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683 F.2d 416 Sarrafsadehv.I.N.S. 82-4040 UNITED STATES COURT OF APPEALS Fifth Circuit 7/21/82 1 I.N.S. AFFIRMED 2 --------------- Fed.R.App.P. 34(a); 5th Cir. R. 18.	{ "pile_set_name": "FreeLaw" }
196 F.2d 38 90 U.S.App.D.C. 325 ARON,v.SNYDER, Secretary of Treasury, et al. No. 10809. United States Court of Appeals District of Columbia Circuit. Submitted Nov. 13, 1951.Decided April 10, 1952. [90 U.S.App.D.C. 326] Harold G. Aron, appellant, pro se, submitted on the brief. Betsy Everson Richie, appellee, pro se, submitted on the brief. A. K. Shipe, Washington, D.C., entered an appearance on behalf of appellee Great Lakes Steel Corp. Soterios Nicholson, Washington, D.C., entered an appearance on behlaf of appellees Stern Bros. and Bonwit Teller, Inc. George Morris Fay, U.S. Atty. at the time the record was filed, Charles M. Irelan, U.S. Atty. at the time the appeal was submitted, and Joseph M. Howard and L. Clark Ewing, Asst. U.S. Attys., all of Washington, D.C., entered appearances in behalf of appellee John W. Snyder, Secretary of the Treasury. Before EDGERTON, CLARK, and PROCTOR, Circuit Judges. PROCTOR, Circuit Judge. 1 This appeal is from a judgment of the District Court, June 28, 1950, distributing a fund in its Registry to numerous lien creditors of Harold G. Aron, appellant, who, through developments in the case, had become entitled thereto subject to the claims of such creditors. 2 The pertinent facts are as follows: In April 1943, Katharine M. Drier sued the Secretary of the Treasury for payment of a large sum covering an award of the Mixed Claims Commission (United States and Germany) implemented by Private Law 509.1 Aron had notified the Secretary of his claim against the fund for legal services in procuring the award to Drier. Betsy E. Richie, Aron's former wife, had also asserted rights as against any interest of Aron. Other creditors of Aron did likewise. In these circumstances the Secretary deposited the money in the Registry of the court and interpleaded those who had laid claims against the fund. These parties, and others who intervened, pleaded their claims arising through Aron. 3 On May 2, 1945, Drier and Aron agreed that the latter should resume his services for collection of balances due Drier; that two-thirds of the fund then in the Registry should be paid to Drier, and that the remaining third should be used to buy up intervening claims against Aron in such amounts as should be designated by him or by the court. By order of November 15, 1946, the court, Judge Schweinhaut sitting, approved said agreement; entered judgment in Drier's favor; directed that two-thirds of the fund be paid to her, and that the balance, $18,165.77, remain in the Registry pending further order. The court also referred the interest of other parties (claimants against Arons's share) to the Auditor for findings and report,2 and denied the claims of intervenors, except in so far as their interest appeared in connection with the agreement. Richie appealed the judgment. This court affirmed, 1947, 83 U.S.App.D.C. 16, 165 F.2d 238, holding, inter alia, that Aron had no valid claim upon the deposited fund independently of the Drier-Aron agreement of May 2, 1945. 4 The fund in the Registry was augmented with another deposit by the Secretary of the Treasury for monies awarded to Drier. Through agreement between Drier and Aron, and consent of all other parties to the cause, the court, Judge Matthews sitting,3 March 21, 1950, ordered an equal division of the additional deposit between Drier and Aron, with the proviso that Aron's share, $16,706.26, should remain in the Registry 'pending further order of the Court.' The order also stated that the $18,165.77 held in the Registry under the order of Judge Schweinhaut 'is unaffected by this Order.' 5 Aron, on April 17, 1950, through his attorney, moved the court to distribute the entire fund then in Registry, $34,867.04, to certain claimants and others, including Aron, in amounts and upon conditions set forth in the motion. Finally, after hearing, [90 U.S.App.D.C. 327] with all parties present in person or by counsel, the court, Judge Tamm sitting, entered the judgment on June 28, 1950, here appealed from. This judgment directed forthwith distribution of the entire fund in a manner differing in several respects from Aron's motion. Neither the judgment nor the record, as covered by the Appendix to appellant's brief,4 reveals any objection to the judgment at the time it was entered. 6 On this appeal Aron has appeared and filed a brief pro se. Although in some respects the brief seriously transgresses our rules, we have nevertheless considered it. No brief has been filed by an appellee. Aron contends that the effect of the orders of Judges Schweinhaut and Matthews was to vest in Aron absolute legal and beneficial right to the funds in the Registry; hence that the court had no authority or control over those funds except to disburse them pursuant to Aron's direction as expressed in his motion of April 17, 1950. We think the contention is without merit. Construing the orders in the light of the record, we conclude that the District Court had assumed control of the funds covered by said orders to await adjudication of the claims against the funds by Aron's creditors. Obviously, the court had jurisdiction to hold the funds for that purpose and finally, upon adjudication of the claims, to order distribution in accordance with its conclusions concerning the rights of all parties. That is what the court did. Aron also complains against thy action of the Clerk in disbursing the funds immediately after entry of the judgment as contrary to Rule 62(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., providing an automatic stay of ten days against execution or enforcement of judgments. Doubtless the Clerk acted agreeably to the court's direction 'to pay forthwith' the amounts as provided by the judgment. Although Aron now claims that the judgment was contrary to certain specific objections made orally by his attorney to the court, nevertheless the attorney was present when the judgment was signed and there is no contention that objection was made by the attorney, or by anyone else, before or at the signing of the judgment, to the provision for 'forthwith' disbursal of the fund. At all events, in view of our ruling against Aron's basic contentions as to validity of the judgment, it follows that any premature disbursal of the fund was without prejudice to his ultimate rights. The judgment is 7 Affirmed. 1 Act of July 19, 1940, c. 645, 54 Stat. 1341 2 This reference to the Auditor was never carried out, thus leaving the claims to be dealt with directly by the court 3 Erroneously stated in Appendix to appellant's brief as Judge Curran 4 Our Rule 17(c)(10) requires the appellant to print as an appendix to his brief 'such parts of the record material to the questions presented as the appellant desires the court to read.'	{ "pile_set_name": "FreeLaw" }
722 F.2d 1073 1983-2 Trade Cases 65,755 UNITED STATES of America, Plaintiff-Appellee,v.CHARMER INDUSTRIES, INC., et al., Defendants,andPeerless Importers, Inc., Defendant-Appellant. No. 1338-267, Dockets 83-1135, -1321. United States Court of Appeals,Second Circuit. Argued Sept. 1, 1983.Final Briefs Submitted Sept. 15, 1983.Decided Nov. 30, 1983. John H. Gross, New York City (John H. Doyle, III, Anderson, Russell, Kill & Olick, P.C., New York City, on brief), for defendant-appellant. Thomas F. Clauss, Jr., New York City (Stephen A. Weiner, Winthrop, Stimson, Putnam & Roberts, New York City, on brief), for Arizona Atty. Gen. Before FRIENDLY, KEARSE and WINTER, Circuit Judges. KEARSE, Circuit Judge: 1 This appeal by Peerless Importers, Inc. ("Peerless"), presents a question as to the scope of the injunctive order that should be entered following the unauthorized acquisition of a confidential presentence report prepared for the court by the United States Probation Service ("USPS"). In our earlier opinion in this case, United States v. Charmer Industries, Inc., 711 F.2d 1164 (1983) ("Charmer I "), we restricted publication or other use by the Attorney General of the State of Arizona ("Arizona AG") of a presentence report on Peerless ("Peerless Report" or "Report") that had been prepared by USPS in an antitrust action in the Eastern District of New York in which Peerless was a defendant. Upon the issuance of our mandate in Charmer I on July 15, 1983, the United States District Court for the Eastern District of New York, Charles P. Sifton, Judge, entered an order that prohibited the Arizona AG from "making any publication or other use of any portion of the Report or of any information derived therefrom." On July 26, 1983, the district court modified its order ("Modified Order") to delete the prohibition on use of "derived" information. Peerless contends that both our opinion in Charmer I and improper conduct by the Arizona AG require the reversal of the Modified Order and the entry of an order prohibiting the Arizona AG from using both the Report and any information derived from it. In addition, Peerless asks us to hold the Arizona AG, the Chief Counsel of the Financial Fraud Division of the Arizona AG, two Assistant Arizona AGs, and the Superintendent of the Arizona Department of Liquor Licenses and Control ("DLLC") (collectively referred to as the "Arizona AG, et al.") in civil and criminal contempt of court because of breaches by the Arizona AG of promises, made by his representative to this Court during oral argument on Charmer I, not to use the Report. 2 For the reasons below, we deny the contempt motion, and we vacate the Modified Order in part, with instructions to enter a new injunctive order. I. BACKGROUND 3 For purposes of the present appeal, we assume familiarity with Charmer I and summarize only briefly the important events leading to that appeal. 4 In 1982 the DLLC commenced a proceeding to revoke the liquor license of All American Distributing Co., Inc. ("All American"), a Peerless affiliate, in part on account of Peerless's plea of guilty to price fixing in the antitrust action. On March 7, 1983, Arizona Assistant Attorney General Therese L. Martin obtained the unauthorized disclosure of USPS's presentence report on Peerless. Martin then caused to be prepared an amended complaint in the DLLC proceeding in which the first paragraph, based on the Peerless Report, charged that Peerless had ties to organized crime. Martin delayed action on filing the amended complaint while she attempted to obtain written confirmation that it was permissible for the Arizona AG to use the Peerless Report. On March 24, however, when Martin was notified that Peerless intended later that day to ask Judge Sifton to enjoin the Arizona AG from publishing, discussing, or using the Report, Martin reported this to her superior, causing the amended complaint to be filed in the state proceeding immediately, without awaiting the normally required permission of the DLLC hearing officer. 5 Judge Sifton subsequently denied Peerless's motion to forbid the Arizona AG's use of the Report. Peerless immediately appealed and moved for a stay pending appeal. The motion was granted on April 12 by a panel of this Court on the condition that Peerless agree to an adjournment of a scheduled hearing in the DLLC proceeding. Peerless declined so to agree, however, and on April 15 an order was entered denying the stay. 6 A. Oral Argument in Charmer I and Events Prior to the Decision 7 On April 29, 1983, oral argument in Charmer I was heard, during which the following colloquy occurred between Martin and the Court: 8 JUDGE FRIENDLY: And when you finish up, I suppose you intend to release this [Report] to the media too, don't you? 9 MS. MARTIN: Your Honor, if it is admitted at the hearing, it would be a matter of public record. 10 JUDGE FRIENDLY: Or do you plan to before the hearing? 11 MS. MARTIN: No, Your Honor. 12 JUDGE FRIENDLY: You agree you won't do that? 13 MS. MARTIN: Yes, I [would] agree I would not do that, except in the context of perhaps using it in a deposition. 14 (Transcript of Excerpts from April 29, 1983 Argument ("Tr. Excerpts") at 3.)1 At the close of oral argument, decision was reserved. 15 On May 4, 1983, during a deposition of the Superintendent of the DLLC in connection with the state proceeding, the Superintendent indicated, in response to questioning by counsel for All American, that Paragraph I of the amended complaint, which charged that Peerless had ties to organized crime, was based on the Peerless Report and would have to be withdrawn if the Report could not be used to substantiate it. On May 16, counsel for Peerless filed a motion requesting a transcript of the oral argument of Charmer I from the Court, stating that he believed that Martin had promised she would not use the Report until this Court rendered its decision. The Court ordered a transcript prepared. On May 19, Martin wrote to counsel for Peerless, stating that her contrary recollection was that she had represented to the Court that she planned to use the Report at depositions and in the state court hearing. By motion dated May 25, filed on June 1, Martin moved for her own copy of the transcript of the oral argument from the Court. On June 3 she was advised by a deputy clerk of the Court that the tape was inaudible or indecipherable. On June 10, the Court granted Martin's motion to the extent that the tape was audible and a transcript could be made. 16 On June 16, the Arizona AG, in papers signed by Martin, moved in the state proceeding for an extension of the deadline for giving notice of the witnesses to be called at the DLLC hearing. With this motion Martin filed a "Memorandum of Law" ("DLLC Memorandum") asserting that the charges made in Paragraph I of the amended complaint were not brought until the Arizona AG received a copy of the Peerless Report indicating that Peerless had ties to the Colombo organized crime family. 17 B. The Decision in Charmer I and the Post-Decision News Article 18 On June 28 we filed our decision in Charmer I, reversing the district court's refusal to enjoin use of the Peerless Report by the Arizona AG. We remanded the matter to the district court 19 for entry of an injunctive order requiring the Arizona AG to return to the court the Peerless Report and all copies and extracts made of it, prohibiting his publication or other use of any portion of the Report that is not already publicly available, and for such other relief as, consistent with this opinion, may be appropriate. 20 711 F.2d at 1178. In the belief that the stay conditionally granted by the prior panel had become effective, see id. at 1169, we also stated that 21 [t]he stay granted by this Court on April 12, 1983, shall remain in effect pending entry of the mandated injunctive relief in the district court. 22 Id. at 1178. 23 Pursuant to Fed.R.App.P. 41(a), our mandate in Charmer I was scheduled to issue on July 19. Sometime in late June or early July, Martin gave the DLLC Memorandum and several other documents to a reporter for The Arizona Republic.2 These disclosures resulted in a front-page article in The Arizona Republic on July 5, entitled " 'Devastating witness' lined up in bid to revoke 'mob' liquor licenses." The article reported that 24 [a] federal court presentence report prepared in connection with the price-fixing case indicates that Peerless had "ties to the Colombo organized-crime family," according to a Liquor Department memorandum. 25 C. The Contempt Motion and the Injunctive Orders 26 On the basis of the July 5 news article, Peerless moved in this Court on July 11 to hold the Superintendent of the DLLC and various officials of the Arizona AG's office, including Martin, in civil and criminal contempt. On July 15, we expedited issuance of the mandate in Charmer I and designated Judge Sifton a special master to hold a hearing and to make a written recommendation for the disposition of the contempt motion. That same day, Judge Sifton entered an order ("July 15 Order") which, in pertinent part, prohibited the Arizona AG "from making any publication or other use of any portion of the Report or of any information derived therefrom " (emphasis added) that was not publicly available before March 7, 1983. 27 The Arizona AG quickly moved for a modification of the July 15 Order to delete the portion that prohibited the use or publication of information derived from the Report. On July 26, Judge Sifton granted the motion and entered the Modified Order, which provided, in pertinent part, that the Arizona AG was enjoined "from making any publication or other use of any portion of the Report," and deleted the language of the July 15 Order emphasized above.3 28 On July 28, this Court granted a stay of Judge Sifton's order modifying the July 15 Order pending determination of the present appeal. D. Findings on the Contempt Motion 29 On July 26, Judge Sifton also held a hearing on the contempt motion, receiving testimony by Martin and others. Martin testified that she was uncertain of the date on which she gave the DLLC Memorandum to the newspaper reporter, although she thought it might have been June 26. She also testified that she was unaware that either discussing the Peerless Report in the DLLC Memorandum or then giving that memorandum to the press was contrary to the undertaking she had made at oral argument not to disclose the Report. Martin testified that she believed she was free to use the Report in a deposition, a hearing, or a memorandum of law; and because the DLLC Memorandum was a matter of public record, Martin believed she was free to give it to the newspaper reporter. 30 Judge Sifton issued his report on the contempt hearing on August 30 and credited all of Martin's testimony. He also found that the colloquy between Martin and the Court had "[l]eft up in the air" the matter of whether Martin could make public reference to the contents of the Peerless Report, as contrasted with furnishing the document itself. Judge Sifton recommended that none of the respondents to the contempt motion be held in either criminal or civil contempt, concluding as follows: 31 In summary, I find that Ms. Martin did agree, during oral argument of the appeal on April 29, 1983, that she would not make available to the press a copy of the presentence report which was the subject of the appeal, pending its disposition, except by offering it in evidence at the hearing on the license revocation proceeding or in the course of a deposition in preparation for that hearing. I find, however, that there was no clear and unequivocal direction or understanding established during the course of oral argument as to what conduct was expected from Ms. Martin with regard to use of the information contained in the probation report in the ordinary course of on-the-record litigation before the Arizona Liquor Control Board during the pendency of the appeal in situations not involving the offer of the document in evidence. I further find that Ms. Martin did not either expressly or by implication agree or represent to the Court that she would not use or publish the contents of the report under any circumstances until the appeal was decided. I further find that Ms. Martin's publication of a portion of the information contained in the pre-sentence report by placing in the public file and, later, making available to a reporter a copy of her June 16, 1983 memorandum with reference to the Superintendent's new list of witnesses was not done either with a purpose of doing what she had agreed not do [sic ] do, or with knowledge that what she was doing was probably contrary to her agreement and with deliberate indifference to the question whether her conduct was in violation of her agreement. 32 (Findings, Recommendation, and Report of Judge Sifton dated August 30, 1983, at 20-21 ("August 30 Report").) II. DISCUSSION 33 In pursuit of its motion to hold the Arizona AG, et al., in contempt, Peerless contends that Judge Sifton erred in crediting Martin's self-serving testimony and that in fact, Martin's actions constituted a flagrant disregard of her promise to this Court on April 29. On its appeal from the Modified Order, Peerless argues that the Modified Order, which ostensibly allows use of information "derived from" the Peerless Report, is contrary to this Court's directive in Charmer I. In addition, Peerless argues that even if Charmer I did not clearly direct a prohibition on use of information derived from the Report, such a prohibition is warranted by (1) the policies set forth in Charmer I supporting nondisclosure of presentence reports, (2) the need to deter unauthorized disclosures, and (3) the Arizona AG's improper conduct in disclosing the contents of the Peerless Report to the press. 34 Although we consider Martin's conduct reprehensible, we feel compelled to accept Judge Sifton's findings as not clearly erroneous and to deny the contempt motion principally because there was not a clear directive from this Court which barred the actions undertaken by Martin. As to the proper scope of the injunction, we consider the July 15 Order of the district court, with its prohibition on derivative use, to be closer to the directive of Charmer I than is the Modified Order, with its implicit allowance of such use. We therefore reverse the Modified Order and direct the entry of an injunction that bars all use by the Arizona AG of the Peerless Report. A. The Contempt Motion 35 We are greatly troubled by several aspects of Martin's conduct in this matter. Martin has defended her description in the DLLC Memorandum of the Peerless Report's attribution to Peerless of organized-crime ties by drawing a distinction between the Report itself and the contents of the Report. Thus, she stated that she had told the Court on April 29 "only that [she] would not give the news media a copy of the Report itself," (Affidavit of Therese L. Martin, dated July 21, 1983 ("Martin July 21 Aff."), p 8), and that she did not promise not to repeat the substance of the Report to the media, (See Transcript of Hearing on Contempt Motion, July 26, 1983, ("Contempt Tr.") at 30.) We regard this as a hypertechnical distinction that is unworthy of an officer of the court. Whether one should even credit Martin's professed belief that such a distinction could exempt her actions from the scope of her undertaking is also questionable, as the following colloquy at the contempt hearing discloses: 36 THE COURT: Are you making a distinction in your response between releasing a copy of the report and characterizing its contents? 37 THE WITNESS [Martin]: Yes. 38 THE COURT: It was your understanding that you were free to--did you think you could walk out of that argument and, if grabbed by a reporter for the Arizona newspaper and asked what is in the report that everybody is so interested in, as far as you were concerned you thought you were free to tell him? 39 THE WITNESS: No. 40 (Id. at 42-43.) 41 We note also an aura--apparent at least from the transcript--of equivocation as to when Martin actually gave the DLLC Memorandum to the press. When first asked at the hearing when this had occurred, Martin stated, "I don't believe it was after the Second Circuit opinion."4 (Id. at 29 (emphasis added).) Martin learned of the opinion in Charmer I on the day it was filed, (Martin July 21 Aff. p 14), and it is difficult to believe that the news that she had lost the appeal would not make a sufficient impression to allow her to state with certainty whether she delivered the memorandum before or after receiving that news. Peerless argues that the fact that the news article did not appear in print until July 5 suggests that Martin did not give the DLLC Memorandum to the press until after June 28. Martin set the date on which she made the delivery as "approximately the week of--early in the week of--the 27th, the 26th, of June, I believe." (Contempt Tr. at 29.) The notion that it took the reporter nine days to read the DLLC Memorandum and the other documents handed him by Martin and to write a story that was deemed sufficiently newsworthy to merit front-page status does seem unlikely. And the hypothesis that Martin gave the press the document describing the Peerless Report after she realized she was about to be enjoined,5 is of a piece with the earlier action of rushing to get the amended complaint, with its use of the Peerless Report material in Paragraph I, into the public record as soon as Martin learned that Peerless would seek an injunction against the Arizona AG's use of the Report. 42 Nonetheless, Judge Sifton, who conducted the contempt hearing at our behest, has made findings that credit Martin's testimony. He found that Martin did not represent to the Court that she would not use or publish the "contents" of the report (August 30 Report at 21), and that Martin did not act "with a purpose of doing what she had agreed not [t]o do, or with knowledge that what she was doing was probably contrary to her agreement and with deliberate indifference to the question whether her conduct was in violation of her agreement." (Id.) Although we would not have made these findings on the basis of the cold record, Judge Sifton saw and heard the witness and the burden on Peerless of showing that his findings are clearly erroneous is a heavy one. NLRB v. Local 825, A, B, C, D, International Union of Operating Engineers, 659 F.2d 379, 383 (3d Cir.1981); NLRB v. Remington Rand, Inc., 130 F.2d 919, 925 (2d Cir.1942); see Fed.R.Civ.P. 53(e)(2). We are not persuaded that the burden has been met, and we are thus constrained to uphold Judge Sifton's findings. 43 More importantly, Judge Sifton found that the understanding established at the April 29 oral argument was not "clear and unequivocal" (August 30 Report at 20), and in light of that circumstance we may not hold Martin or her colleagues in contempt. It is well settled that a court may not hold a person in contempt unless he has violated a definite and specific order of the court. E.g., UFI Razor Blades, Inc. v. District 65, Wholesale, Retail, Office and Processing Union, 610 F.2d 1018, 1024 (2d Cir.1979). "The judicial contempt power is a potent weapon" that can be "deadly" when it is issued for violation of a directive that was "too vague to be understood," International Longshoremen's Association, Local 1291 v. Philadelphia Marine Trade Association, 389 U.S. 64, 76, 88 S.Ct. 201, 208, 19 L.Ed.2d 236 (1967), and "it behooves the court, in the first instance or on appeal, to make certain that an order of this court is violated before a citation issues," United States v. Wendy, 575 F.2d 1025, 1030 (2d Cir.1978). 44 It is clear that no formal order had been issued here. First, although this panel was under the impression that the conditional stay entered on April 12 had gone into effect and was pending, in fact no such order had been entered because Peerless had chosen not to agree to an adjournment of the DLLC hearing.6 Further, although the eventual denial of a stay on April 15 had been "without prejudice," counsel for Peerless did not request a stay at oral argument on April 29. Thus, there was no formal order of the Court extant for the Arizona AG to have violated. 45 Second, we recognize that the colloquy at oral argument between Martin and Judge Friendly7 may be read hypertechnically as barring only the release of a copy of the Report and not the recitation of its contents. While we find it difficult to view Martin's disclosure in reliance on such a distinction as an act in good faith, we may not predicate a contempt citation on an agreement that has such a loophole. 46 Accordingly, Peerless's motion to hold the Arizona AG, et al., in contempt is denied. B. The Proper Scope of the Injunction 47 Our opinion in Charmer I directed the district court to enter an injunctive order "prohibiting [the Arizona AG's] publication or other use of any portion of the Report that is not already publicly available." 711 F.2d at 1178. The phrase "or other use" is not one that would normally be construed as limited and we did not so intend it. As used in our opinion, the phrase was meant to result in a prohibition on publication and on any other use of nonpublic information in the Report. Our language was therefore broad enough to direct a prohibition against even derivative use. 48 The district court's Modified Order, if viewed without reference to its forefather, the July 15 Order, is literally consistent with our mandate since it enjoins "publication or other use." Viewed, however, as a truncated version of the original July 15 Order which prohibited not only "publication or other use" but also, explicitly, "any information derived" from the Report, the Modified Order must be read as reflecting the district court's intention not to prohibit "derivative" use of the Report. This implicit grant of permission to the Arizona AG to make "derivative" use of the Peerless Report is not consistent with our directive in Charmer I. 49 We wish to make plain beyond cavil, therefore, that the order to be entered on remand must make clear that the prohibition extends to publication and any other use of any portion of the Peerless Report that was not, prior to March 7, 1983, already publicly available. Included in this ban are, for example, any use of the Report as an exhibit, any quotation of the nonpublic contents of the Report, any reference to such contents in a question, any paraphrase of such contents, and any reference to such contents in general terms. This listing is not intended either to be complete or to provide for an ejusdem generis inference. Any use of any nonpublic portion of the Report is to be prohibited. 50 The prohibition on any use of a presentence report--including derivative use--follows from the reasons for maintaining the confidentiality of such reports, which we set forth in some detail in Charmer I, 711 F.2d at 1175-76. Cases discussing the necessity of preserving the secrecy of grand jury materials--which we regarded in Charmer I, id. at 1175, as analogous to the question of disclosure of presentence reports--also support such a broad prohibition on use of the Report. See, e.g., Illinois v. Abbott & Associates, Inc., --- U.S. ----, 103 S.Ct. 1356, 1361-64, 75 L.Ed.2d 281 (1983); Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218-19, 99 S.Ct. 1667, 1672-1673, 60 L.Ed.2d 156 (1979). The total ban on use of the presentence report in this case is further justified by the course of conduct adopted by the Arizona AG, which, throughout, has appeared to reflect a greater interest in publicizing the contents of the Peerless Report than in unearthing their factual basis. 51 Nonetheless, our directive in Charmer I was not intended to prohibit the Arizona AG from undertaking an investigation that might parallel that conducted by the USPS. Thus, in noting that the Arizona AG had not made a showing of a compelling need for disclosure of the Report in the interests of justice, we pointed out that he 52 ha[d] made no showing that [he] cannot learn from government attorneys the identities of the law enforcement officials who have collected the pertinent information. 53 Id. at 1178. Likewise our clarification here does not preclude the Arizona AG from contacting law enforcement officials in order to obtain any pertinent information. We would regard such a ban as inappropriate in the present circumstances for two reasons. First, attribution to Peerless of ties to organized crime had appeared in the press several months before Martin gained her unauthorized possession of the Peerless Report. Thus, in the course of a properly conducted investigation, the Arizona AG could have been expected to contact law enforcement officials to obtain information. Second, the Peerless Report does not identify either the law enforcement officials who provided the information to USPS or their sources for the information. Thus, although we can envision circumstances in which we would draw a different inference, we would not here construe the Arizona AG's contact of any particular law enforcement official as a "use" of the Peerless Report. CONCLUSION 54 The Modified Order is vacated insofar as its use of the phrase "publication or other use" might be interpreted not to include derivative use. The cause is remanded for entry of an injunctive order, consistent with this opinion, permitting the Arizona AG and the other persons listed in the second "ORDERED" paragraph of the Modified Order to contact law enforcement officials with respect to information the latter may have on Peerless but enjoining the Arizona AG, et al., from making any use in any way, by publication or otherwise, of any portion of the Peerless Report that was not already publicly available before March 7, 1983. 55 Costs to Peerless. The mandate shall issue forthwith. 1 Although Judge Sifton found that "[t]he parties are in apparent agreement that [this] transcript accurately reflects the passages excerpted," (Findings, Recommendation, and Report of Judge Sifton dated August 30, 1983, at 24 n. 5), we have listened to the tape itself and find that the bracketed word "would" should have been included. See also note 6 infra 2 Martin also gave the reporter copies of the moving and opposition papers on motions by All American to strike witnesses and exhibits and to bar the testimony of five witnesses 3 The July 15 Order required the Arizona AG to return to the Court the Peerless Report and all copies and extracts made of it. This requirement was not altered by the Modified Order and is not at issue in this appeal 4 Martin's testimony as to the timing of her delivery was as follows: Q Who gave the memorandum you filed to the newspaper? A I gave a copy of the memorandum-- Q To the newspaper? A To Mr. Sitter. Q The newspaper reporter? A Yes. Q After the Second Circuit opinion? A I don't believe it was after the Second Circuit opinion. Q When did you give the memorandum you filed to the newspaper reporter? A It was approximately the week of--early in the week of--the 27th, the 26th, of June, I believe. (Contempt Tr. at 29.) 5 Martin knew that there was in fact no formal stay in effect at that moment notwithstanding our statement in Charmer I, 711 F.2d at 1178, that the April 12 stay would remain in effect pending entry of an injunction by the district court. (See Martin July 21 Aff. p 4.) 6 Notwithstanding Peerless's refusal to agree, the DLLC hearing was later adjourned 7 There is no merit in Peerless's suggestion that a clear undertaking on Martin's part not to use the Report in any way was reflected in a comment from the Court as follows: JUDGE KEARSE: It might be best to get the report back. Miss Martin said she was willing to withhold it until there is some decision from the bench. (Tr. Excerpts at 5.) Although the parties apparently agreed on this transcription, see note 1, supra, Judge Sifton noted that the "comment itself is difficult to hear on the tape recording," (August 30 Report at 11). We have listened to the tape and, aided by having been present, find the comment more audible and different. The comment occurred in the context of a discussion as to what showing USPS had made to Judge Sifton in order to justify approval for release of the Report to the Arizona AG. Peerless's counsel suggested that the USPS officials had found themselves unable to do anything other than seek approval because they were embarrassed by the earlier inadvertent release of the Report. The comment that followed, mistranscribed above, was JUDGE KEARSE: They could have asked to get the Report back. Miss Martin said she was willing to withhold it until some decision had been made. The statement attributed to Miss Martin had no reference to anything said by her at oral argument in the Court of Appeals, but rather referred to statements she had made to government officials prior to Peerless's injunction motion, as reflected by the record in the district court. (See Affidavit of Therese L. Martin dated March 30, 1983, paragraphs 18, 21.)	{ "pile_set_name": "FreeLaw" }
