECHTLE, District Judge.
Plaintiff John F. Csanadi ("Csanadi") brought this action against defendants Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 773 ("Local Union") and Alfonso C. Abbruzzi ("Abbruzzi"), President of the Local Union, alleging that the Local Union had improperly denied Csanadi seniority benefits and had failed to perform its duty of fair representation by refusing to process Csanadi's grievance. The jurisdiction of this Court is invoked pursuant to section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185 (1970). Presently before the Court are the defendants' motions for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons stated below, the defendants' motions will be granted.
The pleadings, depositions and affidavits in this case demonstrate that the pertinent facts underlying this dispute are as follows: Csanadi was an employee of the Branch Motor Express Company ("Branch") from 1953 to 1975, serving as a truck driver between 1953 and 1959. The terms and conditions of Csanadi's employment as a truck driver were governed by a series of collective bargaining agreements executed between Branch, his employer, and the Local Union, his exclusive representative for the unit of truck drivers and other specified *278 nonsupervisory personnel. In February of 1959, Csanadi left his position as a truck driver to become a dispatcher at Branch, a supervisory position not within the bargaining unit represented by the Local Union. At the time of his departure from the bargaining unit, Csanadi made no written agreement concerning his seniority benefits with either the Local Union or Branch.
Csanadi was subject to different terms and conditions of employment in his supervisory position as a dispatcher at Branch than he had been as a truck driver. As a dispatcher, he received an incentive bonus, attended management meetings and earned income on a salary basis. Over the years, however, Csanadi became dissatisfied with the monotonous nature of the dispatcher job and, in the late 1960's and early 1970's, repeatedly asked Branch to allow him to return to his former position of truck driver and to assign him to particular driving routes. After his requests to be reassigned to particular driving routes were denied by Branch, Csanadi wrote a letter dated September 11, 1975, and addressed to the Terminal Manager and Union Shop Steward of Branch and all officers of the Local Union, in which he submitted another bid for a specific driving route. On September 24, 1975, Branch held a meeting at its Allentown terminal to discuss Csanadi's letter. This meeting was attended by Csanadi, Branch Terminal Manager Anthony Cerciello ("Cerciello"), Branch Assistant Terminal Manager Ed Rohn, Branch Operations Manager Andrew Kraynik and Branch Regional Manager Clem Ziolkowski, but was not attended by any officials of the Local Union. During the meeting, Branch agreed to allow Csanadi to return to his position as truck driver, but limited his placement to the "extra board," not the "bid board."[1] On September 26, 1975, Cerciello wrote to Csanadi to confirm the agreement whereby Csanadi would be "allowed to resign his supervisory position so that he could return to Union Represented Employment" as a truck driver, provided he could pass the necessary physical examination and driver's test required by Branch and the Pennsylvania Department of Transportation. A copy of Cerciello's letter was sent to Howard Hontz, Business Agent for the Local Union, who by letter dated September 29, 1975, advised Cerciello that the Local Union objected to any attempt by Branch to restore full seniority rights to Csanadi because of Csanadi's departure from the truck drivers' unit 16½ years earlier. Accordingly, Csanadi was allowed to return to the truck drivers' unit, but was placed at the bottom of their seniority list, thereby affecting his ability to successfully bid for the more favored "bid board" trucking routes.
Branch and the Local Union have been parties to a series of collective bargaining agreements which govern the terms and conditions of employment for those employees within the bargaining unit. In October of 1975, Branch and the Local Union submitted the question of Csanadi's seniority rights to the Central Pennsylvania Joint Area Grievance Committee ("Joint Area Committee") for an interpretive opinion, pursuant to Article 43 of the collective bargaining agreement then in effect.[2] On October 9, 1975, the Joint Area Committee, a panel comprised of representatives of the employers and local unions that are parties to the collective bargaining agreement, heard the case and rendered a decision which held that Csanadi had "not complied with the provisions of Article VII, paragraph (F), of the August 15, 1958August 14, 1962 Central Pennsylvania Over-The-Road and Local Motor Freight Agreement and therefore lost his seniority rights when he became a supervisor for Branch Motor *279 Express Co. in 1959."[3] Branch and the Local Union subsequently advised Csanadi that he could return to the bargaining unit of truck drivers at Branch, but that he could not receive credit for the 16½ years he was not in the unit.[4] Although Csanadi complained about the union's actions to the shop steward at Branch, he did not file a written, formal grievance of union misrepresentation with the Executive Board of the Local Union, as required by the collective bargaining agreement. Further, Csanadi did not file an appeal with the General Executive Board of the International Union, as required by Article XIX of the Constitution of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
To prevail upon a motion for summary judgment, the movant must conclusively demonstrate that there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Fed.R.Civ.P. 56(c). In this case, on the basis of the facts in the pleadings, depositions and affidavits, we find that the defendants have conclusively demonstrated that there is no genuine issue of material fact which must be preserved for trial. The issue, therefore, is whether the defendants are entitled to a judgment in their favor as a matter of law. The resolution of this issue depends upon a determination of the questions of: (1) whether the defendants improperly denied Csanadi seniority benefits when he returned to the truck drivers' collective bargaining unit; and, (2) whether the Local Union failed to perform its duty of fair representation by submitting the question of Csanadi's seniority to the Joint Area Committee without his being present, or by refusing to process his grievance subsequent to the decision of the Joint Area Committee.
In support of their motions for summary judgment, Abbruzzi and the Local Union argue that Csanadi has failed to state a claim upon which relief can be granted because: (1) the decision of the Joint Area Committee interpreting the collective bargaining agreement and rejecting Csanadi's seniority claim is final and binding; and, (2) this Court lacks subject matter jurisdiction because Csanadi has failed to exhaust the internal union remedies available to him through the appeals procedure of the Constitution of the International Union. In the alternative, the defendants argue that they did not breach their duty of fair representation because, under the circumstances of this case, they properly and fairly represented Csanadi at all times. In response, Csanadi argues that he has stated claims upon which relief can be granted because: (1) the Joint Area Committee's decision is not final and binding as to him because Csanadi was not a party to the October 9, 1975, hearing; and, (2) Csanadi had no internal union remedies available because the Joint Area Committee had already decided the matter of his seniority against him and because the shop steward would not process his grievance subsequent to the Committee's decision. Accordingly, Csanadi argues that the defendants breached their duty of fair representation in the handling of his grievance regarding his seniority rights.
Csanadi's Seniority
The question of whether Csanadi would be able to retain his seniority benefits *280 upon his return to the truck drivers' collective bargaining unit was submitted to the Joint Area Committee for an interpretive opinion, pursuant to the "Grievance and Arbitration" provisions, as outlined in Article 43, sections 1(g) and 2(f) of the National Master Freight Agreement in effect during October of 1975.[5] Article 43, section 2(g) of the same agreement provides:
When any of the Committee referred to above, by majority vote, settled a dispute, such decision shall be final and binding on all parties with no further appeal.
It is well settled that the scope of judicial review of such decisions is a narrow one. See Bieski v. Eastern Automobile Forwarding Co., 396 F.2d 32, 37 (3d Cir. 1968). A court will defer to the decision of a joint committee when it is exercising its delegated power to decide unresolved problems arising out of a collective bargaining agreement. Price v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 457 F.2d 605, 610 (3d Cir. 1972). Specifically, where a decision is appropriately reserved for the judgment of the Joint Area Committee, its decision will not be overturned unless it is dishonest, capricious or beyond its authority under the terms of the collective bargaining agreement. Id. at 611 (citations omitted).
In this case, the question of Csanadi's seniority was submitted to the Joint Area Committee because the matter concerned the uniform interpretation and application of the collective bargaining agreement. Their decision held that Csanadi lost his seniority rights because he had failed to comply with the plain language of the seniority provisions of the collective bargaining agreement in effect when Csanadi became a dispatcher.[6] The contractual language clearly and unambiguously required an employee to secure a written agreement upon leaving the bargaining unit in order to preserve any seniority rights upon his subsequent return to the unit. In the absence of a written agreement, the Joint Area Committee properly held that Csanadi was not entitled to return to the collective bargaining unit of truck drivers with the 16½ years of company seniority he had acquired as a dispatcher. Further, Csanadi has made no allegation that the hearing of the Joint Area Committee was tainted by dishonest or capricious action, or was beyond the scope and authority of the Joint Area Committee under the terms of the collective bargaining agreement. We find, therefore, that Csanadi has failed to demonstrate that the final and binding decision of the Joint Area Committee should be overturned.
Internal Remedies and Fair Representation
Csanadi's second claim is that the defendants breached the duty of fair representation by not affording him an opportunity to be heard before the Joint Area Committee, or by refusing to process his grievance subsequent to the Committee's decision. It is well settled that a union, acting as the exclusive bargaining agent for the employees in a collective bargaining unit, has a federally created statutory duty to fairly represent all members of the unit in the negotiation, administration and enforcement of the collective bargaining agreement. Deboles v. Trans World Airlines, *281 Inc., 552 F.2d 1005, 1013-1014 (3d Cir. 1977). The requirements of a union's duty of fair representation were summarized by the Supreme Court in Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 843 (1967):
Under this doctrine, the exclusive agent's statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.
Thus, breach of the duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory or in bad faith. Id. at 190, 87 S.Ct. 903.
It is also well settled that exhaustion of the available internal union remedies is a necessary requirement for a plaintiff to bring a suit against a union for breach of the duty of fair representation. Goclowski v. Penn Central Transp. Co., 571 F.2d 747, 757 (3d Cir. 1977); Pawlak v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 764, 444 F.Supp. 807, 810-811 (M.D.Pa.1977), aff'd mem., 571 F.2d 572 (3d Cir. 1978). Although there are some limited exceptions to this exhaustion requirement, Goclowski v. Penn Central Transp. Co., supra, 571 F.2d at 758; Dorn v. Meyers Parking System, 395 F.Supp. 779 (E.D.Pa.1975), a plaintiff must comply with the intra-union appeal procedure or other available internal union remedies before he may seek relief through the courts. Pawlak v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 764, supra, 444 F.Supp. at 811; see McGovern v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 773, 447 F.Supp. 368, 372 (E.D.Pa.1978).
In support of their motion for summary judgment, the defendants in this case argue that Csanadi failed to exhaust the full range of effective internal union remedies available to him. Specifically, the defendants argue that Article XIX of the Constitution of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America provides an internal union appeals procedure that was available for Csanadi to protest the actions taken by the Local Union with respect to his claims. This procedure provides that Csanadi could have protested the Local Union's failure to process his grievance by filing a complaint with the Executive Board of the Local Union and, if unsuccessful, by filing an appeal with the Executive Board of the Joint Council. Further appeals may be taken to the General Executive Board of the International Union and, ultimately, to the International Convention. Finally, Article XIX, section 12 of this Constitution requires all members to exhaust these intra-union remedies before resorting to the courts for relief.[7] In response, Csanadi argues that he had no available internal union remedies because the Joint Area Committee had already ruled on the issue of his seniority and because the shop steward would not process his grievance.
Csanadi's response to the defendants' "exhaustion of internal union remedies" argument improperly merges both of his claims against the Local Union and its *282 president. First, as discussed above, the collective bargaining matter of Csanadi's seniority was properly brought by the Local Union before the Joint Area Committee for an interpretive opinion, and its decision is final and binding upon the parties. Second, the claim of unfair representation by the defendants required exhaustion of the full range of internal union remedies available to Csanadi pursuant to Article XIX of union's 1971 Constitution. We find, therefore, that Csanadi's failure to exhaust his internal union remedies or, in the alternative, his failure to present an adequate reason to avoid the exhaustion requirement, deprives this Court of jurisdiction to hear his complaint of unfair representation by the defendants in the handling of his grievance.
In conclusion, having found that the decision of the Joint Area Committee with respect to Csanadi's seniority is final and binding and having found that Csanadi has failed to properly exhaust his internal union remedies with respect to his claim of unfair representation by the defendants, we hold that the defendants are entitled to a judgment in their favor as a matter of law. The defendants' motions for summary judgment pursuant to Fed.R.Civ.P. 56 will, therefore, be granted.
An appropriate Order will be entered.
NOTES
[1] The "bid board" is a list of bids for specific trips or runs that are assigned to specific drivers. The "extra board" is a list of drivers who were not assigned regular trips or runs, but who were assigned "extra" trips or runs as they became available. See Cerciello deposition at 99-100.
[2] The collective bargaining agreement in effect for the period July 1, 1973, to March 31, 1976, was entitled the "NATIONAL MASTER FREIGHT AGREEMENT and Central Pennsylvania Over-The-Road and Local Cartage Supplemental Agreement."
[3] Article VII, paragraph (F), of the collective bargaining agreement in effect when Csanadi became a dispatcher provides:
The Local Union Representative and the Employer shall mutually agree, in writing, on circumstances under which persons who leave the classification of work covered by this Agreement, but remain in the employ of the Employer in some other capacity, may retain seniority rights upon their return to their original unit. In the absence of such written agreement, such employee shall lose all seniority rights upon leaving.
[4] In accordance with the Local Union's policy of not inviting individual employees to attend hearings concerning the uniform interpretation or application of the collective bargaining agreement, Csanadi did not attend the October 9, 1975, meeting of the Joint Area Committee. See Affidavit of Howard Hontz, dated October 18, 1977, at ¶ 6.
[5] Article 43, section 1(g) of the National Master Freight Agreement and Central Pennsylvania Over-The-Road and Local Cartage Supplemental Agreement in effect for the period from July 1, 1973, to March 31, 1976, provides, in pertinent part:
The Joint Local City Grievance Committees shall not have jurisdiction over or authority to decide any grievance which,
(i) involve the uniform construction, application, operation or interpretation of this Agreement,
* * * * * *
The Joint Area Grievance Committee shall hear and decide a grievance when any party hereto contends:
1. the Joint Local City Grievance Committee has no jurisdiction or authority to hear and decide a matter because it is within the scope of (i), (ii) or (iii) above; ....
Article 43, section 2(f) of the same agreement provides:
It is agreed that all grievances pertaining to matters described in Section 1(g), (i), (ii) or (iii) of this Article must be referred to the Joint Area Grievance Committee.
[6] See n. 3, supra.
[7] Article XIX, section 12 of the Constitution adopted in July of 1971 by the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America provides:
(a). Every member, officer, elected Business Agent, Local Union, Joint Council or other subordinate body against whom charges have been preferred and disciplinary action taken as a result thereof, or against whom adverse rulings or decisions have been rendered or who claims to be aggrieved, shall be obliged to exhaust all remedies provided for in this Constitution and by the International Union before resorting to any court, tribunal or agency against the International Union, any subordinate body or any officer or employee thereof.
* * * * * *
(c). The appeals procedure provided herein is also available to and must be followed by any member who is aggrieved by any decision, ruling, opinion or action of the Local Union, membership, officers or Executive Board, excluding collective bargaining matters.
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77 F.Supp. 103 (1947)
LAUGHLIN
v.
CLEPHANE et al.
Civ. A. No. 914-47.
District Court of the United States for the District of Columbia.
May 1, 1947.
*104 James J. Laughlin, of Washington, D. C., in pro. per.
Roger J. Whiteford, and Spencer Gordon, both of Washington, D. C., for defendant.
REEVES, District Judge.
The question for decision in this case is whether the amended complaint shows on its face a lack of jurisdiction, but, conceding jurisdiction, whether complaint states a valid claim against the defendants or any of them upon which relief can be granted.
In the complaint the plaintiff invoked jurisdiction perforce certain provisions of Title 31, U.S.C.A. §§ 231 and 232 commonly known as the informer statutes. Pertinent portions of Section 231 relied upon by the plaintiff are, "* * * who enters into any agreement, combination, or conspiracy to defraud the Government of the United States, or any department or officer thereof, by obtaining or aiding to obtain the payment or allowance of any false or fraudulent claim, etc."
Plaintiff's complaint is in three counts. The first count in substance states that the several defendants have been designated by the District Court of the United States for the District of Columbia to serve on a committee known as the "Committee on Admissions and Grievances" to determine fitness for membership in the bar and to exercise certain supervisory and disciplinary action over members of the bar.
In relation to admissions to the bar plaintiff charges that certain fees have been provided by rule of court and that applicants for admission to the bar have been required to pay such fees, and, "that the amounts paid by the candidates represent money belonging to the United States Government and should be paid into the Registry of the Court under the Supervision of the Clerk of the District Court of the United States, and at proper time, unexpended balances should be deposited in the Treasury of the United States, as required by existing law and regulation."
It is asserted by plaintiff that under the law the Comptroller General of the United States is required to audit accounts of the courts, including this account, but that the defendants have so handled said monies and deposit as to remove it from the supervision of the proper authorities.
There is an averment that the defendants, "have agreed among themselves and with each other that the amounts paid, as referred to above, shall be divided up among the defendants, and each of them, and the amounts have been divided up and distributed among each of the defendants."
After averments as to the amount thus collected and distributed over the period from 1939 to 1946 inclusive, the plaintiff asks, in substance, for an accounting and that such disbursements as may have been invalid be added to the balance on hand and that the whole thereof "be returned to the Treasurer of the United States" by the defendants.
The second count complains of alleged irregularities in examinations of applicants and the denial of admission to a large percentage of those who have applied for admission to the bar. The relief sought is that the examination papers be preserved and retained subject to the order of the court and such authorization as the Congress may give with respect to their destruction.
The third count asserts the illegal and unconstitutional functioning of the Committee because no person of the colored race is made a member of the Committee, and thus and thereby it is charged a discrimination operates against applicants of the colored race. The reason assigned for such alleged irregularity and unconstitutionality is, "that there has been a systematic exclusion of colored attorneys from membership on the Committee and this is contrary to our theory of Government, etc."
*105 In a general prayer at the end of the three counts the plaintiff asks judgment conformable to the provisions of so-called "Informers Act" and that the plaintiff have judgment in the penal sums authorized by such statute.
In addition to restraining orders to preserve the status quo, the plaintiff asks for the appointment of a master, "to conduct hearings and take testimony as to the methods insofar as the examinations are concerned in order that it may be definitely determined whether the markings are given in good faith, and to take testimony to determine as to whether or not there has been a systematic exclusion of members of the colored race from membership on the Admissions and Grievance Committee of the District Court of the United States for the District of Columbia, and to take testimony to determine whether there shall be a right of appeal to an unsuccessful applicant."
It was to this complaint that the defendants interposed the challenge hereinbefore mentioned.
As postulates to a consideration of the case and a proper determination thereof certain basic facts and principles should be stated.
1. As attorneys are officers of the court, the power to admit applicants to practice law is judicial and not legislative and is vested in the courts only. It is the duty of the court to exercise and regulate the admission of applicants to the bar by sound and just judicial discretion. In re Secombe, 19 How. 9, 15 L.Ed. 565; 6 C.J. § 16, p. 571; 7 C.J.S., Attorney and Client, § 6.
It is even denied by some courts that the legislature has power to prescribe regulations for the administration of justice in the courts. However that may be, the Congress has expressly authorized the district court to promulgate and enforce rules with respect to examination, qualification and admission of persons to membership in the Bar of the District of Columbia, as follows: "The District Court of the United States for the District of Columbia in general term shall have full power and authority from time to time to make such rules as it may deem proper respecting the examination, qualification, and admission of persons to membership in its bar. * * *." D.C.Code 1940, § 11 1301. This is a statutory concession to the general rule that the courts may make rules of procedure regulating the administration of justice in the absence of statutes. Woodbury et al. v. Andrew Jergens, 2 Cir., 61 F.2d 736.
2. It is well recognized that lawyers are officers of the court, but a member of the federal bar is not an officer of the United States. Bowles v. United States, 4 Cir., 50 F.2d 848.
Both the admission and the disbarment of a lawyer is a judicial act. Randal v. Brigham, 7 Wall. 523, 74 U.S. 523, 19 L.Ed. 285.