27 Wn. App. 261 (1980) 616 P.2d 1257 MEADOWDALE NEIGHBORHOOD COMMITTEE, ET AL, Appellants, v. THE CITY OF EDMONDS, ET AL, Respondents. No. 8466-6-I. The Court of Appeals of Washington, Division One. September 15, 1980. Evans & Quimby and Thomas C. Evans, for appellants. Ogden, Ogden & Murry and Wayne Tanaka, for respondents. SWANSON, J. In this action by the plaintiffs Donald Coffin and Meadowdale Neighborhood Committee (hereinafter Meadowdale), challenging approval by the City of Edmonds of a Planned Residential Development (PRD), the principal issue is whether service of process on the secretary to the mayor complies with RCW 4.28.080(2).[1] For the reasons that follow, we hold it does not. Application for approval of the PRD was made on May 3, 1978. Listed as applicant and designer was respondent David Kinderfather. The property owner was shown to be Sierra West Construction Company. An environmental checklist was submitted with the application. This document named Sierra West Construction Company as proponent of the project. 263 On May 17, 1978, an application was made, pursuant to local ordinance, for review of the PRD by the Edmonds Amenities Design Board. David Kinderfather was again shown to be the applicant, and Sierra West was identified as owner of the subject property. After hearings before the planning commission and Amenities Design Board, the application came to the city council which granted approval on August 1, 1978. Meadowdale filed suit in Superior Court on August 31, 1978, the last day within which an appeal could be taken from the council's decision.[2] The action was designated a petition for writ of certiorari and/or declaratory relief. Named as defendants were Kinderfather and the City of Edmonds. The summons, petition, and motion and order directing the defendants to show cause why the writ should not be granted were served on Kinderfather, the city clerk, and the secretary to the mayor.[3] The owner of the property, Sierra West, was not named in the suit or served with process. The show cause hearing was held September 15, 1978. Prior to the hearing, the City served on counsel for Meadowdale copies of the City's answer and affirmative defenses and its brief. The affirmative defenses raised included failure to join a necessary party (Sierra West) and insufficient service of process. At the hearing, however, the only ground argued by the City for quashing the writ was 264 failure to join a necessary party. The court orally refused to quash the writ, but upon reconsideration it agreed Sierra West was a necessary party. However, pursuant to CR 15(c), the court allowed Meadowdale to amend its petition to name Sierra West, and the amendment related back to the August 31 filing. The writ subsequently issued, but on December 12, 1978, the City moved to dismiss the action for insufficient service of process. The court initially denied the motion on the ground the defense had been waived because it had not been joined with the City's previously raised defense of failure to join a necessary party. However, the court again reconsidered, determined that insufficient service had not been waived, and dismissed the action because the time limit for appeal had run. The sufficiency of service is thus the threshold issue. [1] Meadowdale acknowledges the general rule: When a statute designates a particular person or officer upon whom service of process is to be made in an action against a municipality, no other person or officer may be substituted. 56 Am.Jur.2d Municipal Corporations, Counties, and Other Political Subdivisions § 854 (2d ed. 1971); 64 C.J.S. Municipal Corporations § 2205(c)(3) (1950). However, the argument is made that service on the mayor's secretary was, in essence, service on the mayor himself. Reliance is placed upon this court's decision in Thayer v. Edmonds, 8 Wn. App. 36, 39, 503 P.2d 1110 (1972), where it was said, "constructive and substituted service statutes require strict compliance, while personal service statutes require substantial compliance." Service on the mayor's secretary, Meadowdale argues, constitutes substantial compliance with RCW 4.28.080(2). However, our view of Thayer is that it is distinguishable on its facts. Moreover, the doctrine of substantial compliance is inapplicable when the issue is whether service of process has been valid so as to subject a municipality to the court's jurisdiction. Regarding the factual distinctions, we note that in Thayer the person upon whom process was to be served 265 agreed with the process server for a manner of delivery not strictly provided for by the statute. See also United Pac. Ins. Co. v. Discount Co., 15 Wn. App. 559, 550 P.2d 699 (1976). Thus, the narrow holding of Thayer is simply that a person upon whom service is to be made may agree to accept service by consenting to the process server's leaving the papers at a specified place. The Thayer court concluded that such an agreement, when coupled with actual notice of the pending litigation, and the defendant's retrieval of the papers, amounted to substantial compliance with the statute. Likewise, this case is distinguishable from the earlier case of Lee v. Barnes, 58 Wn.2d 265, 362 P.2d 237 (1961), cited by the Thayer court. In Lee, a nonresident defendant appointed a resident agent to receive service of process, and service on the agent was held to subject the principal to the jurisdiction of the court even though the statute contained no provision for that type of substituted service. Crucial to the Lee decision is the notion that the agreement for substituted service was a form of submission to the court's jurisdiction. Here, the process server never spoke with the mayor to make arrangements for a mutually agreed upon manner of delivery. Moreover, the record, in the form of an affidavit by the mayor, makes clear that no one had been appointed or delegated by the mayor to accept service for the City. For these reasons, this case falls outside either the Thayer or Lee analysis. In addition to finding Meadowdale's cited authority factually dissimilar, we think there is a more fundamental reason for holding that under the circumstances here presented service on the mayor's secretary was insufficient. The general rule is that strict compliance is required with statutes naming particular persons upon whom service of process is to be made in actions against municipalities. 17 E. McQuillin, Municipal Corporations § 49.32 (3d rev. ed. 1968). Application of the rule of strict compliance in other jurisdictions has yielded cases with results contrary to the 266 position Meadowdale urges upon us here. E.g., Vergo v. Mulberry, 167 Kan. 561, 207 P.2d 370 (1949) (statute required service on the mayor; service on the mayor's wife at their residence held insufficient); Washington v. Cecil, 53 Wis.2d 710, 193 N.W.2d 674 (1972) (statute required service on village president or clerk; service on clerk's wife at their residence held insufficient). See Fillyow v. County of Westchester, 33 Misc.2d 501, 225 N.Y.S.2d 848 (1961) (civil practice act required service, inter alia, on clerk of county board of supervisors; service on employee of clerk held insufficient); Walters v. Dock Comm'n, 126 Ore. 487, 270 P. 778 (1928) (statute required service on city clerk; service on secretary of dock commission held insufficient). The New York court's observations in Fillyow v. County of Westchester, supra, are particularly relevant because of the factual similarity between that case and the case at bar. In Fillyow, the governing section of the civil practice act provided that in actions against the county, service was to be made on the county attorney and, in addition, on either the chairman or clerk of the board of supervisors, the county clerk, or the county treasurer. Service was duly made on the county attorney and on an employee of the clerk of the board of supervisors who stamped an acknowledgment of service on the summons. The court stated: The service of the summons on an employee in the office of the Clerk of the Board of Supervisors did not comply with the statute ..., unless by some action of the Clerk service on an employee in her office was directed by her and recognized as valid .. . In this case, however, it does not appear that the Clerk of the Board of Supervisors had directed service of process to be made on the employee, or had authorized the employee to accept service. No more is asserted than that a stamp admitting service was placed on the summons by the employee. The gratuitous and unilateral act of the employee can scarcely bind the Clerk or the county. (Citations omitted.) Fillyow, at 502. See also Tuft v. Allen, 225 N.Y.S.2d 947 (1961) (service on county attorney and deputy clerk held to not comply with statute). 267 The foregoing authorities illustrate that in actions involving municipalities, strict compliance with the statutory requirements of service of process is a prerequisite to the court's acquiring jurisdiction over a city. As noted, RCW 4.28.080(2) requires service of process by delivery of a copy of the summons to the mayor, and it is conceded here that this was not done. There are public policy reasons for our decision. To hold otherwise under the factual circumstances here presented would open the door to a host of problems which would inevitably arise in similar situations. Courts would be called upon to decide, for example, whether delivery of the summons to a deputy mayor is sufficient, or to a mayor's administrative assistant, or to the secretary to an administrative assistant, and so on. Confusion and uncertainty can be avoided by interpreting the statute according to its plain terms.[4] [2] We recognize Meadowdale's contention that although the mayor was not served, he did in fact receive actual notice of service and the pending litigation. However, 268 Meadowdale concedes that actual notice, standing alone, is insufficient to bring the City within the court's jurisdiction. Thayer v. Edwards, supra. In the absence of compliance with the statutory requirements of formal notice, no duty to intervene in a suit is imposed. Veradale Valley Citizens' Planning Comm. v. Board of County Comm'rs, 22 Wn. App. 229, 588 P.2d 750 (1978). Any hardship engendered by our interpretation of RCW 4.28.080(2) is properly a matter for the legislature and not for this court which must enforce the law as it reads it. Fillyow v. County of Westchester, supra. [3] A corollary issue to the question of sufficiency of service is Meadowdale's claim that the trial court erred in limiting discovery such that the secretary could not be deposed to determine whether an agency relationship existed, and, if so, whether the secretary was authorized as agent to accept service. The contention lacks merit. Meadowdale never sought to take the secretary's deposition. The trial court did not commit error by failing to rule on a question never presented to it. Hamilton v. State Farm Mut. Auto. Ins. Co., 9 Wn. App. 180, 511 P.2d 1020 (1973).[5] [4] Even though service of process was insufficient, Meadowdale argues the City waived the defense by failing to join it with the motion to dismiss for failure to join a necessary party. Waiver is governed by CR 12(g) and (h).[6] Our reading of these provisions is that certain defenses, 269 enumerated in CR 12(b) and including insufficiency of service of process, may be raised in a preanswer motion or by answer. Further, if a CR 12(b) motion is made and insufficiency of service is omitted, it is waived and may not be raised in a subsequent motion or in the answer. See 2A J. Moore, Federal Practice ¶ 12.23 (2d ed. 1979). We agree with the determination made by the trial judge in this case that the City's argument urging dismissal of the action for failure to join a necessary party was in response to Meadowdale's order to show cause and was not raised by way of motion. The trial court stated in its memorandum decision of March 20, 1979, that "the City's first affirmative motion on the pleadings is the present motion to dismiss for lack of jurisdiction for failing to serve the Mayor of the City of Edmonds." There is nothing in the record upon which we can decide otherwise. The record contains no written motion, and Meadowdale concedes no motion was entered by the Superior Court clerk. Further, we have no record of what transpired at the show cause hearing. We therefore defer to the trial court's determination that no motion had been made. There having been no previous CR 12(b) motion, the trial court correctly concluded there was no issue of waiver under CR 12. Because insufficient service was raised in its answer, the City could properly raise it in a subsequent motion to dismiss. Sorin v. Board of Educ., 464 F. Supp. 50 (N.D. Ohio 1978); 2A J. Moore, Federal Practice ¶ 12.05 (2d ed. 1979). 270 [5] At oral argument, counsel for Meadowdale suggested that jurisdiction may have been acquired over the City to review the legality of approval of the PRD by certiorari because that issue was somehow severable from the claims for money damages and attorney fees. Service of the summons was a jurisdictional prerequisite, counsel argued, only with regard to the noncertiorari claims. This argument, however, was not raised before the trial court nor addressed in Meadowdale's opening or reply briefs. It is thus not properly before us. In any event, where the plaintiff in a certiorari proceeding has elected to secure an order to show cause pursuant to RCW 7.16.050, and has chosen to serve it with a summons, it seems plain that the show cause order should be served, like the writ itself, "in the same manner as a summons." RCW 7.16.100(1). Cf. Andrus v. County of Snohomish, 8 Wn. App. 502, 507 P.2d 898 (1973). We therefore conclude that service of process was insufficient as to all the claims presented by Meadowdale's cause of action.[7] The City argues in its cross appeal that the trial court erred in allowing the addition of Sierra West Construction Company as a party to relate back to the date of the original filing of the petition for certiorari. Because the City of Edmonds was not properly served, we need not discuss the relation-back issue except to note that in the absence of proper service within the applicable time limit, there is nothing to which the amendment naming Sierra West could relate back. Therefore, Sierra West was not served within the time allowed for appeal. *271 Given our disposition, we need not address the other issues raised. The judgment of the Superior Court dismissing the cause of action is affirmed. JAMES, A.C.J., and RINGOLD, J., concur. NOTES [1] RCW 4.28.080 reads in pertinent part: "The summons shall be served by delivering a copy thereof, as follows: "... "(2) If against any town or incorporated city in the state, to the mayor thereof." [2] Edmonds City Code § 12.10.190 Appeals provides: "Any final decision for which no other direct appeal is specifically provided in this chapter approving or disapproving any subdivision, plat, short subdivision, short plat or lot line adjustment, and for which all other appeals specifically authorized have been timely exhausted, shall be reviewable for unlawful, arbitrary, capricious or corrupt action or nonaction by writ of review before the Superior Court of Snohomish County. The action may be brought by any property owner in the city, who deems himself aggrieved thereby; provided, that application for a writ of review shall be made to the court within thirty days from any decision so to be reviewed. The cost of transcription of all records ordered certified by the court for such review shall be borne by the appellant." (Ordinance No. 1703 § 19 (1974)). [3] The employee served was, in fact, not the mayor's regular secretary but was working temporarily while the regular secretary was on vacation. [4] In addition to the requirement of strict compliance, there may be an additional reason for holding that service on the mayor's secretary was insufficient. Although the issue was not raised on appeal, it is fundamental that municipal corporations, being creatures of the state, derive their authority, powers, and duties from the legislature. Campbell v. Saunders, 86 Wn.2d 572, 546 P.2d 922 (1976); Othello v. Harder, 46 Wn.2d 747, 284 P.2d 1099 (1955). So, too, officers of a municipality, including the mayor, have only such powers and duties as are conferred upon them, expressly or by necessary implication, by applicable statutes. State v. O'Connell, 83 Wn.2d 797, 523 P.2d 872, 77 A.L.R.3d 874 (1974); Othello v. Harder, supra. The legislature has, by RCW 4.28.080(2), designated the mayor to receive service of process as agent for the City. No provision is made in the statute for the mayor to appoint another to accept service on his behalf for the City. Nor is any argument made supporting the contention that, by necessary implication, RCW 4.28.080(2) empowers the mayor to designate another to accept service. It would therefore seem that even if the mayor had authorized the substitute secretary to accept service, such attempted authorization would be ultra vires. One text writer has stated the rule as being that, in the absence of statutory authority, a mayor may not constitute any person he chooses to act for him in accepting service. 3 E. Yokley, Municipal Corporations § 517 (1958). However, the doctrine of equitable estoppel is an available remedy to prevent a manifest injustice. See Seattle v. P.B. Inv. Co., 11 Wn. App. 653, 524 P.2d 419 (1974); Finch v. Matthews, 74 Wn.2d 161, 443 P.2d 833 (1968). [5] In its reply brief, Meadowdale takes a slightly different tack by pointing out that the deposition of the mayor himself regarding service of process was sought, but the court's protective order prohibited inquiry by deposition into the sufficiency of service. However, it remains that the heart of Meadowdale's claim is that an agency relationship, deducible from facts and circumstances, even if not existing by virtue of a specific authorization, may have existed as between the mayor and the secretary. It does not appear from the record that this theory was presented to the trial court. As an appellate court, we will not consider theories not presented to the trial court. McCord v. Tielsch, 14 Wn. App. 564, 544 P.2d 56 (1975). [6] "(g) ... A party who makes a motion under this rule may join with it any other motions herein provided for and then available to him. If a party makes a motion under this rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h) (2) hereof on any of the grounds there stated. "(h) ... "(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course." CR 12(g) and (h)(1). [7] It should also be noted that no contention is made that by appearing at the show cause hearing the City waived its right to challenge sufficiency of service. See CR 4(d)(5).	{ "pile_set_name": "FreeLaw" }
894 So.2d 1151 (2005) ARGONAUT GREAT CENTRAL INSURANCE COMPANY v. W. David HAMMETT and Davenport, Files & Kelly, L.L.P. No. 2004-C-3172. Supreme Court of Louisiana. February 25, 2005. In re Hammett, W. David et al.; Davenport, Files & Kelly L.L.P.; Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. C, No. 449,814-B; to the Court of Appeal, Second Circuit, No. 39,024-CA. Denied.	{ "pile_set_name": "FreeLaw" }
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) In re BLACK FARMERS DISCRIMINATION ) Misc. No. 08-0511 (PLF) LITIGATION ) _________________________________________ ) MEMORANDUM OPINION AND ORDER On May 23, 2016, JAMS submitted to the Court a letter containing its “final invoice and the corresponding back up for the Track A and Track B Neutral services provided in implementing the Settlement Agreement.” Letter from Stacey Harrison, General Manager of JAMS, to the Honorable Paul L. Friedman, U.S. District Court (May 23, 2016) (on file with the Court). The invoice documents expenses in the amount of $95,215.00. Id. This letter follows the Court’s Order of August 27, 2013, Dkt. 381, which amended Section V.E.13 of the Settlement Agreement in this case to include the following language: [USDA] shall set aside . . . the estimated $200,000 in funding authorized for the payment of the Track A and B Neutrals for the completion of their final duties under the Settlement agreement . . . . [USDA] shall have no obligation to transfer this estimated $200,000 until the Track A and Track B Neutrals submit to the Court a final invoice setting forth their final Implementation Costs, which costs shall not exceed $200,000. Any such invoices(s) by the Track A and Track B Neutrals shall be submitted to the Court, and copies provided to the Secretary and Class Counsel, within 12 months of the date of the Court’s Order pursuant to Section IV.H of the Settlement Agreement approving the distribution of funds pursuant to the Preliminary Final Accounting submitted by the Claims Administrator. Within twenty (20) days of the Court’s Order approving the final invoice(s) for the Track A and Track B Neutrals, [USDA] shall deposit the payment amounts(s) set forth in the Track and Track B Neutrals’ final invoices(s) into the Designated Account. The Parties agree that the Secretary shall pay the amounts set forth in the Track A and Track B Neutral’s invoices up to a total of $200,000 See Order at 2 [Dkt. 381] (emphasis added). On March 31, 2016, the Court issued a second Order, Dkt. 457, which approved of class counsel’s unopposed motion to replace the words “within 12 months” in Section V.E.13 with the words “within 36 months.” See Order at 3-4 [Dkt. 457]. For these reasons, it is hereby: ORDERED that, pursuant to Section V.E.13 of the Settlement Agreement, the Defendant shall within (20) twenty days of the date of this Order deposit $95,215.00 into the In re Black Farmers Discrimination Litigation QSF Account at SunTrust Bank. These funds shall be distributed by the Claims Administrator in accordance with the terms of the Settlement Agreement. SO ORDERED. /s/ PAUL L. FRIEDMAN United States District Judge DATE: June 8, 2016	{ "pile_set_name": "FreeLaw" }
FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS December 27, 2007 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 07-2126 v. (D. New Mexico) RAY GARCIA-SALAS, (D.C. No. CR-06-2259-JP) Defendant - Appellant. ORDER AND JUDGMENT * Before HARTZ, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and HOLMES, Circuit Judge. Having interpreted this court’s precedents as virtually foreclosing variances from the United States Sentencing Guidelines, the district court imposed a sentence at the bottom of the Guidelines range. We might disagree with that interpretation but it is unnecessary to revisit our precedents. Under the Supreme Court’s recent decisions in Gall v. United States, No. 06-7949, 2007 WL 4292116 (S. Ct. Dec. 10, 2007), and Kimbrough v. United States, No. 06-6330, 2007 WL 4292040 (S. Ct. Dec. 10, 2007), it is clear that the district court had greater * This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. sentencing discretion than it thought it did. Accordingly, we reverse and remand for resentencing. I. BACKGROUND On November 29, 2005, Albuquerque police officers recovered a duffle bag containing two handguns and over 40 rounds of ammunition at the home of Ray Garcia-Salas. He had previously been convicted of felony battery on a police officer in New Mexico state court. On January 29, 2007, he pleaded guilty in the United States District Court for the District of New Mexico to one count of being a felon in possession of a firearm. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). He was 21 at the time. The probation office prepared a presentence report (PSR). His base offense level under the Sentencing Guidelines was 20 because he committed the present offense following a felony conviction of a crime of violence. See USSG § 2K2.1(a)(4)(A). After a three-level reduction for accepting responsibility under USSG § 3E1.1, his total offense level was 17. Four criminal-history points—one for a prior juvenile adjudication for unauthorized graffiti, one for a conviction of battery of a peace officer, and two for committing the present offense while on probation—placed him in criminal history category III. His Guidelines sentencing range was therefore 30 to 37 months’ imprisonment. The PSR proposed that he participate in and complete a substance-abuse treatment program as a special condition of release. -2- Before the sentencing hearing Mr. Garcia-Salas filed a motion for a downward departure under the Guidelines. First, he sought a downward departure under § 5H1.4 because of an extraordinary physical impairment or condition. When he was four years old he was hit by a train, which resulted in the amputation of his left leg below the knee. He now wears a prosthetic limb. He argued (1) that his condition would severely limit his ability to participate in physical activity in prison and make him more vulnerable to attack and (2) that accommodating his physical condition would increase the cost of his imprisonment. Next he sought a downward departure under § 5H1.6 for extraordinary family ties and responsibilities. Mr. Garcia-Salas fathered children when he was 15 and 19 and became their primary caretaker, a stay-at-home father, while the mother of the younger child worked. Also, he was active in the New Mexico Young Fathers Project, through which “he has led groups, lectured at schools . . ., and . . . participated on local and national panels.” R. Vol. I, Doc. 18 at 4 (Def.’s Mot. for Downward Departure, Apr. 17, 2007). Finally, he sought a downward departure under § 5H1.3 because of his mental and emotional condition. In addition to losing his leg, he had suffered other traumatic experiences, including abandonment by his mother when he was an infant and the suicide of his stepmother in the family home on his tenth birthday. Mr. Garcia- Salas asserted that these factors, both individually and in the aggregate, supported -3- a departure. The government opposed the motion and the probation office concluded that the facts did not justify a downward departure. At the sentencing hearing the district court acknowledged the government’s opposition to Mr. Garcia-Salas’s motion and agreed that “individually and in combination the grounds asserted do not take this case outside of the heartland of cases thereby justifying a downward departure.” R. Vol. III at 5. Mr. Garcia- Salas then urged the court to grant him a downward variance under 18 U.S.C. § 3553(a). He argued that under United States v. Booker, 543 U.S. 220 (2005), the court could consider the “whole person” and vary from the Guidelines accordingly. Id. The court responded that its discretion to vary was limited: [T]he recent rulings of the Tenth Circuit . . . make it very difficult for a sentencing judge to sentence under 18 [U.S.C. §] 3553(a). The guideline sentencing range is presumptively reasonable, and a sentence in that range would be virtually automatically affirmed. Any sentence outside that range would have a very difficult time of standing given the opposition of the government. . . . Theoretically, I have discretion, but the recent opinions make it very difficult to exercise that. R. Vol. III at 6–7. The court then asked whether the government would “oppose an 18-month sentence under 3553(a),” and the government responded that it would. Id. at 8. After further argument by Mr. Garcia-Salas the court denied the request to vary: I think I feel constrained to stay within the guidelines. As I already indicated, I don’t think the facts present a case outside the heartland of cases. Even though I might be inclined otherwise to sentence -4- under 3553(a) below the 30 months, I think that would invite a high risk of reversal. Id. at 9. The court sentenced Mr. Garcia-Salas to 30 months’ imprisonment, the bottom of the Guidelines range. The district court also ordered that Mr. Garcia-Salas “participate in and successfully complete a substance abuse treatment program.” Id. at 12–13. In response Mr. Garcia-Salas asserted that “there is no evidence at all that [he] has any substance abuse problem at all.” Id. at 14. The court replied: “It’s a condition recommended by probation and it’s within the discretion of probation whether to require it or not. . . . There would be a required one-time urinalysis, so if it’s negative, then probation could just disregard it.” Id. at 14–15. The court’s judgment, however, contained no language conditioning the treatment on failing a urinalysis. Mr. Garcia-Salas appeals both the prison sentence and the drug-treatment condition of release. II. DISCUSSION Under Booker “we review sentencing decisions for reasonableness, which has both procedural and substantive components.” United States v. Atencio, 476 F.3d 1099, 1102 (10th Cir. 2007). Procedural reasonableness relates to the manner in which the court arrives at its sentence. “In setting a procedurally reasonable sentence, a district court must calculate the proper advisory Guidelines range and apply the factors set forth in § 3553(a).” Substantive reasonableness -5- relates to the length of the sentence. “A substantively reasonable sentence ultimately reflects the gravity of the crime and the § 3553(a) factors as applied to the case.” Id. We have stated that within-Guidelines sentences are, with respect to substantive reasonableness, “presumptively reasonable.” United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). That presumption was upheld by the Supreme Court in Rita v. United States, 127 S. Ct. 2456, 2462 (2007). Only a few weeks ago, however, did the Supreme Court provide further guidance on review of sentences not within the Guidelines range. In Gall and Kimbrough the Supreme Court explained that such a sentence can be set aside only for an abuse of discretion. In particular, the Court held “impermissible” any “presumption of unreasonableness for sentences outside the Guidelines range.” Gall, 2007 WL 4292116, at *5. This is not to say that the district court is free to impose any sentence whatsoever on remand. But there is undoubtedly some room below the Guidelines minimum for a “reasonable” sentence. Because we remand for resentencing, we need not address the propriety of the special condition of release imposed on Mr. Garcia-Salas, as the issue may well not arise at resentencing. -6- We REVERSE Mr. Garcia-Salas’s sentence and REMAND for resentencing. Judge McWilliams dissents. ENTERED FOR THE COURT Harris L Hartz Circuit Judge -7-	{ "pile_set_name": "FreeLaw" }
656 A.2d 1222 (1995) David McGRAW et al. v. S.D. WARREN COMPANY v. CIANBRO CORPORATION. Supreme Judicial Court of Maine. Submitted on Briefs March 1, 1995. Decided April 26, 1995. 1223 William W. Willard, Mary Elizabeth Fougere, Bernstein, Shur, Sawyer & Nelson, Portland, for plaintiff. Wayne P. Doane, Cuddy & Lanham, Bangor, for defendant. Before WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA and LIPEZ, JJ. DANA, Justice. S.D. Warren Company appeals from a judgment of the Superior Court (Somerset County, Chandler, J.) in favor of Cianbro Corporation on Warren's third-party complaint seeking indemnification from Cianbro for the personal injuries suffered by David McGraw, a Cianbro employee. Warren argues that the court erred in finding that Cianbro did not agree to indemnify Warren for damages caused by Warren's own negligence and that the complained of conduct on the part of Cianbro was not a proximate cause of McGraw's injuries. We affirm the judgment. In 1987 Warren, which owns and operates a paper mill in Westbrook, contracted with Cianbro and several others to provide demolition and construction services on a project to rebuild its pulp mill. The record suggests that from the beginning of the project Warren and Cianbro had concerns about the emissions from a Warren smoke stack. McGraw testified that he and other Cianbro workers were exposed to emissions from the stack which affected their vision. After a time a number of employees, including McGraw, reported that they were becoming sick as a result of that exposure. The contract between Warren and Cianbro contained an indemnification clause, which is the subject of this appeal.[1] In the 1224 underlying action, David and Louise McGraw sought damages from Warren for its negligence in allowing David and other Cianbro employees to work in an area where they would be exposed to toxic emissions. Warren, in turn, sought indemnification from Cianbro. The jury returned a verdict against Warren in the amount of $111,250. By agreement of the parties, the third-party action was decided by the court. Among other findings, the court found that Cianbro did not specifically agree to indemnify Warren for damages caused by Warren's own negligence and that no negligence on the part of Cianbro was a proximate cause of McGraw's injuries. In Emery Waterhouse Co. v. Lea, 467 A.2d 986, 993 (Me.1983), we stated that indemnification clauses that appear to indemnify a party for its own negligence are "looked upon with disfavor by the courts, and are construed strictly against extending the indemnification to include recovery by the indemnitee for his own negligence." Id. We explained that: It is only where the contract on its face by its very terms clearly and unequivocally reflects a mutual intention on the part of the parties to provide indemnity for loss caused by negligence of the party to be indemnified that liability for such damages will be fastened on the indemnitor, and words of general import will not be read as expressing such an intent and establishing by inference such liability. Id. Because there is no clear and unequivocal language in the contract at issue that reflects "a mutual intention ... to provide indemnity for loss caused by" Warren's negligence, the court did not err in finding that Cianbro had not agreed to indemnify Warren for damage caused by Warren's negligence. See id. Turning to Warren's second contention, we will not set aside the trial court's findings of fact unless they are "clearly erroneous." Morin Bldg. Prod. Co. v. Atlantic Design & Constr. Co., 615 A.2d 239, 241 (Me.1992). "A factual determination is clearly erroneous if not supported by competent evidence in the record." Id. We have previously stated: An appellate court can reverse a finding of fact only where (1) there is no competent evidence in the record to support it, or (2) it is based upon a clear misapprehension by the trial court of the meaning of the evidence, or (3) the force and effect of the evidence, taken as a total entity, rationally persuades to a certainty that the finding is so against the great preponderance of the believable evidence that it does not represent the truth and right of the case. Pongonis v. Pongonis, 606 A.2d 1055, 1057-58 (Me.1992) (citing Harmon v. Emerson, 425 A.2d 978, 982 (Me.1981)). Although the record indicates that before its employees became sick Cianbro had concerns about the safety of those working in the plume from the smoke stack, the record also suggests that Warren told Cianbro that there would be absolutely no chemical exposure problem for its employees. Cianbro's project manager testified that Warren led him to believe that the only cause for concern would be reduced visibility. The record also suggests that before employees became sick Warren had conducted a study confirming that it would be possible to raise the stack, and that after Warren, in fact, raised the stack, there were no further problems associated with worker exposure to stack emissions. Warren did not raise the stack, however, until after workers became ill. Additionally, there was competent testimony regarding the adequacy of Cianbro's safety policies. It cannot be said that the trial court's finding that the complained of conduct on the part of Cianbro was not a proximate cause of McGraw's injuries was "clearly erroneous." The entry is: Judgment affirmed. All concurring. NOTES [1] Article 10 of the General Agreement between S.D. Warren and Cianbro entitled "Indemnification: Protection of Work, Persons and Property; Insurance" provides as follows: (a) The contractor [Cianbro] is responsible for and shall continuously maintain protection of all the work and property in the vicinity of the work from damage or loss from any cause arising in connection with the contract and any work performed thereunder. [Cianbro] shall indemnify and hold owner [hereinafter S.D. Warren] harmless for any claims, suits, losses or expenses including attorneys' fees suffered by [S.D. Warren] arising out of injury to any person including [S.D. Warren's] or [Cianbro's] employees or damage to any property, including [S.D. Warren's] property if the injury or damage is caused in whole or in part by [Cianbro] or any of [Cianbro's] subcontractors, material men or anyone directly or indirectly employed or otherwise controlled by any of them while engaged in the performance of any work hereunder.	{ "pile_set_name": "FreeLaw" }