The reason why lawyers are officers of the court is that they are admitted by order of the court. National Savings Bank of District of Columbia v. Ward, 100 U.S. 195, 25 L.Ed. 621.
3. It is a rule pervading all of the taxing laws of the government that a tax cannot be imposed without clear and express words for that purpose. United States v. Isham, 17 Wall. 496, 84 U.S. 496, 21 L.Ed. 728.
A thing is not considered a tax unless it is plainly within the meaning of the words used. Brown v. United States, D. C., 298 F. 177.
4. Apart from any statutory law a court of record possesses the inherent power to provide the necessary assistance as a means of conducting its business with reasonable dispatch and the court itself may determine the necessity. 15 C.J. § 205, pp. 871, 872; 21 C.J.S., Courts, § 142. In re Utilities Power & Light Corporation, 7 Cir., 90 F.2d 798, loc. cit. 800. And, in like manner, the right to compensation may rest upon the inherent power of a court of record to appoint. 15 C.J. § 211, p. 873; 21 C.J.S., Courts, § 142.
With the foregoing predicates or postulates in mind a discussion of the questions involved would be clarified.
5. The District Court exercised not only an inherent power but a *106 statutory right to promulgate rules with respect to admissions of attorneys to practice at its bar. In doing this it had a right to call to its assistance the Committee designated as a Committee on Admissions and Grievances. It would be idle to exercise a power to admit to the bar unless it at the same time exercised power of supervision, and, in proper cases, order disbarments. No one can question the right of the court thus to proceed and no one can question the right of the Committee appointed under the rules so promulgated to perform the functions it is alleged were performed in this case. Moreover, it was the right of the court to compensate the members of the Committee for their services. The averments of the complaint show that the Committee not only performed an extensive service, but assumed a heavy responsibility. The court, in the exercise of an authorized as well as an inherent power, rightfully accumulated a fund in order that it might make effective the rules that it had promulgated. This fund did not belong to the United States but belonged to the court and was to be administered in a manner outlined by the court. The court did not fail to promulgate a rule with respect to the fees received from applicants. It was provided as follows: "All fees paid pursuant to this rule shall be applied by said committee as it shall decide." The fund thus created was available for the purpose for which it was created and was not a tax nor was it intended as a tax. Taxing laws are enacted by the Congress. It is true that revenue measures may supplement or attach to enactments appertaining to administrative matters. As heretofore stated, such taxing measures must be clear and unambiguous. Whether the Congress would have a right to legislate with respect to this fund or any residue or unused portion is a matter that need not be decided in this case.
Since the plaintiff invoked jurisdiction under the provisions of Section 231, Title 31 U.S.C.A. and the following sections it is clear that jurisdiction fails for the reason that the Committee on Admission and Grievances, the defendants in this case, did exactly what they were authorized to do and what they had a right to do. There can be no wrong or fraud in doing a legitimate act in a lawful way.
The statute invoked involves a claim where fraud has permeated the transactions and vitiated a payment to the extent that an informer may be rewarded for uncovering the fraud. United States ex rel. Brensilber et al. v. Bausch & Lomb Optical Co. et al., 2 Cir., 131 F.2d 545.
6. Wholly apart from the jurisdiction claimed in the first count, by invoking said 31 U.S.C.A. § 231, supra, no effort is made to justify jurisdiction of the second count or the third count. These are matters that appertain to the examination of applicants and have no relation whatever to jurisdiction conferred because of fraudulent claims against the government.
Briefly discussing the second count, with respect to failures of applicants to meet the required standards it should be recalled that not only does the examination involve learning but also moral character. Goldsmith v. United States, 55 App.D.C. 229, 4 F.2d 422. One may be very learned and yet of such character that the courts could not properly grant admission. Examination papers are not part of the records of the court but belong exclusively to the Committee. The members of the Committee are officers of the court, but not officers of the United States. It was the method adopted by the Committee to enable it, in a supervisory way, to perform its functions in ascertaining the fitness of an applicant to practice law in the court. The court did not rely upon the examination papers but upon the report of the Committee with its recommendation. There are no reasons why the Committees should not, after a lapse of time, destroy the memorandum upon which it based its report. If an applicant felt that he had been wronged there were and are remedies available to him. See Carver v. Clephane, 78 U.S.App.D.C. 91, 137 F. 2d 685.
As indicated hereinbefore, there is nothing in this count that would warrant the court in claiming jurisdiction, but, on the contrary, the court has no jurisdiction. The remedy would be an informal complaint *107 made to the judges as an appeal to their discretion.
7. On the third count it is complained that colored attorneys have not been appointed to membership on the Committee. It is the right of the judges to exercise a discretion in securing capable members of the bar to serve and assist them in supervising the admission of lawyers to the bar and to supervise their conduct after such admission. This is an administrative matter and does not appertain to the rights of litigants. It would be as logical to say that a public officer should make appointments not alone from those who are qualified to serve, but to recognize races and callings and avocations and distribute such offices to representatives of such different or diverse groups upon peril of conducting the office illegally.
Again, this is a matter to be presented informally to the judges. It is presumed that officers will do their duty and will exercise a sound discretion in matters of this kind. Otherwise public officers, or a court as in this case, would be robbed of their inherent right to administer the affairs of the office in a way deemed proper by them or it.
The motion to dismiss should be sustained upon both grounds, namely (a) the court is without jurisdiction, and (b) a justiciable claim or cause is not stated by the plaintiff. It will be so ordered.
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United States Court of Appeals,
Eleventh Circuit.
No. 96-4323
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Daniel MEJIA, Defendant-Appellant.
Sept. 18, 1998
Appeal from the United States District Court for the Southern District of Florida. (No. 95-14017-
CR-DAVIS), K. Michael Moore, Judge.
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES.
Before TJOFLAT, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
The defendant is a Honduran national who was convicted in the Southern District of Florida
for illegally re-entering the United States after an earlier deportation, in violation of 8 U.S.C. § 1326
(1994). The district court sentenced the defendant to 71 months imprisonment and three years
supervised release. As a condition of the supervised release, the district court ordered that the
defendant be deported, pursuant to 18 U.S.C.A. § 3583(d) (West Supp.1998), at the end of his
confinement.
The question presented by the instant appeal is whether the district court had the authority
to enter such a deportation order. In a previous unpublished decision, we concluded, in reliance
upon United States v. Oboh, 92 F.3d 1082 (11th Cir.1996) (en banc), that the district courts did have
such authority. See United States v. Mejia, No. 96-4323 (11th Cir. July 23, 1997). On certiorari
from our holding, the Supreme Court disagreed, vacated our earlier holding, and remanded the case
for reconsideration. See Mejia v. United States, --- U.S. ----, 118 S.Ct. 1384, 140 L.Ed.2d 643
(1998).
Moreover, while the case was pending in the Supreme Court, a published opinion of this
court, United States v. Romeo, 122 F.3d 941 (11th Cir.1997), held that, under the 1996 amendments
to the federal immigration statutes contained in the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA), the district courts do not have the power independently to order
deportation as a condition of supervised release. See id. at 943-44.1 We concluded in Romeo that
the district courts' authority to order deportations pursuant to 18 U.S.C. § 3583 was wholly
abrogated by the passage, as part of the IIRIRA, of 8 U.S.C. § 1229a. Romeo, 122 F.3d at 943-44.
That section provides in part that
[a]n immigration judge shall conduct proceedings for deciding the inadmissibility or
deportability of an alien[, and that] [u]nless otherwise specified in this chapter, a [removal
proceeding before an immigration judge] shall be the sole and exclusive procedure for
determining whether an alien may be admitted to the United States or, if the alien has been
so admitted, removed from the United States.
8 U.S.C.A. § 1229a(a) (West Supp.1998).2
We also held in Romeo that section 1229a(a) "is applicable to all ... cases [pending on the
effective date of the IIRIRA] because "[i]ntervening statutes conferring or ousting jurisdiction' are
ordinarily given immediate effect, "whether or not jurisdiction lay when the underlying conduct
1
Unpublished opinions of this court are non-binding precedent and may be overruled by a
published panel opinion. See Eleventh Circuit Rule 36-2 (stating in part that "[u]npublished
opinions are not considered binding precedent").
2
In U.S. v. Dieguimde, 119 F.3d 933, 934-35 (11th Cir.1997), we questioned but did not
decide whether Oboh remains good law in this circuit. We leave determination of that question
to the ongoing proceedings in Dieguimde.
2
occurred or when the suit was filed....' " Romeo, 122 F.3d at 944, (quoting Landgraf v. USI Film
Products, 511 U.S. 244, 274, 114 S.Ct. 1483, 1501, 128 L.Ed.2d 229 (1994)).
Because the defendant's case was pending on the effective date of section 1229a of the
IIRIRA (April 1, 1997—see Effective Date, Historical and Statutory Notes to 8 U.S.C.A § 1229a,
at 459 (West Supp.1998)), we hold that section 1229a(a) applies in the instant case. We therefore
conclude that the district court did not have the authority to order the defendant's deportation as a
condition of his supervised release. Accordingly, we VACATE that portion of the defendant's
sentence ordering judicial deportation as a condition of his supervised release, and REMAND the
case to the district court for further proceedings consistent with this opinion.
SO ORDERED.
3
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24 B.R. 213 (1982)
In re CAROLE'S FOODS, INC., Debtor.
George ROSENBERG, Trustee, Plaintiff/Appellee,
v.
Henry FRIEDMAN, Assignee For the Benefit of Creditors of Carole's Foods, Inc., Defendant/Appellant.
Bankruptcy No. 82-9036.
United States Bankruptcy Appellate Panel for the First Circuit.
November 4, 1982.
George Rosenberg, Boston, Mass., for appellee.
Henry Friedman, Boston, Mass., for appellant.
Before VOTOLATO, Chief Judge, and JOHNSON and GOODMAN, Bankruptcy Judges.
PER CURIAM.
On October 8, 1980, the Debtor, Carole's Foods, Inc., entered into an assignment for the benefit of creditors of all of its assets with the Appellant, Henry Friedman, who became the assignee for the benefit of Debtor's creditors. On December 15, 1981, the Debtor filed its chapter 11 petition. Appellant had full knowledge of the filing on January 22, 1982. George Rosenberg was appointed Trustee on February 16, 1982. Pursuant to 11 U.S.C. § 543, the Trustee filed on March 11, 1982 a Complaint for Turnover of Property held by Appellant. After hearing, the Bankruptcy Court found that Appellant is a "custodian" as defined in 11 U.S.C. § 101(10)(b), and ordered him, inter alia, to deliver to the Trustee any property, or proceeds of property, in his possession, custody and control as of January 22, 1982. Appellant filed a timely notice of appeal from that order. We affirm.
Appellant admits that he is an assignee for the benefit of creditors of the Debtor. Title 11 U.S.C. § 101(10) defines *214 "custodian" as including an assignee under a general assignment for the benefit of the Debtor's creditors. Title 11 U.S.C. § 543(b) states in part:
A custodian shall
(1) deliver to the trustee any property of the debtor transferred to such custodian, or proceeds of such property, that is in such custodian's possession, custody, or control on the date that such custodian acquires knowledge of the commencement of the case. . . .
Appellant erroneously contends that the Debtor's assignment to him of its property conveyed title to said property to Appellant, and, therefore, said property is not "property of the debtor" within the meaning of section 543(b)(1). Congress clearly intended otherwise:
"Property of the debtor" in section (a) [of section 543] includes property that was property of the debtor at the time the custodian took the property, but the title to which passed to the custodian.
H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 370 (1977) reprinted in 2 App. Collier on Bankruptcy 370 (15th ed. 1982); S.Rep. No. 95-989, 95th Cong., 2d Sess. 84-85 (1978) reprinted in 3 App. Collier on Bankruptcy 84-85 (15th ed. 1982), U.S.Code Cong. & Admin.News, pp. 5787, 5870-5871, 6326.[1]
Appellant contends that the bankruptcy court erred in refusing to excuse compliance with section 543(b). Section 543(d) states:
The bankruptcy court may, after notice and a hearing, excuse compliance with subsection (a), (b), or (c) of this section, if the interests of creditors, and, if the debtor is not insolvent, of equity security holders, would be better served by permitting a custodian to continue in possession, custody, or control of such property.
Assuming arguendo that this issue was properly raised below, we cannot consider its merits. Appellant has not provided a transcript of the hearing. Without a complete record, we cannot consider the factual basis for the bankruptcy judge's decision to require compliance. As it is the Appellant's duty to provide an adequate record, we conclude that he has failed to demonstrate error below. See In re Payeur, 22 B.R. 516, 519 (Bkrtcy.App. 1st Cir.1982).
We find no other issues properly before us which merit discussion. The judgment of the bankruptcy court is affirmed.
NOTES
[1] Appellant argues that he should not be required to turn over property transferred to him more than one year before the Debtor filed its petition in bankruptcy. Unlike sections 2a(21) and 69d of the now-repealed Bankruptcy Act, section 543 of the present Bankruptcy Code sets forth no time limitations as to when the transfer to the custodian must have occurred. See 4 Collier on Bankruptcy ¶ 543.01 at 543-5 (15th ed. 1982).
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In the
United States Court of Appeals
For the Seventh Circuit
Nos. 98-2682, 98-2819 & 99-1817
Dale M., by his mother and next friend, Alice M.,
Plaintiffs-Appellees, Cross-Appellants,
v.
Board of Education of Bradley-Bourbonnais
High School District No. 307, et al.,
Defendants-Appellants, Cross-Appellees.
Appeals from the United States District Court
for the Central District of Illinois.
No. 96-2254--Michael P. McCuskey, Judge.
Argued June 7, 2000--Decided January 12, 2001
Before Posner, Coffey, and Ripple, Circuit Judges.
Posner, Circuit Judge. The district judge held
that a public school district in Illinois had
violated its duty under the Individuals with
Disabilities Education Act to provide Dale M.
with "a free appropriate public education that
emphasizes special education and related services
designed to meet [disabled children’s] unique
needs," where "related services" include
"transportation, and such developmental,
corrective, and other supportive services
(including . . . psychological services . . .
[and] social work services . . .) as may be
required to assist a child with a disability to
benefit from special education." 20 U.S.C.
sec.sec. 1400(d)(1)(A), 1401(22). Dale became a
student in the district in 1993, when he was 14
years old. He soon became a serious disciplinary
problem. He disrupted classes and was truant. The
following year he was placed in a "therapeutic
day school" designed to deal with disruptive and
truant students, but in his first four months he
attended school only 20 days, though when he did
attend he behaved himself, did the assigned work,
and got good grades. For some time he had been
drinking alcohol to excess and also consuming
marijuana, cocaine, and other illegal drugs, and
in January of 1995 he was hospitalized for
depression and at the same time charged with
residential burglary and theft of a car. He was
placed on probation for these offenses. When he
got out of the hospital he refused to return to
school, but received home instruction until
November, when he was again charged with
residential burglary and this time sent to jail.
He was examined by a psychologist who found that
Dale has no learning disability but instead what
the psychologist called a "conduct disorder,"
along with depression and substance abuse.
The school district wanted to send Dale back to
the therapeutic day school. Instead, his mother,
with whom he was living (his parents are
divorced), obtained Dale’s release from jail and
placed him in a residential school, the Elan
School, in Maine. She demanded that the school
district pay for Dale’s attending Elan, as
otherwise he would not be getting the free
appropriate public education to which he was
entitled. The school district refused. The Elan
School does not offer psychiatric or other
medical treatment for substance abuse or
depression. As far as we can determine, it’s just
a boarding school for difficult children. Dale
did not like the school, and was excluded from
most school activities because of his belligerent
attitude.
The mother sought reimbursement of the expense
of Dale’s attending Elan. Her claim was
adjudicated in succession by two hearing officers
appointed by the state. The first ordered the
public school district to pay but the second, the
reviewing officer, reversed the order of the
first. He could find no evidence that Elan
provided a superior educational experience for
Dale to the therapeutic day school, let alone any
treatment for his "conduct disorder" or his
depression and substance abuse; it merely
provided confinement, thus solving the problem of
his truancy. The hearing officer did not think
that the statute required the school district to
pay for confining a truant student.
The district judge reversed and ordered
reimbursement. The school district has paid
pursuant to the district court’s order, and the
plaintiffs argue that this makes the school
district’s appeal moot, but that is wrong. A
judgment creditor who pays the judgment pending
appeal instead of posting a supersedeas bond
(which would automatically stay collection, see
Fed. R. Civ. P. 62(d)) is entitled to the return
of its money if the decision is reversed, and so
the payment does not moot the appeal unless the
appellant has relinquished his right to seek
repayment if he wins. In re Farrell Lines Co.,
761 F.2d 796 (D.C. Cir. 1985) (per curiam); 11
Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure sec. 2905,
pp. 525-26 (2d ed.1995); cf. United States v.
Hougham, 364 U.S. 310, 312-13 (1960); United
States for Use and Benefit of H & S Industries,
Inc. v. F.D. Rich Co., 525 F.2d 760, 764-65 (7th
Cir. 1975). The school district has not
relinquished that right.
So we must decide whether the district court’s
decision was correct. As we explained in Morton
Community Unit School Dist. No. 709 v. J.M., 152
F.3d 583, 587-88 (7th Cir. 1998), when the
district judge does not take fresh evidence but
instead bases his review of the hearing officer’s
decision on the record compiled in the
administrative proceedings, he is required to
give "due deference" to that decision. That is,
the fact that he disagrees with the officer is
not enough to justify setting aside the latter’s
order; he must be strongly convinced that the
order is erroneous. See also Board of Education
v. Rowley, 458 U.S. 176, 206 (1982); Patricia P.
v. Board of Education, 203 F.3d 462, 466-67 (7th
Cir. 2000); Linda W. v. Indiana Dept. of
Education, 200 F.3d 504, 506 (7th Cir. 1999);
Board of Education v. Illinois State Board of
Education, 41 F.3d 1162, 1167 (7th Cir. 1994);
Susan N. v. Wilson School District, 70 F.3d 751,
757 (3d Cir. 1995). The hearing officer to whom
the judge is to defer is the second, that is, the
appellate officer, Board of Education v. Illinois
State Board of Education, 184 F.3d 912, 915 (7th
Cir. 1999); Heather S. v. Wisconsin, 125 F.3d
1045, 1053-54 (7th Cir. 1997); Thomas v.
Cincinnati Board of Education, 918 F.2d 618, 624
(6th Cir. 1990), just as, when the National Labor
Relations Board reverses one of its
administrative law judges, the reviewing court
defers to the board, not to the ALJ, e.g.,
Universal Camera Corp. v NLRB, 340 U.S. 474
(1951); Dilling Mechanical Contractors, Inc. v.
NLRB, 107 F.3d 521, 523-24 (7th Cir. 1997); Webco
Industries, Inc. v. NLRB, 217 F.3d 1306, 1311
(10th Cir. 2000), and unlike, for example,
judicial review of benefits determinations in
black lung cases, where the courts defer to the
ALJ’s decision rather than to the decision of the
Benefits Review Board on appeal from the ALJ to
it. E.g., Old Ben Coal Co. v. Prewitt, 755 F.2d
588, 589-90 (7th Cir. 1985).
But, by further analogy to the rule in judicial
review of Labor Board decisions, Universal Camera
Corp. v NLRB, supra, 340 U.S. at 491-97; Dilling
Mechanical Contractors, Inc. v. NLRB, supra, 107
F.3d at 524, we believe that the reviewing court,
in deciding whether to uphold a reversal by the
second hearing officer of the first hearing
officer’s decision, must give considerable weight
to any credibility determinations made by the
first hearing officer, since the second officer,
exercising as he does an appellate rather than a
trial function, will generally not have been in a
position to second guess those determinations.
See Heather S. v. Wisconsin, supra, 125 F.3d at
1053-54.