710 S.E.2d 466 (2011) 282 Va. 23 Dolores DAVIS v. COUNTY OF FAIRFAX. Record No. 100632. Supreme Court of Virginia. June 9, 2011. 467 Phillip B. Leiser (Leiser, Leiser & Hennessy, on brief), Vienna, for appellant. J. David Gardy, Assistant Commonwealth's Attorney (Raymond F. Morrogh, Commonwealth's Attorney, on brief), for appellee. Present: KINSER, C.J., LEMONS, GOODWYN, MILLETTE, and MIMS, JJ., and RUSSELL and LACY, S.JJ. OPINION BY Justice DONALD W. LEMONS. In this appeal, we consider whether the Circuit Court of Fairfax County erred when it exercised subject matter jurisdiction over a case that originated in Fairfax County General District Court, was appealed to the circuit court and non-suited there, was subsequently re-filed in the general district court, dismissed, and then appealed to the circuit court. I. Facts and Proceedings In September 2007, Fairfax County ("the County") filed a petition in the general district court, pursuant to former Code § 3.1-796.115(A),[1] seeking an order declaring Dolores Davis ("Davis") to be an unfit pet owner and alleging that Davis had deprived her animals "of necessary food, drink, shelter or emergency veterinary treatment." Following a trial, the general district court entered an order declaring Davis unfit to own and care for the 20 animals she kept in her house. Davis appealed the general district court's judgment to the circuit court. Thereafter, in March 2008, the County filed a motion to nonsuit the case and the circuit court granted the County's motion by an order dated March 14, 2008. The nonsuit order stated that the County had to return Davis' animals by 5 p.m. on March 14, 2008, unless a new petition had been filed by that time. The County filed a new petition to declare Davis an unfit pet owner in the general district court that same day. The general district court subsequently dismissed the petition on the ground that it lacked jurisdiction. The County noted an appeal to the circuit court. Davis then filed a motion in the circuit court to enforce the provisions of the nonsuit order requiring that the County return Davis' animals to her. The circuit court denied Davis' motion by order stating that the "circuit [court] has no original jurisdiction under [Code] § 3.1-796.115," but placed the case on the docket as an appeal from the general district court. Davis objected to the circuit court's order and maintained that "the [general district court] is without jurisdiction and this case must be heard in the Circuit Court." Following a bench trial in June 2008, the circuit court entered an order declaring Davis to be an unfit pet owner. Thereafter, the circuit court ordered Davis to reimburse the County for $51,504.64 in costs it incurred in boarding her animals during the pendency of the dispute. Davis timely noted her appeal to this Court,[2] but we decided, citing former Code § 3.1-796.115(C), that "[i]t appears that this Court does not have jurisdiction over this case." Davis v. County of Fairfax, Record No. 081825 (Oct. 29, 2008). Accordingly, we transferred Davis' appeal to the Court of Appeals and the Court of Appeals subsequently granted Davis' petition for appeal. 468 In an unpublished opinion, a three-judge panel of the Court of Appeals affirmed the circuit court's exercise of jurisdiction over the case. Davis v. County of Fairfax, Record No. 1697-08-4, slip op. at 13, 2009 WL 2365986 (Aug. 4, 2009). In so doing, the panel relied on the Court of Appeals' prior decision in Lewis v. Culpeper County Dept. of Social Services, 50 Va.App. 160, 647 S.E.2d 511 (2007), which held that when a plaintiff who prevailed in the district court takes a nonsuit in the defendant's de novo appeal in circuit court, "the combined effect of the principles applicable to nonsuits and de novo appeals is to nullify the entire suit as if it had never existed in either court." Davis, slip op. at 2 (quoting Lewis, 50 Va. App. at 167, 647 S.E.2d at 514). The Court of Appeals subsequently granted Davis' petition for a rehearing en banc and, relying upon Lewis, a majority of the court affirmed the circuit court's exercise of subject matter jurisdiction in this case. Davis v. County of Fairfax, Record No. 1697-08-4, slip op. at 2 (March 2, 2010). Davis timely filed her notice of appeal, and we granted an appeal on the following assignment of error: 1. The Court of Appeals erred when it ruled that the circuit court could exercise subject matter jurisdiction over a case that originated in the general district court; was appealed to the circuit court and non-suited there; re-filed in the general district courtcontrary to the dictates of § 8.01-380and then appealed to the circuit court. II. Analysis A. Standard of Review "[A]n issue of statutory interpretation is a pure question of law which we review de novo." Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007). When the language of a statute is unambiguous, we are bound by the plain meaning of that language. Furthermore, we must give effect to the legislature's intention as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity. If a statute is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute. Id. (citations omitted). Additionally, "[t]he plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction, and a statute should never be construed in a way that leads to absurd results." Meeks v. Commonwealth, 274 Va. 798, 802, 651 S.E.2d 637, 639 (2007) (citations and internal quotation marks omitted). B. Subject Matter Jurisdiction During the relevant time period, former Code § 3.1-796.115 set forth the procedure governing a petition to declare a person an unfit pet owner. Specifically, former Code § 3.1-796.115(A) stated that "[u]pon seizing or impounding an animal, the [investigating official] shall petition the general district court in the city or county wherein the animal is seized for a hearing . . . not more than ten business days from the date of the seizure of the animal." Additionally, former Code § 3.1-796.115(C) stated that the "procedure for appeal and trial shall be the same as provided by law for misdemeanors [and t]he Commonwealth shall be required to prove its case beyond a reasonable doubt." Accordingly, the County properly filed its first petition in this case in the general district court, pursuant to Code § 3.1-796.115. However, Davis subsequently appealed the general district court's ruling to the circuit court for a de novo review, and the circuit court later granted the County a nonsuit in that case. Following the nonsuit in the circuit court, the County re-filed its petition in the general district court. At issue in this case is whether the County re-filed its petition in the proper court, following the nonsuit. Davis argues that the circuit court retained jurisdiction over the case after the nonsuit order was entered, "so that when the County elected to re-file its petition, it was limited to doing so only in the circuit court." As a result, Davis argues, "the general district court lacked jurisdiction over the dispute and 469 the County's re-filing of its petition in that court was a nullity." Consequently, on appeal from the general district court, the circuit court lacked jurisdiction to enter the orders that are the subject of this appeal because "the circuit court's jurisdiction over a case is derivative of the inferior tribunal's." We agree with Davis. Code § 8.01-380(A) declares that "[a]fter a nonsuit no new proceeding on the same cause of action or against the same party shall be had in any court other than that in which the nonsuit was taken, unless that court is without jurisdiction, or not a proper venue, or other good cause is shown." Therefore, because the nonsuit was taken in the circuit court, the County was required by Code § 8.01-380(A) to re-file its petition, following the nonsuit, in the circuit court "unless that court is without jurisdiction." Code § 17.1-513 defines the jurisdiction of circuit courts in Virginia. In pertinent part, it declares that circuit courts "shall have appellate jurisdiction in all cases . . . in which an appeal may . . . be taken from the judgment or proceedings of any inferior tribunal." (Emphasis added.) Additionally, circuit courts "shall have original and general jurisdiction of all civil cases . . . except such cases as are assigned to some other tribunal." Id. Former Code § 3.1-796.115(A) "assigned" cases arising under that statute to general district courts by requiring that investigating officials "shall petition the general district court in the city or county wherein the animal is seized for a hearing." Accordingly, the circuit court did not have original or general jurisdiction over petitions filed pursuant to former Code § 3.1-796.115(A). See Code § 17.1-513. The circuit court did, however, obtain appellate jurisdiction derivatively from the de novo appeal taken from the general district court. Id. Significantly, Code § 16.1-106 declares that [f]rom any order entered or judgment rendered in a court not of record in a civil case in which the matter in controversy is of greater value than fifty dollars . . . there shall be an appeal of right . . . to a court of record. Such appeal shall be to a court of record having jurisdiction within the territory of the court from which the appeal is taken and shall be heard de novo. (Emphasis added.) Accordingly, circuit courts in Virginia have no power to remand appeals taken from general district courts back to the general district court from which the appeal was taken. Rather, once a circuit court in Virginia acquires appellate jurisdiction over a case, by way of an appeal of right from a general district court, it is required to hear the appeal de novo. See Code §§ 16.1-106 and 17.1-513. Just as circuit courts cannot remand appeals of right taken from general district courts back to the general district court from which the appeal was taken, they do not lose appellate jurisdiction over an appeal of right taken from a lower court simply by granting a nonsuit in that particular case. See Code §§ 16.1-106 and 17.1-513. In this case, the circuit court obtained appellate jurisdiction over this suit derivatively from the de novo appeal taken from the general district court. The circuit court's subsequent grant of the County's nonsuit did not divest the circuit court of its appellate jurisdiction. Accordingly, the circuit court retained appellate jurisdiction to hear this case after it granted the County's nonsuit and, as a result, the County was required by Code § 8.01-380 to re-file its petition in the circuit court. See Code § 8.01-380. However, the County did not do so. The County improperly re-filed its petition, following the nonsuit, in the general district court; therefore, the general district court properly dismissed the re-filed petition for lack of subject matter jurisdiction. The County then appealed to the circuit court for a de novo review and the circuit court placed the case on its docket. Whether this exercise of jurisdiction was proper remains to be decided. Because the circuit court's appellate jurisdiction is derivative of the general district court's jurisdiction, we hold that the circuit court did not have jurisdiction to decide the re-filed case on the merits after the general district court's dismissal for lack of subject matter jurisdiction. We held, in Stacy v. Mullins, 185 Va. 837, 40 S.E.2d 265 (1946), and Addison v. Salyer, 470 185 Va. 644, 40 S.E.2d 260 (1946), that "the jurisdiction of the appellate court on appeal from the [general district court] is derivative, and if the [general district court] had no jurisdiction the appellate court acquires none on appeal." Hoffman v. Stuart, 188 Va. 785, 794, 51 S.E.2d 239, 244 (1949) (emphasis added). Additionally, we observed in Stacy that [t]he rule is well settled that, if the court in which the action is brought has no jurisdiction of the subject matter, the appellate court will acquire none by the appeal, and this, too, even if the appellate court would have jurisdiction of the subject matter had the action been commenced there. The reason is, an appeal is a mere continuation of the original case,a proceeding in the action. The want of jurisdiction of the subject matter in the court where the action was brought, continues in every court to which the action may be appealed, for the reason that it is the same action, and an appeal is authorized only where the court from which the appeal is taken, in case of the failure to appeal, would have had authority to enforce its judgment. 185 Va. at 841, 40 S.E.2d at 266 (citations and internal quotation marks omitted). Here, the general district court properly decided that it had no subject matter jurisdiction to hear the re-filed petition following the nonsuit in the circuit court. As a result, the circuit court had no appellate jurisdiction to hear the re-filed case on the merits following the general district court's dismissal for lack of jurisdiction because the circuit court's appellate jurisdiction is derivative of the general district court's jurisdiction. Id. It should be noted that the circuit court lacked jurisdiction to decide this case as it did even though it would have had jurisdiction to hear the case had the County properly re-filed its petition in the circuit court following the nonsuit of its first petition in that court. Id. To the extent that Lewis v. Culpeper County Dept. of Social Services, 50 Va.App. 160, 647 S.E.2d 511 (2007), is inconsistent with this opinion, it is expressly overruled. III. Conclusion We hold that the Court of Appeals erred when it affirmed the judgment of the circuit court. Accordingly, we will reverse the judgment of the Court of Appeals and enter final judgment for Davis. Reversed and final judgment. NOTES [1] After all proceedings in the Fairfax County General District and Fairfax County Circuit Court, former Title 3.1 was repealed, revised, and reenacted as Title 3.2. Specifically, former Code § 3.1-796.115 was amended and reenacted as Code § 3.2-6569. See 2008 Acts ch. 860. [2] It appears that, because Davis had been unsure which court had jurisdiction over this appeal when she first filed her notice of appeal, she filed appeals in both the Court of Appeals and this Court.	{ "pile_set_name": "FreeLaw" }
994 So.2d 545 (2008) Willard OWEN v. PSC PHILLIPS SERVICES. No. 2008-781. Court of Appeal of Louisiana, Third Circuit. July 23, 2008. Marcus Miller Zimmerman, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellee: Willard Owen. Janice Bertucci Unland, John Joseph Rabalais, Laurie Wilder Maschek, Rabalais, Unland, & Lorio, Covington, LA, for Defendant/Appellant: PSC Phillips Services. Court composed of JIMMIE C. PETERS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges. AMY, Judge. This court issued a rule for the Defendant-Appellant, PSC Phillips Services, to show cause, by brief only, why the instant appeal should not be dismissed as having been taken from a non-appealable, interlocutory ruling. This court received Appellant's response to the rule. For the reasons assigned below, we dismiss the appeal. This case involves a workers' compensation claim filed by Plaintiff-Appellee, Willard Owen, who was allegedly injured while employed by Appellant. In the course of this litigation, Appellant filed a motion for summary judgment asserting that there is no genuine issue of material fact regarding Appellant's entitlement to 100% credit towards any workers' compensation indemnity benefits to which Appellee may be found to be entitled. Following a hearing on this motion, it was denied by the Office of Workers' Compensation. A judgment to that effect was subsequently signed. Appellant filed a motion for suspensive appeal which was granted. Thereafter, the record in this case was lodged in this court. In response to this court's order that Appellant show cause why its appeal should not be dismissed as having been taken from a non-appealable, interlocutory ruling, Appellant states that the judgment at issue has been designated as a partial final judgment and that the parties have agreed to such designation. Appellant argues *546 that although the judgment does not expressly state that there is no just cause for delaying an immediate appeal, the judgment is nonetheless appealable as a partial final judgment pursuant to La.Code Civ.P. art. 1915(B). We disagree with Appellant's assertion that La.Code Civ.P. art. 1915(B) is applicable to the instant case. The judgment sought to be appealed denies Appellant's motion for summary judgment. This court has held that "[a]lthough certification of a partial judgment granting a motion for summary judgment is allowed under Article 1915, this does not authorize the certification of a judgment denying a motion for summary judgment." Romero v. Charter Behavioral Health Sys. of Lake Charles, 00-1108, p. 3 (La.App. 3 Cir. 1/31/01), 780 So.2d 530, 531-532 (citations omitted). Therefore, we find that the workers' compensation judge was without authority to designate the judgment as immediately appealable. Furthermore, the case at bar is a workers' compensation case, and "La. Code Civ.P. art. 1915 has been held to be inapplicable to workers' compensation cases." Williamson v. Dresser, Inc., 07-672 (La.App. 3 Cir. 8/15/07), 964 So.2d 444, 445. Nonetheless, even if Article 1915(B) was applicable to the instant case, that article does not supercede La.Code Civ.P. art. 968. See Ware v. Mumford, 04-118 (La. App. 5 Cir. 5/26/04), 875 So.2d 885. Article 968 expressly provides that "[a]n appeal does not lie from the court's refusal to render any judgment on the pleading or summary judgment." The jurisprudence has held that a judgment denying a motion for summary judgment, which is deemed non-appealable by La.Code Civ.P. art. 968, cannot be converted into an appealable judgment by the trial court's certification of the judgment as final under La.Code Civ.P. art. 1915(B). See Ware, 875 So.2d 885. Article 968 has been referred to as a special rule which prevails over not only La.Code Civ.P. art. 1915 but also La.Code Civ.P. art. 2083, which, prior to the latter's amendment in 2005, had permitted appeals from interlocutory judgments causing irreparable harm. See Short v. Ochello, 01-1358 (La.App. 5 Cir. 2/26/02), 811 So.2d 1009. In the instant case, the judgment denying Appellant's motion for summary judgment does not decide the merits of this case and, thus, is interlocutory. See La. Code Civ.P. art. 1841. Also, the judgment is expressly designated as non-appealable by La.Code Civ.P. art. 968. Therefore, we hereby dismiss the instant appeal at Appellant's cost. Appellant, PSC Phillips Services, is hereby permitted to file a proper application for writs in compliance with Uniform RulesCourts of Appeal, Rule 4, no later than August 21, 2008. The Appellant is not required to file a notice of intent to seek writs nor obtain an order setting a return date pursuant to Uniform RulesCourts of Appeal, Rule 4-3, as we hereby construe the motion for appeal as a timely filed notice of intent to seek a supervisory writ. APPEAL DISMISSED. APPELLANT IS PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRITS.	{ "pile_set_name": "FreeLaw" }
25 Cal.App.2d 484 (1938) WALKER E. GRAY, Respondent, v. JAMES GRAY, Administrator, etc., et al., Defendants; JULIA HADLEY, as Guardian, etc., Appellant. Civ. No. 10758. California Court of Appeals. First Appellate District, Division Two. March 25, 1938. Harold H. Price for Appellant. Herbert Chamberlin and Ray M. J. Greene for Respondent. Sturtevant, J. This is an action to quiet title. The defendants answered the plaintiff's complaint and one of the defendants, Julia Hadley, as guardian of the person and estate of Felix Comaskey, an incompetent person, filed a cross-complaint. That pleading was answered and the trial was had on all of the issues made by the pleadings. The trial court made findings in favor of the plaintiff and against Julia Hadley, the cross-complainant, and from the judgment entered on said findings she has appealed. Although she does not state her position in direct terms, it is apparent that she is claiming that certain findings are not supported by the evidence. The findings so attacked involve the validity of a declaration of homestead filed by the plaintiff and his deceased wife on the piece of real estate described in the complaint. Prior to the year 1910 the plaintiff Walker E. Gray and Mary E. Gray, husband and wife, purchased the property in suit. It was community property. Prior to the month of June, 1932, an encumbrance consisting of a deed of trust stood against the property. The deed of trust was given to secure the payment of a promissory note, the principal of which, then amounted to $6,700 or thereabouts. About the 13th day of June, 1932, Felix Comaskey, a brother of Mary E. Gray, was insane and at that time she induced him to give her the sum of $10,000. On receipt of said money Mary E. Gray paid off the indebtedness existing on the real estate hereinabove mentioned and the deed of trust was released and discharged. On November 7, 1932, Julia Hadley, having been appointed guardian of Felix Comaskey, an incompetent person, commenced an action against Mary E. Gray to recover the said moneys so paid to her by Felix Comaskey while insane. On the 17th of August, 1934, judgment was entered in favor of said guardian against Mary E. Gray for 486 the sum of $10,000 principal, together with interest from June 13, 1932, and for costs of suit. That judgment was recorded on the 17th day of August, 1934. Immediately prior to the recordation of said judgment the plaintiff and Mary E. Gray filed a declaration of homestead on the said property. The judgment above mentioned has never been appealed from, it has not been paid, and is still in force and effect. On the 27th day of August, 1934, Mary E. Gray died and thereafter James Gray was appointed administrator of her estate. Soon after his appointment Walker E. Gray commenced this action against James Gray, as the said administrator, and also against Julia Hadley, as the said guardian. A short time after the appointment of the administrator, Julia Hadley, as said guardian, presented her claim against the said estate. In form it was a claim solely for money based on the judgment recorded August 17, 1934. In framing her cross-complaint the said guardian pleaded the foregoing facts and asked for a decree impressing a trust on the moneys paid to Mary E. Gray by Felix Comaskey and to have a lien declared against the real estate in suit. The trial court made specific findings that the judgment in favor of Julia Hadley could not be enforced against the said real estate because of the prior execution and recordation of the declaration of homestead; that by the commencement and maintenance of the action brought by the cross-complainant against Mary E. Gray, the former "waived and abandoned her rights to again litigate and have adjudicated the same facts, circumstances, and conditions that were heretofore fully and completely adjudicated by a court of competent jurisdiction after a complete and full hearing upon the merits"; that said acts of the cross-complainant constituted an election of remedies; and that the cross-complainant is barred from now maintaining a separate and distinct action seeking to obtain a decree of a court of equity impressing a trust on the said moneys received by Mary E. Gray as aforesaid. [1] The cross-complainant asserts that a homestead may not legally be declared on trust property. (Kemp v. Enemark, 194 Cal. 748 [230 P. 441], and cases there cited.) The plaintiff does not claim to the contrary, but he asserts that the record does not present that question. Conceding that at one time the cross-complainant could have made such a contention as she now makes, the plaintiff contends that 487 the cross-complainant elected to maintain an action at law to recover a money judgment. She commenced such an action, she took out an attachment, later the case was tried and she was awarded a judgment for $10,000, interest and costs of suit. Continuing the plaintiff further contends that the cross-complainant may not abandon the remedy she had so elected to take and at this time extent to impress a trust on the property in suit to the attempt of the moneys paid by Mary E. Gray on the debt secured by the deed of trust. (Hilborn v. Bonney, 28 Cal.App. 789 [154 P. 26].) The cross-complainant replies that when she commenced her action to recover a money judgment she did not know that $6,783.31 of the moneys received by Mary E. Gray had been paid on the debt secured by the deed of trust. That reply is insufficient. In her cross-complaint she pleaded the said judgment. She did not plead that she took said judgment in ignorance of the facts just mentioned. No such issue was before the court and there is no finding thereon. However, during the trial of the instant case the uncontradicted evidence disclosed that when the former action was pending the said guardian, on December 20, 1932, took the deposition of Mary E. Gray and at that time said guardian was informed by the testimony of the deponent as to what payments had been made by her out of the moneys received by her from the ward of the cross-complainant and that she had paid $6.783.31 on the debt secured by the said deed of trust. Notwithstanding such knowledge so acquired, the said guardian pressed said action to trial and on June 25, 1934, obtained the said judgment for money. No appeal was taken, the judgment has not been paid, and it is now in full force and effect. Later, when the instant action was commenced, the said guardian came forward and attempted to plead an affirmative cause of action by a cross-complaint. She pleaded said judgment as a part of her allegations and attempted to base a cause of action thereon sounding in equity. In Rehfield v. Winters, 62 Or. 299 [125 P. 289], at page 292, Mr. Justice Bean, speaking for the Supreme Court of Oregon, said: "If, in attempting to make an election, one commences an action in ignorance of substantial facts which proffer an alternative remedy, and the knowledge of which is essential to an intelligent choice of procedure, his action is not binding. He may, when informed, adopt a different remedy. But if 488 he does not do this with reasonable dispatch, he will be deemed to have waived the right, and his original act will ripen into a bar. (Citing many authorities.) As the record before us stands we must assume in support of the judgment that the trial court inferred from the evidence before it that the cross-complainant, after being informed of the facts regarding the application of payments, did not "with reasonable dispatch" adopt a different remedy." The identical contention which cross-complainant makes was before the Supreme Court of Washington in Hoskins v. Smith, 133 Wash. 90 [233 P. 279, 43 A.L.R. 175]. The court quoted 20 C.J. 35 as stating the rule. Continuing, on page 280, the court said: "Measured by this rule, it is apparent that, at the time the appellant brought his suit for damages, he knew that a fraud had been committed upon him, that the property out of which he claimed he was defrauded had been transferred to an innocent purchaser, and therefore he had two remedies open to him--to impress a trust upon the proceeds of the property wherever found, or to bring an action for damages. Having chosen his action in law for damages, he may not now sue for equitable relief. Appellant contends that 'knowledge of the facts from which his coexcisting inconsistent remedial rights arise' means that he must have knowledge of where the money is, or as to what property it has been put into, but we think such is not the meaning of the rule. The homestead being protected by statute from sale under a general judgment, the judgment is affirmed." [2] She also asserts that the doctrine of election of remedies does not apply where the actions are against different persons. She quotes from 20 C.J., page 8, as follows: "Where actions against different persons are consistent and concurrent, the doctrine of election does not apply and the prosecution of one does not bar the prosecution of the other; and an unsuccessful attempt to recover against one, in the absence of circumstances creating an equitable estoppel, will not bar an action against the other. A party may pursue any number of consistent and concurrent remedies against different persons, until he obtains satisfaction from some of them." We think it is sufficient to say it is clear that within the meaning of said rule, Mary E. Gray and her administrator were not different persons; nor, by joining the surviving 489 husband as a cross-defendant, was the instant case brought within the terms of said rule. The cross-complainant must concede those two statements otherwise she stands before the court attempting to enforce her judgment against those who were not parties to the action in which the judgment was rendered. The facts before the court in Hilborn v. Bonney, supra, were so closely the same that we think that case is controlling in this case. Frank Bonney, through acts of fraud and deceit, wrongfully induced Grace A. Hilborn to convey to him certain lands. Those lands he sold and with the proceeds he purchased in the name of Ella Bonney, his wife, lot 22, Huston tract in Los Angeles on which he and his wife resided. Grace A. Hilborn sued Frank Bonney and recovered a judgment in damages for his fraudulent acts. In the meantime his wife filed a declaration of homestead on lot 22. Thereafter Grace A. Hilborn commenced an action against Frank Bonney and Ella Bonney to have the homestead set aside and to have her execution declared a lien on the property. The defendants filed a general demurrer. It was overruled. Commencing on page 790 the court said: "The only question involved is the ruling of the court upon the sufficiency of the complaint. The theory of respondent (plaintiff here) is that since, as adjudged in the action wherein she had a judgment for damages against him, the conveyance of her property was obtained by the fraudulent acts of Frank R. Bonney, neither it nor lot 22, bought with the proceeds of the sale thereof, could, as to her judgment, be the subject of a declaration of homestead by the wife; in other words, that by reason of the manner in which the property was obtained, it was impressed with a trust in favor of plaintiff. Conceding, upon the facts stated, plaintiff might have brought an equitable action to impress a trust upon the property or to have a lien declared thereon, and thus have obtained relief, she chose instead to sue at law for a money judgment. Having elected to pursue this course, we are unable to perceive that she has any greater or different rights with reference to the property than any other general judgment creditor of Bonney. The case presented is almost identical with that of Hanly v. Kelly, 62 Cal. 155, wherein it was said: 'Under such circumstances, plaintiff must be held to have elected his remedy at law, and to be estopped from pursuing in equity the *490 fund into the homestead.' To the same effect is Barker v. Barker, 14 Wis. 131, 142, Fitzell v. Leaky, 72 Cal. 477 [14 P. 198], and Harding v. Atlantic Trust Co., 26 Wash. 536 [67 P. 222]. ... In Fitzell v. Leaky, supra, the Supreme Court says: 'It (the homestead) is not invalid because made during the progress of litigation, which subsequently results in an ordinary money judgment against the homesteader, or because made at any time before the entry and docketing of such a judgment. The law authorizes a debtor to erect a barrier around the home, over which the sheriff, although armed with final process under such a judgment, cannot pass. With the policy of the law, or the abstract morality of a particular transaction, we have nothing to do. The doctrine bearing upon conveyances made to hinder, delay, or defraud creditors has no application to the creation of a homestead.'" We submit the principles decided in that case and the decisions therein cited control the facts presented in the record before us. In view of the conclusions which we have reached it is not necessary to discuss the other points made by the plaintiff. The judgment appealed from is affirmed. Nourse, P. J., and Spence, J., concurred.	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-8246 GARY SLEZAK, Petitioner - Appellant, v. STANLEY BURTT, Respondent - Appellee. No. 10-6395 GARY SLEZAK, Petitioner - Appellant, v. STANLEY BURTT, Warden of Lieber Correctional Institution, Respondent - Appellee. Appeals from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:07-cv-00661-RBH) Submitted: October 19, 2010 Decided: October 25, 2010 Before DUNCAN, KEENAN, and WYNN, Circuit Judges. No. 10-6395 affirmed; No. 09-8246 dismissed by unpublished per curiam opinion. Gary Slezak, Appellant Pro Se. William Henry Davidson, II, Kenneth Paul Woodington, DAVIDSON & LINDEMANN, PA, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Gary Slezak seeks to appeal the district court’s orders denying relief on his 28 U.S.C. § 2254 (2006) petition and his Fed. R. Civ. P. 59(e) motion (No. 09-8246), and the district court’s order denying his motion to reopen the time for appeal under Fed. R. App. P. 4(a)(6) (No. 10-6395). We dismiss Appeal No. 09-8246 for lack of jurisdiction because the notice of appeal was not timely filed, and affirm the court’s order in Appeal No. 10-6395. Parties are accorded thirty days after the entry of the district court’s final judgment or order to note an appeal, Fed. R. App. P. 4(a)(1)(A), unless the district court extends the appeal period under Fed. R. App. P. 4(a)(5), or reopens the appeal period under Fed. R. App. P. 4(a)(6). “[T]he timely filing of a notice of appeal in a civil case is a jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 214 (2007). The district court’s order denying Slezak’s Rule 59(e) motion was entered on the docket on September 29, 2009. The notice of appeal was filed, at the earliest, on December 14, 2009. 1 Pursuant to Rule 4(a)(6), Slezak filed a motion to reopen the time for appeal on January 6, 2010. By his own admission, 1 This is the date appearing on the notice of appeal. See Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 276 (1988). 3 Slezak received notice on November 20, 2009, that his Rule 59 motion had been denied. Because he failed to timely file the motion to reopen within fourteen days thereafter, as required by Rule 4(a)(6), the district court did not abuse its discretion by denying the motion to reopen the appeal period. 2 Accordingly, in Appeal No. 10-6395, we affirm the district court’s denial of Slezak’s Rule 4(a)(6) motion. Because Slezak failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period in Appeal No. 09-8246, we dismiss that appeal as untimely. Slezak’s motion for certificates of appealability is denied. We dispense with oral argument because the facts and legal contentions are adequately presented in the 2 When notice of the entry of the judgment or order sought to be appealed is not received within twenty-one days of entry, a party may move to reopen the time to file an appeal under Fed. R. App. P. 4(a)(6). Prior to December 1, 2009, the rule required a motion to reopen to be filed within 180 days after the judgment or order was entered or within seven days after the moving party received notice of the entry, whichever was earlier. Effective December 1, 2009, Rule 4(a)(6) was amended to permit the motion to reopen to be filed within 180 days of entry of the judgment or order or within fourteen days after the moving party receives notice, whichever is earlier. Because the relevant dates in this appeal overlap the applicable dates for both versions of the rule, we have given Slezak the benefit of the doubt and applied the more liberal fourteen day period. 4 materials before the court and argument would not aid the decisional process. No. 10-6395 AFFIRMED No. 09-8246 DISMISSED 5	{ "pile_set_name": "FreeLaw" }
Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 10/25/2019 09:06 AM CDT - 74 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. SCHMALTZ Cite as 304 Neb. 74 State of Nebraska, appellee, v. K elly Schmaltz, appellant. ___ N.W.2d ___ Filed September 20, 2019. No. S-18-925. 1. Jury Instructions: Appeal and Error. Whether jury instructions are correct is a question of law, which an appellate court resolves indepen- dently of the lower court’s decision. 2. Statutes: Appeal and Error. Statutory interpretation presents a ques- tion of law, which an appellate court reviews independently of the lower court’s determination. 3. Motions for Mistrial: Appeal and Error. Decisions regarding motions for mistrial are directed to the discretion of the trial court, and will be upheld in the absence of an abuse of discretion. 4. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court’s refusal to give a requested instruction, an appel- lant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court’s refusal to give the tendered instruction. 5. Statutes. Basic principles of statutory interpretation require a court to give statutory language its plain and ordinary meaning. 6. ____. Basic principles of statutory interpretation prohibit a court from reading a meaning into a statute that is not there or reading anything direct and plain out of a statute. 7. Trial: Prosecuting Attorneys: Appeal and Error. When considering a claim of prosecutorial misconduct, an appellate court first considers whether the prosecutor’s acts constitute misconduct. 8. Trial: Prosecuting Attorneys: Words and Phrases. Prosecutorial mis- conduct encompasses conduct that violates legal or ethical standards for various conducts because the conduct will or may undermine a defend ant’s right to a fair trial. 9. Trial: Prosecuting Attorneys: Juries. Prosecutors are charged with the duty to conduct criminal trials in such a manner that the accused may - 75 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. SCHMALTZ Cite as 304 Neb. 74 have a fair and impartial trial, and prosecutors are not to inflame the prejudices or excite the passions of the jury against the accused. 10. ____: ____: ____. A prosecutor’s conduct that does not mislead and unduly influence the jury is not misconduct. 11. Criminal Law: Motions for Mistrial: Proof: Appeal and Error. A mistrial is properly granted in a criminal case where an event occurs during the course of a trial that is of such a nature that its damaging effect cannot be removed by proper admonition or instruction to the jury and thus prevents a fair trial. The defendant must prove that the alleged error actually prejudiced him or her, rather than creating only the pos- sibility of prejudice. Appeal from the District Court for Scotts Bluff County: Leo P. Dobrovolny, Judge. Affirmed. Bell Island, of Island Law Office, P.C., L.L.O., for appellant. Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Heavican, C.J. INTRODUCTION Following a jury trial, Kelly Schmaltz was convicted of leaving the scene of an injury accident. He appeals. We affirm. FACTUAL BACKGROUND On January 22, 2018, Schmaltz was charged by informa- tion with leaving the scene of an injury accident and driving without proof of financial responsibility. A jury trial was held August 8. At trial, evidence was adduced that a semi-truck hauling cattle in a trailer and driven by Schmaltz was involved in a col- lision with a vehicle driven by Monica Gomez. Schmaltz did not challenge that an accident had occurred, that Gomez was injured, or that he left the scene. Schmaltz instead argued that leaving the scene was justified because he had to unload the - 76 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. SCHMALTZ Cite as 304 Neb. 74 cattle he had been hauling in order to avoid loss of or injury to the cattle. Accordingly, Schmaltz sought an instruction on the so-called choice of evils defense as codified at Neb. Rev. Stat. § 28-1407 (Reissue 2016). The district court declined to instruct the jury as to this defense, concluding that it was inapplicable where the choice made was to mitigate or prevent loss to property and not to a person. The jury found Schmaltz guilty of leaving the scene of an injury accident. The other charge, driving without proof of financial respon- sibility, had earlier been dismissed following Schmaltz’ motion for a directed verdict at the end of the State’s case-in-chief. Schmaltz sought a mistrial based on prosecutorial misconduct. Schmaltz alleged that by attempting to introduce hearsay evi- dence that Schmaltz’ insurer refused to pay for Gomez’ injuries to prove up the elements of that charge, the State committed prosecutorial misconduct that warranted a mistrial. The district court denied the motion for a mistrial. Schmaltz was convicted by a jury. His subsequent motion for new trial was denied. Schmaltz was sentenced to 12 months’ probation, and his operator’s license was revoked for 1 year. He was also ordered to pay restitution to Gomez. Schmaltz appeals. ASSIGNMENTS OF ERROR Schmaltz assigns that the district court erred in failing to (1) give his requested instruction regarding the choice of evils defense and (2) grant a mistrial on the basis of prosecuto- rial misconduct. STANDARD OF REVIEW [1] Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court’s decision.1 1 State v. Bigelow, 303 Neb. 729, 931 N.W.2d 842 (2019). - 77 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. SCHMALTZ Cite as 304 Neb. 74 [2] Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court’s determination.2 [3] Decisions regarding motions for mistrial are directed to the discretion of the trial court, and will be upheld in the absence of an abuse of discretion.3 ANALYSIS Jury Instruction. [4] Schmaltz first argues that the district court erred in refusing to give his proposed choice of evils instruction. To establish reversible error from a court’s refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court’s refusal to give the tendered instruction.4 Section 28-1407, the choice of evils justification, provides as follows: (1) Conduct which the actor believes to be necessary to avoid a harm or evil to himself or another is justifi- able if: (a) The harm or evil sought to be avoided by such con- duct is greater than that sought to be prevented by the law defining the offense charged; (b) Neither [the Nebraska Criminal Code] nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and (c) A legislative purpose to exclude the justification claimed does not otherwise plainly appear. (2) When the actor was reckless or negligent in bring- ing about the situation requiring a choice of harms or 2 State v. Lovvorn, 303 Neb. 844, 932 N.W.2d 64 (2019). 3 State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019). 4 State v. Bigelow, supra note 1. - 78 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. SCHMALTZ Cite as 304 Neb. 74 evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability. The district court declined to give the tendered instruction. Specifically, the court noted that Schmaltz’ defense was that he left the scene of the accident in order to prevent loss to the 94 head of cattle he was hauling. Schmaltz directs us to State v. Wells 5 to support his assertion that § 28-1407 is applicable to property. In Wells, the defendant and others were charged with criminal mischief in connection with the destruction of equipment on a construction site that adjoined the defendant’s farm. The defendant contended that the construction work being done was causing soil erosion to his property and that he was justified, via the choice of evils defense, in damaging the equipment in question to prevent the damage to his own property. In reaching our decision in Wells that such defense was not available, we noted that “[i]n property crimes, the defense of justification is available only in limited circumstances.”6 Schmaltz suggests that had the choice of evils defense not been an available justification defense for property crimes, this court would have simply relied upon that fact to reject the argument of the defendant in Wells. Instead, this court went further to reason that the choice of evils justification was unavailable because the defendant in Wells had a reasonable alternative to the criminal damage—he could have filed for and obtained a temporary restraining order. Wells does not address § 28-1407. However, by implication, the court suggests that § 28-1407 would not be applicable to property crimes, noting that a different section, Neb. Rev. Stat. § 28-1415 (Reissue 2016), would provide justification for a 5 State v. Wells, 257 Neb. 332, 598 N.W.2d 30 (1999). 6 Id. at 338, 598 N.W.2d at 35. - 79 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. SCHMALTZ Cite as 304 Neb. 74 property crime under certain circumstances, just not those pre- sented in Wells. [5,6] In addition, the defendant in Wells destroyed the property of another through use of force and sought a justi- fication for that act in a way that is not present in this case. Of course, there is no allegation that Schmaltz collided with Gomez intentionally in an attempt to save the cattle in his trailer. For these reasons, Wells is distinguishable. Our basic principles of statutory interpretation require us to give statu- tory language its plain and ordinary meaning.7 Those same principles prohibit us from reading a meaning into a statute that is not there or reading anything direct and plain out of a statute.8 Section 28-1407(1) provides a justification for “[c]onduct which the actor believes to be necessary to avoid a harm or evil to himself or another . . . .” This justification is available only if the “harm or evil sought to be avoided by such conduct is greater than that sought to be prevented.”9 Neb. Rev. Stat. § 28-1406(4) (Reissue 2016) defines “[a]ctor” as “any person who uses force in such a manner as to attempt to invoke the privileges and immunities afforded him by sections 28-1406 to 28-1416.” The choice of evils justification is generally inapplicable here. The statutes at issue in this appeal were all enacted at the same time and concern “justification” for the use of force.10 The only person in this scenario who could be the “actor” contemplated in § 28-1407 is Schmaltz. Even if his conduct in leaving the scene of the accident was done to avoid a harm or evil, the conduct was not done with force. A justification defense under these statutes is unavailable. There is no merit to Schmaltz’ first assignment of error. 7 State v. Lovvorn, supra note 2. 8 Id. 9 § 28-1407(1)(a). 10 See § 28-1407. - 80 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. SCHMALTZ Cite as 304 Neb. 74 Prosecutorial Misconduct. Schmaltz also argues that the district court erred in not granting his motion for mistrial for the State’s act of pros- ecutorial misconduct. Specifically, Schmaltz argues that the State’s attempt to prove the charge of driving without proof of financial responsibility by eliciting testimony by Gomez that Schmaltz’ insurer had not paid her claim was both prejudicial and insufficient. We find this argument to be without merit. [7-10] When considering a claim of prosecutorial miscon- duct, an appellate court first considers whether the prosecu- tor’s acts constitute misconduct.11 Prosecutorial misconduct encompasses conduct that violates legal or ethical standards for various conducts because the conduct will or may undermine a defendant’s right to a fair trial.12 Prosecutors are charged with the duty to conduct criminal trials in such a manner that the accused may have a fair and impartial trial, and prosecutors are not to inflame the prejudices or excite the passions of the jury against the accused.13 A prosecutor’s conduct that does not mislead and unduly influence the jury is not misconduct.14 [11] A mistrial is properly granted in a criminal case where an event occurs during the course of a trial that is of such a nature that its damaging effect cannot be removed by proper admonition or instruction to the jury and thus prevents a fair trial.15 The defendant must prove that the alleged error actually prejudiced him or her, rather than creating only the possibility of prejudice.16 We review the denial of a motion for mistrial for an abuse of discretion.17 11 State v. Munoz, 303 Neb. 69, 927 N.W.2d 25 (2019). 12 See State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019). 13 Id. 14 See, State v. Munoz, supra note 11; State v. Mrza, supra note 12. 15 State v. Briggs, supra note 3. 16 Id. 17 See id. - 81 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. SCHMALTZ Cite as 304 Neb. 74 In this case, a review of the record supported the State’s assertion that Schmaltz was driving without proof of financial responsibility—a copy of his insurance information obtained prior to trial showed that his insurance was expired. The State did not call the correct witnesses to prove up this charge, and it was accordingly dismissed. The fact that the charge was dismissed shows that even assuming the State’s actions amounted to misconduct, Schmaltz did not show that he was prejudiced. Schmaltz additionally argues that the State’s attempt to prove the charge by inadmissible evidence affected his right to a fair trial. But he does not explain how the proffered testi- mony that his insurance did not pay Gomez’ claim, which testi- mony was not admitted to support a charge that was dismissed, led to his conviction on a separate charge for leaving the scene of an accident. We find no abuse of discretion in the district court’s denial of the motion for mistrial. There is no merit to Schmaltz’ final assignment of error. CONCLUSION The decision of the district court is affirmed. A ffirmed.	{ "pile_set_name": "FreeLaw" }
665 F.2d 1040 Johnsonv.Johnson 81-8087 UNITED STATES COURT OF APPEALS Fourth Circuit 9/1/81 1 E.D.Va. CPC DENIED--DISMISSED	{ "pile_set_name": "FreeLaw" }
649 F.2d 296 UNITED STATES of America, Plaintiff-Appellee,v.Parthenya WHITNEY, Defendant-Appellant. No. 80-7254 Summary Calendar. United States Court of Appeals,Fifth Circuit. Unit B June 29, 1981. Jay L. Strongwater, Asst. Public Defender, Atlanta, Ga., for defendant-appellant. Andrew J. Ekonomou, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee. Appeal from the United States District Court for the Northern District of Georgia. REVISED OPINION Before GODBOLD, Chief Judge, KRAVITCH and HATCHETT, Circuit Judges. PER CURIAM: 1 In this case, we held that the double jeopardy clause of the Fifth Amendment to the Constitution of the United States does not bar consideration of certain evidence in probation revocation proceedings where the same evidence has formed the basis for a previous parole revocation proceeding. While we adhere to our holding, we add these comments in order to clarify our opinion. 2 The facts are adequately set out in our prior opinion, United States v. Whitney, 632 F.2d 654 (5th Cir. 1980), hereby withdrawn, and this revised opinion substituted. 3 The issue presented by this appeal is whether the double jeopardy clause of the fifth amendment applies to parole and probation revocation proceedings. This issue is one of first impression in this circuit. In resolving it, we rely on the Supreme Court decision in Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). 4 In Breed v. Jones, a seventeen year old was charged with the juvenile equivalent of armed robbery. In an adjudicatory hearing, the juvenile court held that the allegations in the petition were true. At a subsequent hearing, however, the juvenile court found that the defendant was unfit for treatment as a juvenile and ordered that he be prosecuted as an adult. After numerous habeas corpus petitions and appeals in both state and federal court, the United States Court of Appeals for the Ninth Circuit held that the double jeopardy clause barred the prosecution of the defendant in adult court. The Supreme Court affirmed. 5 In affirming the court of appeals, the Supreme Court initially noted that "(j)eopardy denotes risk that The risk to which the Clause refers is not present in proceedings that are not 'essentially criminal.' " 421 U.S. at 528, 95 S.Ct. at 1785. Realizing that the juvenile court system had been designed to provide a civil atmosphere in dealing with the anti-social conduct of youth, the Court was confronted with the problem of applying the double jeopardy clause to a proceeding which was conceived as a civil proceeding. In addressing this issue the Court found that a gap exists between the "benign conception of the system and its realities," to such an extent that the Court could "find no persuasive distinction between (a juvenile) proceeding and a criminal prosecution, each of which is designed 'to vindicate (the) vital interest in enforcement of criminal laws.' " 421 U.S. at, 528, 531, 95 S.Ct. 1779, 1785, 1786, 44 L.Ed.2d 346 (quoting United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971)). Thereafter the Court stated: 6 We believe it is simply too late in the day to conclude, as did the district court in this case, that a juvenile is not put in jeopardy at a proceeding whose object is to determine whether he has committed acts that violate a criminal law and whose potential consequences include both the stigma inherent in such a determination and the deprivation of liberty for many years. 7 421 U.S. at 529, 95 S.Ct. at 1785. As additional support for its holding that the double jeopardy clause applies to juvenile proceedings, the Court stated that juvenile proceedings "impose heavy pressures and burdens psychological, physical, and financial on a person charged." 421 U.S. at, 529-30, 95 S.Ct. at 1785-1786. Furthermore, the Court's holding was necessary in order to ensure that the government would not be able to bolster its case by additional evidence or arguments, once it discovered that its evidence was not sufficient to persuade the juvenile court. Swisher v. Brady, 438 U.S. 204, 98 S.Ct. 2699, 57 L.Ed.2d 705 (1978). 8 Turning to the facts of the instant case, parole and probation revocation proceedings are not designed to punish a criminal defendant for violation of a criminal law. The purpose of parole and probation revocation proceedings is to determine whether a parolee or probationer has violated the conditions of his parole or probation. As a result, parole and probation revocation proceedings are fundamentally distinguishable from juvenile proceedings. 9 We do not ignore the fact that some of the considerations which prompted the Supreme Court's decision in Breed v. Jones are also present in parole and probation revocation proceedings. For example, parole and probation revocation proceedings may result in further imprisonment. This consideration, however, is not as compelling in the context of this case because the probationer or parolee has already been convicted and sentenced. 10 In addition, the possibility exists that if the government fails to obtain a parole revocation in a situation where the defendant is on parole and probation, the government will have an opportunity to gather additional evidence in an attempt to obtain a probation revocation. Undoubtedly, such conduct on the part of the government would "impose heavy pressures and burdens psychological, physical, and financial on" the probationer. Breed v. Jones, 421 U.S. at 530, 95 S.Ct. at 1786. A reversal based upon this point, however, would ignore the major reason for the Supreme Court's decision in Breed v. Jones; that no distinction exists between a criminal prosecution and a juvenile proceeding in which a juvenile is found to have violated a criminal law. 11 For the foregoing reasons, we decline to extend the double jeopardy clause to parole and probation revocation proceedings. Accordingly, the trial court's decision denying defendant's motion to dismiss is affirmed. 12 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
145 Wis.2d 71 (1988) 426 N.W.2d 43 Joseph G. WIEGEL, Plaintiff-Appellant and Cross-Respondent,[] v. The CAPITAL TIMES COMPANY, a Wisconsin corporation, Defendant-Respondent and Cross-Appellant. No. 86-2239. Court of Appeals of Wisconsin. Submitted on briefs March 23, 1988. Decided April 21, 1988. 72 For the plaintiff-appellant and cross-respondent the cause was submitted on the briefs of W. Dan Bell, Jr. and Jeffrey D. Boldt, and Bell Law Offices, S.C., of Madison. For the defendant-respondent and cross-appellant the cause was submitted on the briefs of Brady C. Williamson and Robert J. Dreps, and LaFollette & Sinykin, of Madison. Before Dykman, Eich and Sundby, JJ. EICH, J. Joseph Wiegel appeals from a summary judgment dismissing his libel action against the Capital Times Company, publisher of a Madison daily newspaper, The Capital Times. The newspaper cross-appeals from orders denying its motions (a) for partial summary judgment, (b) to dismiss Wiegel's claim for punitive damages, and (c) to strike portions of affidavits submitted by Wiegel in response to the summary judgment motions. The dispositive issue is whether Wiegel may be considered a "public figure" with respect to a controversy 73 involving pollution of a Wisconsin lake, and thus able to recover damages for allegedly defamatory statements in a Capital Times article and editorial concerning the controversy only upon a showing that the statements were made with "actual malice" within the meaning of New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Because we conclude that the New York Times standard applies to Wiegel, and because there is no suggestion in the record that the article and editorial about which he complains were published with actual malice on the newspaper's part, we affirm the judgment dismissing his complaint and deem it unnecessary to discuss other issues raised on the appeal and cross-appeal. The basic facts are not in dispute. On November 12, 1983, The Capital Times published an article entitled "Severe erosion may make lake draining a habit." The article described siltation and other pollution problems at Yellowstone Lake State Park in south central Wisconsin. For the second time in fifteen years, the Department of Natural Resources (DNR) was required to drain, excavate and treat the lake in an attempt to rehabilitate it as a sport fishery. The article referred to reports by agents of the DNR, the United States Geological Survey and the United States Soil Conservation Service, stating that the pollution problems were caused by "farmers in the Yellowstone's watersheds [who] are letting their pesticides, their livestock manure, their very cropland wash into Yellowstone Lake and River ...." The article reported that, during an interview, park manager David Cline pointed to the knolls surrounding the park which were being planted in corn without following recommended soil conservation practices such as terracing or contour tillage, and identified 74 those lands as being chiefly responsible for the lake's problems. Wiegel was described as "one of the largest landowners in the area," and Gene Van Dyck, DNR's area fish manager, was quoted as stating that the DNR has "considered action against Joey Wiegel ... but it isn't just Joey Wiegel's mud there, I guarantee you. The article then stated: According to the U.S. Agricultural Stabilization and Conservation Service, Wiegel has at least 8,000 acres of corn land in Lafayette Countysome 3,000 acres surrounding Yellowstone Lake State Park from which he bulldozed trees and brush after purchasing it from the Boise Cascade Co. County Board Chairman Richard McKnight says the county has tried to persuade Wiegel to practice soil conservation. The county will pay him (and others who qualify) but "he's so large that that amount of cost sharing ($3,500 is the maximum per farmer) is insignificant to him." Wiegel consented to speak only briefly to this newspaper. The farmer said, "I told them to come out with a conservation plan. All they have to do is guarantee an income for me." Wiegel did not leave time to be asked why he feels obliged to own 8,000 acres of corn land if he cannot afford to conserve its soil. The article concluded by describing pending regulatory and legislative proposals to promote soil conservation and curb erosion and manure pollution. On November 23, 1983, The Capital Times ran an editorial on the subject entitled "Thieves of the soil." The editorial cited Yellowstone Lake as a "textbook lesson in how the irresponsible practices of some farmers are robbing the pocketbooks of us all . . . ." The 75 lake was described as a prime fishery which had become a "sea of mud" resulting in a second round of rehabilitative efforts by the DNR at a cost to taxpayers of $100,000. The editorial stated: The owner of some 3,000 acres surrounding the lake is one Joe Wiegel, who received nearly $1 million from the federal government's Payment in Kind (PIK) program this year[1] but cannot be bothered with what conscientious farmers have been practicing for decades: erosion control. At a very minimum, the U.S. Department of Agriculture ought to insist that farmers like Wiegel install soil conservation measures before they receive one cent in PIK money or other support. [Footnote added.] The editorial urged the legislature to approve proposed rules designed to foster erosion and pollution control and concluded: But sterner tools are needed. Soil eroders are stealing the topsoil needed to grow food and ripping off the taxpayers. In any other context, the word for this sort of thing is robbery. When will government start throwing the book at the thieves of our soil? Wiegel sued The Capital Times Company, its parent corporation, Madison Newspapers, Inc. (MNI), and six employees, claiming that the article and editorial had defamed him. He sought both compensatory and punitive damages. The defendants answered and moved for partial summary judgment dismissing the punitive damage claim, the claims against MNI 76 and the individual employees, and all claims relating to the editorial. The trial court dismissed MNI and the employees from the action and denied the remainder of the motion. The Capital Times Company then filed a second motion for summary judgment, a motion to dismiss, and a motion asking the court to reconsider its decision on the editorial and punitive damage claims. The trial judge died while those motions were pending. The successor judge, Judge William Johnston, heard the motions and ruled that the statements in the editorial were absolutely privileged as statements of opinion. As a result, Wiegel's claim was dismissed insofar as it was based on the content of the editorial. The trial court also held that because both the article and the editorial dealt with "subjects of legitimate and serious public interest and concern," Wiegel, even though he was a private citizen rather than a public figure, had the constitutional burden of proving that the statements were not only false, but were published with "actual malice," as that term is defined in New York Times. A few weeks later, the United States Supreme Court held in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56 (1986), that the first amendment requires courts to apply the "clear and convincing evidence" standard to test defamation claims, whether at trial or in pretrial summary judgment motions. The newspaper then renewed its motions and this time the trial court granted them, holding that the material facts were not in dispute and that, because there was no evidence that any of the statements in the article or editorial were published with actual malice, the newspaper was entitled to dismissal of the complaint 77 as a matter of law. The court also dismissed the newspaper's other pending motions. Wiegel appealed, claiming: (1) that the trial court erred in applying the actual malice standard, rather than a standard based on simple negligence; (2) that the court abused its discretion by failing to set forth its reasons for reconsidering its earlier decision on the newspaper's first motion for summary judgment; and (3) that the court erred in ruling that the editorial was entitled to absolute protection as a statement of opinion. Because the trial court correctly concluded, if for the wrong reasons, that the actual malice standard applied, we affirm on that basis and it becomes unnecessary to consider Wiegel's other arguments.[2] New York Times, 376 U.S. at 270, reaffirming the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open," established the rule that a public official could recover damages in a defamation action against a newspaper only by showing that the allegedly defamatory statement was made with "`actual 78 malice'that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Id. at 279-80. Those who debated and framed the constitution firmly believed that public discussion of public issues should be a fundamental principle of American government. This historic commitment to robust debate is based on the desire to ensure that the widest possible range of information, from diverse and sometimes antagonistic sources, and the fullest possible interchange of ideas, may be brought to bear on matters affecting the public interest. It is based, too, on the belief that the best means of securing desired action and social change "lies in the opportunity to discuss freely supposed grievances and proposed remedies," and that the best protection against a bad idea is a good one. Whitney v. California, 274 U.S. 357, 375-76 (1927) (Brandeis, J., concurring). As a result, it has always been "a prized American privilege to speak one's mind, although not always with perfect good taste," on public issues and institutions. Bridges v. California, 314 U.S. 252, 270 (1941) (footnote omitted). Indeed, Justice Black wrote: "Freedom to speak and write about public questions is as important ... as is the heart to the human body. In fact, this privilege is the heart of our government. If that heart be weakened, the result is debilitation; if it be stilled, the result is death." Milk Wagon Drivers U. v. Meadowmoor Dairies, 312 U.S. 287, 301-02 (1941) (Black, J., dissenting). Wisconsin law has always favored free criticism and discussion of public issues, recognizing that "[t]he freedom of speech and ... press are two of our most jealously guarded and basic constitutional rights." State ex rel. Gall v. Wittig, 42 Wis. 2d 595, 606, 167 79 N.W.2d 577, 582 (1969). More than seventy years ago the supreme court recognized that press criticism is "the best security for the proper discharge of public duties." Arnold v. Ingram, 151 Wis. 438, 457, 138 N.W. 111, 119 (1913) (citation omitted). And in doubtful cases "the doubt should be resolved in favor of free criticism and discussion." Grell v. Hoard, 206 Wis. 187, 193, 239 N.W. 428, 430 (1931). We, of course, follow the New York Times rule. Dalton v. Meister, 52 Wis. 2d 173, 183, 188 N.W.2d 494, 499 (1971), cert. denied, 405 U.S. 934 (1972). Wiegel argues, however, that the "actual malice" standard applies only to public officials or public figures and that he, as a private citizen, may recover damages for defamation upon a lesser showing of ordinary negligence on the newspaper's part, citing Denny v. Mertz, 106 Wis. 2d 636, 318 N.W.2d 141, cert. denied, 459 U.S. 883 (1982).[3] We agree with Wiegel that, under Gertz v. Welch, 418 U.S. 323, 347-48 (1974), states are free to set their own standards of proof in media libel actions brought by private individuals. We do not agree, however, that Denny v. Mertz sets the Wisconsin standard as one of simple negligence in all such cases. In that case, Denny, a shareholder in a large Milwaukee corporation, became involved in a campaign 80 to oust the company's executive officer, Orville Mertz. Mertz eventually resigned and, during an interview with a business magazine writer, stated that Denny's employment with the company had been terminated. When the magazine article reported that Denny had been "fired," he sued Mertz and the publisher for libel. The trial court granted summary judgment for the defendants on grounds that Denny was a "public figure" and thus was required to prove actual malice in order to recover. The court of appeals reversed, and, on review, the supreme court agreed, holding that Denny was not a public figure and that the corporate dispute was not a matter of public concern or controversy. Denny, 106 Wis. 2d at 650-51, 318 N.W.2d at 148. We believe Denny is not persuasive on the issues before us. First, the controversy over the pollution problems at Yellowstone Lake State Park concerned issues of substantial public interest. The Denny court, on the other hand, specifically held that no public issue or controversy was involved in that case. Second, we believe that Wiegel, though a private citizen, became a "public figure" with respect to the Yellowstone Lake controversy within the meaning of both Gertz and Denny.[4] 81 The constitutional privilege in defamation actions varies with the law's interest in protecting a plaintiff's reputation. That interest is strongest where the plaintiff is a purely private individual not involved in any matter of public interest or controversy. It is weakest when the plaintiff is a government official or a public figurea private citizen who, by assuming a "role[] of especial prominence in the affairs of society ... [has] invite[d] attention and comment." Gertz, 418 U.S. at 345. Such persons, like public officials, rightly run "the risk of closer public scrutiny than might otherwise be the case." Id. at 344. The United States Supreme Court first recognized this principle in Curtis Publishing Co. v. Butts, 388 U.S. 130, 155, reh. denied, 389 U.S. 889 (1967), a case extending the New York Times rule to "public figures"those persons who, although not government officials, are nonetheless "intimately involved in the resolution of important public questions. . . ." Curtis, 388 U.S. at 164 (Warren, C.J., concurring). Because of the importance of public debate on issues of public significance, the actual malice standard is applied to press comment on the actions and activities of people involved in those issues. Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of "public officials." The fact that they are not amenable to the restraints of the political process only underscores the legitimate and substantial nature of the interest, since it means that public opinion may be the only instrument by which society can attempt to influence their conduct. Id. 82 One may become a public figure in two ways. He or she may be a public figure for all purposes due to general fame or notoriety. More commonly, however, one assumes that status by involvement in a particular public issue or controversy and thereby becomes a public figure for a limited range of issues. Gertz, 418 U.S. at 351. To fit the first category, the person must be a "well-known `celebrity,' his [or her] name a `household word'"a person whose words and deeds are followed by the public "because it regards his [or her] ideas, conduct, or judgment as worthy of its attention . . . ." Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1294 (D.C. Cir.), cert. denied, 449 U.S. 898 (1980) (footnote omitted). We do not believe Wiegel meets this test. However, a person, though not generally famous or notorious, may become a public figure for a "limited purpose" because of his or her involvement in a particular public controversy. And the Wisconsin Supreme Court has agreed that whether a plaintiff is "a `public figure for all purposes' or a `public figure for a particular controversy,'" he or she must establish that the media defendant acted with actual malice in order to prevail in a defamation action. Lewis v. Coursolle Broadcasting, 127 Wis. 2d 105, 119, 377 N.W.2d 166, 172 (1985) (citation omitted). In order to determine whether one may be considered a public figure for a limited purpose, the federal courts have developed a three-step inquiry. In Tavoulareas v. Piro, 817 F.2d 762, 772-73 (D.C. Cir.), cert. denied,U.S., 98 L. Ed. 2d 151 (1987), the court, relying on similar language in Waldbaum, supra, outlined that test as follows: 83 Although few persons attain the level of notoriety to be public figures in all contexts, many individuals may be public figures for the more limited purpose of certain issues or situations. Waldbaum sets out a three-step inquiry to identify these limited-purpose public figures. First, we isolate the controversy at issue, because the scope of the controversy in which the plaintiff involves himself [or herself] defines the scope of the public personality. The controversy must be public both in the sense that "persons actually were discussing" it, and that "persons beyond the immediate participants in the dispute [are likely] to feel the impact of its resolution." Second, we examine the plaintiff's role in the controversy, to be sure that it is more than "trivial or tangential." An individual does not forfeit the full protection of the libel laws merely by stating a position on a controversial issue if he or she is not a principal participant in the debate or is unlikely to have much effect on its resolution. Finally, we determine if the alleged defamation was germane to the plaintiff's participation in the controversy. [Citations omitted; bracketing in original.] In Denny v. Mertz, the Wisconsin Supreme Court phrased the inquiry somewhat differently, relying on language in Gertz emphasizing the "voluntariness" of the plaintiffs involvement in the controversy. [W]e consider the following criteria applicable to whether a defamation plaintiff may be considered a public figure. First, there must be a public controversy. While courts are not well-equipped to make this determination as pointed out in Gertz, the nature, impact, and interest in the controversy to which the communication relates has a bearing on whether a plaintiff is a public figure. Secondly, 84 the court must look at the nature of the plaintiff's involvement in the public controversy to see whether he [or she] has voluntarily injected himself [or herself] into the controversy so as to influence the resolution of the issues involved. Factors relevant to this test are whether the plaintiff's status gives him [or her] access to the media so as to rebut the defamation and whether plaintiffs should be deemed to have "voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them." Denny, 106 Wis. 2d at 649-50, 318 N.W.2d at 147-48, quoting Gertz, 418 U.S. at 344-45. [Footnote omitted.] We note, however, the Gertz court itself recognized that "voluntary injection" into a controversy is only one way of becoming a limited purpose public figure: "More commonly, an individual voluntarily injects himself [or herself] or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues." Id., 418 U.S. at 351 (emphasis added). Professor Tribe agrees, concluding that, under the cases, there are three categories of "public persons": (1) those who have "general fame and notoriety in the community"; (2) those who have "voluntarily injected themselves into a public controversy"; and (3) "involuntary public figures"those who are "involved in or directly affected by the actions of public officials." Tribe, American Constitutional Law 880 (2d ed. 1988) (citations and footnotes omitted). For the latter category, Tribe offers the example of a magazine seller arrested by police for distributing obscene literature as "an involuntary public figure with respect to reports or comments about the arrest." Id. 85 We agree with this analysis and believe that the focus of the inquiry should be on the plaintiff's role in the public controversy rather than on any desire for publicity or other voluntary act on his or her part. The purpose served by protecting the press from defamation suits for comment on public issues and the people involved in those issues could well be frustrated if the individuals could, by themselves and wholly independent of their involvement in the controversy, determine whether they are, or are not, "public figures." Comment upon people and activities of legitimate public concern often illuminates that which yearns for shadow. It is no answer to the assertion that one is a public figure to say, truthfully, that one doesn't choose to be. It is sufficient ... that "[the plaintiff] voluntarily engaged in a course that was bound to invite attention and comment." Rosanova v. Playboy Enterprises, Inc., 580 F.2d 859, 861 (5th Cir. 1978). [Citation omitted.] The trial court concluded that Wiegel was a private, not a public, figure because he was a "reluctant participant in the public controversy generated by the DNR's concern over the water quality in Yellowstone Lake. . . ." We consider the conclusion to be legally erroneous because we believe Wiegel's desireor lack of desireto draw attention to himself is irrelevant. Lewis, 127 Wis. 2d at 117, 377 N.W.2d at 171. Even if Wiegel did not consciously or voluntarily thrust himself into the dispute, he may nonetheless be a limited purpose public figure if his activities "almost inevitably put him into the vortex of a public controversy." McDowell v. Paiewonsky, 769 F.2d 942, 950 (3d Cir. 1985). In Dameron v. Washington Magazine, Inc., 86 779 F.2d 736, 742-43 (D.C. Cir. 1985), cert. denied, 476 U.S. 1141 (1986), the court held that an air traffic controller, who wholly involuntarily and "[b]y sheer bad luck" was thrust into a central role in a controversy surrounding a plane crash, was an "involuntary public figure for the very limited purpose of discussion of the ... crash." As a result, he was required to prove actual malice in order to prevail in a libel action based on statements about his role in the crash appearing in a magazine article. We thus turn to the first step in the Waldbaum/Tavoulareas analysisdetermining whether the events surrounding the pollution and drawdown of Yellowstone Lake constituted a public controversy. The trial court found that soil conservation and erosion have been issues of public concern for many years and that the effect of erosion on water quality is a matter of great societal interest. Wiegel does not challenge that ruling, and we believe it was proper. Indeed, a public controversy was inevitable when the DNR determined that soil erosion and the resulting siltation and pollution problems caused by the agricultural] practices of Wiegel and other area farmers required extensive and expensive efforts by the government to save Yellowstone Lake and the surrounding state parklands as valuable recreational resources. [1] It also was inevitable that the controversy would focus on Wiegel, the farmer with the largest acreage in the area. We note, for example, that the Wisconsin State Journal, a newspaper of statewide circulation, had published an article several months earlier that specifically discussed DNR's efforts to persuade Wiegel to adopt recommended soil conservation practices in the Yellowstone Lake areaincluding the threat of 87 a pollution lawsuit should he fail to do so. Wiegel's resistance to DNR's cleanup efforts, and his position on the merits of the disputethat he would not resume soil conservation practices on his land if it might lower his incomewere well-documented in the Journal article. We are satisfied that the issues discussed in The Capital Times article and editorial related to a public controversy. [2] We are also satisfied that Wiegel's role in the controversy was far more than "trivial" or "tangential." Tavoulareas, 817 F.2d at 773. While he was but one of several farmers in the watershed, his was by far the largest farm in the area, and he was the subject of public threats of DNR legal action to force him to cease cultivating his lands in a manner causing pollution of the lake. Wiegel was the central figure in the controversy, and the statements in the article and editorial describing his agricultural practices were germane to the public dispute over the conditions leading to the drawdown of Yellowstone Lake. When Wiegel first purchased his land, comprising some 2,400 acres on the north side of the lake, he publicly stated his intention to use appropriate soil conservation practices. His acquisition of such a large tract of land, and his statements about the manner in which he proposed to use it, were reported in the press as far away as Milwaukee. He concedes that he soon abandoned those plans and discontinued using the conservation methods employed by his predecessors. As a result, soil erosion increased and state and local officials attempted to persuade him to implement sound conservation practices, which he consistently declined to do. As a result, voluntarily or not, he 88 became the center of the controversy over the pollution of Yellowstone Lake. [3] We conclude, therefore, that the test for determining whether Wiegel was a limited purpose public figure under Waldbaum, Tavoulareas, Rosanova, and similar cases has been met. There was a controversy of substantial statewide public interest affecting persons beyond the immediate participants in the dispute. Wiegel's role in the controversy was neither trivial nor tangential. It was substantial; and the statements in the article and editorial were germane to his central position in the dispute. It follows that the trial court correctly ruled that Wiegel was required to prove actual malice in order to recover. We believe this conclusion is also consistent with the statement in Denny that a plaintiff's "access to the media" for purposes of rebutting the alleged defamation is relevant to his or her status as a public figure. Id., 106 Wis. 2d at 650, 318 N.W.2d at 148. As we have said, the Denny court's emphasis on the "voluntariness" of the plaintiff's entry into the public fray focused on only one aspect of the issue as framed in Gertz, the case cited as authority for the statement in Denny. In light of the above-quoted language from Gertz and later federal cases such as Tavoulareas, McDowell, and Rosanovaand the Wisconsin court's recent decision in Lewiswe believe that voluntariness should no longer be considered the touchstone in limited public figure determinations. Even so, we believe that the Denny court's concern about a defamation plaintiff's media access has been met in this case. The earlier Wisconsin State Journal article reported at length on the lake drawdown and traced 89 Wiegel's long-running dispute with the DNR over his agricultural practices. Among other things, it pin-pointed erosion from Wiegel's farm as contributing "more than [his] share of silt into Yellowstone Lake." Wiegel was interviewed for the article, and the Journal printed his side of the dispute. He was quoted as saying that it was unfair to single him out among all farms in the area whose soil runoff entered the lake, and that while he was trying to prevent erosion, he could not afford to use practices that would reduce his income from the land. He indicated his willingness to adopt soil conservation practices recommended by DNR as long as the land would continue to provide him with an adequate "cash flow." Wiegel was also interviewed for The Capital Times article. He was contacted by the article's author and offered the opportunity to respond. He said that he would take corrective conservation measures only if his income would not suffer and then ended the conversation, stating that he did not wish to discuss the matter further. His statement was reported in the article. After the article appeared, Wiegel continued to be contacted by the press, and he took the opportunity to publicize his side of the dispute in subsequent articles appearing in the Wisconsin State Journal (May 18, 1984), the Dubuque Telegraph Herald (January 19, 1984), and in the magazine The Country Today (March 1, 1984). He had ample access to the media to rebut the assertions in The Capital Times article and editorial. Under any view, Wiegel was a public figure for the limited purpose of the matters relating to the controversy surrounding the pollution and drawdown of Yellowstone Lake. The dispute was one of significant statewide interest, as is evidenced not only by the *90 nature of the controversy itself, but also by the wideranging media coverage of the conditions and events leading up to the drawdown and Wiegel's role in those events. As the central figure in the dispute, with proven access to the media to air his side of the story, he became a "public figure" with respect to the Yellowstone Lake pollution controversy. As such, he may assert a claim for libel against a newspaper for printing factual and editorial commentary on the dispute only upon a showing that the statements were published with knowledge that they were false, or with reckless disregard as to whether they were false or not. We agree with the trial court that, as a matter of law, this is not such a case. By the Court.Judgment affirmed. NOTES [] Petition to review denied. [1] The reference is to the assertion, reported in The Capital Times article, that Wiegel had received $942,380 from a federal crop subsidy program. [2] Wiegel's argument that the trial court abused its discretion by failing to state the reasons underlying its decision to reconsider the newspaper's earlier motions for summary judgment is based largely on his assertion that sec. 806.07, Stats., applies to such a decision, and that the several statutory criteria for vacation of judgments must be considered and balanced by the court in deciding a reconsideration motion. We disagree. The power to reconsider a decision is not granted by sec. 806.07. It is among the court's inherent powers. See Eisenberg v. ILHR Department 59 Wis. 2d 98, 103-04, 207 N.W.2d 874, 877 (1973). In any event, we have reviewed the trial court's decision on the motions. It occupies thirty pages in the record and discusses the parties' positions, the law and the facts at considerable length, and it outlines the reasoning underlying the ultimate decision. We see no abuse of discretion. [3] Wiegel also cites several cases from other jurisdictions and an A.L.R. annotation in support of his argument that the majority of courts have applied the negligence standard to media defamation suits commenced by private citizens. Wiegel describes those cases as holding that actual malice is not required for "private figure plaintiffs." Because we hold that Wiegel was a limited purpose public figure for purposes of comment on the controversy surrounding the pollution and drawdown of Yellowstone Lake, cases involving wholly private figure plaintiffs are inapposite. [4] As indicated, the trial court held that Wiegel was not a public figure, but nonetheless applied the actual malice standard. We, of course, disagree. But because we conclude that Wiegel was a limited purpose public figure, the trial court's resultapplication of the actual malice standardwas correct. Wiegel suggests that we may not independently review the question of whether he was, or was not, a private figure. We disagree. Findings of constitutional fact are always subject to de novo review in a defamation action. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 508 n. 27, reh. denied, 467 U.S. 1267 (1984).	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-7302 GREGORY H. JONES, Plaintiff - Appellant, v. ROBERT MCKAY; ANTHONY E. RAND; WILLIS J. FOWLER; DERRICK E. WADSWORTH, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:12-ct-03213-BO) Submitted: February 25, 2016 Decided: February 29, 2016 Before SHEDD and HARRIS, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Gregory H. Jones, Appellant Pro Se. Joseph Finarelli, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gregory H. Jones appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2012) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Jones v. McKay, No. 5:12-ct-03213-BO (E.D.N.C. Aug. 5, 2015). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 2	{ "pile_set_name": "FreeLaw" }
576 N.W.2d 428 (1998) 227 Mich. App. 508 PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Julie Kim MELL and Michele Lynn Butson, Defendants-Appellees. Docket No. 194892. Court of Appeals of Michigan. Submitted November 13, 1997, at Detroit. Decided January 23, 1998, at 9:10 a.m. Released for Publication April 13, 1998. 429 Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Janet A. Napp, Assistant Prosecuting Attorney, for People. Carl L. Rubin, Southfield, for Defendants-Appellees. Before BANDSTRA, P.J., and MARK J. CAVANAGH and MARKMAN, JJ. BANDSTRA, Presiding Judge. Defendants were charged with violating M.C.L. § 750.335; M.S.A. § 28.567 as a result of "lap dancing" that was observed by undercover officers at "Hardbodies," an "adult entertainment" nightclub, on April 6, 1995. The officers alleged that, while apparently at least partially nude, defendants allowed patrons of the club to kiss and suck their breasts during the lap dance activity. The statute, in pertinent part, states that "any man or woman ... who shall be guilty of open and gross lewdness and lascivious behavior, shall be guilty of a misdemeanor...." In a two-page opinion, the circuit court reversed the district court's denial of a motion to dismiss the charges, finding the statutory terms "lewd" (sic) and "lascivious" unconstitutionally vague. We conclude that the circuit court erred in broadly deciding that the statute was unconstitutional, and we affirm for more limited reasons. "[F]ew principles of judicial interpretation are more firmly grounded than this: a court does not grapple with a constitutional issue except as a last resort." Taylor v. Auditor General, 360 Mich. 146, 154, 103 N.W.2d 769 (1960). Accord People v. Krezen, 427 Mich. 681, 713, n. 32, 397 N.W.2d 803 (1986) ("[i]t is a familiar principle that courts avoid grappling with constitutional questions if the cause can be decided on other grounds") (Levin, J., dissenting); Hodge v. Pontiac Twp. Bd., 363 Mich. 544, 545-546, 110 N.W.2d 746 (1961). This "policy of self-restraint" is consistent with "Chief Justice Marshall's rationale of judicial review as a reluctant power exercised only because the Court must decide cases brought before it in conformity with the Constitution." Nowak & 430 Rotunda, Constitutional Law (4th ed.), § 2.12(g), pp. 88-89. It is also based on pragmatic considerations: Judicial review is inconsistent with pure majority rule, and, because of the conflict between the judiciary and the democratic system, may result in popular disapproval of court action. The policy of a strict necessity in disposing of constitutional issues is a useful device that helps assure that judicial review does not take place gratuitously. [Id. at 89]. In addition to the complete avoidance of constitutional questions if possible, this doctrine also requires that "constitutional issues affecting legislation will not be determined... in broader terms than are required by the precise facts to which the ruling is to be applied." Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 569, 67 S.Ct. 1409,1419, 91 L.Ed. 1666 (1947). Accordingly, "if the record presents some other ground upon which the case may be disposed of" in a more narrow fashion, a broad constitutional challenge should not be considered. Id. To summarize, when presented with a constitutional challenge to a statute, courts must exercise self-restraint.[1] Courts must be loath to discard statutes enacted by a majority of the elected representatives of the people through the legislative process. While courts have an obligation to review the constitutionality of statutes and the power to do so, it is a power that must be exercised reluctantly. Courts should address broad constitutional challenges of statutes only as a last resort, when a case cannot be decided on other grounds entirely or when constitutional concerns cannot be satisfied in a more limited or narrow fashion. Applying these principles to the present case, we conclude that the circuit court erred in broadly deciding that the statute at issue here was unconstitutionally vague.[2] Nonetheless, we affirm the decision to dismiss the criminal charges against defendants for different reasons. People v. Ortiz (After Second Remand), 224 Mich.App. 468, 477, 569 N.W.2d 653 (1997) ("[w]here the trial court reaches the right result for the wrong reason, this Court will not reverse"). Without regard to the general constitutionality of the statute, the charges against defendants had to be dismissed because of facts and circumstances specific to this case. At the time of defendants' allegedly criminal conduct, our Court had defined "lewdness" in a limited fashion and determined that "[l]ap dancing itself does not constitute lewdness unless it is done for the purpose of masturbation." State ex rel. Wayne Co. Prosecuting Attorney v. Dizzy Duck, 203 Mich.App. 250, 260, 511 N.W.2d 907 (1994), vacated 449 Mich. 353, 535 N.W.2d 178 (1995) (Dizzy Duck I). In the present case, the prosecutor does not argue that the lap dancing was done for the purpose of masturbation. Instead, the prosecutor argues that we should reverse the decision of the lower court on the basis of the Supreme Court's reversal of Dizzy Duck I.[3] In State ex rel. Wayne Co. *431 Prosecutor v. Dizzy Duck, 449 Mich. 353, 364, 535 N.W.2d 178 (1995) (Dizzy Duck II), the Supreme Court determined that a masturbatory purpose is not required; lewdness includes conduct of an "almost-nude female employee squirming in the lap of a customer for his sexual arousal" such as is at issue in this case. We agree with the prosecutor that the alleged conduct of defendants in this case falls within the Supreme Court's definition of lewdness in Dizzy Duck II. However, Dizzy Duck II was decided July 25, 1995; its definition of lewdness cannot be applied against defendants because it was unavailable to them at the time of the April 6, 1995, lap-dancing incident that formed the basis for the charges in this case. It is true that interpretations of statutory provisions by a court may add a clarifying gloss to otherwise unclear words, and therefore provide constructive notice to future defendants, but "an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law ..." and "... the effect is to deprive [the defendant] of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime." Bouie v. City of Columbia, 378 U.S. 347, 353, 355, 84 S.Ct. 1697, 1702, 1703, 12 L.Ed.2d 894 (1964). [People v. Dempster, 396 Mich. 700, 715-716, 242 N.W.2d 381 (1976) (emphasis in original).][4] Lap dancers such as defendants may have received "fair warning" that their conduct constitutes criminal lewdness as a result of Dizzy Duck II. However, that was certainly not the case before that decision but after our Court had clearly determined that lap dancing without a masturbatory purpose did not constitute lewdness. We affirm. MARK J. CAVANAGH, Judge. I concur in the result only. NOTES [1] Generally, this self-restraint must be exercised sua sponte by the court; neither party will be advocating that approach. In this case, for example, defendants had no interest in arguing that the charges against them had to be dismissed for narrow, fact-specific reasons, having broadly argued that the statute was unconstitutional. The prosecutor wanted the dismissed charges reinstated and certainly had no incentive to argue that the charges were properly dismissed under a more limited, fact-specific analysis. [2] Even that decision was broader than it had to be. Whatever the status of nude dancing as an expressive activity protected by the First Amendment, lap dancing, which involves physical contact with others for their sexual stimulation, is not so considered. E.g., State ex rel. Miller v. Private Dancer, 83 Ohio App.3d 27, 31-32, 613 N.E.2d 1066, 1069 (1992); Hoskins v. Dep't of Business Regulation, 592 So.2d 1145, 1146 (Fla.App., 1992). In fact, defendants do not argue that their activity is entitled to First Amendment protection. Defendants, accordingly, can raise a vagueness challenge to the statute only as it applies to their conduct, rather than "on its face" in the abstract. United States v. Nat'l Dairy Products Corp., 372 U.S. 29, 36, 83 S.Ct. 594, 600, 9 L.Ed.2d 561 (1963); People v. Howell, 396 Mich. 16, 21, 238 N.W.2d 148 (1976). The circuit court compounded its error by ignoring this distinction and broadly declaring the statute unconstitutional, apparently with reference to any conduct that might allegedly fall within its proscription. [3] The Dizzy Duck cases did not consider the statute at issue here but rather were concerned with the nuisance abatement statute, M.C.L. § 600.3801; M.S.A. § 27A.3801. The prosecutor does not argue that the analysis of the Dizzy Duck cases is thus inapplicable here. We note that the Supreme Court has directed our Court to consider State ex rel. Wayne Co. Prosecutor v. Dizzy Duck, 449 Mich. 353, 535 N.W.2d 178 (1995) (Dizzy Duck II) in application to criminal cases. People v. Maxwell, 450 Mich. 889, 539 N.W.2d 512 (1995). In any event, we consider any argument that might have been advanced suggesting that the Dizzy Duck cases are inapplicable here to be waived. [4] Our Supreme Court has recently determined that this principle is inapplicable in a case "where a precisely drafted statute, unambiguous on its face" is interpreted by the Supreme Court for the first time after the allegedly criminal conduct at issue. People v. Doyle, 451 Mich. 93, 113, 545 N.W.2d 627 (1996). We consider Doyle inapposite because the statutory language here, i.e., "open and gross lewdness and lascivious behavior," is not precisely drafted or unambiguous on its face.	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION DEC 13 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CHRISTOPHER ALARCON, No. 16-55523 Plaintiff-Appellant, D.C. No. 3:15-cv-00992-LAB-KSC v. VITAL RECOVERY SERVICES, INC. MEMORANDUM* and GALAXY ASSET PURCHASING, LLC, Defendants-Appellees. Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Argued and Submitted December 4, 2017 Pasadena, California Before: D.W. NELSON and REINHARDT, Circuit Judges, and STEEH,** District Judge. The district court concluded that there was a valid agreement to arbitrate between the parties that encompassed the dispute at issue, see Knutson v. Sirius * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable George Caram Steeh III, United States District Judge for the Eastern District of Michigan, sitting by designation. XM Radio Inc., 771 F.3d 559, 564-65 (9th Cir. 2014), and granted Defendants’ motion to compel arbitration. Although the FAA “embodies the national policy favoring arbitration[,] . . . the liberal federal policy regarding the scope of arbitrable issues is inapposite when the question is whether a particular party is bound by the arbitration agreement.” Norcia v. Samsung Telecomms. Am., LLC, 845 F.3d 1279, 1291 (9th Cir. 2017) (citations omitted). A district court should not decide as a matter of law that the parties entered into an agreement to arbitrate when there is a genuine issue of fact concerning the formation of any agreement. See Three Valleys Mun. Water Dist. v. E.F. Hutton & Co., 925 F.2d 1136, 1141 (9th Cir. 1991); see also Cordas v. Uber Techs., 228 F.Supp.3d 985, 989 (N.D. Cal. 2017). “The district court, when considering a motion to compel arbitration which is opposed on the ground that no agreement to arbitrate had been made between the parties, should give to the opposing party the benefit of all reasonable doubts and inferences that may arise.” Three Valleys, 925 F.3d at 1141 (citation omitted); see also Cordas, 228 F.Supp.3d at 989. The district court clearly erred in finding that the Defendants met their burden of proving the existence of an agreement to arbitrate by a preponderance of the evidence. See Knutson, 771 F.3d at 565. Defendants provided no facts supporting their assertion that Galaxy had been assigned Beneficial’s contractual 2 rights and thus was a party to an agreement to arbitrate with Alarcon. Defendants offered only a Declaration by an “authorized representative” of Galaxy that she was authorized to review Galaxy’s files. The Declaration is both insufficient and inadmissible. California law does not mandate a particular form to show a valid assignment, but the evidence must be sufficient to show that the owner of a right manifested an intent to transfer that right. See Cockerell v. Title Ins. & Trust Co., 42 Cal.2d 284, 291 (1954) (in bank); see also Cobb v. S.F. Residential Rent Stabilization and Arbitration Bd., 98 Cal.App.4th 345, 352-53 (2002). The Declaration contains only the legal conclusion that “[i]n November of 2011 Galaxy became the assignee of certain assets of Beneficial [] including [Alarcon’s] consumer loan account.” It contains no facts to support this conclusion. It is not even clear that the Declarant reviewed any of Galaxy’s business records to reach this conclusion. There is no evidence at all that Beneficial assigned its rights to Galaxy or any other intermediary assignee. Moreover, the Declaration’s legal conclusion is inadmissible in any form. Although the Declaration might have served to authenticate actual business records had Defendants attached any, the Declaration itself is not an admissible business record or summary of business records because it was prepared for litigation and 3 not regularly kept as part of the practice of any business. Fed. R. Evid. 803(6). The Declaration is likewise not an admissible summary because Defendants have not alleged that any records are too voluminous to be conveniently examined, nor have they provided originals or duplicates as required. Fed. R. Evid. 1006. Finally, because the legal conclusion is offered to prove the content of business records that allegedly document assignment, it is inadmissible unless Defendants produce the original records. Fed. R. Evid. 1002. They did not produce those records here. Because there was no admissible evidence of an agreement to arbitrate between the parties, we REVERSE and REMAND with instructions to reinstate Alarcon’s complaint and to deny Defendants’ motion to compel arbitration. 4	{ "pile_set_name": "FreeLaw" }
T.C. Memo. 2007-73 UNITED STATES TAX COURT MARTIN AND SHARON SMITH, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 3876-05L. Filed March 29, 2007. Wendy S. Pearson, Terri A. Merriam, Jennifer A. Gellner, Jaret R. Coles, and Asher B. Bearman, for petitioners.1 Thomas N. Tomashek and Gregory M. Hahn, for respondent. 1 Wendy S. Pearson (Pearson), Terri A. Merriam (Merriam), Jennifer A. Gellner (Gellner), and Jaret R. Coles entered their appearances in this case by subscribing the petition commencing this proceeding. See Rule 24(a). (Unless otherwise indicated, Rule references are to the Tax Court Rules of Practice and Procedure, and section references are to the applicable versions of the Internal Revenue Code.) Asher B. Bearman entered his appearance on July 18, 2005, and withdrew on Nov. 17, 2006. Pearson and Gellner withdrew from the case on Oct. 24 and Nov. 14, 2006, respectively. - 2 - MEMORANDUM FINDINGS OF FACT AND OPINION LARO, Judge: Petitioners Martin Smith (Smith) and Sharon Smith petitioned the Court under section 6330(d) to review the determination of respondent’s Office of Appeals (Appeals) sustaining a proposed levy related to petitioners’ assessed Federal income tax liability (inclusive of additions to tax, penalties, and interest) for 1984, 1985, 1986, and 1991; that liability totaled $79,461. Petitioners argue that the proposed levy is improper because, they argue, Appeals was required to accept their offer to pay $11,552 to compromise their assessed and unassessed Federal income tax liability (inclusive of additions to tax, penalties, and interest) for 1984 through 1996; petitioners estimate that liability to total $265,023. We decide whether Appeals abused its discretion in rejecting petitioners’ offer. We hold it did not.2 2 Petitioners also dispute a determination by Appeals concerning their liability for increased interest under sec. 6621(c). As to this dispute, the parties agreed to be bound by a final decision in Ertz v. Commissioner, docket No. 20336-04L, which involved a similar issue. On Jan. 24, 2007, the Court held in Ertz v. Commissioner, T.C. Memo. 2007-15, that the Court lacks jurisdiction to decide the issue to which the parties agreed to be bound. On the basis of Ertz v. Commissioner, supra, we shall dismiss for lack of jurisdiction the portion of this case that concerns petitioners’ liability for increased interest under sec. 6621(c). - 3 - FINDINGS OF FACT The parties filed with the Court stipulations of fact and accompanying exhibits. The stipulated facts are found accordingly. Petitioners are husband and wife, and they resided in Tucson, Arizona, when their petition was filed. On their Federal income tax returns beginning in 1984, petitioners claimed losses and credits from their investment in several partnerships organized and operated by Walter J. Hoyt III (Hoyt). The partnerships were subject to the unified audit and litigation procedures of the Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. 97-248, sec. 402(a), 96 Stat. 648. Hoyt was convicted on criminal charges relating to the promotion of these partnerships. Petitioners’ claim to the partnerships’ losses and credits resulted in the underreporting of their personal 1984, 1985, 1986, and 1991 Federal income taxes. On November 13, 2003, respondent mailed to petitioners a Letter 1058, Final Notice of Intent to Levy and Notice of Your Right to a Hearing. The notice informed petitioners that respondent proposed to levy on their property to collect amounts owed as to their 1984, 1985, 1986, and 1991 Federal income taxes; all of these amounts were attributable to the just referenced underreporting of income. The notice advised petitioners that they were entitled to a - 4 - hearing with Appeals to review the propriety of the proposed levy. On December 2, 2003, petitioners requested the referenced hearing with Appeals. The request asserted in relevant part that the proposed levy was inappropriate because: (1) Petitioners were entitled to compromise their liability on account of effective tax administration, given, they claimed, that the Hoyt partnership cases were “longstanding” and petitioners were the “unwitting victims” of fraud perpetrated by Hoyt; (2) interest was required to be abated under section 6404(e), an issue, petitioners noted, then pending before the Court of Appeals for the Sixth Circuit in Mekulsia v. Commissioner, 389 F.3d 601 (6th Cir. 2004), affg. T.C. Memo. 2003-138; (3) the Commissioner’s imposition of tax-motivated interest for 1984 through 1986 was inappropriate given the facts of the case; and (4) petitioners were not given an opportunity to be heard during the examination of the Hoyt partnerships in that, they claimed, they were represented by Hoyt who had an impermissible conflict of interest and was thus incapable of representing them properly. On May 12, 2004, Nancy Driver (Driver), a settlement officer in Appeals, contacted petitioners with respect to their request by mailing a letter to Merriam, petitioners’ representative as stated on a power of attorney. The letter, a copy of which was mailed to petitioners, stated that Driver would contact - 5 - petitioners to schedule the hearing and asked petitioners to tender the following items to Driver before the Hearing so that she could explore a resolution: “Your proposal to resolve the outstanding balance”; “Any documentation supporting your position on any issue you wish to discuss”; “Completed and signed Form 433-A, Collection Information Statement for [Wage Earners and Self-Employed] Individuals, along with supporting documentation”; “Completed and signed Form 433-B, Collection Information Statement for Businesses, along with supporting documentation. This is required only if you own or have interest in a business”. The letter stated that petitioners should provide the referenced information to Driver by June 2, 2004. Pursuant to the request of Gellner, who was also listed in a power of attorney as petitioners’ representative, Driver extended the June 2, 2004, date until June 30, 2004. On June 29, 2004, petitioners submitted to Driver four letters with accompanying exhibits; a signed and completed Form 656, Offer in Compromise, with an accompanying payment of a related $150 fee; and a signed and completed Form 433-A with supporting documentation. Through this submission, petitioners offered to pay the Commissioner $11,552 to compromise what they estimated was their $265,023 assessed and unassessed Federal income tax liability (inclusive of additions to tax, penalties, and interest) for 1984 through 1996. Each of the four letters - 6 - included in the submission related to a different topic designated by petitioners as such, the four topics being: (1) A presentation of the facts and arguments related to the hearing, including an explanation of the offer amount and medical and retirement considerations; (2) a delay in the determination and assessment of their liabilities due to the criminal investigation of Hoyt; (3) effective tax administration; and (4) tax-motivated interest under section 6621(c). The Form 656 was signed by each petitioner on June 14, 2004, and stated that petitioners were making their offer-in-compromise on the grounds of effective tax administration and doubt as to collectibility. The Form 433-A was signed by each petitioner on June 14, 2004, and reported that petitioners owned the following assets with a current value (net of reported liabilities) of $124,038:3 Checking account $933 Money market account 576 IRAs1: Vanguard 25,529 Zurich 31,161 56,690 Stock of GE/Motorola 8,165 Vehicles: Ford Ranger 7,085 Less loan balance 10,997 (3,912) Mercury Grand Marquis 4,920 1,008 3 Form 433-A states that each asset reported on the form should be valued at its “Current value”, defined on the form as “the amount you could sell the asset for today”. - 7 - Home2 160,648 Less mortgage loan balance 103,982 56,666 124,038 1 The reported values of the IRAs (individual retirement accounts) equal 70 percent of their account balances. Petitioners reported the lesser values to reflect their liability for income tax on a liquidation of the accounts. 2 The reported value equals the home’s assessed value. The Form 433-A reported that petitioners had no disposable income, listing that their monthly income totaled $3,223 and their monthly living expenses totaled $4,042.4 The income was reportedly attributable to Smith’s receipt of Social Security and/or a pension.5 The living expenses were reportedly attributable to the following items: Food, clothing, and miscellaneous: $801 1 Housing and utilities: 1,360 2 Transportation: 715 3 Health care: 262 Taxes (income and FICA): 130 Life insurance: 259 4 Attorney fees: 479 4,006 1 The Form 433-A reports that petitioners’ monthly payment on their mortgage loan was $899 and that they were required to make these payments until 2026. 2 The Form 433-A reports that petitioners’ monthly payment on their car loan was $349. 3 Petitioners told Driver that they were experiencing 4 The listed expenses reported as totaling $4,042 actually total $4,006. 5 Petitioners’ 2003 Federal income tax return reported that they had $34,885 of adjusted gross income and $14,798 of taxable income. - 8 - various medical complications and were required to take various prescription and other medications. Petitioners never claimed to Driver that the monthly cost of these complications and medications exceeded their reported monthly health care costs. 4 These attorney fees are apparently related to this litigation. By way of a letter dated October 18, 2004, Driver notified petitioners that she had scheduled their hearing (requested by petitioners as a telephonic hearing) for November 18, 2004. The letter also stated that Driver had learned from third parties that petitioners apparently owned certain assets which were not reported on their Form 433-A, specifically, an IRA valued at $54,405 with Indianapolis Life Insurance Company (Indianapolis Life); two lots of real estate sited in Apache County, Arizona; and one lot of real estate sited in Pima County, Arizona. In reply to the letter’s request that petitioners explain why the referenced assets were not included on the Form 433-A, petitioners, on October 28, 2004, acknowledged that they owned the IRA with Indianapolis Life and the lots of real estate and that they had left those assets off of their Form 433-A. Petitioners stated in the letter that the IRA had been overlooked in preparing the Form 433-A. Petitioners stated in the letter that they had forgotten about the three unreported lots which, they stated, were worthless. On November 18, 2004, Driver held the scheduled hearing with petitioners’ counsel. At that time, Smith and his wife were 68 - 9 - and 64 years old, respectively. Driver made the following calculation in determining that petitioners’ net realizable equity in assets was $161,844: Assets and Liabilities Reported on Form 433-A IRAs: Vanguard 25,529 Zurich 31,161 56,690 Stock of GE/Motorola 8,165 Home 160,648 Less mortgage loan balance 103,982 56,666 121,521 Other Assets 1 IRA: Indianapolis Life 38,823 2 Lots in Apache and Pima Counties 1,500 40,323 Net realizable equity in assets 161,844 1 This amount equals 70 percent of the $55,462 balance in this account as of Sept. 30, 2004. 