Evidence was presented to the district judge, in
the form of affidavits and other documents
attached to the summary-judgment papers, but
there is no indication in his opinion that he
considered any of it. Cross-motions for summary
judgment are the standard method for presenting a
case to a district court for decision on the
record compiled by the administrative tribunal
that the court is reviewing. Patricia P. v. Board
of Education, supra, 203 F.3d at 466; Heather S.
v. Wisconsin, supra, 125 F.3d at 1052; Hunger v.
Leininger, 15 F.3d 664, 669-70 (7th Cir. 1994);
Kirkpatrick v. Lenoir County Board of Education,
216 F.3d 380, 385 (4th Cir. 2000). The grant of
the plaintiffs’ motion thus implied that the
judge was not considering any evidence not
presented in the administrative proceedings. The
evidence that had been submitted for the first
time in the district court indicated, for
example, that after the decision by the second
hearing officer Dale graduated from Elan. But the
judge said that "Dale is receiving an educational
benefit from Elan" (emphasis added), implying
that Dale was still at the school. This is a
further indication that the judge didn’t consider
any of the new evidence.
The judge recited the correct, the deferential,
standard of review for the case where no new
evidence is considered (still another indication
that he did not consider the new evidence), but
when he came to actually discuss the second
hearing officer’s decision, he applied an
incorrect standard. He said for example that he
"disagrees with the reviewing officer’s
conclusion that Elan was inappropriate" and "a
preponderance of the evidence shows that Elan is
an appropriate placement for Dale." That is the
language of de novo determination of contested
factual issues. The judge may have been confused
by the language of the statute: "In any action
brought under this paragraph the court shall
receive the records of the administrative
proceedings, shall hear additional evidence at
the request of a party, and, basing its decision
on the preponderance of the evidence, shall grant
such relief as the court determines is
appropriate." 20 U.S.C. sec. 1415(i) (2)(B). When
the court has before it evidence that was not
before the hearing officers, the amount of
deference due the reviewing officer declines,
since the latter’s decision was based on an
incomplete record. But when there either is no
new evidence or the judge for some reason doesn’t
consider it, he owes considerable deference to
the reviewing officer.
When due deference is given that officer, we
think it plain that his determination that
placement in the Elan school was not the "free
appropriate education" to which the statute
refers should not have been disturbed. It is true
that Dale has psychological problems that
interfered with his obtaining an education, even
though he has no learning disability or
retardation. And the statute refers explicitly to
"psychological services" as one type of "related
services" that the statute may require a school
district to pay for if, without them, the
disabled child--and we do not understand the
school district to be denying that Dale’s
problems add up to a disability within the
meaning of the statute, 20 U.S.C. sec. 1401(3);
34 C.F.R. sec. 300.7; Board of Education v.
Nathan R., 199 F.3d 377, 379 n. 2 (7th Cir.
2000); compare Rodiriecus L. v. Waukegan School
District No. 60, 90 F.3d 249, 254 (7th Cir.
1996)--cannot obtain an education. But the Elan
School does not provide psychological services,
at least to Dale. For him all it provides is
confinement. He was placed in Elan not from any
school in the defendant school district, but from
jail. Elan is a jail substitute. An incorrigible
truant and lawbreaker, Dale does better in every
respect when he is in a custodial setting than
when he lives at home.
The only difference between the therapeutic day
school in which the school district put him (and
wanted to return him to, despite his history of
truancy) and Elan is that Elan is a boarding
school specializing in anfractuous kids. So at
least the second hearing officer determined, and
the district court was obliged to defer to that
determination, which was both supported by the
evidence and within the presumed superior
competence of the administrative process to
resolve matters of educational policy. Hence Elan
was the "appropriate" placement for Dale, within
the meaning of the statute, only if confinement
is a related service within that meaning, since
obviously it is not an educational service. We
think--and this is a pure legal issue, as to
which we owe no deference to the hearing officer,
Morton Community Unit School District No. 709 v.
J.M., supra, 152 F.3d at 587--that it stretches
the statute too far to classify confinement thus.
The essential distinction is between services
primarily oriented toward enabling a disabled
child to obtain an education and services
oriented more toward enabling the child to engage
in noneducational activities. The former are
"related services" within the meaning of the
statute, the latter not. Butler v. Evans, No. 99-
3135, 2000 WL 1231053, at *4-*6 (7th Cir. Aug 31,
2000). In our Morton case, for example, the
medical-support services rendered the plaintiff
were for the purpose of enabling him to attend
school. 152 F.3d at 583. In contrast, the purpose
of the "service" that the school district is
being asked to pay for is to keep Dale out of
jail, both directly, because the judge was
willing to release him from jail to Elan, and
indirectly, because Dale is less likely to commit
burglary and other crimes when he is in a
residential facility than when he is living at
home with only his mother to keep an eye on him.
Another way to put this is that Dale’s problems
are not primarily educational. He has the
intelligence to perform well as a student and no
cognitive defect or disorder such as dyslexia
that prevents him from applying his intelligence
to the acquisition of an education, without
special assistance. His problem is a lack of
proper socialization, as a result of which,
despite his tender age, he has compiled a
significant criminal record. His substance abuse
interferes with his schooling; that is true; but
it interferes with much else besides, such as
ability to conform to the law and avoid jail.
Supposing that the most effective educational
program for Dale would be to take correspondence
courses while confined in a prison, we do not
think his mother would be arguing that the school
district would have to pay the prison authorities
for the expense of incarcerating him. But that is
close to what she is arguing--that since
confinement, among its other benefits to Dale,
will make it easier for him to obtain an
education, the school district is responsible for
the cost of confinement. That, we conclude, goes
too far.
This is not a case like Kruelle v. New Castle
County School District, 642 F.2d 687 (3d Cir.
1981), where residential placement was necessary
for educational reasons. The case involved a
thirteen year old who had an IQ below 30 and
could not walk, dress, or eat without assistance.
Under stress, he would self-induce vomiting and
choking; inconsistent approaches or environments
would trigger this behavior. For that child, an
education meant training in the basic social
skills of using the toilet, dressing, feeding,
and simple communication. That education required
residential placement, which was therefore a
"necessary predicate for learning" as opposed to
being--a good description of the present case, as
of Burke County Board of Education v. Denton, 895
F.2d 973 (4th Cir. 1990)--a "response to
medical, social or emotional problems that are
segregable from the learning process." 642 F.2d
at 693; cf. Tennessee Dep’t of Mental Health &
Mental Retardation v. Paul B., 88 F.3d 1466 (6th
Cir. 1996); McKenzie v. Smith, 771 F.2d 1527
(D.C. Cir. 1985). Although Teague Independent
School District v. Todd L., 999 F.3d 127, 132
(5th Cir. 1993), could be read to leave open the
possibility that "twenty-four hour supervision in
a locked unit" might be a related service, the
court pointedly remarked that the "focus" of the
highly restrictive facility that Todd’s parents
preferred "was on behavior management," not
education.
No other issues need be discussed. The judgment
in favor of the plaintiffs, and the award of
attorneys’ fees to them, are reversed with
directions to enter judgment for the defendants.
The dismissal of the other counts in the
complaint is affirmed. The motion to dismiss the
school district’s appeal on the ground of
mootness is denied, and the plaintiffs’ cross-
appeals are denied because they have no merit in
light of our decision of the school district’s
appeal.
Affirmed in Part, Reversed in Part.
RIPPLE, Circuit Judge, dissenting. While chiding
the district court (unfairly in my view) for not
having given sufficient deference to the
superficial analysis of the Level II hearing
examiner, the majority fails itself to give
adequate deference of a far more fundamental
character--deference to the manifest will of the
Congress that the District must provide support
services that are necessary for the meaningful
delivery of educational services. By holding
that, as a matter of law, the residential program
at Elan does not come within the ambit of the
Act, the majority not only dooms Dale M.’s case
but also sets this circuit on a course different
from that of all the courts that have interpreted
this provision.
Recognizing that the nature of support services
necessarily will be varied and, in the case of
some children, broad, every circuit that has
addressed the question has held that the
Congressional mandate requires the provision of a
support service that is "a necessary predicate
for learning," Kruelle v. New Castle County Sch.
Dist., 642 F.2d 687, 693 (3d Cir. 1981), and not
"segregable from the learning process," id. See
Tennessee Dep’t of Mental Health & Mental
Retardation v. Paul B., 88 F.3d 1466, 1471 (6th
Cir. 1996) (stating that districts are not
responsible for residential placement "separable
from the learning process" and citing Kruelle);
Burke County Bd. of Educ. v. Denton, 895 F.2d
973, 980 (4th Cir. 1990) ("Where medical, social
or emotional problems are intertwined with
educational problems, courts recognize that the
local education agency must fund residential
programs . . . .") (citing Kruelle); McKenzie v.
Smith, 771 F.2d 1527, 1533 (D.C. Cir. 1985)
(quoting Kruelle standard). Today, this circuit
substitutes for that test a very different
formulation: Costs are to be disallowed if the
support services are not aimed at a problem that
is "primarily educational." Slip op. at 7. That
the difference between the panel majority’s
formulation and that of our sister circuits is
not just one of semantics but a chasm of
substance is made starkly clear by the analysis
of the Third Circuit in Kruelle. There, it noted
that "basic self-help and social skills such as
training, dressing, feeding and communication"
can be part of the necessary process of
education. Kruelle, 642 F.2d at 693 (internal
quotation marks and citations omitted).
Dale M.’s truancy is no doubt complex in its
causation and therefore in the degree of its
interrelatedness with his capacity to cope with
the usual demands of education. We lack the
institutional capacity to conduct an independent
analysis of Dale M.’s educational needs. Indeed,
we previously have been "cautioned that courts
lack the specialized knowledge and experience
necessary to resolve persistent and difficult
questions of educational policy." Board of Educ.
v. Rowley, 458 U.S. 176, 205 (1982) (internal
quotation marks and citations omitted). Notably,
here the District itself considered Dale M.’s
truancy to be related to his educational progress
until the need for a residential placement, and
the attendant expense, became an issue. It was
only at that point that the District took the
position that such a program was beyond it
obligations under the Act.
In determining that the Elan program goes "too
far" to be within the coverage of the Act, the
majority takes issue with the characterization of
Dale M. reached by the professional educators
and, indeed, by the administrative tribunals and
the district court. In the majority’s view, he is
a delinquent deserving of punishment, not
education. The majority is entitled to its view;
in deciding this case, however, it must stay
within the record, a record that includes the
conclusions of professional educators who viewed
his situation in a very different light. For
instance, in evaluating the program at Elan, the
majority characterizes the program as one that
simply provides "confinement." Slip op. at 6.
Yet, the record makes clear that the program at
Elan involves three separate components, life
skills, counseling and class work. Reasonable
people can disagree about the effectiveness of
providing a structured environment that demands
contributing labor to a communal living
environment; however, none of us who wear black
robes are in an institutional position to second
guess the Illinois Department of Education that
approved the program as a permissible placement
for Illinois school children. See Butler v.
Evans, 225 F.3d 887, 894 (noting that residential
treatment at a psychiatric hospital could not be
compensable as an educational placement because
it was not an accredited educational
institution); Seattle Sch. Dist., No. 1 v. A.S.,
82 F.3d 1493, 1502 (9th Cir. 1996) (rejecting
school district’s argument that it should not be
responsible for residential placement in part
because residential facility was "an accredited
educational institution under state law"); Clovis
Unified Sch. Dist. v. California Office of Admin.
Hearings, 903 F.2d 635, 646 (finding that school
district was not financially responsible for
placement because the facility was "not included
as [an] educational placement option[ ] for
handicapped pupils in that state").
In sum, I must conclude that the court has
improvidently and erroneously parted company with
the other circuits that have defined when a
residential placement is permissible. In doing
so, it has set the courts of this circuit on a
course at odds with the course set throughout the
United States for the provision of support
services under the Act. It has compounded that
error by substituting its own view for that of
professional educators as to the needs of Dale M.
and the merits of the Elan program. Accordingly,
I respectfully dissent.
| {
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77 F.2d 236 (1935)
WILSON et al.
v.
UNITED STATES.
No. 10182.
Circuit Court of Appeals, Eighth Circuit.
April 22, 1935.
*237 Joseph R. Brown, of Ft. Smith, Ark. (Bush & Bush, of Prescott, Ark., and John Duty, of Rogers, Ark., on the brief), for appellants.
Clinton R. Barry, U. S. Atty., and John E. Harris, Asst. U. S. Atty., both of Ft. Smith, Ark. (Duke Frederick, Asst. U. S. Atty., of Ft. Smith, Ark., on the brief), for the United States.
Before STONE, SANBORN, and FARIS, Circuit Judges.
SANBORN, Circuit Judge.
The facts out of which this controversy arises are not in substantial dispute, although the parties differ as to the inferences which may properly be drawn from them.
The appellants, Wilson and Gurley (who will be referred to as the defendants), had been for some years prior to June 30, 1933, in the employ of the government at Fort Smith, Ark., the former as a prohibition agent, and the latter as Assistant Prohibition Administrator. They were furloughed on June 30, 1933. It had been the duty of Wilson to search out violations of the National Prohibition Act and to apprehend those committing them. He had apparently been active in that regard prior to his separation from the service, and had participated in a large number of raids upon illicit manufacturers of liquor in the Western District of Arkansas. He had arrested operators of illicit stills and had made charges against them before the United States Commissioner, *238 who had bound them over to the grand jury. After Wilson and Gurley were furloughed, and before the grand jury had been convened in the fall of 1933, they sought out some of these violators against whom Wilson had evidence and had made charges, but who were not yet indicted, and offered to have the proceedings against them dismissed or disposed of for a consideration to be forthwith paid in cash. The defendants' prices were evidently regarded as reasonable, the standard fee apparently being $10 for guaranteeing the satisfactory disposal of each offense charged, and they met with considerable success in their enterprise. The government, however, believing that this money was being received by the defendants for the purpose of securing the suppression of Wilson's evidence against those who were making the payments, procured an indictment against the defendants, charging Wilson with having on six separate occasions accepted a bribe upon an agreement that his testimony would be influenced thereby, in violation of title 18, § 240, U. S. C. (18 USCA § 240); and charging Gurley with being an aider and abetter of Wilson. Upon the trial, the first count of the indictment was dismissed. The defendants were found guilty upon the last five counts, and were each sentenced to two years in the penitentiary. They have appealed from the judgment and sentence.
Many of the assignments and specifications of error relate to rulings upon the evidence. There has been, with respect to such assignments and specifications, no attempt to comply with rules 11 and 24 of this court, and we are therefore not called upon to consider the challenged rulings. Ford Motor Co. v. Brady (C. C. A. 8), 73 F.(2d) 248.
The assignments and specifications relating to errors in the charge of the court will not be considered because they are not based upon any exceptions taken to the court's charge. Busch v. United States (C. C. A. 8) 52 F.(2d) 79, 87.
The defendants' requests for instructions are not included in the bill of exceptions, and therefore the alleged errors of the court with respect to the refusal of requested instructions cannot be considered.
The defendants have challenged the overruling of their demurrer to the indictment and the denial of their motion for a directed verdict on the ground of the insufficiency of the evidence.
It was claimed by the defendants upon the trial that those who paid them money did so, not upon any agreement or understanding that the testimony of Wilson should be influenced thereby, but for the purpose of retaining the services of Gurley as an attorney, and that Gurley had received all of the money paid. It appeared that Gurley had been admitted to practice in the state courts of Arkansas, although he had never either studied or practiced law. It was conceded that he had not been admitted to practice in the federal court. There was nothing in the evidence to indicate that any of those who had paid money to the defendants, or either of them, had any idea of employing Gurley as counsel, or that the money was paid upon any representation by the defendants that it was in consideration for his services as a lawyer. The money was paid to avoid indictment and prosecution. So far as the evidence shows, the defendants had nothing to sell except the suppression of Wilson's evidence, and, although the purchasers testified that no agreement to the effect that Wilson's testimony against them was to be influenced by their payments, was actually expressed, we think that the jury were justified in inferring that bribes were accepted for that reason and upon that understanding, since the testimony is inconsistent with any other reasonable hypothesis. The court below was not required to direct a verdict for the defendants unless the facts, as pleaded in the indictment and as found by the jury, did not constitute a crime.
Count 2 of the indictment is fairly typical of all of the counts, and charges as follows:
"That heretofore, on or about June 23, 1933, one John Clark was arrested and brought before J. Warren Stevens, as United States Commissioner in the Texarkana Division of the Western District of Arkansas, upon a charge of unlawfully manufacturing intoxicating liquor in violation of the laws of the United States. That at said hearing the said John Clark was duly bound over by the said J. Warren Stevens, as United States Commissioner, aforesaid, upon said charge to await the action of a Grand Jury of the District Court of the United States for the Western District of Arkansas, and that ever since said time the said criminal action against the said John Clark, as aforesaid, has been and is now pending in said United States District Court for the *239 Western District of Arkansas, Texarkana Division.
"That one Owen R. Wilson was on said June 23, 1933, a prohibition investigator in the employ of the United States and that he in company with others officers arrested the said John Clark on said charge, as aforesaid, and that at the time of such arrest the said Owen R. Wilson witnessed the fact that the said John Clark was engaged in the unlawful operation of a still in manufacturing whiskey in violation of the laws of the United States, and the said Owen R. Wilson has knowledge of facts tending to prove that the said John Clark is guilty of the offense or offenses for which he stood charged in said criminal action, as aforesaid, and that the said Owen R. Wilson would have been and is a material and important witness for the United States and against the said John Clark before any grand jury of the United States inquiring into the offenses charged against the said John Clark, as aforesaid, and at the trial of the said John Clark in the United States District Court for the Western District of Arkansas upon any indictment which might be found, presented and filed against the said John Clark for the offenses for which he stands charged, as aforesaid. That on or about November 13, 1933, in the city of Texarkana, in the Texarkana Division of the Western District of Arkansas, the said Owen R. Wilson asked for and accepted from the said John Clark the sum of, to-wit: Five ($5.00) Dollars, upon an agreement and understanding that his testimony in said criminal action against the said John Clark, as aforesaid, should be influenced thereby.
"* * * That one S. M. Gurley in said District well knowing the premises and on or about said November 9, 1933, and in Nevada County, State of Arkansas, and being present at the time and place that the said John Clark paid to the said Owen R. Wilson the said bribe in the sum of Five Dollars, as aforesaid, did aid and abet the said Owen R. Wilson in asking for and accepting said bribe in the manner and form aforesaid."
Title 18, § 240, U. S. C. (18 USCA § 240), reads as follows: "Whoever, being, or about to be, a witness upon a trial, hearing, or other proceeding, before any court or any officer authorized by the laws of the United States to hear evidence or take testimony, shall receive, or agree or offer to receive, a bribe, upon any agreement or understanding that his testimony shall be influenced thereby, or that he will absent himself from the trial, hearing, or other proceeding, or because of such testimony, or such absence, shall be fined not more than $2,000, or imprisoned not more than two years, or both."
The contention of the defendants is that the statute in question applies only to one who is or is about to be a witness before a court or before an officer authorized to hear evidence, and that it does not apply to one who is or is about to be a witness before a grand jury; that a grand jury is neither a court nor an officer. It is argued that, since in Todd v. United States, 158 U. S. 278, 15 S. Ct. 889, 39 L. Ed. 982, it was held that a witness before a United States Commissioner was not a witness in a United States court, and, in United States v. Clark, Fed. Cas. No. 14,804, 1 Gall. 497, it was held that a perjury committed by a witness on a preliminary hearing before a United States District Judge was not a perjury done in a court of the United States, it should be held that a witness before a grand jury is not a witness before a court. It is further argued that, because those who had given bribes to Wilson had not been indicted, no cases were pending before the court; so that Wilson was not and was not about to be a witness in court at the time he received the bribes.