2 This amount equals $1,300 less than the total assessed values of these lots. Driver calculated petitioners’ reasonable collection potential to be $161,844, the same amount as their net realizable equity in assets; in other words, Driver determined that petitioners had no disposable income. On January 26, 2005, Appeals issued petitioners the notice of determination sustaining the proposed levy as to 1984, 1985, 1986, and 1991. The notice reflects Driver’s conclusion that petitioners’ offer of $11,552 was inadequate under the applicable guidelines and that the proposed levy balances the need for the - 10 - efficient collection of taxes with the concern that the proposed levy be no more intrusive than necessary. As to the former conclusion, the notice states: Taxpayers challenged the proposed enforcement collection action by levy. Taxpayers submitted an Offer in Compromise, Doubt as to Collectibility and Effective Tax Administration, in the amount of $11,552.00 during the CDP proceedings. The OIC was not an acceptable collection alternative and was rejected. Taxpayers did not disclose all assets on the Collection Information Statements attached to the offer. They did not disclose assets which constituted about 25% of their net realizable equity. By not disclosing their complete financial status, this Appeals Officer is concerned about their good faith effort to resolve this matter. They were not forthcoming in establishing their financial status. This Appeals Officer concluded the offer should not be accepted under doubt as to collectibility because taxpayers have sufficient assets to pay the assessed liability. Further, the offer should not be accepted under effective tax administration as it would undermine compliance by taxpayers with the tax laws. Taxpayers included in the offer years that have unresolved TEFRA issues, thus the liability has not been assessed. During the Collection Due Process proceedings taxpayers did not resolve the years with TEFRA issues by entering into settlement agreements. Taxpayers did not propose any other acceptable collection alternatives. Taxpayers declined to pay the outstanding liability. The proposed collection enforcement action by levy is valid and appropriate. The notice further states: The proposed collection action by levy balances the need for the efficient collection of taxes with the - 11 - concern that collection action be no more intrusive than necessary. Taxpayer [sic] did not propose any acceptable collection alternatives. The notice of determination also addresses the other claims made by petitioners in their request for a hearing, in support of their assertion that the proposed levy was inappropriate. First, the notice notes that the Court of Appeals for the Sixth Circuit held in Mekulsia v. Commissioner, 389 F.3d 601 (6th Cir. 2004), that the taxpayer was not entitled to an abatement of interest. Second, the notice states that petitioners never established that their facts did not support the imposition of interest under section 6621(c). Third, the notice indicates that petitioners never discussed at the hearing their claim that they were not given an opportunity to be heard during the examination and, hence, that Driver considered that issue to be abandoned. OPINION This case is yet another in a long list of cases brought in this Court involving respondent’s proposal to levy on the assets of a partner in a Hoyt partnership to collect Federal income taxes attributable to the partner’s participation in the partnership. In each of the other prior cases, all of which were brought by Merriam as either counsel or co-counsel, this Court has sustained respondent’s right to levy on the assets of the petitioning taxpayer (or, in the case of joint returns, the petitioning taxpayers). See Hansen v. Commissioner, T.C. Memo. - 12 - 2007-56; Catlow v. Commissioner, T.C. Memo. 2007-47; Estate of Andrews v. Commissioner, T.C. Memo. 2007-30; Freeman v. Commissioner, T.C. Memo. 2007-28; Johnson v. Commissioner, T.C. Memo. 2007-29; Abelein v. Commissioner, T.C. Memo. 2007-24; Hubbart v. Commissioner, T.C. Memo. 2007-26; Carter v. Commissioner, T.C. Memo. 2007-25; Ertz v. Commissioner, T.C. Memo. 2007-15; McDonough v. Commissioner, T.C. Memo. 2006-234; Lindley v. Commissioner, T.C. Memo. 2006-229; Blondheim v. Commissioner, T.C. Memo. 2006-216; Clayton v. Commissioner, T.C. Memo. 2006-188; Keller v. Commissioner, T.C. Memo. 2006-166; Barnes v. Commissioner, T.C. Memo. 2006-150. As was equally true as to the taxpayers in many of those prior cases, petitioners here made a lowball offer to Appeals to compromise their tax debt and now argue in this Court that Appeals’s rejection of their offer was an abuse of discretion because, generally speaking, they claim that the Appeals officer did not appreciate the specifics of their case. Where an underlying tax liability is not at issue in a case invoking our jurisdiction under section 6330(d), we review a determination of Appeals for abuse of discretion. See Sego v. Commissioner, 114 T.C. 604, 610 (2000). We reject the determination of Appeals only if the determination was arbitrary, capricious, or without sound basis in fact or law. See Cox v. Commissioner, 126 T.C. 237, 255 (2006); Murphy v. Commissioner, - 13 - 125 T.C. 301, 308, 320 (2005), affd. 469 F.3d 27 (1st Cir. 2006). Where we decide the propriety of Appeals’s rejection of an offer-in-compromise, as we do here, we review the reasoning underlying that rejection to decide whether the rejection was arbitrary, capricious, or without sound basis in fact or law. We do not substitute our judgment for that of Appeals, and we do not decide independently the amount that we believe would be an acceptable offer-in-compromise. See Murphy v. Commissioner, supra at 320; Fowler v. Commissioner, T.C. Memo. 2004-163; Fargo v. Commissioner, T.C. Memo. 2004-13, affd. 447 F.3d 706 (9th Cir. 2006). Nor do we usually consider arguments, issues, or other matters raised for the first time at trial, but we limit ourselves to matter brought to the attention of Appeals. See Murphy v. Commissioner, supra at 308; Magana v. Commissioner, 118 T.C. 488, 493 (2002). “[E]vidence that * * * [a taxpayer] might have presented at the section 6330 hearing (but chose not to) is not admissible in a trial conducted pursuant to section 6330(d)(1) because it is not relevant to the question of whether the Appeals officer abused her discretion.” Murphy v. Commissioner, supra at 315.6 6 In Murphy v. Commissioner, 125 T.C. 301 (2005), affd. 469 F.3d 27 (1st Cir. 2006), the Court declined to include in the record external evidence relating to facts not presented to Appeals. The Court distinguished Robinette v. Commissioner, 123 T.C. 85 (2004), revd. 439 F.3d 455 (8th Cir. 2006), and held that the external evidence was inadmissible in that it was not (continued...) - 14 - Section 6330(c)(2)(A)(iii) allows a taxpayer to offer to compromise a Federal tax debt as a collection alternative to a proposed levy. Section 7122(c) authorizes the Commissioner to prescribe guidelines to determine when a taxpayer’s offer-in- compromise should be accepted. The applicable regulations, section 301.7122-1(b), Proced. & Admin. Regs., list three grounds on which the Commissioner may accept an offer-in-compromise of a Federal tax debt. These grounds are “Doubt as to liability”, “Doubt as to collectibility”, and to “Promote effective tax administration”. Sec. 301.7122-1(b)(1), (2), and (3), Proced. & Admin. Regs. Petitioners argue in brief that Appeals (acting through Driver) abused its discretion by not accepting their offer to compromise their tax liability on the ground of effective tax administration in that, they assert, Driver did not adequately 6 (...continued) relevant to the issue of whether Appeals abused its discretion. In a memorandum that petitioners filed with the Court on April 13, 2006, pursuant to an order of the Court directing petitioners to explain the relevancy of any external evidence that they desired to include in the record of this case, petitioners made no claim that they had offered any of the external evidence to Driver. Instead, as we read petitioners’ memorandum in the light of the record as a whole, petitioners wanted to include the external evidence in the record of this case to prove that Driver abused her discretion by not considering facts and documents that they had consciously decided not to give to her. Consistent with Murphy v. Commissioner, supra, we sustained respondent’s relevancy objections to the external evidence. - 15 - consider the specifics of their case.7 The Commissioner may compromise a tax liability to promote effective tax administration when collection of the full liability will create economic hardship and the compromise would not undermine compliance with the tax laws by taxpayers in general. See sec. 301.7122-1(b)(3)(i), (iii), Proced. & Admin. Regs. If a taxpayer does not qualify for effective tax administration compromise on grounds of economic hardship, the regulations also allow the Commissioner to compromise a tax liability to promote effective tax administration when the taxpayer identifies compelling considerations of public policy or equity. See sec. 301.7122-1(b)(3)(ii), Proced. & Admin. Regs. Driver considered all of the evidence submitted to her by petitioners, and she applied the guidelines for evaluating an offer-in-compromise to promote effective tax administration. She determined that petitioners’ offer was unacceptable because, among other reasons, they were not forthcoming in establishing 7 Petitioners’ posttrial opening brief also states as an issue the question of whether Appeals abused its discretion by rejecting petitioners’ request for an offer-in-compromise on the ground of doubt as to collectibility. The brief does not, however, advance any direct argument on this issue, stating instead that the resolution of the issue is controlled by our decision on petitioners’ claim of effective tax administration. We consider petitioners to have waived any independent claim of error related to Appeals’s rejection of their offer-in-compromise on the ground of doubt as to collectibility and limit our discussion to Appeals’s rejection of petitioners’ offer-in- compromise on the ground of effective tax administration. - 16 - their financial status and acceptance of the offer would undermine compliance with the tax laws by taxpayers in general. She determined that petitioners’ offer to pay $11,552 was unacceptable because they had the financial wherewithal to pay more than that amount. Driver’s ultimate determination to reject petitioners’ $11,552 offer-in-compromise was not arbitrary, capricious, or without a sound basis in fact or law, and it was not abusive or unfair to petitioners. Her determination was based on a reasonable application of the guidelines, which we decline to second-guess. See Speltz v. Commissioner, 124 T.C. 165 (2005), affd. 454 F.3d 782 (8th Cir. 2006). In their posttrial opening brief, petitioners essentially make four arguments in advocating a contrary result. First, petitioners argue that Driver did not adequately consider their unique facts and circumstances. We disagree. Driver reviewed and considered all information given to her by petitioners. On the basis of the facts and circumstances of petitioners’ case as gleaned from that information, as well as learned from other information obtained during her independent analysis, Driver determined that petitioners’ offer did not meet the applicable guidelines for acceptance of an offer-in-compromise to promote effective tax administration because acceptance of that offer would undermine compliance with the tax laws by taxpayers in general. We find no abuse of discretion in that determination. - 17 - Nor do we find that Driver inadequately considered the information given to her by petitioners. Driver accepted all of the values for assets, liabilities, income, and expenses given to her by petitioners on their Form 433-A, and she only increased the value of petitioners’ total assets to take into account the unreported assets which she uncovered during her independent analysis. Indeed, even in the case of the unreported assets, Driver’s valuation of those assets did not significantly depart from petitioners’ valuation of those assets.8 We find that Driver gave thorough consideration to all of petitioners’ claims in the light of all of the facts that were communicated to her by petitioners or were otherwise learned by her from other sources. As petitioners view this issue, the opinion of the Court of Appeals for the Ninth Circuit in Fargo v. Commissioner, 447 F.3d 706 (9th Cir. 2006), requires that Appeals accept their $11,552 offer because, they claim, their investment in the Hoyt partnerships was not purely tax motivated, they were victims of Hoyt’s fraud, and respondent and Hoyt caused a significant delay in the resolution of respondent’s examinations of the Hoyt partnerships. We do not read Fargo v. Commissioner, supra, as 8 Petitioners’ sole dispute with Driver’s valuation of their assets relates to the unreported lots, which petitioners contend had no value. We cannot fathom that the lots had no value whatsoever, and we do not believe that it was an abuse of Driver’s discretion to value each lot at a minimal average value of $500. - 18 - broadly as petitioners. Fargo does not support their claim that Appeals was automatically required to accept petitioners’ bargain-basement offer of $11,552. It cannot be gainsaid that a significant motivation of their investment in the Hoyt tax shelters was to realize tax savings. Petitioners also argue that their offer was required to be accepted because they adequately demonstrated that they will suffer economic hardship if required to pay their assessed tax liability in full. To this end, petitioners state, Driver ignored both their medical issues and their age and retirement status in making her determination, and it is “reasonably foreseeable” that they will need all of their home equity and retirement assets to compensate for this shortfall and to use for their care and support in the future. By petitioners’ count, their monthly income is exceeded by their monthly expenses, creating a deficit of $819 (i.e., monthly income of $3,223 less monthly living expenses of $4,042), and Driver’s analysis requires that they liquidate all of their retirement accounts and home equity in order to pay their tax liability. We disagree with petitioners that they have demonstrated that requiring them to pay more than $11,552 towards their assessed tax liability will result in an economic hardship.9 The 9 Even if they had shown economic hardship, a compromise on the basis of effective tax administration will not be made if it (continued...) - 19 - record establishes that Driver, when she made her determination, did know the specifics of petitioners’ age and financial status (including the amount and sources of petitioners’ income) and that she accepted the amount of the monthly medical expenses reported to her by petitioners on their Form 433-A. Driver was not required on her own initiative to increase arbitrarily the amount of those reported medical expenses to reflect the possibility that petitioners would incur additional medical costs in the future. See Fargo v. Commissioner, supra at 710. Driver’s analysis focused on petitioners’ $79,461 assessed liability, and petitioners’ net realizable equity in assets was $161,844, an amount that exceeds petitioners’ assessed liability by $82,383. We do not consider Appeals to have abused its discretion by rejecting petitioners’ claim that they will suffer an economic hardship if required to pay more than their $11,552 offer.10 9 (...continued) would undermine compliance with the tax laws by taxpayers in general, see sec. 301.7122-1(b)(3)(iii), Proced. & Admin. Regs., and Driver determined that petitioners failed to meet that essential requirement. 10 Petitioners argue that Driver’s analysis is flawed in that she considered only their assessed tax liability and not their assessed and unassessed tax liability. In that Driver concluded that petitioners’ offer of $11,552 in compromise of their $79,461 assessed tax liability was unacceptable, petitioners have not explained to our satisfaction how increasing the stated assessed liability almost threefold to reflect the amount of the unassessed liability would then make their offer (continued...) - 20 - Second, petitioners argue that public policy demands that their offer-in-compromise be accepted because they were victims of fraud. We disagree. While the regulations do not set forth a specific standard for evaluating an offer-in-compromise based on claims of public policy or equity, the regulations contain two illustrative examples. See sec. 301.7122-1(c)(3)(iv), Examples (1) and (2), Proced. & Admin. Regs. The first example describes a taxpayer who is seriously ill and unable to file income tax returns for several years. The second example describes a taxpayer who received erroneous advice from the Commissioner as to the tax effect of the taxpayer’s actions. Neither example bears any resemblance to this case. See Speltz v. Commissioner, 454 F.3d at 786. Unlike the exceptional circumstances exemplified in the regulations, petitioners’ situation is neither unique nor exceptional in that petitioners’ situation mirrors that of numerous taxpayers who claimed tax shelter deductions in the 1980s and 1990s, obtained the tax advantages, promptly forgot about their “investment”, and now realize that paying their taxes may require a change of lifestyle.11 10 (...continued) acceptable. 11 Of course, the examples in the regulations are not meant to be exhaustive, and petitioners’ situation is not identical to that of the taxpayers in Fargo v. Commissioner, 447 F.3d 706, 714 (9th Cir. 2006), affg. T.C. Memo. 2004-13, regarding whom the Court of Appeals for the Ninth Circuit noted that “no evidence (continued...) - 21 - We also agree with Driver that compromising petitioners’ case on grounds of public policy or equity would not promote effective tax administration. While petitioners portray themselves as victims of Hoyt’s alleged fraud and respondent’s alleged delay in dealing with Hoyt, they take no responsibility for their tax predicament. We cannot agree that acceptance by respondent of petitioners’ $11,552 offer to satisfy their estimated $265,023 tax liability would enhance voluntary compliance by other taxpayers. A compromise on that basis would place the Government in the unenviable role of an insurer against poor business decisions by taxpayers, reducing the incentive for taxpayers to investigate thoroughly the consequences of transactions into which they enter. It would be particularly inappropriate for the Government to play that role here, where the transaction at issue involves a tax shelter. Reducing the risks of participating in tax shelters would encourage more 11 (...continued) was presented to suggest that Taxpayers were the subject of fraud or deception”. Such considerations, however, have not kept this Court from finding investors in Hoyt’s shelters to be culpable of negligence, see, e.g., Keller v. Commissioner, T.C. Memo. 2006-131, nor prevented the Courts of Appeals for the Sixth, Ninth, and Tenth Circuits from affirming our decisions to that effect in Hansen v. Commissioner, 471 F.3d 1021 (9th Cir. 2006), affg. T.C. Memo. 2004-269; Mortensen v. Commissioner, 440 F.3d 375 (6th Cir. 2006), affg. T.C. Memo. 2004-279; and Van Scoten v. Commissioner, 439 F.3d 1243 (10th Cir. 2006), affg. T.C. Memo. 2004-275. - 22 - taxpayers to run those risks, thus undermining rather than enhancing compliance with the tax laws.12 Third, petitioners argue that Driver failed to balance efficient collection with the legitimate concern that collection through the proposed levy be no more intrusive than necessary. We disagree. Driver thoroughly considered this balancing issue on the basis of the information and proposed collection alternative (offer-in-compromise) given to her by petitioners. She concluded that the proposed levy action was an appropriate means for collecting the liabilities at issue. She thoroughly considered petitioners’ arguments for accepting their offer-in- compromise, and she rejected the offer only after concluding that petitioners could pay more of their tax liability than the $11,552 they offered. Cf. Internal Revenue Manual sec. 5.8.11.2.1(11) (“When hardship criteria are identified but the taxpayer does not offer an acceptable amount, the offer should not be recommended for acceptance”). 12 Nor does the fact that petitioners’ case may be “longstanding” overcome the detrimental impact on voluntary compliance that could result from respondent’s accepting petitioners’ offer-in-compromise. An example in Internal Revenue Manual sec. 5.8.11.2.2 implicitly addresses the “longstanding” issue. There, the taxpayer invested in a tax shelter in 1983, thereby incurring tax liabilities for 1981 through 1983. He failed to accept a settlement offer by respondent that would have eliminated a substantial portion of his interest and penalties. Although the example, which is similar to petitioners’ case in several respects, would qualify as a “longstanding” case by petitioners’ standards, the offer was not acceptable because acceptance of it would undermine compliance with the tax laws. - 23 - Fourth, petitioners argue that Driver inappropriately failed to consider whether they qualified for an abatement of interest for reasons other than those described in section 6404(e). We disagree. We find nothing to suggest that Driver believed that petitioners’ sole remedy for interest abatement in this case rested on the rules of section 6404(e). In fact, regardless of the rules of section 6404(e), Driver obviously would have abated interest in this case had she agreed to let petitioners compromise their liability by paying less than the amount of interest included within that liability. All the same, we find no basis in the evidence for an abatement of interest, nor any abuse of discretion by Driver in denying their request for abatement. Cf. Mekulsia v. Commissioner, 389 F.3d 601 (6th Cir. 2004). We hold that Appeals (acting through Driver) did not abuse its discretion in rejecting petitioners’ $11,552 offer-in- compromise. In so holding, we express no opinion as to the amount of any compromise that petitioners could or should be required to pay, or that respondent is required to accept. The only issue before us is whether Appeals abused its discretion in refusing to accept petitioners' specific offer-in-compromise in the amount of $11,552. See Speltz v. Commissioner, 124 T.C. at 179-180. We have considered all arguments made by petitioners - 24 - for a contrary holding, and we have found those arguments not discussed herein to be without merit. An appropriate order and decision will be entered.	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 97-4827 ALVON ALLEN THOMAS, a/k/a Kebo, Defendant-Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Winston-Salem. Richard C. Erwin, Senior District Judge. (CR-97-118) Submitted: October 20, 1998 Decided: December 10, 1998 Before ERVIN and MOTZ, Circuit Judges, and BUTZNER, Senior Circuit Judge. _________________________________________________________________ Affirmed by unpublished per curiam opinion. _________________________________________________________________ COUNSEL J. David James, SMITH, JAMES, ROWLETT & COHEN, L.L.P., Greensboro, North Carolina; Eric Richard Nordman, Westerville, Ohio, for Appellant. Walter C. Holton, Jr., United States Attorney, Clifton T. Barrett, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION PER CURIAM: Alvon Allen Thomas appeals from his conviction for possession with intent to distribute crack cocaine in violation of 21 U.S.C.A. § 841(a)(1) (West 1981 & Supp. 1998), and the 230-month sentence imposed by the district court. On appeal, he contends that the district court erred by: (1) denying his motion to appoint substitute counsel; (2) instructing the jury as to the charged offense; (3) refusing to instruct the jury as to the lesser included offense of possession of a controlled substance; (4) sentencing him under the guidelines for crack cocaine rather than for cocaine powder; (5) failing to review the evidence and make specific factual findings to support the sentencing enhancement for obstruction of justice; (6) denying his motion to sup- press evidence; and (7) refusing to allow the admission of certain evi- dence, in violation of Thomas' right to due process. In his three supplemental briefs, Thomas expands upon issues raised in the formal briefs and raises the additional argument that the district court erred in allowing Dr. Shirley Brinkley to testify as an expert witness. Find- ing no error, we grant Thomas' motions for leave to file supplemental briefs and to file his reply brief out of time and affirm Thomas' con- viction and sentence. I. While conducting a stationary driver's license check in Winston- Salem, North Carolina, Trooper Kevin Martin of the North Carolina State Highway Patrol observed a white BMW pull onto the right shoulder of the road, remain for thirty to forty-five seconds, and then approach the checking station. Trooper Martin saw the operator of the vehicle--later identified as Thomas--move about in the vehicle and lean toward the passenger side of the vehicle; he did not see Thomas throw anything from the vehicle. Following this brief stop, Thomas drove the BMW to where Martin was stationed and handed Martin his driver's license. 2 As Trooper Martin reached for the license, he detected a strong odor of marijuana coming from the vehicle. He asked Thomas to pull to the left shoulder of the road and exit the vehicle. As Thomas got out of the car, Martin asked if Thomas had a weapon on him. Thomas said no. Martin then conducted a pat down search. When Trooper Martin put his hands on Thomas' waistband, Thomas jumped back into the car, wrapped his arms around the steering wheel and said that he needed to call his attorney. Martin requested that Thomas exit the vehicle. When he refused, Trooper Martin attempted to pull Thomas from the car. Martin then told Thomas that if he did not get out of the vehicle, he would be sprayed with pepper spray. Thomas then exited the vehicle and attempted to run from Trooper Martin. Trooper Mar- tin held him and arrested him for delaying and obstructing an officer. Trooper Martin placed handcuffs on Thomas and placed him on the ground. Trooper Martin and Trooper Naylor searched Thomas and found in his pants pocket five bags containing a hard rock-like sub- stance of what appeared to be crack cocaine. Following Thomas' arrest, the officers searched the BMW and located a pager, a $100 bill, a set of pocket scales, marijuana residue in the ashtray, and vari- ous documents. Dr. Shirley Brinkley, a forensic toxicologist for Forsyth County, performed the chemical analysis on the contraband seized from the BMW. She testified at trial that the residue found in the ashtray was marijuana. She also determined after extensive testing that the sub- stance in four of the five small bags seized from Thomas was crack cocaine. Because the items in the five bags had similar appearances, Dr. Brinkley testified that she tested the contents of only four of the five bags. She determined that the net weight of the substance was 135.3 grams. Thomas, proceeding pro se with standby counsel, called several witnesses and testified on his own behalf. At the conclusion of the trial, the jury returned a verdict of guilty. The district court sentenced Thomas to 230 months imprisonment to be followed by a five-year term of supervised release. Thomas timely noted his appeal. II. Thomas first contends that the district court erred in refusing to delay the start of the trial and to appoint substitute counsel. We 3 review this decision for abuse of discretion. See United States v. Corporan-Cuevas, 35 F.3d 953, 956 (4th Cir. 1994). In determining whether the district court abused its discretion in denying Thomas' motion for a continuance and to appoint new counsel, this court con- siders whether the motion was timely, whether the district court suffi- ciently inquired into Thomas' complaint, and whether the degree of conflict between Thomas and his appointed counsel amounted to a "total lack of communication" and thus prevented an adequate defense. See id. (quoting United States v. Gallop, 838 F.2d 105, 108 (4th Cir. 1988)). Thomas was arrested on June 2, 1997. On June 6, 1997, when he appeared before a magistrate judge, he waived appointment of assigned counsel. Assistant Federal Public Defender Greg Davis was appointed to represent Thomas. At the July 7, 1997, motion hearing, Thomas requested that Davis be replaced because he was "insuffi- cient." Davis moved to withdraw on July 8, 1997. At the hearing on this motion, Thomas asserted that he was not "comfortable" with Davis, Davis did not meet with him before the hearing, and Davis did not argue what was written in the motions. With the trial scheduled to begin on July 14, 1997, the trial judge informed Thomas that he could remain with Davis, retain other counsel, or represent himself. Davis provided Thomas with a copy of the government's prosecution file. The court did not relieve Davis, but retained him as standby counsel. On the day of trial, Thomas, having acknowledged the possible pun- ishment he faced and that he would be held to the same standards as an attorney, stated that he would represent himself. "[T]he court is entitled to take into account the . . . state interest in proceeding on schedule" when considering whether a defendant's request for substitution of counsel is timely made. Gallop, 838 F.2d at 108. In this case, Thomas requested new counsel one week before trial. Concerning the substantiality of the complaints Thomas had against Davis, the court is required to inquire into the factual basis for the defendant's dissatisfaction. See United States v. Mullen, 32 F.3d 891, 896 (4th Cir. 1994). Thomas' basis for requesting new counsel was counsel's failure to meet with him prior to the hearing on the motion to suppress, failure to argue at the hearing the points raised in 4 the suppression motion, and that Davis' "spirit does not compare with mine." Having reviewed the arguments counsel did make during the suppression hearing, we find that these reasons are insufficient to show that there was a total breakdown in communication. See Mullen, 32 F.3d at 896-97. Because we find that the district court conducted an adequate inquiry as to the basis for Thomas' request for new counsel and find that the stated reasons do not evidence a total lack of communication preventing an adequate defense, we find no abuse of discretion in the district court's denial of Thomas' motion for substitution of counsel. See Corporan-Cuevas, 35 F.3d at 956; Gallop, 838 F.2d at 108. Likewise, we find that the district court conducted a sufficient inquiry into Thomas' desire and ability to represent himself. Before allowing a defendant to proceed pro se, the court must conduct an adequate inquiry and advise the defendant of the"dangers and disad- vantages of self-representation" to assure that the waiver of counsel is knowing, intelligent, and voluntary. See Faretta v. California, 422 U.S. 806, 835 (1975); Gallop, 838 F.2d at 110-11. In this case, Thomas stated that he understood the charge against him and the possible punishment. He asked whether he could defend himself in federal court. The district court explained the order of events in a jury trial and asked if Thomas had questions or wanted anything else explained. Thomas understood that Davis was appointed as standby counsel to answer any questions he might have, and Thomas stated that he appreciated Davis' availability. A refusal to accept an able court-appointed attorney is a voluntary waiver of counsel, Gallop, 838 F.2d at 109. We find that Thomas knowingly, voluntarily, and intelligently waived his right to appointment of coun- sel and chose to proceed pro se. III. Thomas next contends that the district court erred in instructing the jury as to the charged offense. During the charge to the jury, the dis- trict court instructed on the elements of distribution of a controlled substance. The Assistant United States Attorney noted this mistake and the court then instructed as to possession. Again, the Assistant 5 United States Attorney informed the court that the indictment charged possession with intent to distribute. The court then correctly instructed the jury on this offense. Five minutes into deliberations, the jury returned, inquiring about the definition of"possession." A juror also inquired whether they "could have one maybe without the other." The district court responded by stating that to convict Thomas, they must find that he possessed the drugs and that he had the intent to dis- tribute the drugs. Because the instructions, taken as a whole, fairly state the law as to possession with intent to distribute, we find no plain error in the court's instructions. See United States v. Cobb , 905 F.2d 784, 788-89 (4th Cir. 1990); United States v. McCaskill, 676 F.2d 995, 1001 (4th Cir. 1982) (standard of review). Here, the district court inadvertently instructed the jury as to possession only and distribution only, and finally, correctly instructed as to possession with intent to distribute. Because the jury had before them the indictment charging possession with intent to distribute and did receive the proper instruction prior to deliberations, the district court's mistaken instructions do not rise to the level of plain, reversible error. See United States v. Hanley, 974 F.2d 14, 18-19 (4th Cir. 1992). IV. Thomas also contends that the district court erred in refusing to instruct the jury as to the lesser included offense of possession of a controlled substance. A defendant is not entitled as a matter of course to a lesser included offense instruction. See United States v. Walker, 75 F.3d 178, 179 (4th Cir. 1996). Rather, such an instruction is war- ranted where "proof of the element that differentiates the two offenses [is] sufficiently in dispute that the jury could rationally find the defen- dant guilty of the lesser offense but not guilty of the greater offense." Id. at 180. On the evidence presented in this case, an instruction on mere possession was not warranted. The quantity of crack cocaine involved--135 grams--supports an intent to distribute. See United States v. Roberts, 881 F.2d 95, 99 (4th Cir. 1989). The packaging of the drugs into five one-ounce packages may evidence an intent to dis- tribute. See United States v. Childs, 463 F.2d 390, 392 (4th Cir. 1972). Also, the absence from the location of drug paraphernalia which would provide a means of ingesting the drugs and the lack of 6 any evidence of Thomas' personal use of crack cocaine may be con- sidered in determining whether the evidence could be construed to show mere possession. See United States v. Wright, 131 F.3d 1111, 1112-13 (4th Cir. 1997), cert. denied, #6D 6D6D# U.S. ___, 66 U.S.L.W. 3782 (U.S. June 8, 1998) (No. 97-9034); United States v. Levy, 703 F.2d 791, 792 (4th Cir. 1983) (presence of pipes customarily used for the purpose of consuming cocaine considered to support instruction on lesser included offense). In this case there is no evidence of Thomas' personal drug use. In fact, he denied using crack and he denied even possessing the pack- ages of crack. Because this element is not sufficiently in dispute so as to warrant an instruction on mere possession of a controlled sub- stance, the district court appropriately did not give such an instruc- tion. See Walker, 75 F.3d at 180. V. Thomas next contends that the district court erred in sentencing him under the guidelines for crack cocaine rather than for cocaine powder. He asserts that the government failed to prove that the sub- stance was crack cocaine. However, Dr. Brinkley was qualified as an expert in the field of forensic toxicology and testified as to the differ- ences between crack cocaine and cocaine hydrochloride. She then explained the testing she performed on the substance seized from Thomas, and she gave her opinion that the substance was crack cocaine. Likewise, two law enforcement officers--Trooper Martin and Trooper Naylor--testified that, based on their training and experi- ence, the substance seized from Thomas was crack. See United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976) (lay testimony and cir- cumstantial evidence is sufficient to identify controlled substances). Although there was no evidence presented that the substance was pre- pared by processing powder cocaine and sodium bicarbonate, the guideline definition merely states that crack is usually prepared in this manner. The definition acknowledges that not all forms of crack are prepared by using sodium bicarbonate. See U.S. Sentencing Guide- lines Manual § 2D1.1(c), Note (D) (1995). Thomas also challenges the enhanced sentences provided for crack cocaine over those provided for cocaine powder offenses. We have 7 previously upheld the sentencing