There are no common-law crimes against the United States. United States v. Eaton, 144 U. S. 677, 12 S. Ct. 764, 36 L. Ed. 591; Donnelley v. United States, 276 U. S. 505, 511, 48 S. Ct. 400, 72 L. Ed. 676. Each criminal case requires the construction of a statute to determine whether the acts or omissions of the accused are denounced as punishable. One may not be punished for a crime against the government unless the facts shown plainly and unmistakably constitute an offense within the meaning of an act of Congress. United States v. Lacher, 134 U. S. 624, 628, 10 S. Ct. 625, 33 L. Ed. 1080; Todd v. United States, supra, 158 U. S. 278, page 282, 15 S. Ct. 889, 39 L. Ed. 982; Fasulo v. United States, 272 U. S. 620, 629, 47 S. Ct. 200, 71 L. Ed. 443; Donnelley v. United States, supra, 276 U. S. 505, page 511, 48 S. Ct. 400, 72 L. Ed. 676; United States v. Gradwell et al., 243 U. S. 476, 485, 37 S. Ct. 407, 61 L. Ed. 857; United States v. Bathgate, et al., 246 U. S. 220, 225, 38 S. Ct. 269, 62 L. Ed. 676; Speeter v. United States (C. C. A. 8) 42 F.(2d) 937, 940, 941. But the rule that a penal statute is to be strictly *240 construed in favor of persons accused, is not violated by allowing the language of the statute to have its full meaning, where that construction supports the policy and purposes of the enactment. United States v. Hartwell, 6 Wall. 385, 395, 396, 18 L. Ed. 830; United States v. Wiltberger, 5 Wheat. 76, 95, 5 L. Ed. 37; Donnelley v. United States, supra, 276 U. S. 505, page 518, 48 S. Ct. 400, 72 L. Ed. 676. And when a construction contended for unduly restrains the language of a statute and is contrary to the purposes of the act and the policy of Congress, it will not be sustained. Donnelley v. United States, supra, 276 U. S. 505, page 518, 48 S. Ct. 400, 72 L. Ed. 676.
The purpose and policy of the enactment here involved is obvious. It is to prevent miscarriages of justice through the accepting of bribes by material witnesses for the suppression or the changing of their evidence in cases, hearings, and proceedings in the courts of the United States, as well as before committing magistrates and other officers authorized to hear evidence and take testimony. There is every reason why the courts should not unduly limit or restrict the language of the statute.
Under the defendants' interpretation of this statute, a witness before a United States Commissioner and a witness upon a trial would come within its terms, but a witness before a grand jury would not. But, "all laws are to be given a sensible construction; and a literal application of a statute, which would lead to absurd consequences, should be avoided whenever a reasonable application can be given to it, consistent with the legislative purpose." United States v. Katz et al., 271 U. S. 354, 357, 46 S. Ct. 513, 514, 70 L. Ed. 986; Hawaii v. Mankichi, 190 U. S. 197, 212, 23 S. Ct. 787, 47 L. Ed. 1016; United States v. Kirby, 7 Wall. 482, 486, 19 L. Ed. 278. And see In re United States, Petitioner, 194 U. S. 194, 24 S. Ct. 629, 48 L. Ed. 931, and Glickstein v. United States, 222 U. S. 139, 143, 32 S. Ct. 71, 56 L. Ed. 128.
Reduced to its lowest terms, the question with which we are confronted is whether, taken according to their ordinary meaning, the words of the statute are sufficient to make the facts stated in the indictment and found by the jury a punishable offense. See Donnelley v. United States, supra, 276 U. S. 505, page 512, 48 S. Ct. 400, 72 L. Ed. 676. If Wilson, at the time he accepted bribes, was or was about to be a witness "upon a trial, hearing, or other proceeding, before any court," the conviction should be sustained. If he was not such a witness, there should be a reversal.
After a preliminary hearing has been held, and an accused has been bound over for his appearance before the court having jurisdiction to try him for the offense with which he stands charged, there is a proceeding pending in and before that court, although, in a strict legal sense, it may not be a "case" or an "action." United States v. Bittinger (Mo.) Fed. Cas. No. 14,598; Southern Surety Company v. State of Oklahoma, 241 U. S. 582, 36 S. Ct. 692, 60 L. Ed. 1187; Conley v. United States (C. C. A. 8) 59 F.(2d) 929, 934. "The word `proceeding' is not a technical one, and is aptly used by the courts to designate an inquiry before a grand jury." Hale v. Henkel, 201 U. S. 43, 66, 26 S. Ct. 370, 375, 50 L. Ed. 652.
A grand jury is a part of the court.
"It has been justly observed, that no act of congress directs grand juries, or defines their powers. By what authority, then, are they summoned, and whence do they derive their powers? The answer is, that the laws of the United States have erected courts which are invested with criminal jurisdiction. This jurisdiction they are bound to exercise, and it can only be exercised through the instrumentality of grand juries. They are, therefore, given by a necessary and indispensable implication. But, how far is this implication necessary and indispensable? The answer is obvious. Its necessity is co-extensive with that jurisdiction to which it is essential. Grand juries are accessories to the criminal jurisdiction of a court, and they have power to act, and are bound to act, so far as they can aid that jurisdiction." Chief Justice Marshall, in United States v. Hill et al., Fed. Cas. No. 15,364, 1 Brock. 156.
"It is also claimed that a grand jury is not a court, and that the provisions of section 135 [§ 241, Title 18, U. S. C. (18 USCA § 241)] do not apply to witnesses subpoenaed to appear before a grand jury. The grand jury is an integral part of the court. Its impaneling is directed by the court. It is charged by the court and advised of its duties in the matters coming before it for investigation. * * *
"We are of the opinion that a witness called before the grand jury is a witness in a `court of the United States,' as contemplated by section 135. See, also, the case *241 of [Ex parte] Savin, Petitioner, 131 U. S. 267, 9 S. Ct. 699, 33 L. Ed. 150, which we deem controlling." Davey v. United States (C. C. A. 7) 208 F. 237, 241.
In Ex parte Savin, Petitioner, 131 U. S. 267, 277, 9 S. Ct. 699, 702, 33 L. Ed. 150, the court said: "It was held in Heard v. Pierce, 8 Cush. [Mass.] 338, 341 [54 Am. Dec. 757], that `the grand jury, like the petit jury, is an appendage of the court, acting under the authority of the court, and the witnesses summoned before them are amenable to the court, precisely as the witnesses testifying before the petit jury are amenable to the court.' Bacon, in his essay on Judicature, [No. LVI] says: `The place of justice is an hallowed place; and therefore not only the bench, but the foot-pace and precincts and purprise thereof, ought to be preserved without scandal and corruption.'"
In Blair v. United States, 250 U. S. 273, 280, 39 S. Ct. 468, 470, 63 L. Ed. 979, the court said: "At the foundation of our federal government the inquisitorial function of the grand jury and the compulsion of witnesses were recognized as incidents of the judicial power of the United States. By the Fifth Amendment a presentment or indictment by grand jury was made essential to hold one to answer for a capital or otherwise infamous crime. * * *"
The following statement on this subject is found in People ex rel. Choate v. Barrett, Justice, 56 Hun, 351, 9 N. Y. S. 321, 322, 323: "`It is clear, from the elementary writers, and from what the court of appeals implied in the Hackley Case, 24 N. Y. [74], 78, that the grand jury room is an enlargement of the court-room, and part of the court sitting. Handing to the petit jury a letter containing remarks upon the case pending before them, has been, at nisi prius, adjudged a contempt; the jury, for convenience, being outside of the court-room proper, it is true, but legally and technically, nevertheless, a part of the court sitting; and both the grand and petit jury rooms were merely extensions of the court apartment, and are under equal jurisdiction.' In Com. v. Crans, 3 Pa. Law J. [442], 453, the court said it was `clear that a grand jury are as much attached to the court as a petit jury. * * * In contemplation of law, a grand jury are supposed to be personally present in court. * * * They differ from a petit jury only in the particular that the latter hear both sides of the case, but both receive legal information from the same tribunal.' Mr. Rapalje, in his work on Contempts, (section 67), says that, the grand jury being merely an appendage to the court, the refusal by a witness to answer questions put by them is a contempt of the court by whose order the grand jury was impaneled. For this proposition he cites many cases in this and in other states, notably People v. Naughton [N. Y.] 7 Abb. Prac. (N. S.) 421; People v. Kelly, 24 N. Y. 74, and People v. Fancher, 4 Thomp. & C. [N. Y.] 467, 476. In People v. Naughton, Mr. Justice Pratt held that the grand jury was a constituent part of the court of oyer and terminer, and that its proceedings were a part of the proceedings of that court. See [7 Abb. Prac. (N. S.) 421], page 423. In People [ex rel. Hackley] v. Kelly, 21 How. Prac. [N. Y.] 54, the supreme court of this department, at general term, held that the grand jury was an adjunct of the court, as well as the petit jury. It was there insisted that the commitment was illegal because the contempt did not occur in the presence of the court, but in the grand jury room, before the jury as an independent body. Leonard, J., answered this contention by saying that, `when summoned, sworn, and organized, the grand jury are a constituent part of the court, for the performance of the functions and duties devolved upon the court, as much as a body of twelve petit jurors impaneled for the trial of a person charged with crime. * * * When the witness has been brought before the grand jury to testify, he is for the time in the custody, or under the control, of the court and the grand jury. He stands in the same relation to the court as a witness on the stand before the court and a petit jury.' It will be observed that the reasoning in many of these grand jury cases proceeds upon the analogy to the petit jury. That the latter body is directly and immediately a constituent part of the court, and the petit jury room an adjunct to the court, is treated throughout as a postulate admitting of no question. This becomes entirely clear when we free our minds from the popular notion that the judge is the court. He is a constituent part of the organization, but he is not the court. Nor is the court-room the court, nor the jury-room, nor the petit jury. The court is the totality of the constituent parts. It consists of the entire judicial organization for the trial of causes, and it is immediately present whenever and wherever, from the opening to the adjournment of the sitting, these constituent parts are actually performing the *242 functions devolving upon them by law. * * *"
Judge Westenhaver, in In re National Window Glass Workers (D. C. N. D. Ohio) 287 F. 219, 225, said:
"The process of the court comprehends proceedings before grand juries and the means whereby witnesses may be required to attend and testify. A grand jury has no existence aside from the court which calls it into existence and upon which it is attending. A grand jury does not become, after it is summoned, impaneled, and sworn, an independent planet, as it were, in the judicial system, but still remains an appendage of the court on which it is attending. No grand jury shall be summoned to attend any District Court unless the judge thereof, in his own discretion or upon a notification by the district attorney that such jury will be needed, orders a venire to issue therefor. Judicial Code, § 284 (Comp. St. § 1261 [28 USCA § 421]). The District Court may discharge a grand jury whenever in its judgment it deems a continuance of the sessions of such a jury unnecessary. Judicial Code, § 285 (Comp. St. § 1262 [28 USCA § 422]). All indictments or presentments of a grand jury become effective only when presented in court and a record is made of such action. A grand jury is not, therefore, and cannot become, an independent, self-functioning, uncontrollable agency. It is and remains a grand jury attending on the court, and does not, after it is organized, become an independent body, functioning at its uncontrolled will, or the will of the district attorney or special assistant.
"The process by which witnesses are compelled to attend a grand jury investigation is the court's process and not the process of the grand jury, nor of the district attorney. If a witness fails to attend, the power, as well as the duty, to compel his attendance, is vested in the court. If, after appearing, he refuses to testify, the power, as well as the duty, to compel him to give testimony is vested in the court, and not in the grand jury. It can therefore never become an immaterial matter to the court what may be done with its process or with its grand jury. A court would not be justified, even if it were so inclined, to create or call into existence a grand jury, and then go off and leave it. A supervisory duty, not only exists, but is imposed upon the court, to see that its grand jury and its process are not abused, or used for purposes of oppression and injustice."
See, also, United States v. Kilpatrick (D. C. W. D. Nor. Car.) 16 F. 765, 769; Parsons v. Age-Herald Publishing Co., 181 Ala. 439, 61 So. 345; Fryer v. State, 146 Ala. 4, 41 So. 172, 173; Fields v. State, 121 Ala. 16, 25 So. 726, 727; Denning v. State, 22 Ark. 131, 132; People v. McCauley, 256 Ill. 504, 100 N. E. 182, 184; Boone v. People, 148 Ill. 440, 36 N. E. 99, 101; State ex rel. Lashly v. Wurdeman (Mo. Sup.) 187 S. W. 257, 259. And compare Commonwealth v. Bannon, 97 Mass. 214; People v. Sweeney et al., 213 N. Y. 37, 106 N. E. 913, 916; People v. Sexton, 187 N. Y. 495, 80 N. E. 396, 402, 116 Am. St. Rep. 621; People v. Glen, 173 N. Y. 395, 66 N. E. 112, 114; Coleman v. State, 6 Okl. 252, 118 P. 594.
In those cases which hold that a grand jury is in some respects a body independent of the court, it is very evident that the distinction between the court as an institution and the court as personified by its presiding judge or judges, has been lost sight of. The grand jury is in many respects independent of the judge of the court, but it is as much a part of the court as an institution as is the judge or the petit jury. It is called by the court, impaneled by the court, and charged by the court. The witnesses who appear before it are subpnaed by the court and are amenable to the court. It reports to the court, and is discharged by the court. The results of its labors become records of the court. To say that it is not a part of the court because it performs certain duties and has certain functions which may not be controlled or supervised by the judge, would be no more logical than to say that a petit jury is not a part of the court because the judge may not control its deliberations or its determination of questions of fact submitted upon a trial.
It is our conclusion that one who is or is about to be a witness before a grand jury upon a criminal proceeding pending in the United States court is a witness upon a proceeding before that court within the ordinary meaning of the words of the statute here involved. Any other construction of the statute would be not only inconsistent with the obvious purpose of Congress in enacting it, but would also be an undue restriction of its language, leading to an absurd result.
The court below did not err in overruling the defendants' demurrer to the indictment, nor did it err in refusing to direct a verdict.
The judgment appealed from is affirmed.
*243 FARIS, Circuit Judge (dissenting).
I regret that I am not able to concur with the opinion to which the majority adheres. I differ from them but on one point; but regrettably, that point is vital to the case. The prosecution rests on a violation of the provisions of section 240, title 18 USCA. I am not able to avoid the conclusion that section 240, supra, does not cover the facts charged, or proved, in this prosecution.
It is so well-settled as to require no citation of cases, that there are no common-law crimes under the federal criminal law; so as a corollary, it follows, that before any person can be convicted of an alleged federal offense, the prosecution must be able to lay its finger on the statute which defines and denounces the act committed as a crime against the United States. If this cannot be done, the prosecution must fail.
It is equally as well-settled, as the cases cited in the majority opinion conclusively prove, that a penal statute must be strictly construed; unless by its own terms (as the statute under discussion does not) it shall provide for a liberal construction. And this means, of course, that unless a given act is clearly denounced as a crime by the plain words of a statute such act is not a crime, and that no person can be demonstrated to be guilty, or to come within the terms of a criminal statute by a priori reasoning, philosophical deduction, or logical ratiocination. The words of a criminal statute, in short, must be to the plain man, as signposts, warning him of danger.
Section 240, supra, found in the Criminal Code as section 134, was enacted in 1909 (35 Stat. 1113), and is fairly new as a statute. I have found no other case of prosecution under its provisions, of bribery of a witness before a grand jury. Violation of it is referred to in the case of Keeney v. United States (C. C. A.) 17 F.(2d) 976, as warranting a proceeding for contempt of court. Section 240, supra, nowhere mentions a grand jury. It merely denounces as a crime the receiving a bribe by one "being, or about to be, a witness upon a trial, hearing, or other proceeding, before any court or any officer authorized by the laws * * * to hear evidence or take testimony." Some four other sections of the Criminal Code which deal with analogous crimes, namely, sections 133, 135, 136, and 137 (18 USCA §§ 239, 241, 242, 243), do mention juries, but section 134, 18 USCA § 240, supra, does not.
Within the strict rule of construction enjoined on courts, I do not believe that a grand jury is either a court or an officer, and the section mentions none other than a court or an officer. So I am of opinion that no prosecution (unless for contempt, and on that we are not called to pass) will lie under section 240, supra, for the act of receiving a bribe by a witness, when that witness is a witness, or is to be a witness, before a grand jury. It may be an unfortunate instance of casus omissus, but that is a matter for the Congress to consider.
The only case cited by counsel for appellee, is Davey v. United States (C. C. A.) 208 F. 237, 241. The citation is misleading for the latter case is not in point, and if that case had held (as it did not) that section 240, applied to witnesses before a grand jury, it would have been bald dictum, because the indictment therein up for discussion was based on section 241, of title 18 USCA, while the instant case is an attempted prosecution under section 240, supra. Said section 241, by its plain words clearly applies to grand juries, for they are named specifically, while they are not so named in section 240. Simply because prosecution may lie under sections 241 or 239, title 18 USCA does not of itself at all warrant a prosecution under section 240, supra. It is quite certain that the cy pres doctrine has no application to the criminal law. I am of opinion the case should be reversed and the defendants discharged.
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809 F.2d 785Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Tyrone PRESTON, Plaintiff-Appellant,v.D.E. HORTON; A.R. Gregory, Defendants-Appellees,
No. 86-6730.
United States Court of Appeals, Fourth Circuit.
Submitted Oct. 29, 1986.Decided Jan. 8, 1987.
Before PHILLIPS and ERVIN, Circuit Judges and BUTZNER, Senior Circuit Judge.
Tyrone Preston, appellant pro se.
Richard Francis Gorman, III, Office of the Attorney General of Virginia, for appellees.
PER CURIAM:
1
Tyrone Preston filed this 42 U.S.C. Sec. 1983 suit alleging that Horton, a Corrections Officer, sexually assaulted him during a search. Preston was exiting the dining hall, and Horton conducted a shakedown, a procedure that all prisoners submitted to before leaving the dining hall. Preston alleged that Horton grabbed his groin and would not let go. In addition, Preston alleged that Gregory, another Corrections Officer, stood by during the assault and refused to intervene. Preston alleged that he suffered physical and mental distress due to the assault.
2
Initially, Preston complains that counsel should have been appointed below so his claim could have been properly litigated. Counsel need not be appointed in Sec. 1983 cases unless the case presents "exceptional circumstances." Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir.1984); Cook v. Bounds, 518 F.2d 779 (4th Cir.1975). This case presented a straightforward factual question. The pro se litigant was sufficiently skilled that he, with the assistance of the magistrate, managed to present his evidence and question witnesses in a coherent manner. The case presents no exceptional circumstances. We find no abuse of discretion in the failure to appoint counsel. Cook v. Bounds, supra, at 780.
3
At the close of all the evidence, the magistrate entered judgment for the defendants. Unjustified infliction of physical harm states a claim under Sec. 1983. King v. Blankenship, 636 F.2d 70, 72 (4th Cir.1980); Kidd v. O'Neil, 774 F.2d 1252 (4th Cir.1985). The magistrate concluded that any touching by Officer Horton was accidental, and that even if any injury occurred, it was a result of the exercise of a justifiable degree of force necessary to properly perform the search. Finding no error in the magistrate's conclusions, we affirm. Because the dispositive issues have recently been authoritatively decided, we dispense with oral argument.
4
AFFIRMED.
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274 B.R. 807 (2002)
In re Billy R. SKIPPER.
No. 6:01-bk-60089.
United States Bankruptcy Court, W.D. Arkansas, Hot Springs Division.
February 13, 2002.
*808 *809 John Ogles, Ogles Law Firm, Jacksonville, AR, for Debtor.
Frederick S. Wetzel, III, Little Rock, AR, U.S. Bankruptcy Trustee.
Order Sustaining Objections to Exemptions and Granting Motion for Turnover
ROBERT F. FUSSELL, Bankruptcy Judge.
Pending before the Court are the objection to exemptions and motion for turnover filed on February 13, 2001 by Frederick S. Wetzel, III., (the "Trustee") the duly appointed chapter 7 trustee in this case, and *810 the objection to amended exemptions filed by the Trustee on May 16, 2001. Evidentiary hearings were held on the objection to exemptions, motion for turnover, and objection to amended exemptions on August 8, 2001 and September 6, 2001. At the conclusion of the hearings, the Court took the matter under advisement. For the reasons stated below, the Trustee's objections to exemptions are sustained and his motion for turnover is granted.
I. Jurisdiction.
The Court has subject matter jurisdiction over this proceeding pursuant to 28 U.S.C. §§ 1334(a) and 157(a), and this is a core proceeding as defined by 28 U.S.C. §§ 157(b)(2)(B) and (E). This order constitutes findings of fact and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052(a).
II. Findings of Fact.
Billy R. Skipper ("Debtor") filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code on January 26, 2001. Debtor's Amended Schedule B, "Personal Property," listed property described as an "IRA and College Fund" (the "IRA and Valic Fund"), with a current market value of approximately $19,000.00. Debtor's Amended Schedule C, "Property Claimed as Exempt," claimed an exemption of the IRA and Valic Fund in the amount of $16,150.00, pursuant to 11 U.S.C. § 522(d)(5).
On February 13, 2001, the Trustee filed an objection to exemptions and motion for turnover of property related to Debtor's claimed exemption of the IRA and Valic Fund. The Trustee's objection and motion asserted that the claimed exemption of $16,150.00 exceeded the $8,925.00 cap on Debtor's "wild card exemption" under 11 U.S.C. § 522(d)(5). On March 5, 2001, Debtor filed a general denial of the allegations in the Trustee's objection and motion.
On March 9, 2001, the Court entered a scheduling order, which provided that the parties were to submit a written stipulation of facts by March 19, 2001. On March 21, 2001, the parties filed a stipulation of facts and documents that stated as follows:
1. The debtor filed his Chapter 7 case on January 26, 2001.
2. The debtor lists on his Schedule "B" an IRA and college fund valued at $19,000.00. 3. The IRS and college fund are an IRA account with Merrill Lynch invested in the Pioneer Investments Growth Fund ("IRA Account") and an Arkansas State Police Valic Fund ("Valic Fund").
4. Both the IRA and Valic Fund are in the debtor's individual name. Neither account shows the debtor holds the money as Trustee or in trust.
5. Before the debtor filed bankruptcy he contributed money to the IRA Account for his son's college education. The debtor also contributed all money in the Valic fund to pay for his son's college. Those contributions were made with the agreement of the debtor's ex-wife who was married to the debtor until June 2000.
6. The balance in the IRA Account is $14,445.43.
7. The balance in the Valic Fund is $5,528.51.
8. The debtor uses his social security number on the IRA account and Valic Fund for tax reporting purposes.
9. Exhibit "A" is the [statements of accounts] for the IRA Account.
10. Exhibit "B" is the Valic Fund documents.
11. The debtor claims his exemptions under 11 U.S.C. § 522(b)(1).
*811 12. The debtor owns a home, but claims no real estate equity under 11 U.S.C. § 522(d)(1). The debtor is entitled to claim an exemption in the IRA Account and Valic Fund under 11 U.S.C. § 522(d)(5) in the amount of $8,925.00 if they are non-exempt.
On March 23, 2001, Debtor's counsel submitted two letters to the Court. In the first letter, he stated that "it is debtor's position that the two accounts are set up for debtor's son's college expenses." Debtor's counsel's second letter purported to be a "request by the debtor to amend his exemptions to include 11 U.S.C. § 522(d)(10)(E)."
On April 17, 2001, Debtor filed a motion to amend exemptions asserting that Debtor is entitled to exempt $8,925.00 of the IRA and Valic Fund pursuant to 11 U.S.C. § 522(d)(5), and that Debtor is entitled to exempt the remaining $11,048.94 of the IRA and Valic Fund pursuant to 11 U.S.C. § 522(d)(10)(E). On April 26, 2001, Debtor filed an Amended Schedule C, "Property Claimed as Exempt," in which he claimed exemptions of the IRA and Valic Fund in the amounts set forth in his motion to amend exemptions. The Trustee filed an objection to the amended exemptions on May 16, 2001.
Evidentiary hearings were held on August 8, 2001, and September 6, 2001. During the August 8, 2001 evidentiary hearing, Debtor testified that he is a forty-three year old retired officer of the Arkansas State Police. Debtor was a police officer for approximately twenty years, until his retirement on or about October 26, 2000. Debtor's Exhibit 1, a December 1, 2000 letter written by Paul L. Deyoub, Ph.D., stated that Dr. Deyoub performed a "Fitness for Duty Evaluation" on Debtor on October 2, 2000, and reached the conclusion that Debtor's "ability to perform his job as a trooper was compromised, due to the pain, the psychological distress, and the need to take narcotic pain medication." Based on those observations, Dr. Deyoub concluded that Debtor's "medical and psychological problems combined do significantly compromise his ability to perform his normal work duties." Debtor's Exhibit 1 also included a letter dated February 12, 2001 from Thomas M. Hart, M.D., which stated that Debtor had "come under a significant amount of scrutinization [sic] due to the use of the narcotic analgesics, which he has been using for the last several years. . . . He has always remained on his evaluations as alert and oriented. There has never been any slurring of his speech, and again, no misuse identified." In addition, Debtor's Exhibit 1 included a March 20, 2001 letter to Dr. Hart from J. Zachary Mason, M.D., in which Dr. Mason stated:
The patient has asked my opinion as to whether or not he could continue to work as a state trooper. . . . The immobility of his neck places him at a high risk for cervical injury in the course of his job as a state trooper. I don't recommend that he continue to work in this capacity due to the possible injury that could occur to his cervical spine should he be involved in a motor vehicle accident. He would have difficulty driving a car with his neck fused at the multiple levels as it is. Additionally, he is at a high risk for cervical injury should he become involved in an altercation.
Debtor currently receives retirement income from the Arkansas State Police. Trustee's Exhibit 1, a letter from the Arkansas State Police Retirement System, reflects that the amount of Debtor's monthly retirement income is $1,673.55. In addition to his retirement checks, Debtor receives Social Security Disability payments. Trustee's Exhibit 2, a letter from the Social Security Administration, reflects *812 that Debtor receives $1,378.00 per month in disability payments. Debtor's combined monthly income from his Arkansas State Police Retirement and Social Security Disability is $3,051.55.
Debtor testified that he and his wife have been divorced for a little over one year. Trustee's Exhibit 3, a custody, property settlement, and separation agreement filed June 30, 2000 in the Circuit Court of Garland County, Arkansas, granted Debtor's wife custody of their two children, provided that neither party would be required to pay child support to the other, and provided that Debtor would "provide all funds necessary to pay for the children's clothing, school and extracurricular expenses and activities, personal articles, and all other reasonable expenses necessary for their everyday needs." The agreement also required Debtor to "maintain major medical insurance through his present employer, the Arkansas State Police, covering the minor children . . . [and] provide wife with full major medical insurance . . . for a period of eighteen (18) months, . . . ending February 1, 2002 . . . at his sole and separate expense." In addition, the agreement provided that Debtor could count both children as dependents on his state and federal income tax returns so long as he met his obligations as set forth in the agreement. Debtor testified that both children are currently living with him, and that his son began college in the fall of 2000.
In addition to working for the Arkansas State Police, Debtor owned and operated B.R. Skipper, Inc., a construction business. Debtor testified that he has worked in construction since high school, and that he performed physical labor in connection with his construction business. His construction company is now out of business, and most of his construction tools were stolen from him by employees as he was in the process of finishing up his last few jobs. Joint Exhibit 3, the corporate tax returns from B.R. Skipper, Inc. for the years 1998, 1999, and 2000, reflect that in 1998, B.R. Skipper, Inc. had a total income of $22,938.00 and total deductions in the amount of $26,017.00, for a net loss of $3,079.00. In 1999, B.R. Skipper, Inc. had a total income of $55,084.00 and total deductions in the amount of $48,583.00 for a net income of $6,501.00. In 2000, B.R. Skipper, Inc. had a total income of $40,891.00 and total deductions in the amount of $43,866.00, for a total loss of $2,975.00.
Joint Exhibit 4 consists of Debtor's individual tax returns for the years 1998, 1999, and 2000. The 1999 tax returns were joint returns filed by Debtor and his wife. The tax returns reflect that in 1998, Debtor's gross wages, salaries, and tips, excluding his wife's income, were $45,561.00. In 1999, Debtor's gross wages, salaries, and tips, excluding his wife's income, were $47,446.00. In 2000, Debtor's gross wages, salaries, and tips were $45,208.00.
Debtor's Amended Schedule A, "Real Property," lists a home valued at $275,000.00. Debtor testified that he has not made payments on the house in several months and the house will be sold at auction, at which point he will obtain new housing. There is no evidence in the record to reflect Debtor's current housing expenses. Although Debtor is no longer making his house payment, he testified that he is paying utilities in the approximate amount of $300.00 to $400.00 per month. Debtor's other expenses include a telephone payment of $175.00 per month, which includes cellular telephones and three separate residential phone lines. Debtor testified that he is planning to disconnect one of the residential lines, that his parents pay for the cellular telephone used by his daughter, and that he estimates *813 that his telephone expenses will be approximately $40.00 per month in the future. Debtor estimates his food expenses to be $500.00 per month, his clothing expenses to be $250.00 per month, and his medical and dental expenses to be $300.00 per month. Pursuant to his divorce agreement, Debtor was paying $400.00 per month to insure his ex-wife, but that obligation expired in December 2001. Debtor drives a 2001 Chevrolet Silverado Z71 four wheel drive truck, which Debtor testified cost approximately $34,000.00. Joint Exhibit 1, a premium notice from Debtor's insurance company, reflects that Debtor's insurance on his truck costs $467.38 every six months. At the time Debtor filed bankruptcy, his son drove a 1998 Jeep Wrangler four wheel drive vehicle. Joint Exhibit 2 reflects that the insurance on Debtor's son's 1998 Jeep cost $1,726.31 every six months. Subsequent to Debtor's bankruptcy filing, Debtor's parents purchased a 2001 Jeep for Debtor's son. Debtor pays the insurance on his son's 2001 Jeep, and testified that it costs over $2,000.00 every six months to insure. Debtor testified that his son's insurance is expensive and going to go up because his son has been cited for driving under the influence. It is unclear from the evidence before the Court and from Debtor's testimony whether the current insurance premiums take his son's D.U.I. into account.
Debtor testified that he set up both the IRA and Valic Fund strictly to pay for his son's college education, and to be available in case of emergency.[1] The IRA was funded by contributions from Debtor, and the Valic Fund was funded solely by payroll deductions from Debtor's salary with the Arkansas State Police. Debtor has already withdrawn approximately $1,600.00 from one of the accounts to pay for his son's college tuition for the fall of 2001, and Debtor testified that he intends to continue to withdraw money from the accounts to pay for his son's college expenses.[2] Debtor wishes to exempt the full amount of the IRA and Valic Fund so that the money will be available to pay for his son's college expenses and any emergency costs that may arise.
III. Conclusions of Law.
The Trustee does not dispute that Debtor is entitled to exempt $8,925.00 of the IRA and Valic Fund pursuant to 11 U.S.C. § 522(d)(5). The only issue before the Court is whether Debtor is entitled to exempt the remaining value of the IRA and Valic Fund[3] pursuant to 11 U.S.C. § 522(d)(10)(E), which provides:
(d) The following property may be exempted under subsection (b)(1) of this section:
(10) The debtor's right to receive
(E) a payment under a stock bonus, pension, profitsharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor, unless
*814 (i) such plan or contract was established by or under the auspices of an insider that employed the debtor at the time the debtor's rights under such plan or contract arose;
(ii) such payment is on account of age or length of service; and
(iii) such plan or contract does not qualify under section 401(a), 403(a), 403(b), or 408 of the Internal Revenue Code of 1986.
11 U.S.C. § 522(d)(10)(E). In interpreting § 522(d)(10)(E), the Court is mindful of the familiar principle that "exemption statutes must be construed liberally in favor of the debtor and in light of the purposes of the exemption." In re Andersen, 259 B.R. 687, 690 (8th Cir. BAP 2001) (citing In re Wallerstedt, 930 F.2d 630, 631 (8th Cir.1991)). However, the liberal construction of exemption statutes is "for the purpose of achieving the legislative intent, not to `extend the provisions of the legislative grant.'" Eilbert v. Pelican (In re Eilbert), 162 F.3d 523 (8th Cir.1998) (citations omitted). The purpose of exempting the right to payments under a pension, annuity, or similar plan is to "protect payments which function as wage substitutes after retirement." Id. The exemption is intended to protect payments that "support basic living requirements during the time of life when earning capacity is limited by age, disability, or illness." Id.
The Eighth Circuit Bankruptcy Appellate Panel has crafted a three prong test for the § 522(d)(10)(e) exemption. Specifically, the right to payment is exempt only to the extent the following conditions apply:
(1) they [the payments] are received pursuant to a "pension, annuity, or similar plan or contract,"
(2) "on account of illness, disability, death, age or length of service," and
(3) are reasonably necessary for the debtor's support or for the support of a dependent of the debtor.
Id. (citing generally to Eilbert, 162 F.3d at 527-28). Pursuant to Federal Rule of Bankruptcy Procedure 4003(c), the Trustee has the burden to demonstrate that the conditions of the exemption are not met. Id. If any of the conditions of the exemption are not met, Debtor may not claim the exemption. Because the Court has already heard evidence as to each of the three prongs of the § 522(d)(10)(e) exemption, the Court will issue conclusions of law as to each of the three prongs.
A. Are the payments received pursuant to a pension, annuity, or similar plan or contract?
The Court must first determine whether the IRA and Valic Fund constitute pensions, annuities, or similar plans or contracts. Id. A pension, annuity, or similar plan or contract is "a contract to provide benefits in lieu of earnings after retirement, whether funded by the employer or purchased by the employee or the self-employed . . . a plan created to fill or supplement a wage or a salary void." Eilbert, 162 F.3d at 527.
1. The IRA
Section 522(d)(10)(E), particularly as applied to IRAs that qualify for tax-exempt status under § 408 of the Internal Revenue Code, has been the subject of much judicial interpretation, and a significant amount of judicial consternation.[4] It seems the number of different judicial interpretations of the § 522(d)(10)(E) exemption *815 is limited only to the number of courts that analyze the issue.
At least four of the circuit courts of appeals have reached the conclusion that "some if not all IRAs were intended to be included in the phrase `similar plan or contract.' "In re Carmichael, 100 F.3d 375, 378 (5th Cir.1996); see also In re Dubroff, 119 F.3d 75 (2d Cir.1997); In re McKown, 203 F.3d 1188 (9th Cir.2000); In re Brucher, 243 F.3d 242 (6th Cir.2001). Although each of the four circuits employs a unique analysis of the issue, each of the four opinions contains a common thread-the notion that Congress's mention of Internal Revenue Code § 408 in subparagraph (d)(10)(E)(iii) compels a holding that Congress intended for IRAs to be included in the § 522(d)(10)(E) exemption.
The Carmichael court noted that subparagraph (d)(10)(E)(iii) "specifically denies exemption to those `similar plans or contracts' that come within the proscription of (d)(10)(E)(i) and (d)(10)(E)(ii) and also fail to qualify under . . . § 408." Carmichael, 100 F.3d at 378. The Carmichael court surmised that if IRAs are not "similar plans or contracts," "there would be no exempt § 408 plans or contracts from which . . . § 408 plans or contracts could be exceptions." Id. The Carmichael court also proposed that IRAs should be included in the exemption because they are substitutes for future earnings; to hold otherwise would penalize self-employed individuals who chose to depend on IRAs for retirement; and "exempting IRAs comports with the very policy furthered by exemptions-providing the honest debtor with a fresh start" by "protecting a debtor's future income stream." Id.
The Dubroff court, interpreting a New York statute materially identical to § 522(d)(10)(E), rejected the proposition that its "initial task in interpreting [the exemption] is to determine whether an IRA is a `similar plan or contract.'" Dubroff, 119 F.3d at 77. The court reasoned that "if [it] were to do so and reach the conclusion that an IRA was not a `similar plan or contract,' [subparagraph (iii)] would become surplusage." Id.
The McKown court, citing Carmichael and Dubroff, posed the rhetorical question "[w]hy would Congress talk about IRAs in the exception unless it included IRAs in the rule?" McKown, 203 F.3d at 1190. The court concluded that "[Congress] would not. . . . There could be no reason for legislators to exclude non-qualifying IRAs from the exemption, as the exception does, unless they intended that qualifying IRAs could be exempt." Id.
The most recent circuit court decision on the issue, Brucher, essentially follows the reasoning set forth in Carmichael. The Brucher court determined that "[i]f IRAs were never to be exempted under § 522(d)(10)(E), the inclusion in subsection (iii) of the reference to section 408 would have been utterly pointless." Brucher, 243 F.3d at 243.
Debtor urges the Court to follow the reasoning set forth in Carmichael, Dubroff, McKown, and Brucher, and hold that Debtor's IRA is a "similar plan or contract" under § 522(d)(10)(E). However, for the Court to so hold, it would have to ignore considerable Eighth Circuit precedent.
The Eighth Circuit first interpreted the phrase "similar plan or contract" in Huebner v. Farmers State Bank (In re Huebner), 986 F.2d 1222 (8th Cir.1993). In Huebner, the issue before the court was whether the debtor could claim an exemption in two flexible premium annuities. Both annuities qualified as IRAs under § 408 of the Internal Revenue Code. Huebner, 986 F.2d at 1224. The exemption issue was analyzed under an Iowa statute, *816 as Iowa has opted out of the federal exemption scheme. The Iowa statute at issue was materially similar to § 522(d)(10)(E), allowing debtor to exempt the right to payment under "a pension, annuity, or similar plan or contract on account of illness, disability, death, age or length of service." Id. The Eighth Circuit later described the Iowa statute as "nearly identical" to and "borrowed from" § 522(d)(10)(E).[5]
The debtor in Huebner had "the unfettered discretion to receive payments at any time . . . subject only to relatively modest penalties for withdrawals before age 59 1/2." Id. The court determined that debtor's "access to and complete control over the timing of the annuity payments mean[s] that any payments received under the contracts would not be `on account of' his age." Id. Accordingly, the court determined that the IRAs were not "similar plans or contracts." In so holding, the court observed that the debtor "could have invested his savings in retirement annuities that prevented him from withdrawing funds prior to his reaching retirement age, in which event retirement payments under those annuities would have been exempt." Id. Instead of choosing that option, the debtor "decided to invest in annuities that place virtually no restrictions on his right to withdraw." Id. The court found that "[s]uch assets are essentially `bank savings accounts' with favorable tax treatment." Id.
The Eighth Circuit Bankruptcy Appellate Panel (the "B.A.P") analyzed the "similar plan or contract" language of the Iowa statute in Eilbert v. Pelican (In re Eilbert), 212 B.R. 954 (8th Cir. BAP 1997). The B.A.P. identified four factors a court may use to aid its determination of whether a particular annuity is a "similar plan or contract." First, a court may consider whether the debtor made contributions to the annuity over time. Id. at 958-59. Second, a court may consider whether the investment was purchased in isolation, or whether it included contributions by others. Id. at 959. Third, a court may look to the debtor's return on an investment. Id. Finally, a court may consider the extent to which the debtor may control the annuity. The court held that "if the debtor has complete discretion to withdraw the entire corpus, then the contract resembles a non-exempt investment." Id. The final factor was apparently conclusive to the B.A.P. Because the debtor "enjoyed unfettered discretion to liquidate the corpus at any time, subject only to contractual penalties assessed against principal," the B.A.P. determined that the annuity was not a "similar plan or contract." Id. at 959-60. In addition, the B.A.P. stated that "[a] contractual or tax penalty is not necessarily a limitation on withdrawal." Id. at 959.