ratio against equal protection and due process challenges, and we decline to revisit this issue. See United States v. Ford, 88 F.3d 1350, 1365 (4th Cir. 1996); United States v. Fisher, 58 F.3d 96, 99-100 (4th Cir. 1995). VI. Thomas next challenges the obstruction of justice enhancement to his sentence, contending that the district court failed to review the evi- dence and make specific factual findings to support the sentencing enhancement. He asserts that his "theory of defense was that the cocaine found on his person was planted by the police. The truth or falsity of that defense is not an issue." The Sentencing Guidelines provide for a two-level adjustment for obstruction of justice. See USSG § 3C1.1. Perjury constitutes an obstruction of justice. See USSG § 3C1.1, comment. (n. 3(b)). Before imposing the enhance- ment, the district court must make an independent finding that the defendant provided false testimony on a material matter with the intent to deceive. See United States v. Dunnigan , 507 U.S. 87, 95 (1993). Addressing Thomas' objection to the enhancement in the presen- tence report, the district court reminded Thomas of his trial testimony that the troopers did not locate any cocaine or cocaine base on his per- son. Similarly, Thomas denied this fact at the earlier hearing on his motion to suppress evidence. After the court overruled Thomas' objection to the presentence report, the government urged the court to make explicit findings and proposed such findings. The court then stated that it did so find. The findings proposed by the government were also contained in the presentence report, and the district court adopted the findings contained therein. We find that the district court appropriately enhanced Thomas' sentence for obstruction of justice and that the district court's adoption of the proposed findings does not --as Thomas asserts--implicate the "concern that courts will enhance sentences as a matter of course whenever the accused takes the stand and is found guilty." Dunnigan, 507 U.S. at 96-97. VII. Thomas also challenges the district court's decision to deny his motion to suppress evidence. Trooper Martin lawfully stopped 8 Thomas at the routine license checkpoint. See Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990). Upon identifying the strong odor of marijuana coming from Thomas' car, Martin was justified in further detaining Thomas. See United States v. Sifuentes, 504 F.2d 845, 848 (4th Cir. 1974) (strong marijuana odor places contraband in plain view). Based on Trooper Martin's observation of the marijuana smell, Thomas' actions prior to approaching the checkpoint, Martin's experience that weapons frequently accompany drugs, and the poten- tial hazards involved in roadside encounters with a suspect, Trooper Martin was justified in conducting a protective search to uncover any concealed weapons. See United States v. Baker , 78 F.3d 135, 137 (4th Cir. 1996). Thomas' actions in jumping back into the car, wrapping his hands around the steering wheel, and refusing to exit the vehicle constituted resisting, delaying, or obstructing an officer under N.C. Gen. Stat. § 14-223 (Michie 1993). See State v. McNeill, 283 S.E.2d 565, 567 (N.C. App. 1981) (flight from a lawful investigatory stop provides probable cause to arrest individual for violation of N.C. Gen. Stat. 14- 223.). Because the arrest was proper, the search incident to arrest was proper, and the district court appropriately denied Thomas' motion to suppress the drugs found during that search. VIII. The next issue presented by Thomas is that the district court erred and denied him due process of law by allowing the government to admit certain evidence and refusing to allow him to admit certain evi- dence. Specifically, he challenges the admission of the fact that he received citations for misdemeanor offenses of which he had not been convicted. These questions were relevant to connect Thomas to an incriminating letter that was seized from the vehicle along with the citations and other personal effects bearing Thomas' name. The dis- trict court properly allowed these questions. Thomas also challenges the government's inquiries concerning the number of times he had been stopped for driving while his license was revoked. These ques- tions were proper to impeach his earlier claim that his license was valid at the time of his arrest. The government's questions regarding Thomas' 1995 conviction for carrying a concealed weapon were improper because this offense 9 is punishable by only 60 days. See N.C. Gen. Stat. § 15A-1340.23 (Michie 1983). However, Thomas did not answer these questions and cannot thereby claim that he was prejudiced. Additionally, Thomas freely admitted that he had two or three previous concealed weapons convictions. We find that any error resulting from the improper ques- tions about Thomas' 1995 conviction was harmless. Thomas also contends that the district court erred in refusing to allow him to admit into evidence the troopers' prior testimony and police reports. However, Thomas was allowed to question the wit- nesses concerning these documents, and in fact, while questioning a witness, did read one officer's complete statement. However, Thomas never marked the proffered documents as an exhibit, never had a wit- ness identify the documents, and did not attempt to admit the docu- ments into evidence. Rather, Thomas repeatedly attempted to read the contents of the documents to the jury. We find no abuse of discretion in the district court's evidentiary rulings. See United States v. Gravely, 840 F.2d 1156, 1163 (4th Cir. 1988). IX. In his supplemental brief, Thomas raises an additional issue con- cerning the propriety of the district court's admission of Dr. Brinkley as an expert witness. Because Thomas did not object to Dr. Brinkley's qualifications or her testimony, our review is for plain error. See Fed. R. Crim. P. 52(b); United States v. Adam, 70 F.3d 776, 780 (4th Cir. 1995). Dr. Brinkley testified about her considerable educational back- ground and training. Although she admitted that most of her work was in the area of testing urine samples for the presence of drugs, she had some experience in testing drugs and determining their type, purity, and quantity. She testified as to the differences between crack cocaine and cocaine hydrochloride. She then explained the tests she per- formed on the substance seized from Thomas and gave her opinion that the substance was crack cocaine. We find no abuse of discretion by the district court in allowing Dr. Brinkley to testify concerning the manner in which she tested the drugs, the results of the testing, and her conclusions from those results. See United States v. Powers, 59 10 F.3d 1460, 1470-71 (4th Cir. 1995); United States v. Harris, 995 F.2d 532, 534 (4th Cir. 1993). Moreover, even if the district court erred in allowing Dr. Brinkley to express her opinion that the substance was crack cocaine, such error was not plain error. The admission of Dr. Brinkley's opinion did not affect Thomas' substantial rights. See United States v. Moore, 11 F.3d 475, 481 (4th Cir. 1993) (finding plain error only if error affects substantial rights and impairs integrity or reputation of judicial pro- ceedings). Whether the drug seized was cocaine powder or crack cocaine was not disputed during the trial. The two law enforcement officers involved in Thomas' arrest--Trooper Martin and Trooper Naylor--testified that, based on their training and experience, the substance seized from Thomas was crack. See Dolan, 544 F.2d at 1221. Also, these officers described the drug found during the search as a "hard, rock-like substance." This is a description typical of crack cocaine. See USSG § 2D1.1(c), Note (D). Thomas presented no evi- dence supporting his argument that the substance was not crack cocaine. Rather, he based his defense on his contention that the offi- cers planted the drugs in the vehicle. We conclude that the district court's decision to allow Dr. Brinkley to testify as an expert was not an abuse of discretion and did not amount to plain error. X. In conclusion, we grant Thomas' motions to file supplemental briefs and to file his reply brief out of time. We have considered the arguments raised therein, and we affirm Thomas' conviction and his sentence. 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 11	{ "pile_set_name": "FreeLaw" }
781 S.W.2d 605 (1989) Ronald Mark HOLLOWAY, Appellant, v. The STATE of Texas, Appellee. No. 70955. Court of Criminal Appeals of Texas, En Banc. December 20, 1989. Richard L. Ray, John A. Sickel, Canton, for appellant. Robert T. Cornelius, Dist. Atty., and Jeffie J. Massey, Asst. Dist. Atty., Canton, Robert Huttash, State's Atty., Austin, for the State. Before the court en banc. OPINION PER CURIAM. This is an appeal from an order denying bail pursuant to Article I, Sec. 11a of the Constitution of the State of Texas. On September 6, 1989, appellant was arrested for murder. A week later, the district court judge convened a hearing at the State's request, after which the district court denied bail. Appellant filed a writ of 606 habeas corpus in the district court on September 20. The district judge denied relief on October 4, and appellant filed notice of appeal the next day. Article I, Sec. 11a supra, mandates that "if the accused is not accorded a trial upon the accusation ... within sixty (60) days from the time of his incarceration upon the accusation, the order denying bail shall be automatically set aside, unless a continuance is obtained upon the motion or request of the accused...." The sixty day period has expired. Because there is nothing to indicate that any continuance has been obtained, we therefore assume that the order denying bail has been automatically set aside as the Constitution requires. Thus the issue is now moot and the appeal must be dismissed. See Taylor v. State, 676 S.W.2d 135 (Tex.Cr.App.1984).[] It is so ordered. CLINTON, Judge, concurring. Although the expiration of the sixty-day period undoubtedly moots the issues raised by appellant, appellant has raised potentially troubling problems that are likely to recur. Appellant asserted below at the outset and continues to complain that the district judge did not have jurisdiction to deny bail because "there are no written pleadings on file in this case to invoke the jurisdiction of the Court." Article I, § 11a grants a district judge jurisdiction, power and authority to deny bail, inter alia: "Any person (1) accused of a felony less than capital in this State, who has been theretofore twice convicted of a felony, the second conviction being subsequent to the first, both in point of time of commission of the offense and conviction therefor ... after a hearing, and upon evidence substantially showing the guilt of the accused of the offense ... may be denied bail pending trial, by a district judge of this State, if said order denying bail pending trial is issued within seven calendar days subsequent to the time of the incarceration of the accused; provided, however, that if the accused is not accorded a trial upon the accusation ... within sixty (60) days from the time of his incarceration upon the accusation, the order denying bail shall be automatically set aside...." (emphasis added here and throughout by this writer unless otherwise noted). The Constitution speaks in terms of "accused" and "accusation," not "pleadings."[1] That one must be "accused" of a felony by "accusation" is the prerequisite for a district judge to decide whether to grant or deny bail. When the original amendment was proposed in 1955 and adopted in 1956, the term "accused" referred to "any person who, in a legal manner, is held to answer for an offense, at any stage of the proceeding, or against whom complaint in a lawful manner is made charging an offense, including all proceedings from the order for arrest to the final execution of the law." See former article 23, Penal Code 1925. The Court has said that one "is not `accused' until charged with an offense." Brown v. State, 55 Tex.Cr.R. 572, 575, 118 S.W. 139, 144 (1909). An "accusation" was used in the same sense as "criminal action," which means "the whole or any part of the procedure which the law provides from bringing offenders to justice[.]" See former article 24, Penal Code 1925. In Brennan v. State, 44 Tex.Cr.R. 399, 401, 72 S.W. 184, 185 (1903), the Court observed that article 240 of the 1895 penal code defined "accusation" as "a charge made in a lawful manner against any person, that he has been guilty of some offense, which subjects him to prosecution in the name of the state," and further provided that one is 607 "said to be `accused' of an offense from the time that any `criminal action' shall have been commenced against him," including "legal arrest without warrant; a complaint to a magistrate; a warrant legally issued; and indictment, or an information[.]" See generally Childers v. State, 30 Tex.App. 160, 16 S.W. 903 (1891). As a pure matter of jurisdiction, then, "accusation" under Article I, Section 11a, appears to require at least arrest and incarceration of a person "accused" of a felony who may be classified according to item (1), (2) or (3) thereof. However, "jurisdiction" must be invoked, and as this Court pointed out in Taylor v. State, 667 S.W.2d 149 (Tex.Cr.App.1984), there was no showing "that any accusation, charge or complaint was ever filed or that appellant was incarcerated as a result thereof ... so as to invoke the provisions of § 11a." Id., at 152. This record presents a similar situation.[2] Therefore, were the matter not moot, as in Taylor v. State, supra, we might be constrained to set aside the order denying bail. Although there were no written pleadings, the judge did permit the State to plead orally, and for present purposes we may assume, without deciding, that pleading served to invoke the authority of the district judge under § 11a.[3] Still, the State did not show that any accusation, charge or complaint was ever filed, so the question remains whether there was any showing that appellant was "incarcerted as a result thereof." Taylor, supra, at 152. The State did present testimony of a deputy sheriff that as result of his investigation, including fruits of the evidentiary search warrant, on September 6 he swore out an affidavit and obtained from another magistrate an arrest warrant for murder and executed it by arresting appellant and having him incarcerated in the Van Zandt County jail. But the State did not offer any documentary evidence. In sum, this record is rife with prospective issues worthy of resolution that adherence to the mootness doctrine precludes this Court from addressing. This matter 608 was mooted even before it was submitted. Given the circumstances of this cause, it is unfortunate that we missed the opportunity. NOTES [] Because § 11a prescribes an exclusive proceeding for entering an order denying bail for a period of at least sixty days, purported appeal from denial of petition for writ of habeas corpus challenging the prior sufficiency finding and seeking to rescind that order is likewise moot. [1] Only one "accused of a felony less than capital in this State, committed while on bail for a prior felony for which he has been indicted," Art. I., § 11a (2), may be held to answer an "accusation and indictment" before a district judge may deny bail. [2] Appellant claimed lack of "pleadings" was based on his assertions that there was not "any motion or any application that the State has filed before the Court to proceed on," thus "nothing here before the Court at this time to rule on;" he explained, viz: "We don't know under what Article or what Section of 11(a) that the State is claiming to proceed on, and we don't believe that the Court has even got jurisdiction to hear this matter until there has been some written motions filed by the State. * * *" The State answered that there is no authority to support that contention, that jurisdiction "is exclusively placed in [this] Court," and "that is why the State is here this morning upon notice to the Defendant and his appointed counsel ... to proceed within the statutory constitutional time limits." The judge then invited counsel for the State to make a oral motion "to request the Court to take specific action," and the State accepted, viz: "The State at this time formally moves that the Court hold a hearing pursuant to Article 1, Section 11(a) ..., and we ask the Court to take notice that in this application the Defendant has been arrested on a murder warrant, and pursuant to that warrant he has been held since his arrest, which has been within seven days. And in the arrest warrant affidavit and the warrant that was issued it was alleged that this Defendant has at least two prior felony convictions, thereby invoking the sub-section little 1 of Section 11(a) of Article 1 of the Texas Constitution." To which the judge said the Court "will take judicial notice in Cause No. 89-1-SW there is on file in this Court an original affidavit in support of an evidentiary search warrant." Over restated objections to "preserve my record" the judge directed the State to proceed. The statement of facts before us is identified as "No. AW-89-153-3." While the State presented evidence "substantially showing the guilt of the accused" of the "accusation," it did not produce any written "accusation" at the bail hearing, and the transcript does not include "an original affidavit in support of an evidentiary search warrant," of which the judge agreed to take judicial notice. [3] Throughout these proceedings all participants alluded to "the Court," as if this matter were before a district court. Initially § 11a empowered "any judge of a court of record or magistrate" to deny bail; the 1977 amendments, however, place that authority solely in "a district judge." Thus the district judge presiding at a hearing to deny bail sits more in the capacity of a magistrate than a district court, much like this judge was acting when he issued the evidentiary search warrant pursuant to Article 18.01(c), V.A. C.C.P. References to "district court" in some prior decisions under § 11a, e.g., Ex parte Moore, 594 S.W.2d 449 (Tex.Cr.App.1980), should be regarded as oversights rather than studied precedent.	{ "pile_set_name": "FreeLaw" }
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 11a0185n.06 Nos. 09-1717, 09-1859 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED UNITED STATES OF AMERICA, ) Mar 29, 2011 ) LEONARD GREEN, Clerk Plaintiff-Appellee, ) ) v. ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE ELENA SZILVAGYI, ) EASTERN DISTRICT OF MICHIGAN ) Defendant-Appellant. ) ) Before: SILER, CLAY, and GIBBONS, Circuit Judges. JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Elena Szilvagyi appeals the district court’s denial of her motion to dismiss the charge of naturalization fraud, in violation of 18 U.S.C. § 1425(a). Szilvagyi was convicted of this charge by a jury and was sentenced to six months’ imprisonment. She contends that the district court should have granted her motion to dismiss the naturalization fraud charge on the following bases: (1) a violation of the statute of limitations, (2) improper sealing of the indictment, and (3) a violation of her Fifth Amendment due process rights arising from pre-indictment delay. For the reasons that follow, we affirm. I. Szilvagyi, who was born in the Phillippines in 1951, entered the United States in 1969 to attend school and graduated with a nursing degree in 1973. From an unspecified date until 2000, she -1- Nos. 09-1717, 09-1859 United States v. Szilvagyi was employed by the management company, Su-Pra Enterprises, Inc., in which she became a partner in 1991 and president and stockholder in 1994. From 1989 to 2000, Szilvagyi additionally served as the president of Prime Care Services (“PCS”), a home health care business that was owned and operated by Su-Pra Enterprises, Inc. While serving as the president of PCS, Szilvagyi conspired to commit health care fraud and mail fraud in connection with a home construction project. A. In 1994, Szilvagyi engaged architect and builder, Karl Lundquist, to construct a 12,000 square foot residence for her family. When she and Lundquist met to discuss anticipated costs for the project, she explained that Lundquist would be paid through the PCS payroll, as the Szilvagyis were “so efficient . . . with their Medicare business that they could add other people and it wouldn’t even come on a radar screen.” After Lundquist accepted this proposal on behalf of himself and his wife, Szilvagyi classified Lundquist as an “administrative network service supervisor” for PCS and subsequently placed additional contractors on the payroll. Meanwhile, she requested that Lundquist not disclose the payroll arrangement to the accountant for PCS. The salaries for the fictitious PCS employees were then passed on to Blue Cross and Blue Shield of Michigan and Medicare for reimbursement. Lundquist eventually withdrew from the construction project in February of 1998, when the home was approximately 99 percent complete. On February 10, 2004, Szilvagyi pled guilty in the United States District Court for the Western District of Michigan to conspiracy to commit mail fraud and health care fraud. At her guilty plea hearing, she admitted, in pertinent part, that she placed Lundquist and other contractors on the PCS payroll in order “to obtain money to complete the building of [her] home.” Szilvagyi later -2- Nos. 09-1717, 09-1859 United States v. Szilvagyi attempted unsuccessfully to withdraw her guilty plea on the ground that she had lied regarding her guilt and was sentenced pursuant to her plea on June 25, 2004, to 48 months’ imprisonment and ordered to pay $865,624 in restitution and a $100,000 fine. In March of 2006, this court vacated Szilvagyi’s sentence and remanded the case to the district court for resentencing in light of United States v. Booker, 543 U.S. 220 (2005). On January 31, 2006, a federal grand jury in the Eastern District of Michigan returned a nine- count indictment, which charged Szilvagyi in counts 1 and 8 with conspiracy to defraud the United States in violation of 18 U.S.C. § 371 and conspiracy to commit obstruction of justice and to obstruct a criminal health care fraud investigation in violation of 18 U.S.C. § 371. The indictment alleged that Medicare audits between 1997 and 2000 revealed that PCS and Szilvagyi owed Medicare $7,168,602 for improper billings, including automobile expenses, life insurance, interest expenses, pension expenses, professional fees and home office costs. The indictment stated that Szilvagyi, knowing Medicare would reduce or cease reimbursements to PCS until the debt was paid, had conspired with others “to create two new companies, hide the ownership role of . . . Szilvagyi from Medicare and transfer all of the assets . . . to these two new entities.” The indictment further noted that she had offered to pay a witness to lie on her behalf in connection with the federal investigation. Szilvagyi pled guilty to counts 1 and 8 and was sentenced on July 24, 2007, to 31 months’ imprisonment for each count, with the sentences to run concurrent to each other and consecutive to her prior sentence for conspiracy to commit mail and health care fraud. She was also ordered to pay $7,000,000 in restitution and a $100,000 fine. B. -3- Nos. 09-1717, 09-1859 United States v. Szilvagyi On September 27, 1996, Szilvagyi applied for naturalization to become a United States citizen by filing an application with the United States Bureau of Citizenship and Immigration Services, previously the Immigration and Naturalization Service (“INS”). On October 23, 1997, district adjudication officer Douglas Pierce interviewed Szilvagyi with regard to her application, at which time he placed her under oath and reviewed the application questions with her. In particular, Pierce asked Szilvagyi in question 15(a) whether she “ha[d] ever knowingly committed a crime for which [she] had not been arrested,” to which she responded, “no.” Based upon Szilvagyi’s responses and test results during the naturalization interview, Pierce approved her application, enabling her to proceed to the final stage of the naturalization process: taking an oath of allegiance before a federal judge. On November 19, 1997, Szilvagyi took the requisite oath of allegiance to obtain citizenship before a federal judge. At this time, she completed and signed under oath INS Form N-445, which served as an update to her naturalization interview and certified that she remained eligible for naturalization during the time period between October 23 and November 19, 1997. Once again, Szilvagyi responded in the negative when asked, “Have you knowingly committed any crime or offense for which you have not been arrested?” Thereafter, she was sworn in as a United States citizen at the naturalization ceremony. On October 11, 2007, a federal grand jury returned a one-count indictment charging Szilvagyi with unlawful procurement of naturalization in violation of 18 U.S.C. § 1425(a). The indictment alleged three instances in which Szilvagyi made false statements under oath regarding her naturalization application: (1) On Part 7, question 15(a), of the naturalization application, she denied -4- Nos. 09-1717, 09-1859 United States v. Szilvagyi having knowingly committed a crime for which she had not been arrested; (2) on Part 7, question 12(g), she “denied ever giving false testimony for the purpose of obtaining any immigration benefit;” and (3) on question 3 of Form N-445, she denied ever knowingly committing any offense for which she had not been arrested. A magistrate judge permitted the government to file the indictment under seal based upon the government’s stated fears that Szilvagyi would obstruct justice, but the indictment was unsealed six weeks later on November 27, 2007. On October 29, 2008, Szilvagyi filed a corrected motion to dismiss the indictment, arguing pretrial delay and a violation of the statute of limitations. The district court orally denied the motion before trial on January 26, 2009. Following a two-day trial, the jury found Szilvagyi guilty of immigration fraud. The district court sentenced her to six months’ imprisonment to be served concurrently with her term of imprisonment for convictions in the Eastern District of Michigan for conspiracy to defraud the United States and conspiracy to commit obstruction of justice and to obstruct a criminal health care fraud investigation. The district court also revoked Szilvagyi’s United States citizenship. Szilvagyi appeals. II. We review a motion to dismiss an indictment on statute of limitations grounds de novo. United States v. Grenier, 513 F.3d 632, 636 (6th Cir. 2008). Szilvagyi makes two arguments about the limitations period. First, she contends that the statute of limitations began to run on March 10, 1996—the date on which she signed her naturalization application—and expired before the government filed its sealed indictment on October 11, 2007. Second, she contends that, even if the naturalization fraud crime was not complete until November 19, 1997—the date on which she took -5- Nos. 09-1717, 09-1859 United States v. Szilvagyi the oath of citizenship—the statute of limitations nevertheless expired because the indictment was not unsealed until November 27, 2007, eight days beyond the ten-year statute. In response, the government argues that Szilvagyi was charged with the unlawful procurement of naturalization, and not with attempting to procure naturalization by fraud; thus the crime was not complete until she actually obtained citizenship on November 19, 1997. The government also maintains that the date of return of the indictment, not the date of its unsealing, is the relevant date for determining whether the limitations period had run. The parties agree, as do we, that the relevant statute of limitations is ten years. See 18 U.S.C. § 3291. Szilvagyi’s indictment for naturalization fraud was premised upon her various misrepresentations under oath with regard to whether she had ever knowingly committed a crime for which she had not been arrested. Specifically, the indictment noted that Szilvagyi signed Form N- 445 at the naturalization ceremony on November 19, 1997, in which she “denied ever knowingly committing any crime or offense for which she had not been arrested, when in fact [she] then well knew, she had committed a crime relating to [health care fraud].” Although Szilvagyi contends that the statute of limitations began to run on March 10, 1996, the district court properly rejected this argument on the ground that an applicant for naturalization obtains United States citizenship only after taking an oath of allegiance before a federal judge. See 8 U.S.C. § 1448(a) (“A person who has applied for naturalization shall, in order to be and before being admitted to citizenship, take in a public ceremony before the . . . court . . . an oath . . . .”). We have repeatedly recognized that “[t]he statute of limitations begins to run when a crime is complete, that is, when each element of the crime charged has occurred.” Grenier, 513 F.3d at 636 (citing United States v. Lutz, 154 F.3d 581, 586 -6- Nos. 09-1717, 09-1859 United States v. Szilvagyi (6th Cir. 1998)). Consequently, Szilvagyi did not commit naturalization fraud until November 19, 1997, the date on which she took the oath of citizenship, and the statute of limitations began to run on this date. Although Szilvagyi also argues that “[f]or the purposes of [calculating] the statute of limitations . . . the November 27, 2007 date controlled,” this argument is equally without merit. In United States v. Wright, 343 F.3d 849, 857 (6th Cir. 2003), we stated that a “timely filed and properly sealed indictment tolls the statute of limitations.” Id. at 857. In this case, the properly sealed indictment was filed on October 11, 2007, and thus fell within the ten-year statute of limitations, which expired on November 19, 2007. We therefore conclude that Szilvagyi’s claims regarding the violation of the statute of limitations are meritless.1 III. Szilvagyi next contends that her indictment was improperly sealed because she “did not need to be arrested, since she had been in custody for years.” Although she acknowledges that the government’s purpose for sealing the indictment was its concern that she would obstruct justice, 1 Szilvagyi contends in passing that “[i]n the event that the Court determines that the statute of limitations was not violated, [she] was entitled to a jury determination on this issue.” Yet, in support of this claim, she cites only United States v. Fuchs, 218 F.3d 957, 963 (9th Cir. 2000), an inapt case from the Ninth Circuit, which found plain error in the district court’s failure to provide a statute of limitations instruction in a conspiracy case when the overt act that “most strongly support[ed] a finding of conspiracy fell outside the statute of limitations.” Because Szilvagyi did not raise the jury instruction claim in the district court, she is entitled, at most, to plain error review in this court. See United States v. Damra, 621 F.3d 474, 496 (6th Cir. 2010). Thus, this court “will reverse only if there is (1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. Baker, 380 F. App’x 465, 467 (6th Cir. 2010). But Szilvagyi cannot show error, much less plain error, given that her crime was not complete until November 19, 1997, and the sealed indictment was filed on October 11, 2007. -7- Nos. 09-1717, 09-1859 United States v. Szilvagyi Szilvagyi maintains that “[t]here is nothing to suggest that [she] would have obstructed justice between October and November 2007.” The government, however, argues that the magistrate judge properly ordered the sealing of the indictment based upon a legitimate concern that Szilvagyi would attempt to obstruct justice. “The decision of a magistrate judge to seal an indictment is accorded great deference,” and the reviewing court evaluates the district court’s determination for an abuse of discretion. Wright, 343 F.3d at 856–57 (internal quotations omitted). In determining whether a sealed indictment may be opened after the expiration of the statute of limitations, we consider two factors: “(1) whether the indictment was properly sealed, and (2) whether the defendant has shown actual prejudice from a sealed indictment being opened beyond the statute of limitations.” Id. at 857. Although the “[g]overnment has the burden of setting forth a justification for sealing the indictment,” we evaluate the government’s request to seal an indictment “to determine whether any legitimate prosecutorial purpose or public interest supports the sealing of the indictment.” Id. at 858. In Wright, we further stated that “a defendant must show substantial, irreparable, and actual prejudice when a properly sealed indictment is unsealed beyond the statute of limitations” and that “[t]he defendant has the burden of showing that prejudice occurred.” Id. at 859 (internal quotations omitted); see also United States v. Burnett, No. 91-1693, 1992 WL 92669, at 3 (6th Cir. Apr. 24, 1992) (unpublished) (finding no prejudice when defendant was arrested approximately five months after a sealed indictment was handed up). In this case, the district court determined that the government articulated a legitimate prosecutorial purpose—namely, a concern that Szilvagyi would once again attempt to obstruct -8- Nos. 09-1717, 09-1859 United States v. Szilvagyi justice—in its request to seal the naturalization fraud indictment. To substantiate its concern, the government explained that Szilvagyi had a history of obstructing justice; indeed, she previously pled guilty to conspiracy to commit obstruction of justice in the federal district court for the Eastern District of Michigan by soliciting a witness to testify falsely on her behalf. Furthermore, she had attempted to hide assets from the probation office during the preparation of her presentence report in connection with her conviction for Medicare fraud in the federal district court for the Western District of Michigan. The government additionally explained that, when the grand jury returned the indictment in the present naturalization fraud case, Szilvagyi was awaiting re-sentencing for Medicare fraud in the Western District of Michigan. Although Szilvagyi had unsuccessfully attempted to withdraw her guilty plea before sentencing in 2004, she filed a memorandum in 2007 arguing that she was nevertheless entitled to credit for acceptance of responsibility. The government interpreted this behavior as “an additional admission of guilt of the Medicare fraud crime, which [was] at the crux of her current naturalization fraud case,” and it voiced concern “that if [Szilvagyi] became aware of the naturalization fraud charge against her she would change her representation to the court regarding her guilt of the Medicare fraud crime solely because of the pending charge.” However, when the prosecutor became aware that Szilvagyi was no longer asserting that she had accepted responsibility in the health care fraud case, the government moved to unseal the indictment. In Wright, we recognized that “an indictment may be sealed for a multitude of reasons” and that “the need to avoid compromising an ongoing investigation falls within the range of permissible reasons for sealing an indictment.” 