The B.A.P. decision was affirmed by the Eighth Circuit. Eilbert v. Pelican (In re Eilbert), 162 F.3d 523 (8th Cir.1998). In affirming the B.A.P.'s decision, the court stated that "similar plan or contract" includes within the exemption "retirement plans or investments that are `created to fill or supplement a wage or salary void.'" Eilbert, 162 F.3d at 527. Because the debtor's annuity did not replace lost income, was not purchased with contributions over time as part of a long term retirement strategy, and was purchased as a pre-bankruptcy planning measure, the court determined that the annuity was not a "similar plan or contract" included within the exemption. Id.
The B.A.P recently re-visited the "similar plan or contract" issue in Andersen v. *817 Ries (In re Andersen), 259 B.R. 687 (8th Cir. BAP 2001). In Andersen, the debtor used a $40,000.00 inheritance to purchase an annuity in lieu of a retirement plan. Andersen, 259 B.R. at 689. Before reaching retirement age, and before filing bankruptcy, the debtor made the required election on the annuity to state the date on which she would begin receiving payments. Id. Upon making the election, the debtor lost the discretion to withdraw, settle, or surrender the corpus of the annuity. Id. At the time she filed bankruptcy, the debtor was retired and receiving monthly annuity payments. Id.
In Andersen, the B.A.P. looked to the analysis performed in Eilbert, and stated that "numerous factors may be considered" in determining whether an annuity is a "similar plan or contract." As in Eilbert, the B.A.P. stated that specific queries may include:
* Were the payments designed or intended to be a wage substitute?
* Were the contributions made over time? The longer the period of investment, the more likely the investment falls within the ambit of the statute and is the result of a long standing retirement strategy, not merely a recent change in the nature of the asset.
* Do multiple contributors exist? Investments purchased in isolation, outside the context of workplace contributions, may be less likely to qualify as exempt.
* What is the return on investment? An investment which returns only the initial contribution with earned interest or income is more likely to be a nonexempt investment. In contrast, investments which compute payments based upon the participant's estimated life span, but which terminate upon the participant's death or the actual life span, are akin to a retirement investment plan. That is, will the debtor enjoy a windfall if she outlives her life expectancy? Is she penalized if she dies prematurely?
* What control may the debtor exercise over the asset? If the debtor has discretion to withdraw from the corpus, then the contract most closely resembles a nonexempt investment.
FN1. This was the obstacle that the debtor in Huebner v. Farmers State Bank (In re Huebner), 986 F.2d 1222 (8th Cir.), cert. denied, 510 U.S. 900, 114 S.Ct. 272, 126 L.Ed.2d 223 (1993) could not overcome.
Andersen, 259 B.R. at 691.
The Eighth Circuit's analysis of the "similar plan or contract" issue stands in stark contrast to the Carmichael, Dubroff, McKown, and Brucher holdings, each of which suggests that IRAs fall within the "similar plan or contract" language per se. This Court is bound to follow the precedent of the Eighth Circuit.[6] Moreover, this Court is convinced that the Eighth Circuit analysis is the better rule of law.
The rule adopted in Carmichael, Dubroff, McKown, and Brucher (the "Per Se Exemption") requires leaps of statutory construction that this Court is not willing to make. The courts that have adopted the Per Se Exemption argue that holding otherwise would render the mention of § 408 in subparagraph (d)(10)(E)(iii) of § 522 surplusage. However, this Court believes that adopting a Per Se Exemption of IRAs would render the "similar plan or *818 contract" language of paragraph (d)(10)(E) surplusage in cases involving IRAs.[7]
This Court, like another court that researched the issue, "cannot find anything within the Bankruptcy Code or the legislative history which manifests a Congressional intent to exempt retirement plans in toto." In re Dale, 252 B.R. 430, 434 (Bankr.W.D.Mich.2000). In fact, the evidence is quite to the contrary. If Congress intended to enact a Per Se Exemption of § 408 IRAs, it could have done so by simply stating that "a right to receive payment from an individual retirement annuity qualified for tax exempt status under 26 U.S.C. § 408 shall be exempt." In the absence of such a specific enactment, the Court refuses to infer that Congress manifested any such intent by mentioning § 408 in subparagraph (iii) of § 522(d)(10)(E).
Statutory provisions, such as subparagraph (d)(10)(E)(iii), must be construed in pari materia, that is, in reference to one another. In re Zott, 225 B.R. 160, 167 (Bankr.E.D.Mich.1998). Statutory language must be evaluated in context, and the Supreme Court has observed that the plain meaning a court should attempt to discern is the plain meaning of the whole statute, not of isolated sentences. Beecham v. United States, 511 U.S. 368, 372, 114 S.Ct. 1669, 128 L.Ed.2d 383 (1994). Courts should avoid interpretations that render statutory terms as surplusage. Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 698, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995). If at all possible, courts should strive to read the provisions of a statute as harmonious with each other.
The Court concludes that the most harmonious interpretation of § 522(d)(10)(E) is that Congress intended to exempt § 408 IRAs to the extent they are "similar plans or contracts"; payable "on account of illness, disability, death, age or length of service"; and "reasonably necessary for the support of the debtor and any dependent of the debtor." This interpretation gives meaning to the requirements of paragraph (d)(10)(E), without ignoring the mention of § 408 in subparagraph (d)(10)(iii). Under this interpretation, no part of the statute is surplusage.[8]
*819 The Court will analyze whether the IRA in this case is a "similar plan or contract." The list of possible factors outlined by the Eighth Circuit B.A.P. in Eilbert and Andersen is not all-inclusive, nor is there any requirement that the Court go through each of the factors. The primary purpose of the factors is to determine whether the annuity was purchased with the intent to provide benefits in lieu of earnings after retirement or to fill or supplement a wage or salary void. In this case, it is clear from the evidence before the Court that Debtor did not intend the IRA to be a wage substitute. Debtor testified that his purpose in setting up the IRA was to create a savings account to pay for his son's college education. In addition, Debtor testified that if the Court finds that his IRA is exempt, he intends to withdraw the money to pay for his son's education. There is no evidence in the record that Debtor ever intended, or now intends, for the IRA to provide an income stream in lieu of retirement. This evidence alone is sufficient to support a finding that Debtor's IRA is not a "similar plan or contract" within the meaning of § 522(d)(10)(E). Moreover, based on Debtor's testimony that he has already withdrawn money from the IRA or Valic Fund, and his testimony that he intends to continue to withdraw funds if the accounts qualify for an exemption, the Court concludes that Debtor has discretion to withdraw from the corpus of the accounts. The Eighth Circuit has held that an IRA is not a "similar plan or contract" where the debtor has unfettered discretion to withdraw from the corpus. Huebner, 986 F.2d at 1222. The Court concludes that Debtor's IRA is not a "similar plan or contract" within the meaning of § 522(d)(10)(E), and is not entitled to an exemption pursuant to that section.
2. The Valic Fund.
The Court's analysis of whether Debtor's Valic Fund is a "similar plan or contract" is essentially the same as its analysis of Debtor's IRA, except that it is not complicated by the reference in subparagraph (d)(10)(E)(iii) to § 408 because there is no evidence in the record that the Valic Fund is a § 408 IRA. Like the IRA, Debtor set up the Valic Fund as a savings account to pay for his son's college education. Debtor has already made one withdrawal from the corpus of the IRA or Valic Fund, and Debtor testified that if the Court finds the Valic Fund to be exempt, Debtor intends to make future withdrawals in order to pay for his son's college education. The evidence before the Court is clear that the Valic Fund was not intended to be a wage substitute. Rather, it is simply a savings account. The Court concludes that the Valic Fund is not a "similar plan or contract" within the meaning of § 522(d)(10)(E), and is not entitled to an exemption pursuant to that section.
B. Are the payments on account of illness, disability, death, age, or length of service?
The Court's conclusion that the IRA and Valic Fund are not "similar plans or contracts" is sufficient to sustain the Trustee's objections to exemptions. However, because the Court has heard evidence as to whether the right to payment under Debtor's IRA and Valic Fund is triggered by illness, disability, death, age or length of service, the Court will also issue findings on that issue.[9] The Eighth *820 Circuit has held that in order for an annuity to qualify for the exemption, "the debtor may not have access to or control over the timing of the annuity payments." Huebner, 986 F.2d at 1225; see also Eilbert, 162 F.3d at 527; Andersen, 259 B.R. at 693. Access to and control over the timing of annuity payments mean that any payments received are not "on account of age." Id. The ten percent federal tax penalty imposed on early withdrawals from a § 408 IRA has been described by the Eighth Circuit as "relatively modest," and does not constitute a restriction on the right to withdraw. Id.
In this case, the evidence before the Court is that Debtor has withdrawn approximately $1,600.00 from either the IRA or Valic Fund subsequent to his bankruptcy filing, and that he intends to continue to do so in the future. The Court concludes that Debtor's right to payment under the IRA and Valic Fund is not on account of illness, disability, death, age, or length of service. Consequently, neither the IRA or Valic Fund is entitled to an exemption under § 522(d)(10)(E).
C. Are the payments reasonably necessary for the support of the debtor or a dependent?
Because the Court has heard evidence on the issue, the Court will also issue findings as to whether Debtor's right to payments under the IRA and Valic Fund are reasonably necessary for the support of Debtor or his dependents. There is no statutory definition of "reasonably necessary for support." Rather, courts analyze the issue on a case-by-case basis. In re Sisco, 147 B.R. 495, 496 (Bankr.W.D.Ark.1992). Arkansas cases define "support" as the necessities of life, including a reasonably furnished home. Evans v. Evans, 263 Ark. 291, 564 S.W.2d 505 (1978). Some factors typically employed by bankruptcy courts include the following:
(1) Debtor's present and anticipated living expenses;
(2) Debtor's present and anticipated income from all sources;
(3) Age of the debtor and dependents;
(4) Health of the debtor and dependents;
(5) Debtor's ability to work and earn a living;
(6) Debtor's job skills, training, and education;
(7) Debtor's other assets, including exempt assets;
(8) Liquidity of other assets;
(9) Debtor's ability to save for retirement;
(10) Special needs of the debtor and dependents;
(11) Debtor's financial obligations, e.g., alimony or support payments.
Sisco, 147 B.R. at 497; In re Savage, 248 B.R. 573 (Bankr.E.D.Ark.2000).
If Debtor intended to use the IRA and the Valic Fund as a wage substitute, most of the factors listed above would weigh in favor of granting an exemption of the accounts. The Court heard evidence indicating that Debtor's ability to earn future income and save for retirement is compromised by his medical condition, and Debtor's expenses are significant. However, in this case Debtor testified that he intends to use the funds in the IRA and Valic Fund to pay for his son's college education. Accordingly, the issue before the Court is whether a college education is a necessity of life. Although Debtor's desire to provide his son with a college education is admirable, the Court cannot hold that a college education is a necessity of life. Moreover, Debtor's son is eighteen years of age and capable of working or obtaining a loan to help pay for his college *821 education. The record also reflects that Debtor's son is driving a 2001 Jeep purchased for him by his grandparents, and that Debtor is paying at least $4,000.00 per year for insurance on that vehicle. The Court cannot find that the IRA and Valic Fund are reasonably necessary for the support of Debtor or a dependant in light of the amount of his budget that Debtor has allocated to car insurance. Finally, allowing an exemption in this case would be contrary to the underlying policy of § 522(d)(10)(E), which Congress intended to protect streams of income that amount to wage substitutes. In this case, Debtor's IRA and Valic Fund are merely savings accounts that he wishes to access to pay for his son's education. The IRA and Valic Fund are not intended as streams of income that amount to wage substitutes. Consequently, neither the IRA or Valic Fund is entitled to an exemption under § 522(d)(10)(E).
IV. Conclusion.
Neither the IRA or the Valic Fund meets the requirements of § 522(d)(10)(E). Accordingly, the Court finds that Debtor is not entitled to claim exemptions pursuant to that section. The Trustee's objection to exemptions and objection to amended exemptions are hereby SUSTAINED and the Trustee's motion for turnover is hereby GRANTED, provided that Debtor is entitled to his "wildcard exemption" of $8,925.00 in the IRA and Valic Fund pursuant to § 522(d)(5).
IT IS SO ORDERED
NOTES
[1] In this case, the Court must determine the extent to which Debtor may access the corpus of the IRA and Valic Fund. Ordinarily, the best evidence of Debtor's rights under the accounts would be the actual account agreements. However, in this case, the actual agreements are no longer available. Therefore, the Court will base its findings of fact on the oral testimony of Debtor
[2] The Trustee does not object to withdrawals so long as they do not exceed Debtor's § 522(d)(5) "wildcard exemption."
[3] The documents in evidence reflect that the value of the IRA as of December 29, 2000 was $14,445.43 and the value of the Valic Fund as of December 31, 2000 was $5,528.51.
[4] One court has described the language of § 522(d)(10)(E) as "seemingly irreconcilable" and requiring a navigation between the "`Scylla of rigid construction' and the `Charybdis of meaninglessness.'" In re Dale, 252 B.R. 430, 432 (Bankr.W.D.Mich.2000).
[5] The Court recognizes that the Iowa statute lacked the internal reference to § 408 that influenced the holdings in Carmichael, Dubroff, McKown, and Brucher.
[6] None of the Eighth Circuit cases cited herein involve both the federal § 522(d)(10)(E) exemption and a § 408 IRA. Nonetheless, the Court finds no indication in the Eighth Circuit opinions that the court would forego its analysis of the "similar plan or contract" requirement merely because subparagraph (iii) of § 522(d)(10)(E) mentions § 408.
[7] Moreover, the Court perceives an inconsistency in the manner the Carmichael court applied the Per Se Exemption. Specifically, the Carmichael court dispensed of the "similar plan or contract" and "on account of illness, disability, death, age, or length of service" requirements of paragraph (d)(10)(E), but nonetheless imposed the "reasonable necessary for the support of the debtor and any dependent of the debtor" requirement of (d)(10)(E). If the Carmichael court determined that (d)(10)(E)(iii) requires the exemption of IRAs per se, then all IRAs, even those not reasonably necessary for support, should be exempt. The Court does not believe that Congress intended such a result.
[8] One might argue that this interpretation renders IRAs, as they exist today, non-exemptible de facto because IRAs are standardized agreements, allowing for preset payment with a tax penalty imposed for withdrawal before age 59 1/2. Therefore, it may be that few, if any, IRAs meet the "on account of" requirement. In fact, one court has held that IRAs, as they exist today, are non-exempt per se under § 522(d)(10)(E). In re Zott, 225 B.R. at 168. However, this Court finds no reason why IRAs that meet the "on account of" requirement cannot be drafted. There is nothing in the Internal Revenue Code or tax regulations to prevent a person from including a spendthrift provision in his IRA contract that takes away discretion to access the corpus of the account. Id. If, as the Zott court believed, it is "unlikely" that individuals would insist on such a provision, and if Congress determines that all IRAs should be exempt, then Congress should amend § 522 to exempt all IRAs. The Court must assiduously avoid the temptation to "fix" statutes. In re Widdicombe, 269 B.R. 803, 807 (Bankr.W.D.Ark.2001).
[9] Other courts have disregarded this requirement with regard to § 408 IRAs. See Brucher, 243 F.3d at 244. For the reasons set forth previously in this opinion, this Court will adhere to Eighth Circuit precedent and give meaning to all of the requirements of § 522(d)(10)(E).
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647 F.2d 1120
*U. S.v.Grant
80-5458
UNITED STATES COURT OF APPEALS Fifth Circuit
5/22/81
1
N.D.Fla.
2
AFFIRMED***
*
Fed.R.App. P. 34(a); 5th Cir. R. 18
***
Opinion contains citation(s) or special notations
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506 F.2d 1398
U. S.v.Gibson
74-1572
UNITED STATES COURT OF APPEALS Fourth Circuit
12/3/74
1
D.S.C.
AFFIRMED
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} |
836 F.Supp. 1123 (1993)
RESOLUTION TRUST CORPORATION
v.
Peter J. FARMER, et al.
v.
Sandra K. CHITWOOD, et al.
Civ. A. No. 92-3310.
United States District Court, E.D. Pennsylvania.
August 2, 1993.
*1124 *1125 John T. Rogers, Marguerite S. Walsh, Mannino, Walsh & Griffith, P.C., and Buchanan Ingersoll, Philadelphia, PA, for Resolution Trust Corp.
Mark A. Nation and William J. Brennan, J. Shane Creamer, Dilworth, Paxson, Kalish & Kauffman, Philadelphia, PA, for Peter J. Farmer and Gregor F. Meyer.
Robert L. Hickok and Jeffery C. Hayes, Pepper, Hamilton & Scheetz, Philadelphia, PA, for J. Stanley Davis, Robert P. Johnson, Carl N. Wallnau, John J. McCarthy, Jr., M.D., Paul Bendik, and Louis A. Tronzo.
Glenn C. Equi and Diana Andreacchio, Harvey, Pennington, Herting & Renneisen, Ltd., Philadelphia, PA, for Stuckert & Yates, John P. Diefenderfer, John Kerrigan, Jr., Richard Danese, Jr., and Steven Sailer.
Kean K. McDonald, Jeffrey D. Hutton and Pamela Tobin, Labrum & Doak, Philadelphia, PA, for Sidney T. Yates and Don F. Marshall.
Carl Anthony Maio, Kimberly A. Rushton, Margolis, Edelstein, Scherlis, Sarowitz & Kraemer, Glenn C. Equi, and Diana Andreacchio, Harvey, Pennington, Herting & Renneisen, Ltd., Philadelphia, PA, for William F. Schroeder, and Greg B. Emmons.
Robert E. Welsh, Jr., Philadelphia, PA, for Richard Reynaud.
Anthony Granato, Mattioni, Mattioni & Mattioni, Ltd., Philadelphia, PA and Thomas C. Jessee, Jessee & Jessee, Johnson City, TN, for Sandra K. Chitwood, Gene Artrip, Margaret Artrip, Robert Hatfield, Stewart Credit Cars, Inc., Coasters Unlimited, Inc., Southeast Auto, and Property Financial Services, Inc.
Robert C. Heim, William R. Spade, Jr. Dechert, Price & Rhoads, Philadelphia, PA, *1126 H. Lamar Mixson, and Jill A. Pryor, Bondurant, Mixson & Elmore, Atlanta, GA, for Hurt Richardson Garner Todd and Cadenhead, and E. Lewis Hansen.
MEMORANDUM
GILES, District Judge.
As receiver for Horizon Financial F.A. ("Horizon"), a former federal savings and loan association located in Pennsylvania, the Resolution Trust Corporation ("RTC") brought suit against Horizon's former directors, officers, and attorneys (collectively "DOA Defendants"),[1] seeking damages for their alleged mismanagement of the defunct association. The gravamen of the RTC's amended complaint is that the DOA Defendants, in their various capacities, permitted Horizon to engage in highly speculative, unsound and poorly-documented lending practices, particularly with regard to certain automobile and second mortgage consumer loans known as the "SBL" loans. RTC's Amended Complaint, at 9-10.[2]
In response, a number of the DOA Defendants[3] have filed a third-party complaint against the individual borrowers and guarantors, and counsel for the borrowers and guarantors of the defaulted SBL loans. In their amended third-party complaint, the DOA Defendants allege, inter alia, that they relied to their detriment upon fraudulent misrepresentations made by the third-party defendants when the SBL loans in question were obtained from Horizon.
Now before the court is a motion to dismiss the amended third-party complaint filed by third-party defendants, E. Lewis Hansen and Hurt, Richardson, Garner, Todd & Cadenhead (attorneys for the borrowers and guarantors collectively "Hurt Richardson"), the DOA Defendants' response, and the replies of the parties. For the reasons that follow, Hurt Richardson's motion is denied in part and granted in part. The DOA Defendants' RICO claim is dismissed with prejudice.[4]
FACTUAL BACKGROUND
I. SBL/Brokers South Loans
During the years of 1984 and 1985, Horizon purchased automobile and second mortgage consumer loan portfolios from three lending institutions: Sentry Corporation, Bankers Service and Landbank (collectively the "SBL portfolios"). Amended Third-Party Complaint at ¶ 2. Shortly thereafter, Horizon resold the portfolios to an affiliation of automobile dealerships incorporated in Georgia ("Brokers South"). Id. In exchange for servicing the individual loans in the portfolios and granting to Horizon security interests in all personal and real property, Brokers South acquired the SBL portfolios with financing assistance from Horizon. Id. at 24.
In all of its transactions with Horizon from 1985 until 1988, Brokers South was represented by Hurt Richardson, a law firm incorporated *1127 in Georgia.[5] Amended Third-Party Complaint, at ¶¶ 25, 27 & 35. During its representation of Brokers South, Hurt Richardson presented several "opinion letters" to Horizon wherein it supported and verified Brokers South's representations contained in loan documents. Id.
In September 1987, Brokers South had difficulty paying off its loans with Horizon. Therefore, Horizon's loan committee agreed to repurchase the SBL loan portfolios and to restructure Brokers South's outstanding loans. Amended Third-Party Complaint, at ¶¶ 32-35. As part of the restructuring, Horizon and Brokers South executed new loan documents. They also executed a mutual general release of all prior claims, including claims of any alleged misuse of loan proceeds by Brokers South. Subsequently, Brokers South still failed to meet its loan repayment obligations to Horizon despite the restructuring agreement. The SBL portfolios all went into default. Id.
II. The Georgia Litigation
On October 28, 1988, Horizon, under the control of the DOA Defendants, filed a complaint in the United States District Court for the Northern District of Georgia[6] against Brokers South, corporate and individual guarantors, a number of related individuals and entities, and Hurt Richardson. Hurt Richardson's Brief, at 5.
In February 1989, Horizon, while it was still under the control of the DOA Defendants, settled the Georgia action with Brokers South and all other named defendants, except Hurt Richardson. Hurt Richardson's Brief, at 6. Horizon and the settling defendants executed a mutual general release of all claims. Id.
Following the RTC appointment as receiver for Horizon, the district court ruled that the vast majority of Horizon's claims against Hurt Richardson had been released by Horizon through the September 1987 general release executed in conjunction with consolidation and restructuring of Brokers South's SBL loans. See Horizon Financial, F.A. v. E. Lewis Hansen and Hurt, Richardson, Garner, Todd and Cadenhead, 791 F.Supp. 1561, 1572 (N.D.Ga.1992). Specifically, the district court found that the general release discharged Hurt Richardson from those claims, arising prior to September 1987, which were based on transactions between Horizon and Brokers South where Hurt Richardson acted as Brokers South's agent. Id. However, that court was also found that the release did not discharge Hurt Richardson from liability in transactions in which Hurt Richardson submitted opinion letters to Horizon to support and verify Brokers South's representations made in loan documents. See Id. at 1573.[7]
In August 1992, the RTC settled Horizon's remaining claims against Hurt Richardson, and a general release was executed by and between the RTC and Hurt Richardson. Hurt Richardson's Brief, at 7.
III. The DOA Defendants' Claims Against Hurt Richardson
The DOA Defendants allege that "[w]ith the active participation of [Hurt Richardson], ..., Brokers South engaged in a fraudulent scheme to acquire Horizon's loan proceeds and then divert those proceeds to outside entities to purchase properties." DOA Defendants' Brief at 6. They further allege that the "[t]hird-party defendants concealed [their] after-acquired properties from Horizon *1128 so as to prevent the thrift from taking security interests in the real estate." Id.
The DOA Defendants allege that the loans to Brokers South were made in reliance upon the borrower's and guarantors' assurances of repayment and on the opinion letters given by Hurt Richardson. Id. They further allege that "before any loans to Brokers South could close, Hurt Richardson was required to issue an opinion to Horizon supporting Brokers South's representations in the loan documents." Id.
The DOA Defendants claim against Hurt Richardson for violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO") (count I), fraud and misrepresentation (count II), negligent misrepresentation (count III), and professional malpractice (count VII). Hurt Richardson moves to dismiss each of these claims.
APPLICABLE LEGAL STANDARD
In deciding a motion to dismiss for failure to state a cognizable claim, the court must accept as true all of plaintiffs factual allegations and draw from them all reasonable inferences favorable to the plaintiff. D.P. Enterprises, Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir.1984). However, the court need not accept as true legal conclusions or unwarranted factual inferences. Gomez v. Toledo, 446 U.S. 635, 636 n. 3, 100 S.Ct. 1920, 1921 n. 3, 64 L.Ed.2d 572 (1980). A case should not be dismissed for failure to state a claim unless it appears certain that no relief can be granted under any set of facts that could be proved consistent with plaintiff's allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984).
DISCUSSION
I. THIS COURT HAS JURISDICTION OVER HURT RICHARDSON.
Hurt Richardson moves to dismiss the third-party claims pursuant to Federal Civil Procedure Rule 12(b)(2) asserting lack of in personam jurisdiction. Specifically, it alleges that it "neither transacted business in Pennsylvania nor caused [the DOA Defendants] any damage legally recognized in a third-party claim." Id. In response, the DOA Defendants argue that Hurt Richardson has had such contacts with the Commonwealth of Pennsylvania to give this court specific personal jurisdiction over it without offending concepts of constitutional due process.
In deciding whether the exercise of specific personal jurisdiction over a non-resident defendant is proper, the court must look to the specific acts alleged to determine "whether there are enough contacts with the forum related to the plaintiff's claim in order to justify the assertion of jurisdiction over the non-resident defendants." Reliance Steel Products Co. v. Watson, Ess, Marshall and Enggas, 675 F.2d 587, 588 (3d Cir.1982). See, also Mellon Bank (East) PSFS, National Association v. Farino, 960 F.2d 1217 (3d Cir.1992) (specific jurisdiction arises when the plaintiffs claim is related to or arises out of the defendant's contacts with the forum).[8]
Additionally, "due process considerations require that the defendants have `purposefully directed' their conduct towards residents of the forum state and that the litigation itself arises from the alleged injuries which were caused by or related to these activities in the forum state." Greenberg v. Tomlin, 816 F.Supp. 1039 (E.D.Pa.1993) (citations omitted).
Hurt Richardson argues that a non-resident law firm doing business in a particular forum only as a representative of its client cannot be sued personally in that forum for those transactions. The DOA Defendants counter that Hurt Richardson did more than merely represent Brokers South in the loan transactions with Horizon. They aver that on several occasions during the loan transactions, Hurt Richardson furnished Horizon with opinion letters that fraudulently supported and verified representations made by Brokers South in loan documents.
*1129 Allegedly, for each loan transaction, Hurt Richardson made the following representations:
We are not aware of any material facts which would prevent Horizon's reliance upon representations by Brokers.
We are not aware of any fraud committed by Brokers against Horizon.
The execution and delivery of the loan documents by Broker does not violate any statute, ordinance, rule or regulation.
Horizon has a first priority, validly created and perfected security interest in all of Brokers' personal property.
See Hurt Richardson's Opinion Letters, dated October 31, 1985, December 6, 1985, July 3, 1986, and September 4, 1987.[9]
The DOA Defendants allege that they relied to their detriment upon fraudulent representations made by Hurt Richardson within the opinion letters and they were misled when agreeing to various loan arrangements with Brokers South, including the restructuring of said loans.
Assuming, as we must, that all of the DOA Defendants' factual allegations are true, the court finds that as a result of the opinion letters, one of which was directly presented to Horizon in Pittsburgh, Hurt Richardson maintained sufficient "contacts" with this forum for the court to exert specific personal jurisdiction. Hurt Richardson voluntarily conducted business within this forum and availed itself of the laws of the Commonwealth. It knowingly made fraudulent misrepresentations to persons within this forum upon which those persons relied to their detriment. Therefore, Hurt Richardson should have reasonably anticipated being haled into court in Pennsylvania as a result of those transactions.[10]See Carteret Savings Bank, FA v. Shushan, 954 F.2d 141, 146 (3d Cir.), cert. denied ___ U.S. ___, 113 S.Ct. 61, 121 L.Ed.2d 29 (1992) (local counsel's alleged fraudulent conduct while in the forum state was constitutionally sufficient to exert personal jurisdiction). See, also, Reliance Steel Products Co., 675 F.2d at 588 (3d Cir.1982); and World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980).
II. THE DOA DEFENDANTS' AMENDED THIRD-PARTY CLAIMS ARE PLEADED PROPERLY PURSUANT TO FEDERAL CIVIL PROCEDURE RULE 14.
Hurt Richardson argues that the DOA Defendants' amended third-party complaint must be dismissed since "[c]laims based on a third-party defendant's alleged liability to the original plaintiff are not properly raised under [Federal Civil Procedure] Rule 14." Hurt Richardson's Brief, at 24. It argues that the third-party claims are based on Hurt Richardson's alleged liability to Horizon and are not based upon any harm suffered by DOA Defendants. Id. at 30.
The DOA Defendants assert that "the amended third-party complaint does not derive from `Horizon's losses' per se, but rather from the potential liability that third-party plaintiffs face as a result of these losses." DOA Defendants' Brief, at 19.
Rule 14 provides that a defending party, as a third-party plaintiff
may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff.
Fed.R.Civ.P. 14. To assert a claim properly under Rule 14, the third-party plaintiff must implead a person against whom it can assert a claim of joint or secondary liability arising from the original plaintiff's claim against the third-party plaintiff. The defendant must *1130 show that if it is found liable to plaintiff, the third-party defendant may be liable to it. See, e.g., Harries v. General Motors Corporation, 786 F.Supp. 446, 447 (E.D.Pa.1992); Struss by Struss v. Renault U.S.A., Inc., 108 F.R.D. 691, 693 (W.D.Pa.1985); Con-Tech Sales Defined Ben. Trust v. Cockerham, 715 F.Supp. 701 (E.D.Pa.1989). Impleader is proper, however, "only if there is an underlying substantive right to pursue such relief from the third-party defendant." 3 Moore's Federal Practice § 14.03 (1987).
The DOA Defendants allege that "Horizon and third-party plaintiffs justifiably relied upon the ... opinion letters of Hurt Richardson, as well as the representations and warranties made by Hurt Richardson to Horizon therein, in deciding to enter into the [r]estructuring [a]greement." DOA Defendants' Complaint, at ¶ 172 (emphasis added). They allege further that "[a]s a direct and proximate result of these misrepresentations ..., Horizon and third-party plaintiffs have suffered substantial damages." Id. at 174 (emphasis added).
In the original complaint, the RTC avers, inter alia, that the DOA Defendants were grossly negligent in extending credit to Brokers South. In turn, the DOA Defendants allege in the amended third-party complaint that Hurt Richardson contributed to Horizon's losses by preparing and delivering false and misleading opinion letters upon which the DOA Defendants relied when, as Horizon's representatives, they agreed to each of the loans. The DOA Defendants allege further that Hurt Richardson participated in Brokers South's alleged extensive fraudulent conduct against Horizon in causing the SBL loan portfolios to go into default.
The court finds that the DOA Defendants have pleaded their claims properly pursuant to Rule 14. It is well settled under Pennsylvania common law that a cause of action for fraudulent misrepresentation is permitted if a plaintiff acted in reasonable reliance upon a defendant's misrepresentations. See, e.g., Woodward v. Dietrich, 378 Pa.Super. 111, 548 A.2d 301 (Pa.Super.1988); United Ins. Co. v. B.W. Rudy, Inc., 42 F.R.D. 398 (E.D.Pa.1967); and Seaboard Sur. Co. v. Permacrete Const. Corp., 221 F.2d 366 (3d Cir.1955).[11] The DOA Defendants allege that they justifiably relied upon Hurt Richardson's opinion letters in making decisions to grant the loans to Brokers South. Although Hurt Richardson's opinion letters were addressed to Horizon, the DOA Defendants, as Horizon's former representatives, now face liability for the losses arising from non-payment of those loans. Therefore, the DOA Defendants may implead any party whose conduct was a proximate cause of Horizon's losses for which they would be liable to the RTC.
III. THE DOA DEFENDANTS HAVE STANDING TO BRING THIS ACTION.
Hurt Richardson errs in arguing that the DOA Defendants do not have standing to bring this action. As was discussed above, the DOA Defendants third-party claims are not derived through Horizon's losses, but rather from the liability that the DOA Defendants would have should they be held personally accountable for Horizon's losses if their alleged mismanagement was proximately caused by the opinion letters of Hurt Richardson.[12] Therefore, inasmuch as the DOA Defendants have alleged a direct harm to themselves which resulted from Hurt Richardson's conduct, the court finds that the DOA Defendants have standing to file their third-party claims.
*1131 IV. THE DOA DEFENDANTS' AMENDED THIRD-PARTY CLAIMS HAVE NOT BEEN TERMINATED BY THE SEPTEMBER 1987 RELEASE AGREEMENT.
Hurt Richardson argues that it was released from the majority of claims arising out of the loan transactions between Horizon and Brokers South. Hurt Richardson's Brief, at 36. In so arguing, Hurt Richardson relies upon the district court's finding that, as a matter of law, with the exception of Horizon's claims arising from its opinion letters, Hurt Richardson was released from liability as an "agent" of Brokers South for all transactions occurring prior to September 4, 1987.[13] However, it is these very same opinion letters, which the district court found to be "actionable" against Hurt Richardson, that the DOA Defendants rely upon here to make their third-party claims.[14] Therefore, the September 1987 "release agreement" between the parties has no effect on the third-party claims alleged here.
V. THE DOA DEFENDANTS' AMENDED THIRD-PARTY CLAIMS ARE NOT BARRED BY THE DOCTRINE OF RES JUDICATA.
Hurt Richardson argues that the 1992 settlement agreement reached in the Georgia action should be given res judicata effect with respect to the DOA Defendants' third-party claims. It assumes, erroneously, that the DOA Defendants are viewed as "agents" of Horizon and, therefore, are bound by that settlement agreement.
Generally, "a judgment or decree entered by agreement or consent is conclusive only upon the parties, or privies of parties, to the agreement and judgment, and is not binding upon other persons, even though such other person would be bound by the judgment or decree, had it been entered after contest." 47 Am.Jur.2d § 1094 (1969).[15] "For the purpose of [applying] the doctrine of res judicata it is generally held that the term `parties' includes all persons who have a direct interest in the subject matter of the action, and have a right to control the proceedings, make defense, examine witnesses, and appeal if an appeal lies." 50 C.J.S. § 768 (1947).[16] Additionally, although there is no prevailing definition for "privies of parties" which can be automatically applied to all cases,
privity is not established by the mere fact that persons may happen to be interested in the same question or in proving the same state of facts. Privity [addresses] those so connected in law with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right.
Olivarez v. Broadway Hardware, Inc., 564 S.W.2d 195, 199 (Tex.Civ.App. Corpus Christi 1978).
The 1992 settlement and release document was executed by the RTC, as receiver for Horizon, and by Hurt Richardson. The DOA Defendants were not parties or privies to that agreement and therefore cannot be bound by the consent decree. If it were the RTC, receiver for Horizon, asserting claims here against Hurt Richardson, then, as a matter of law, the 1992 agreement would bar such claims. When the RTC was appointed as receiver for Horizon, control over the defunct bank was given to persons other than the DOA Defendants. The amended third-party complaint is filed against Hurt Richardson *1132 by the DOA Defendants in their individual capacities.
Under Section 36(2) of the Restatement (Second) of Judgments (which pertains to parties appearing in different capacities),
[a] party appearing in an action in one capacity, individual or representative, is not thereby bound by or entitled to the benefits of the rules of res judicata in a subsequent action in which he appears in another capacity.
Even if the DOA Defendants were privy to the 1992 settlement agreement, they would be bound by that consent decree only in their capacities as former representatives of Horizon bank. Here, the DOA Defendants are being sued in their individual capacities; therefore, they are not bound by principles of res judicata.[17]
VI. THE DOA DEFENDANTS' AMENDED THIRD-PARTY CLAIMS ARE NOT BARRED BY STATUTES OF LIMITATIONS.
Hurt Richardson argues that the amended third-party claims are all barred by statutes of limitations since "[t]he [DOA Defendants] filed their original third-party complaint on August 28, 1992, almost five years after the date of the last alleged wrongful act." Hurt Richardson's Brief, at 44. However, as a matter of law, third-party claims do not accrue until judgment is entered on the original claim. See Jackson v. Southeastern Pennsylvania Transportation Authority, 727 F.Supp. 965, 967 (E.D.Pa.1990) (under Rule 14, third-party plaintiffs' claim for contribution was not barred by statute of limitation since defendant had not yet paid or been held liable to original plaintiff).[18]
Therefore, the court finds that the statutes of limitations applicable to the DOA Defendants' third-party claims do not begin to run until, and only if, the DOA Defendants are found liable to the RTC in the original action, which has not yet been litigated.
VII. THE DOA DEFENDANTS' CIVIL RICO CLAIM (COUNT I) FAILS TO PLEAD A PATTERN OF RACKETEERING ACTIVITY.
Hurt Richardson urges that the DOA Defendants' amended third-party complaint fails to state a proper RICO claim. It contends that it fails to allege a "pattern of racketeering activity" as required by 18 U.S.C. § 1962. The court agrees. No such pattern of racketeering activity has been alleged. Therefore, the DOA Defendants' RICO claim is dismissed.[19]
To survive a Rule 12(b)(6) motion, a civil RICO claim must allege "(1) the conducting of, (2) an enterprise, (3) through a pattern, (4) of racketeering activity." Marshall Silver Constr. Co. v. Mendel, 835 F.2d 63, 65 (3d Cir.1987) citing Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985). See, also, H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989).
In H.J. Inc., the Supreme Court analyzed the meaning of the term "pattern of racketeering activity," and found that "to prove a pattern of racketeering activity a plaintiff ... must show that the racketeering predicates ... are related, and that they amount to or pose a threat of continued criminal activity." Id. at 239, 109 S.Ct. at 2900 (emphasis in the original). Although the DOA Defendants *1133 have alleged several "predicate acts" in their amended third-party complaint that arguably satisfy the relatedness prong of this pattern requirement, they have not averred sufficient allegations to show that these acts amount to or pose a threat of continued criminal activity.
In their amended third-party complaint, the DOA Defendants allege that the third-party defendants entered into a conspiracy "which had as its principal objective, the conversion, misappropriation and theft of money and property from Horizon by means of false and fraudulent acts, pretenses and misrepresentations." Amended Third-Party Complaint, at ¶ 123. Such pleading suggests that the third party defendants committed the alleged "predicate acts" with the intent to defraud one entity (Horizon) with regards to one contractual relationship (Brokers South's loans with Horizon, which were eventually consolidated under one agreement). However, a scheme having only one true victim generally does not meet the continuity requirement for a RICO claim. See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1417-18 (3d Cir), cert. denied, ___ U.S. ___, 111 S.Ct. 2839, 115 L.Ed.2d 1007 (1991).[20]
The DOA Defendants argue that there were several "victims" that fell prey to the third-party defendants' alleged fraudulent conduct. Indeed, they assert that all of the DOA Defendants may now be held personally liable for the losses sustained by Horizon as a result of the third-party defendants' actions. However, such a rationale cannot be the basis for alleging a "pattern of racketeering." The DOA Defendants have not averred that the third-party defendants committed fraudulent acts intending to defraud independent persons. Instead, they allege only that the third-party Defendants intentionally defrauded Horizon, and, incidentally, the DOA Defendants sustained injury. Under third-party defendant's reasoning, any person/entity that defrauds a corporation may face RICO liability if there is resulting harm to the shareholders of that corporation. Federal Civil RICO law was never intended to reach so broadly. See, H.J., Inc., 492 U.S. at 243, fn. 4, 109 S.Ct. at 2902, fn. 4.
The court also finds that there is no threat of repetition sufficient to establish an open-ended continuity pattern in this case. Here, the primary victim, Horizon, is in receivership; the corporation allegedly constituting the enterprise (Brokers South) is out of business; and Horizon has settled its claims with Hurt Richardson. See, e.g., H.J., Inc., 492 U.S. at 241, 109 S.Ct. at 2901; Olive Can Co. v. Martin, 906 F.2d 1147, 1150-51 (7th Cir. 1990) (defendants' scheme to set up a sham corporation in order to divert funds from their original corporation and its creditors to benefit defendants was a close-ended activity with a natural ending and no threat of ongoing activity sufficient to constitute a pattern).[21]
VIII. THE DOA DEFENDANTS' FRAUD/MISREPRESENTATION CLAIM (COUNT II) AND NEGLIGENT MISREPRESENTATION CLAIM (COUNT III) BOTH SATISFY THE PLEADING REQUIREMENTS UNDER FEDERAL RULES OF CIVIL PROCEDURE.
Hurt Richardson moves to dismiss counts II and III of the amended third party complaint arguing that these fraud claims were not sufficiently pled pursuant to Federal Civil Procedure Rules 9(b)[22] and 8.[23] Specifically, *1134 Hurt Richardson argues that "[t]he amended third-party complaint is a classic example of a `scattershot' approach to pleading fraud ... in which the plaintiffs (in this case the third-party plaintiffs) throw out a massive number of `factual' allegations (here 121 paragraphs), none or few of which constitute a cause of action in themselves, hoping that they will `hit something' ..." Id. Such a method of pleading fraud, it contends, is barred under the Federal Rules of Civil Procedure. Id.
Federal Civil Procedure Rule 9(b) requires
plaintiff to plead with particularity the "circumstances" of the alleged fraud in order to place the defendants on notice of the precise misconduct with which they are charged, and to safeguard defendants against spurious charges of immoral and fraudulent behavior.
Seville Industrial Machinery Corp. v. Southmost Machinery Corp., 742 F.2d 786, 791 (3d Cir.1984), cert. denied, 469 U.S. 1211, 105 S.Ct. 1179, 84 L.Ed.2d 327 (1985). Rule 9(b) does not dictate a precise method for pleading fraud claims with particularity. It also "does not render the general principles set forth in Rule 8 entirely inapplicable to pleadings alleging fraud; rather, the two rules must be read in conjunction with one another." 5 Wright & Miller, Federal Practice & Procedure, § 1298 at 617 (1990).
A review of the amended third-party complaint reveals that paragraphs 23 through 121 set forth a detailed transaction-by-transaction account of the alleged unlawful and fraudulent conduct allegedly perpetrated by each of the third-party defendants. These paragraphs detail how Hurt Richardson is alleged involvement in Brokers South's misuse of loan proceeds and sheltering of assets.[24] The court finds that plaintiffs have satisfied the particularity pleading requirement under Fed.R.Civ.P. 9(b).[25]
An appropriate order follows.
ORDER
AND NOW, this 2nd day of August, 1993, upon consideration of third-party defendant Hurt Richardson's motion to dismiss the amended third-party complaint, third-party plaintiffs response thereto, and the replies of the parties, it is hereby ORDERED that said motion is GRANTED in part and DENIED in part. Third-party plaintiffs' RICO claim (count I) is DISMISSED with prejudice.
NOTES
[1] The Director/Officer Defendants are Peter Farmer ("Farmer") former Horizon President; Gregor Meyer ("Meyer"), former Chairman of the Board; Richard W. Reynaud ("Reynaud"), former Group Vice President of Lending; and former Directors J. Stanley Davis, Robert P. Johnson, Carl N. Wallnau, John J. McCarthy, Jr., Paul Bendik and Louis Tronzo. The Attorney Defendants are the firm of Stuckert & Yates and individual partners Sidney T. Yates ("Yates"), Don F. Marshall ("Marshall"), John P. Diefenderfer, John Kerrigan, Jr. Richard Danese, Jr., Steven Sailer, William F. Schroeder and Greg B. Emmons.
[2] Specifically, the RTC's amended complaint avers gross negligence, negligence, and breach of fiduciary duty by the Director/Officer Defendants, and it claims for negligence, breach of contract, breach of fiduciary duty and aiding and abetting by the Attorney Defendants.
[3] These DOA Defendants are the former officer-director, Peter Farmer; former director, Gregor Meyer; former general counsel, Stuckert & Yates and its partners, including Sidney Yates, who attended meetings of Horizon's board of directors, and Don Marshall, who was a member of Horizon's loan committee.
[4] The DOA Defendants filed their original third-party complaint on August 28, 1992. In response to a motion to dismiss, filed by Hurt Richardson, the DOA Defendants filed an amended third-party complaint on November 17, 1992. Thereafter, on December 11, 1992, Hurt Richardson filed a motion to dismiss the amended third-party complaint. The original motion to dismiss and the original third party complaint are now moot.
[5] E. Lewis Hansen, a partner at Hurt Richardson, oversaw the firm's representation of Brokers South and its affiliates. The term "Hurt Richardson" is used throughout this writing to identify both E. Lewis Hansen and the entire law firm.
[6] The Georgia action is captioned Horizon Financial, F.A. v. E. Lewis Hansen and Hurt, Richardson, Garner, Todd and Cadenhead, Civil Action File No. 1:88-cv-2471-JOF.
[7] Hurt Richardson has submitted several documents, including affidavits, for the court's consideration. However, for the purpose of deciding this motion, the court reviewed only those matters permitted under Federal Civil Procedure Rule 12(b)(6), that is, matters contained within the pleadings, and the parties' memoranda of law. See Rose v. Bartle, 871 F.2d 331 (3d Cir. 1989) citing 5 C. Wright & A. Miller § 1366 (other citations omitted). The decision of the district court and the parties' general release agreements have been reviewed as part of the established record in this case.
[8] See, also, 42 Pa.C.S.A. § 5322(a)(1), (3) and (4) (Bases of personal jurisdiction over person outside this Commonwealth).
[9] In the September 4, 1987 opinion letter, Hurt Richardson made all the same representations that it did in the other opinion letters, with the exception of not stating that the firm had no knowledge that Brokers South had committed fraud against Horizon.
[10] Hurt Richardson errs in contending that the court can only exert personal jurisdiction if it finds that Hurt Richardson had direct "contacts" with the DOA Defendants. A non-resident's contact need only bear a relationship with the litigation. See Kimball v. Schwartz, 580 F.Supp. 582, 587 (W.D.Pa.1984) (claim must arise from forum-related activities).
[11] See, also, Restatement (Second) Torts § 525 (Liability for Fraudulent Misrepresentation) which states that
[o]ne who fraudulently makes a misrepresentation of fact, opinion, intention or law for the purpose of inducing another to act or to refrain from action in reliance upon it, is subject to liability to the other in deceit for pecuniary loss caused to him by his justifiable reliance upon the misrepresentation.
[12] The DOA Defendants allege that if they are held liable to Horizon for that bank's losses, then Hurt Richardson should be held liable to the DOA Defendants, for contribution and/or indemnity, as a result of the DOA Defendants detrimental reliance upon the third-party defendants' fraudulent misrepresentations. See, e.g., Amended Third-Party Complaint, at ¶ 6.
[13] See Horizon Financial, F.A. v. E. Lewis Hansen and Hurt, Richardson, Garner, Todd and Cadenhead, 791 F.Supp. 1561, 1572 (N.D.Ga.1992).
[14] Id. at 1573.
[15] See, also, Frishman v. Department of State, Bureau of Professional and Occupational Affairs, State Bd. of Vehicle Mfrs., Dealers and Salepersons, 140 Pa.Cmwlth. 455, 592 A.2d 1389 (Pa. Cmwlth. 1991), appeal denied 530 Pa. 635, 606 A.2d 904 (Pa.1992) (Consent decree has no res judicata effect as to actions of those who were not party to it); Crawford v. Pope & Talbot, Inc., 206 F.2d 784, 794 (3d Cir.1953) (A person not a party to a case is not bound by the findings of that case in subsequent litigations involving the same fact situation).
[16] See, also, Albert, et al. v. Lehigh C. & N. Co., 431 Pa. 600, 613, 246 A.2d 840, 846 (Pa.1968) citing Stonecipher v. Keane, 268 Pa. 540, 546, 112 A. 233 (1920) (To be concluded by a prior decree or judgment one must be a party to the action, or what is equivalent thereto with a right to control the proceedings and take an appeal).
[17] See, also, 76 C.J.S. § 51 (1952) (a release which is confined to particular matters or causes of action operates to release only such claims as fairly come within the terms of the release). The 1992 settlement and release executed by the RTC and Hurt Richardson was limited in scope to issues of liability that existed between Horizon and Hurt Richardson. It did not include, nor could it have included, those claims of liability that might have existed between Hurt Richardson and the DOA Defendants as individuals. Therefore, that agreement does not operate to release Hurt Richardson from any liability to the individual DOA Defendants.
[18] See, also, Mattia v. Sears, Roebuck & Co., 366 Pa.Super. 504, 531 A.2d 789, 792 (1987); and Aetna Casualty and Surety Company v. Nationwide Mutual Insurance Company, 471 F.Supp. 1059, 1067 (M.D.Pa.1979) aff'd 620 F.2d 287 (3d Cir.1980).
[19] In light of this ruling, the court does not address Hurt Richardson's other arguments for dismissal of the DOA Defendants' RICO claim.
[20] See, also, Meade v. Meade, 1992 WL 6929 (E.D.Pa.1992) (Giles, J.); Terry A. Lambert Plumbing, Inc. v. Western Sec. Bank, 934 F.2d 976, 981 (8th Cir.1991); Tellis v. U.S. Fidelity & Guar. Co., 826 F.2d 477 (7th Cir.1987); and Nundy v. Prudential-Bache Sec., Inc., 762 F.Supp. 40, 44 (W.D.N.Y.1991).
[21] See, also, Aldridge v. Lily-Tulip, Inc., 953 F.2d 587 (11th Cir.1992); Lange v. Hocker, 940 F.2d 359 (8th Cir.1991); and Ochs v. Shearson Lehman Hutton, Inc., 768 F.Supp. 418, 426 (S.D.N.Y.1991).
[22] Federal Civil Procedure Rule 9(b) requires that "in all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity ..."
[23] Federal Civil Procedure Rule 8(a) requires that "[a] pleading ... shall contain ... (2) a short and plain statement of the claim showing that the pleader is entitled to relief ..."
[24] See third-party amended complaint at ¶¶ 37-49, 51-52, 59-60, 69-70, 71-76, 84-86, 92-93, 94, 96-97, 99, 101, 103, 105, 112, and 117.
[25] Although Hurt Richardson would have the DOA Defendants repeatedly recite the specific conduct of each defendant under each fraud count averred in the complaint, rather than incorporate them by reference, such averments would only elongate the pleadings; that is not necessary and will not be required at this stage.
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466 So.2d 182 (1985)
Mark Ed SUMMERFORD
v.
STATE.
5 Div. 946.
Court of Criminal Appeals of Alabama.
February 12, 1985.
G. Houston Howard II of Howard, Dunn, Howard & Howard, Wetumpka, for appellant.
Charles A. Graddick, Atty. Gen., and Bernard B. Carr, Asst. Atty. Gen., for appellee.
BOWEN, Presiding Judge.
This is an appeal from the denial of a petition for writ of habeas corpus. Petitioner alleges that he was denied procedural due process in a prison disciplinary proceeding which resulted in the loss of two weeks' store privilege and two weeks' extra duty.
Specifically, petitioner alleges that the disciplinary report does not show that the testimony of the arresting officer was presented under oath, that there was no substantial evidence offered to support the charge, and that the statement by the factfinders of the evidence relied on and the reasons for the disciplinary action does not satisfy the requirements of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
We express no opinion on the merits of petitioner's claims since we conclude that the procedural due process requirements of Wolff v. McDonnell simply do not apply to the deprivations suffered by petitioner here. The procedures outlined by the United States Supreme Court in Wolff are triggered either by the loss of *183 good time credits or by major changes in the conditions of confinement, such as the imposition of disciplinary segregation, neither of which petitioner encountered.
"Here, [referring to solitary confinement] as in the case of good time, there should be minimum procedural safeguards as a hedge against arbitrary determination of the factual predicate for imposition of the sanction. We do not suggest, however, that the procedures required by today's decision for the deprivation of good time would also be required for the imposition of lesser penalties such as the loss of privileges."
Wolff v. McDonnell, 418 U.S. 571-72 n. 19, 94 S.Ct. 2982 n. 19.
Although some lower federal courts have extended the protections guaranteed by Wolff to disciplinaries resulting only in the loss of privileges, see, e.g., Ward v. Johnson, 667 F.2d 1126 (4th Cir.1981) (loss of recreational privileges), neither the United States Supreme Court interpreting the federal writ of habeas corpus nor the Alabama Supreme Court interpreting our State habeas remedy has required Wolff procedures for the mere deprivation of privileges. See Baxter v. Palmigiano, 425 U.S. 308, 323, 96 S.Ct. 1551, 1560, 47 L.Ed.2d 810 (1976). Petitioner directs our attention to Helveston v. State, 454 So.2d 1051 (Ala.Cr.App. 1984), wherein we applied the Wolff procedural requirements to a disciplinary resulting in deprivations less drastic than removal of good time credits. Concurring specially in Helveston, Judge Taylor observed the following:
"This disciplinary proceeding did not result in the loss of good time. It should be noted that we are here accepting a petition for writ of habeas corpus challenging disciplinary proceedings which do not involve the loss of good time and which do not affect the liberty status of the inmate."
While the petitioner in Helveston did not lose good time, he did receive "90 days in the segregation unit" in addition to the withdrawal of certain privileges. We judged his disciplinary hearing in light of Wolff procedures because as, the Supreme Court observed in Wolff, either the loss of good time or disciplinary confinement triggers the due process requirements mandated in that case. Even prior to Helveston, we indicated that loss of good time was not the sole occurrence which would trigger the requirements of Wolff. In Fielding v. State, 409 So.2d 964 (Ala.Cr.App.1981), we noted that, even if the withdrawal of petitioner's good time were ignored, the minimum requirements of due process would apply to his disciplinary, because his custody classification was changed from minimum to maximum. 409 So.2d at 965. Thus, Helveston is neither a departure from the established principles of procedural due process enunciated in Wolff nor from the prior pronouncements of this court.
The initial inquiry in any prison disciplinary case is whether the deprivation suffered by the inmate amounted to the denial of a "liberty interest" within the meaning of the due process clause. Meachum v. Fano, 427 U.S. 215, 223-24, 96 S.Ct. 2532, 2537-38, 49 L.Ed.2d 451 (1976). Answering this inquiry as it related to prisoners transferred from one State prison to another prison with less favorable conditions, the United States Supreme Court declared:
"We reject at the outset the notion that any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause....
"Similarly, we cannot agree that any change in the conditions of confinement having a substantial adverse impact on the prisoner involved is sufficient to invoke the protections of the Due Process Clause."
* * * * * *
"[T]o hold as we are urged to do that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of *184 prison administrators rather than of the federal courts."
Meachum v. Fano, 427 U.S. at 224, 225, 96 S.Ct. at 2538 (emphasis in original). The "liberty interest" test consistently applied by the Court to inmate deprivation is as follows:
"`[A]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight' Montanye v. Haymes, 427 U.S. 236, 242 [96 S.Ct. 2543, 2547, 49 L.Ed.2d 466] (1976). See also Vitek v. Jones, 445 U.S. 480, 493 [100 S.Ct. 1254, 1263, 63 L.Ed.2d 552] (1980)."
Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 870, 74 L.Ed.2d 675 (1983). In Hewitt v. Helms, supra, the inmate was removed from his cell, placed in non-disciplinary administrative segregation, and questioned regarding his role in a prison riot. Following the questioning, he was put in restrictive confinement pending an investigation of those responsible for the riot. Rejecting the argument that the inmate's temporary segregation called for the full panoply of procedural rights outlined in Wolff, the Court concluded that the inmate was merely due "some notice" of the charges against him and "an opportunity to present his views" to prison officials. 459 U.S. at 476, 103 S.Ct. at 874. Thus, even though the court found that the inmate had a protected liberty interest (albeit not one "of great consequence") in non-restrictive confinement, it stopped short of requiring all the Wolff procedures surrounding a hearing. 459 U.S. at 473, 103 S.Ct. at 872.
In both Meachum v. Fano, supra, and Montanye v. Haymes, supra, the Court determined that transfers from one prison to another did not implicate the due process clause, even though the conditions of confinement might have been less desirable in the second prison. The basis for both decisions is found in the "liberty interest" test previously mentioned, namely: placement in any of a State's institutions is within the type of confinement contemplated by a prison sentence. Cf. Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (transfer of inmate from prison to mental hospital was not within expected type of confinement).
Whether a prisoner has a "liberty interest" in remaining free of any particular deprivation hinges on two questions: first, whether the conduct of prison officials is limited by any constitutional or statutory provision so that the prisoner can be said to have a "legitimate entitlement" or expectation that he will not undergo a change in treatment except upon the occurrence of certain events. Moody v. Daggett, 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 279 n. 9, 50 L.Ed.2d 236 (1976); Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976); Meachum v. Fano, 427 U.S. 215, 223-29, 96 S.Ct. 2532, 2537-40, 49 L.Ed.2d 451 (1976). We have been cited to no constitutional or statutory provision, and the record contains none, limiting the ability of prison officials to reprimand petitioner by the temporary withholding of his store privileges or the addition of a short-lived work detail. The Supreme Court has indicated that neither a "mutually explicit understanding" between prisoners and officials, Jago v. Van Curen, 454 U.S. 14, 102 S.Ct. 31, 70 L.Ed.2d 13 (1981), nor a "past practice" regarding other convicts, Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981), creates a "liberty interest" in the absence of a constitutional or statutory entitlement.
The second determinant for a "liberty interest" is the nature of the actual deprivation suffered by the inmate. Even Justice Douglas recognized that, "Of course, a hearing need not be held before a prisoner is subjected to some minor deprivation, such as an evening's loss of television privileges." Wolff v. McDonnell, 418 U.S. at 594, 94 S.Ct. at 2993 (Douglas, J., dissenting in part and concurring in the result in part).
*185 Based on the reasoning of the foregoing United States Supreme Court cases, we do not believe petitioner had a "liberty interest" protected under the due process clause in maintaining his store privileges or in being unburdened by an extra work detail. See also Edwards v. State, 461 So.2d 39 (Ala.Cr.App.1984) (Bowen, J., dissenting). In our judgment, minor deprivations such as these fall within the normal limits or range of custody which an inmate's conviction has authorized the State to impose and, therefore, do not merit judicial scrutiny. Petitioner's punishment simply does not rise to the level of a major change in the conditions of his confinement which would trigger constitutional protection.
Nevertheless, even if we were to find that petitioner did have some protected liberty interest at stake in this case, we would still, under the principles set out in Hewitt v. Helms, supra, affirm the denial of his petition for writ of habeas corpus. If it were determined that petitioner's deprivations here called for some, but not all, of the procedural protections guaranteed in Wolff, we would be inclined to find, following Hewitt v. Helms, that petitioner's liberty interests were not ones of great consequence and that petitioner received all the process that was due under the circumstances notice of the charges against him and an opportunity to present his views to prison officials.
"Certainly, not all of the [Wolff] process is due if all that is at issue is a minor infraction or the infliction of relatively minor disciplineloss of canteen or visiting privileges, movies, TV and other entertainment, or a mere reprimand. Even the requirement for an extra work detail imposed as punishment would probably not call in the full panoply of due process rights."
Kerper and Kerper, Legal Rights of the Convicted 467 (1974).
The order of the circuit court is affirmed.
AFFIRMED.
All Judges concur.
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661 F.2d 915
Sinkoffv.Lopez
81-1228
UNITED STATES COURT OF APPEALS Third Circuit
7/21/81
1
D.N.J.
AFFIRMED
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} |
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