343 F.3d at 858; see also United States v. DiSalvo, 34 F.3d 1204, -9- Nos. 09-1717, 09-1859 United States v. Szilvagyi 1219 (6th Cir. 1994) (“[A]rticulation of a legitimate law enforcement reason is sufficient to allow the sealing of an indictment . . . .”). Here, the government expressed a legitimate concern that Szilvagyi would dispute her guilt in the Medicare fraud case solely to avoid de-naturalization in the pending naturalization fraud case. Although the government may not seal an indictment merely to advance its own prosecution, in this case the government’s concern regarding Szilvagyi’s potential to obstruct justice was well-founded; indeed, it was buttressed by her expansive history of obstructing justice. Finally, Szilvagyi has not identified any actual prejudice arising from the six- week period that elapsed between the filing and unsealing of the indictment. See United States v. Srulowitz, 819 F.2d 37, 40 (2d Cir. 1987) (stating that a defendant must demonstrate “substantial actual prejudice” in order to warrant the dismissal of an indictment that was unsealed beyond the statute of limitations). We therefore conclude that the district court did not abuse its discretion in denying Szilvagyi’s motion to dismiss on the basis of an improperly sealed indictment. IV. In her final claim, Szilvagyi alleges that she was prejudiced in several ways by preindictment delay in violation of her Fifth Amendment due process rights. In particular, she asserts that various documents were destroyed by the government, that witnesses necessary to her defense—including an attorney who attended her naturalization interview—could not be located, and that she “withdrew an appeal of her motion to withdraw her plea” in the Medicare fraud case that formed the basis of her indictment for naturalization fraud. In response, the government argues that Szilvagyi “cannot prevail because she has not even alleged, let alone proven, that the government intentionally delayed -10- Nos. 09-1717, 09-1859 United States v. Szilvagyi the indictment to gain a tactical advantage. Nor has [she] shown substantial prejudice to her right a fair trial.” We review “the denial of a motion to dismiss based upon preindictment delay for an abuse of discretion and the related questions of fact for clear error.” United States v. McDougle, 82 F. App’x 153, 158 (6th Cir. 2003). “In this circuit, dismissal for pre-indictment delay ‘is warranted only when the defendant shows substantial prejudice to his right to a fair trial and that the delay was an intentional device by the government to gain a tactical advantage.’” United States v. Schaffer, 586 F.3d 414, 424 (6th Cir. 2009) (quoting United States v. Greene, 737 F.2d 572, 574 (6th Cir. 1984)). As we have explained, “[t]he standard for pre-indictment delay is nearly insurmountable, especially because proof of actual prejudice is always speculative.” United States v. Rogers, 118 F.3d 466, 477 n.10 (6th Cir. 1997). Indeed, while acknowledging that the Due Process Clause serves a “limited role” in safeguarding against oppressive delay, the Supreme Court has stated that the statutes of limitations, “which provide predictable, legislatively enacted limits on prosecutorial delay,” serve as the primary safeguard against “overly stale criminal charges.” United States v. Lovasco, 431 U.S. 783, 789 (1977) (internal quotations omitted). Szilvagyi first contends that she was substantially prejudiced by the destruction of certain exculpatory documents pertinent to the Medicare fraud case, including a memorandum to PCS staff requesting the removal of Lundquist from the payroll. However, the district court determined that Szilvagyi did “not state how she [knew] that this document was destroyed, or if in fact, the document was ever destroyed at all,” and additionally observed that “the uncontested record demonstrates that [Szilvagyi] or her counsel had access to the documents as [her] daughter retrieved much of the [PCS] -11- Nos. 09-1717, 09-1859 United States v. Szilvagyi documentation during the pendency of her conspiracy conviction in the Western District of Michigan.” Furthermore, Szilvagyi pled guilty to conspiracy to commit mail and health care fraud, described the offenses in detail at her plea hearing, and abandoned her appeal of the district court’s order denying her attempted withdrawal of the guilty plea. In light of her admission of guilt, we find that a memorandum requesting the removal of Lundquist from the PCS payroll is not exculpatory, particularly as it demonstrates that Lundquist was unlawfully on the payroll. Thus, Szilvagyi has not satisfied her “heavy burden to prove that pre-indictment delay caused actual prejudice,” Wright, 343 F.3d at 860, as she has not shown that the allegedly destroyed documents were, in fact, exculpatory. See Rogers, 118 F.3d at 475 (rejecting defendant’s claim of substantial prejudice to his right to a fair trial arising from the death of witness “since he did not describe what ‘critical evidence’ was lost or how [the witness’s] testimony would have been ‘exculpatory in nature.’”). Szilvagyi further contends that she was substantially prejudiced by her inability to locate the attorney who attended her naturalization interview. In response to this claim, the district court remarked that “[t]his allegation is equally without merit, as [she] has failed to indicate how she is prejudiced by the failure to present this witness, and what exculpatory evidence, if any, the attorney would provide.” We agree. In Rogers, we rejected a defendant’s claim that he was substantially prejudiced by the death of a witness because “he ha[d] not given an indication of what the witness’s testimony would have been and whether the substance of the testimony was otherwise available.” 118 F.3d at 475; see also United States v. Woods, No. 98-6452, 2000 WL 353516, at 2 (6th Cir. Mar. 31, 2000) (unpublished) (rejecting defendant’s claim of substantial prejudice from a witness’s death when the court had “not been told what evidence [that witness] . . . would have been able to -12- Nos. 09-1717, 09-1859 United States v. Szilvagyi present . . . or how such evidence would have helped the defense”). Like the defendants in Rogers and Woods, Szilvagyi baldly asserts that the attorney was “necessary for her defense,” yet she has not described the likely substance of this testimony, nor indicated that it would be exculpatory. Thus, she has failed to demonstrate substantial prejudice flowing from the absence of the attorney and other unnamed witnesses. Szilvagyi also argues that she was substantially prejudiced by her decision not to appeal the district court’s order denying her motion to withdraw her guilty plea in the Medicare fraud case. However, she has not offered any evidence suggesting that she would have prevailed on this appeal. Moreover, until October 17, 2007, Szilvagyi was actively pursuing credit for acceptance of responsibility based upon her guilty plea in connection with her re-sentencing in the Medicare fraud case; her claim that she would have pursued an appeal to withdraw her plea is therefore incredible. Thus, Szilvagyi has failed to meet the heavy burden of demonstrating substantial prejudice with respect to her decision not to appeal the withdrawal of her guilty plea in the Medicare fraud case. Finally, Szilvagyi has not alleged—much less proven—that the “delay was an intentional device by the government to gain a tactical advantage.” Schaffer, 586 F.3d at 424. We conclude that Szilvagyi’s claims asserting unconstitutional pre-indictment delay are without merit; accordingly, the district court did not abuse its discretion in denying her motion to dismiss on this basis. V. For the foregoing reasons, we affirm the district court’s decision in all respects. -13-	{ "pile_set_name": "FreeLaw" }
81 F.2d 511 (1936) In re A. HERZ, Inc. PENNISH v. A. HERZ, Inc., et al. COHEN et al. v. SAME. Nos. 5559, 5560, 5625, 5626. Circuit Court of Appeals, Seventh Circuit. January 31, 1936. Lewis E. Pennish and Maxwell J. Rashbaum, both of Chicago, Ill., and Ralph Bamberger, Isidore Feibleman, and Julian Bamberger, all of Indianapolis, Ind., for appellants. Louis Hilleary and Wilson N. Cox, Jr., both of Terre Haute, Ind., for appellees. Before SPARKS and ALSCHULER, Circuit Judges, and BRIGGLE, District Judge. BRIGGLE, District Judge. Appellants challenge the correctness of an order of the District Court disallowing fees to certain creditors' committees and attorneys growing out of a reorganization proceeding under section 77B of the 512 Bankruptcy Act, as amended (11 USCA § 207), in the matter of A. Herz, Inc., an Indiana corporation. Two of the appeals were allowed by the District Court and two were authorized by this court, all being consolidated for hearing. The corporate debtor was engaged in the general mercantile business at Terre Haute, Ind., and at the time of the institution of the proceedings herein had some eight hundred creditors scattered throughout the United States, with claims aggregating in excess of $200,000. With the exception of one substantial claim for rent, they were largely merchandise claims. A group of Eastern creditors, for the better protection of their interests, organized a committee, known as the New York or Eastern creditors' committee, and employed as their counsel Edward B. Levy of New York and Bamberger and Feibleman of Indianapolis. Another group of creditors represented by Apparel Manufacturers' Association (a Chicago organization which supplies its patrons with credit reports) also formed a committee for the protection of their interests and employed as their counsel Pennish and Rashbaum of Chicago. The original petition for reorganization was filed by Pennish and Rashbaum on behalf of certain of these creditors, which, on hearing, was held not to have been filed in good faith within the meaning of section 77B, supra. A few days later a voluntary petition for reorganization was filed by the corporate debtor and subsequently two plans of reorganization were submitted for consideration, the one sponsored by the corporate debtor and the other by certain stockholders. Two discordant groups had arisen among the stockholders of the corporate debtor, the one known as the Failey interests and the other the Joseph interests and this lack of accord manifested itself in support of the two respective plans. By leave of court each of the plans was subsequently amended and, as amended, the Failey plan proposed a payment of forty cents on the dollar to all creditors and the Joseph plan proposed a payment of 41 cents on the dollar. Many conferences ensued in the consideration of these plans, some creditors and their attorneys supporting one plan and some the other; the individual members of the two creditors' committees were in some respects at cross-purposes and divided in their support of the two plans, but the so-called Failey or Debtor's Plan ultimately prevailed and was approved by the court. The New York or Eastern creditors' committee has asked for an allowance to it of $500 as its fees and $172.76 for its expenses. Its attorney, Edward B. Levy, asks for the sum of $750 as his fees and $37.79 for his expenses. Its attorneys, Bamberger and Feibleman, ask for the sum of $750 as their fees and $4.25 for their expenses. Pennish and Rashbaum, attorneys for another group, ask for their services the sum of $3,500 and for their expenses the sum of $344.15. Other fees, not now under consideration, were allowed by the court as a part of the expenses of the reorganization proceeding, but the foregoing items were disallowed by the court on a finding that they had been incurred by the claimants in the interest of their own clients and had not inured to the benefit of the trust estate. Subsection (9) of paragraph (c) of section 77B (11 U.S.C.A. § 207 (c) (9), provides that the court "may allow a reasonable compensation for the services rendered and reimbursement for the actual and necessary expenses incurred in connection with the proceeding and the plan by officers, parties in interest, depositories, reorganization managers and committees or other representatives of creditors or stockholders, and the attorneys or agents of any of the foregoing and of the debtor." This language, while very general, must have some reasonable relation to the scheme and purpose of the reorganization and the necessary work in connection therewith. A very broad discretion is lodged in the chancellor in the allowance and fixing of fees and he must ever be alert lest a reorganization inure to the benefit, not of the distressed debtor and its creditors, but only to those engaged in saving it. The discretion thus lodged by statute in the court must be exercised with judgment and with the double purpose of doing equity to those distressed and at the same time rewarding faithful and necessary service with reasonable compensation. It is sometimes difficult for a chancellor to draw a distinct line of demarcation between that service rendered in connection with the reorganization proceeding and that service which may be said to be strictly in the interest of an individual or a group of individuals. It is not unusual for creditors to associate themselves together 513 in support of their common interest, and it is entirely conceivable that such a committee may in one instance and under some circumstances contribute a service to the reorganization that may be properly compensable as costs of the reorganization, and in another instance and under different circumstances perform a service that may more properly be charged to others more directly benefited. Appellant attorneys say that they made no charge for their services to the creditors' committee, but informed them that compensation would be fixed by the court and add: "It is only reasonable that the members of the legal profession understand when retained by a Committee to serve it in reorganization whether such service is to be compensated by the trust or by the individual clients." We answer that nothing the court might say in the instant case would afford any justifiable basis for the expectation that attorneys and committees in any given case would or would not be compensated for their services from the trust estate. It is idle to assure the court that they have no arrangement for fees with their clients as we have no occasion to question their truthfulness or sincerity in this respect, but it contributes nothing in aid of the court's problem. The statute defines the groups that may be compensated, but this in no sense is to be construed as meaning shall be compensated. It is not every service that may in some remote degree contribute to the general welfare of the proceeding that the court is bound to compensate under this section of the statute. If it were, the very purpose of the statute would in many cases be frustrated. Every case must stand upon its own bottom and is subject to the exercise of a sound judicial discretion by the trial court, subject to review in the event of abuse. That appellants performed services is not challenged and neither is the reasonableness of their charges. The trial court has found, however, that they are not services requiring payment as a part of the expense of reorganization, but have been in behalf of their own clients. An examination of the record discloses support for the court's conclusions. It would serve no useful purpose to enter into a discussion of the evidence showing the various activities of claimants in behalf of the creditors they represented. We believe that their claims have had intelligent consideration by the trial court and no abuse of the discretion in that court lodged has been shown. The order is affirmed.	{ "pile_set_name": "FreeLaw" }
18 B.R. 128 (1982) In re Hershell Jack TAYLOR, Betty Jean Taylor, Debtor. Bankruptcy No. 38002813. United States Bankruptcy Court, W.D. Kentucky. February 22, 1982. Jan C. Morris, Louisville, Ky., for creditor. J. Baxter Schilling, Louisville, Ky., trustee. Terrance Allen Jones, Louisville, Ky., for debtor. ORDER MERRITT S. DEITZ, Jr., Bankruptcy Judge. The question is whether a real estate mortgage on the debtors' home was sufficiently perfected to defeat a claim against the property by the bankruptcy trustee. We hold the rights of the mortgagee to be superior. Hershell and Betty Taylor bought their home from Mrs. Alice Phelps (and her now deceased husband) in 1963 under an owner-financing arrangement. The resulting mortgage instrument was in perfectly recordable form in all particulars save one; it did not recite the maturity date of the secured obligation. KRS 382.330 requires such information in mortgages to put them in proper form for recording, and penalty provisions of the statute permit fines to be levied against the offending county court clerk and the persons causing defective instruments to be lodged to record. The question of criminal sanctions aside, Kentucky courts have shown an uncharacteristic liberality in upholding the legal efficacy of instruments technically deficient under the recording law. The judicial attitude, an altogether realistic one in our view, is a century old and will not be here disturbed. See Frazier v. Tialiaferro, 6 Ky.L. *129 Rep. 744, 13 Ky.Op. 395 (1885) (Literal exactness not required); Newsome v. Greer, 235 S.W.2d 782 (Ky.1951) (an apparent deed held to be a mortgage), and cases of intervening vintage cited in the brief of the creditor Phelps. We distinguish the recent case of Schilling v. Underwood, No. C80-0136-L(B) (W.D.Ky.1980), in which failure to record an automobile mortgage within fifteen days as required by state statute rendered the mortgage voidable by the bankruptcy trustee. Judge Ballantine, in reversing the bankruptcy court, held that failure of literal compliance with the statute raised not only the technical question of proper recordation, but the more substantive question of perfection. Schilling v. Underwood, supra at p. 4. The purpose of recording statutes is to give notice to the world at large of legal rights in property located within the state's boundaries. The effectiveness of the statutes is open to question. Would that it were within the power of this court to remedy the notice deficiencies of a system comprised of 120 separate and uncoordinated repositories of information, each having technical niceties designed to generate fees for the clerks who run them. But it is not. The mortgage in question recites no maturity date. It does provide for monthly payments of $25.35 "until paid in full". A person having sufficient interest in the matter could make the necessary mathematical computations to derive the payout date, but anyone could learn of the existence of the security interest because the mortgage was recorded, however improper in form. Accordingly, the objection of the creditor Phelps to sale by the trustee of the property located at 8503 Minors Lane, Louisville, is SUSTAINED.	{ "pile_set_name": "FreeLaw" }
396 So.2d 66 (1981) ESCAMBIA CHEMICAL CORPORATION, a corporation v. UNITED INSURANCE COMPANY OF AMERICA, a corporation et al. No. 79-941. Supreme Court of Alabama. March 24, 1981. 67 Allen Edward Cook of Cook & Cook, Andalusia, for appellant. W. Harold Albritton of Albrittons & Givhan, Andalusia, for appellees. MADDOX, Justice. The holder of a money judgment against an insurance debit agent sued out a garnishment against the agent's company claiming that the following funds were subject to garnishment: (1) commissions earned and retained by the agent but not transmitted to the company; (2) proceeds of a cash bond posted by the agent with the company; and (3) certain pension benefits which might be payable to the agent. The trial court found that the company had no funds in its possession or control which were owing to its agent, and dismissed the garnishment. The facts are essentially uncontroverted. Escambia Chemical Corporation had obtained a money judgment against J. W. Kirkland, the insurance debit agent of the garnishee, United Insurance Company. Kirkland had earned, but retained, commissions totaling $2,524.19 from the date of the filing of the writ of garnishment on August 13, 1979, and the date of the preparation of answers to interrogatories on or about November 26, 1979. United had paid the employer's part of social security taxes for Kirkland and Kirkland had paid his employee's share of social security taxes, withholding taxes, group insurance and pension plan contributions. United declared the commissions earned by Kirkland as a deduction on its corporate income tax return, thereby taking full advantage of the sums retained by Kirkland as an operating expense deduction. The evidence shows that Kirkland, as an agent of United, was required to post with the company, and maintain, a $1,000 cash bond, which was refundable: (1) if Kirkland terminated his employment with the company, whereupon the $1,000 would be refunded to him, less any indebtedness he might owe to the company; (2) if Kirkland had ten years of service with the company; and (3) if Kirkland was promoted to a salaried position. The company was obligated to pay six percent interest on the cash bond if it was refunded. Escambia contended that three funds were subject to its garnishment: Kirkland's 68 commission, the $1,000 cash bond, plus interest which had accrued thereon, and contributions made to an employee pension plan and held for Kirkland's benefit. The trial court rendered a judgment in favor of the garnishee, United, which stated, in part: The garnishee insurance company does not come into possession or control of any money owing to Mr. Kirkland, the defendant, independent of Mr. Kirkland. There is no liability on the part of the garnishee to the defendant, Kirkland, as would enable the defendant, Kirkland, to maintain an action at law against the garnishee and recover a judgment. Contributions to the pension plan would be a contingent liability and not subject to garnishment until such time as the defendant had a claim or is eligible for such benefits. The appellant raises the following issues on appeal: (1) Did the trial court err in ruling that the commissions in question were not subject to garnishment; (2) Did the trial court err in ruling that United's pension plan for Kirkland was a contingent liability and, as such, not subject to garnishment until such time as Kirkland has a claim or is eligible for such benefits; (3) Did the trial court err by not entering a judgment requiring United to pay Escambia the $1,000 cash bond held on deposit by United for Kirkland; (4) Did the trial court err by not requiring United to pay Escambia the six percent interest which accrued upon the $1,000 cash bond held on deposit by United for Kirkland; and (5) Did the trial court err in not keeping United before the court so that any future debt which would accrue by a contract in existence could be subjected to Escambia's demand? THE COMMISSION Appellant argues "that Kirkland's earned commissions are subject to garnishment even though he personally retains them when he collects each premium," contending that Code 1975, § 6-6-370 subjects money or effects "in possession or under the control" of a third person to garnishment. Kirkland was United's agent and was operating under a compensation plan designed by United, says appellant; therefore, appellant reasons, the commissions were under the control of United, at least constructively, although Kirkland retained his commissions and only sent the excess over those commissions to United. We disagree. It has long been the law in this state that only such debts as could be sued on in debt or indebitatus assumpsit can be subject to garnishment. Sloss v. Glaze, 231 Ala. 234, 164 So. 51 (1935). From the evidence presented in this case it does not appear that Kirkland's commissions ever came under the control of United so that they could be sued upon in debt or indebitatus assumpsit for their recovery. The trial court did not err in finding that United never came into possession or control of the commissions so that they would be subject to garnishment. THE PENSION BENEFITS Appellant next contends that the trial court should have ordered United to pay into court the pension money when it became due to Kirkland. As was stated in Sloss v. Glaze, supra, the fund sought to be garnished must be due absolutely and without contingency. In answer to interrogatories propounded by the appellant, United stated that Kirkland does have a pension plan with them, but stated that "the amounts to which he would be entitled would not be known until such time as he had a claim or was eligible for pension benefits." It is undisputed that Kirkland has no present claim to the monies in the pension plan; therefore, this fund is a contingent fund, not an amount to which Kirkland presently has a claim, and is not subject to garnishment at the present time. The trial court correctly so held. *69 THE CASH BOND The status of the cash bond is similar to that of the funds in the pension plan. The cash bond, and accrued interest, may be refunded to Kirkland in the future, but in order for the cash bond to be refunded, with interest, Kirkland must: (1) terminate employment with the company, after which the bond, less any indebtedness owed the company, is refundable; (2) complete ten years of service with the company; or (3) assume a non-agent, i. e. salaried, position with the company. Since Kirkland is still employed by United as an agent and has not yet completed ten years of service, the trial court correctly found that these amounts were not subject to garnishment. DISMISSAL OF GARNISHMENT Appellant finally contends that the garnishment should not have been dismissed, but that the trial court should have kept this case before the court until such time as United should come into possession or control of funds owing to Kirkland, or until one of the contingent liabilities becomes certain. We cannot agree. A complaint which does not state a claim should be dismissed. A trial court's docket cannot be the resting place for claims which may or may not ripen in the future. The judgment of the trial court is due to be affirmed. AFFIRMED. TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.	{ "pile_set_name": "FreeLaw" }
67 F.Supp. 16 (1946) DEFENSE SUPPLIES CORPORATION v. LAWRENCE WAREHOUSE CO. et al. No. 23171-G. District Court, N. D. California, S. D. January 9, 1946. 17 18 R. L. Miller, David E. Lombardi, and Brobeck, Phleger & Harrison, all of San Francisco, Cal., for plaintiff. W. F. Williamson, W. R. Wallace, Jr., W. R. Ray, and Williamson & Wallace, all of San Francisco, Cal., for defendant Lawrence Warehouse Co. A. J. Getz, of Los Angeles, Cal., for defendant Capitol Chevrolet Co. Louis J. Glicksberg, of San Francisco, Cal., for defendant Clyde W. Henry. Albert H. Gommo, Jr., of San Francisco, Cal., for defendant V. J. McGrew. GOODMAN, District Judge. In 1943, plaintiff, a corporate agency of the United States created pursuant to the authority contained in Section 5d of the Reconstruction Finance Corporation Act, as amended by Act of June 25, 1940, 15 U.S.C.A. § 606b, initiated and prosecuted a plan known as the "Idle Tire Purchase Plan." Its purpose was to create a stock pile of used and spare automobile tires in aid of the national defense. On March 1, 1943, having accumulated a quantity of tires and tubes in Sacramento, California, plaintiff contracted with defendant Lawrence Warehouse Company, a corporation engaged in the warehousing business, to store and safekeep the same. Defendant, Lawrence Warehouse Company, with the consent and approval of plaintiff, in turn contracted with defendant Capitol Chevrolet Company to warehouse the tires and 19 tubes as its agent. Previously defendant Capitol Chevrolet Company had leased from defendant Clyde W. Henry a building formerly used as an ice skating rink, in the outskirts of Sacramento, California, and the tires and tubes were stored therein. On April 9, 1943, defendant V. J. McGrew, a well drilling contractor, who was elsewhere drilling a well for defendant Henry, entered the building where the tires and tubes were stored and by use of an acetylene torch proceeded to cut up a steel tank in the engine room of the warehouse. In the course of his work, a fire started in the engine room and the building and all the tires and tubes were destroyed by fire. By this suit plaintiff seeks to recover the value of the tubes and tires destroyed. The question presented is whether any or all or which of defendants is liable for the loss. Defendant Lawrence Warehouse Company cross-complained against defendants Capitol Chevrolet Company and Henry wherein it sought judgment against the named cross-defendants in the event of an award against it in favor of plaintiff. Likewise defendant Capitol Chevrolet Company cross-complained against defendant Henry seeking like relief against him. After plaintiff concluded its evidence, defendants moved to dismiss and for judgment in their favor. After argument it was stipulated, (the defendants not desiring to submit any evidence on their behalf) that the cause might be submitted upon the motions to dismiss. No evidence was presented in support of the cross-complaints and the issues there raised are not now before the court for adjudication. The Case Against Defendant McGrew. The evidence discloses the following facts as to the starting of the fire: The engine room, which was approximately 25 by 40 feet in size, although a separate room with three wooden walls, was part of the main building. In the engine room was a steel tank resting on wooden blocks. McGrew did not examine the floor. There is evidence of some undescribed "dark" substance on the floor beneath the tank. While McGrew was using the torch to cut the tank, the fire started. At the time, a fairly strong northwest wind was blowing and the door on the west side of the room as well as the windows of the room were open. There is evidence of admission by McGrew that "it looked as if the fire started where I was cutting the tank" (Tr. 177). It is contended by defendant McGrew that the evidence does not justify a finding that his use of the torch started the fire and that such conclusion is purely conjectural. I am fully convinced by the evidence that McGrew caused the fire by his use of the torch and that he failed to take reasonable precautionary measures against fire and neglected to properly inspect the premises before commencing and while performing his work. I do not feel bound to follow the cited case of Bartholomai v. Owl Drug Co., 42 Cal.App.2d 38, 108 P. 2d 36, inasmuch as it fails to recognize the existence of a duty upon the part of a person using an instrumentality capable of igniting combustible material to ascertain the presence of such material nearby and to safeguard against its ignition. The case of Wilson v. Southern Pacific R. Co., 62 Cal. 164 appears to me to be in point and persuasive against defendant's contention. The Case Against Defendant Henry. It is sought to fix liability upon the landlord Henry upon the following grounds: (1) That McGrew was at the time of the fire acting as his agent; (2) that, conceding an independent contract relationship between the two men, the work being done on the premises was inherently dangerous and therefore the duty of exercising due care could not be delegated to McGrew; hence Henry is liable as if McGrew were his agent; (3) that Henry had an independent non-delegable duty as landlord to use due care to avoid injury to the property of a tenant or of those privy to the tenant, and is liable for injuries resulting from a violation of such duty. The contention that McGrew was Henry's agent is not sustained by the evidence. McGrew was a contractor. He agreed to drill a well for Henry, supplying his time and the necessary labor and equipment at an hourly rate of compensation. 20 Henry paid for the material which was supplied by McGrew. Henry had no manner of control over McGrew's operations. It is true that Henry gave permission to McGrew to use the steel in the tank (which belonged to Henry) in the well drilling operation. It is also true that Henry, through an employee, obtained the necessary authority for McGrew to enter the premises to get the steel in the tank. No instructions or directions were given or caused to be given by Henry to McGrew as to the manner or mode of obtaining the steel. In effect what he did was to give permission to McGrew to use the tank, if it was serviceable in drilling the well, and to obtain authority for him to go upon the premises. Therefore, while a benefit accrued to Henry in that the material was useful in completing the well, likewise McGrew was benefited for it enabled him to proceed under his contract. Judged by well and long established criteria, the relationship between the two men rested upon independent contract and not upon agency. Hillen v. Industrial Acc. Comm., 199 Cal. 577, 250 P. 570; § 8(b), California Workmen's Compensation Act, § 3353, California Labor Code. See Teller v. Bay & River Dredging Co. 151 Cal. 209, 90 P. 942, 12 L.R.A.,N.S., 267, 12 Ann. Cas. 779 for a strongly analogous case on the facts. Id. Eads v. St. Louis I. M. & S. R. Co., 184 Mo.App. 1, 167 S.W. 577; Klee v. United States, 9 Cir., 53 F.2d 58. The contention that an inherently dangerous procedure in the execution of the independent contract fastened liability upon Henry for the negligence of the contractor McGrew is likewise not substantiated in the record. It does not appear that Henry in fact knew of the contemplated method of procedure of McGrew or, by reason of any custom theretofore existing in their relationship, should have known thereof. Absent these factors, the basis of liability is not present. Seattle Lighting Co. v. Hawley, 54 Wash. 137, 103 P. 6. See cases collected in Besner v. Central Trust Co., 230 N.Y. 357, 130 N.E. 577, 23 A.L.R. 1084. Likewise the claim that landlord Henry is liable for violation of his nondelegable duty to use due care for the protection of his tenants' property has no evidentiary basis. This contention fails because the facts disclosed that Henry was not acting in his capacity as landlord in obtaining permission for McGrew to enter the premises to get the steel, but rather in furtherance of an entirely separate enterprise, co-incidental it is true, but completely disassociated from the landlord tenant relationship. Hence the duty which gives rise to the liability was non-existent. Firestone v. Schoenberger, 28 Ohio N.P. 436. I conclude that no legal basis for liability of defendant Henry is here present. The Case Against Capitol Chevrolet Company and Lawrence Warehouse Company. The nature and extent of the liability of Lawrence Warehouse Company is fixed in paragraph 11 of its contract with plaintiff (Plaintiff's Ex. 1) which provides: "Your general responsibility for the care and protection of the tires will be limited to such care as is required by laws governing warehouses in your state and to the exercise of ordinary care on your part." If Capitol Chevrolet Company, the agent of Lawrence Warehouse Company (Plaintiff's Ex. 11), failed to use reasonable care for the preservation of plaintiff's goods whereby the damage was caused or contributed to, Lawrence Warehouse Company is liable to plaintiff. California Warehouse Receipts Act, Sec. 21, Gen. Laws, Act 9059; California Civil Code, Sec. 1858e. Since the cause itself was submitted after the conclusion of plaintiff's evidence, it is to that evidence the court must look in order to determine liability. Plaintiff contends that a prima facie case of liability is established against the warehousemen by proof of the bailment plus loss due to fire in the bailee's premises. Contrariwise, Lawrence Warehouse Company asserts the legal insufficiency of such a showing claiming that in this action, predicated and tried, as it was, on the theory of negligence, the burden is on the plaintiff to show that the warehousemen's 21 negligence caused or contributed to cause the fire. But the liability of the warehousemen here does not depend at all upon the quantum of evidence required to establish a prima facie case of liability against a bailee for loss by fire of goods intrusted to its care, an issue as to which both sides have extensively labored with the aid of many citations.[1] The liability of the warehousemen here depends upon the answer to the following query: Does it appear, from a preponderance of the evidence, that defendant warehousemen failed to take reasonable precautions for the prevention of fire and for its extinguishment after it occurred, thereby causing or contributing to the plaintiff's loss? That the foregoing query is predicated upon a proper legal standard is substantiated by respectable precedents. Lake Union Drydock & Machine Works v. United States, 9 Cir., 79 F.2d 802; Dieterle v. Bekin, 143 Cal. 683, 687, 77 P. 664; Runkle v. Southern Pacific Milling Co., 184 Cal. 714, 195 P. 398, 16 A.L.R. 275; England v. Lyon Fireproof Storage Co., 94 Cal.App. 562, 271 P. 532. In my opinion, the evidence fully justifies the inference[2] that Capitol Chevrolet Company failed to take reasonable precautions which proximately contributed to the fire loss. Upon the defendant warehousemen rested the duty of anticipating fire hazards and maintaining proper and preventive lookouts. This is patently obvious when, as here, they stored valuable inflammable material in a wooden structure in a semi-rural area, outside the city limits and too far beyond speedy access of fire fighting equipment. Furthermore the evidence discloses that Capitol Chevrolet Company failed to have anyone at the warehouse premises to keep a lookout for possible fires or fire hazards and to do whatever was reasonably required to guard against such occurrences. No inquiry was made, when McGrew was permitted to enter the premises, as to his intentions and mode of procedure. Nor did Capitol Chevrolet Company ascertain, after McGrew's entrance, what he was actually doing, although at the time of the fire, he had already been using the torch the day previous and during the morning of the day of the fire. This despite the fact that his torch and welding equipment were in plain sight outside the engine room. Also it appears that there was no fire fighting equipment available at the premises with which a fire, such as the one McGrew started, could have been combated. The warehousemen are not relieved of the duty to exercise due care for the prevention of fires, upon the ground, as urged, that they could not reasonably have anticipated the acts of McGrew. At best, McGrew's acts were a concurring cause and cannot relieve the warehousemen of liability so long as their own negligence contributed to the loss or damage. Taylor v. Oakland Scavenger Co., 17 Cal.2d 594, 602, 110 P.2d 1044. It is contended that Lawrence Warehouse Company stands acquitted of liability because the plaintiff inspected and approved the use of the premises as a warehouse, approved the agency contract with Capitol Chevrolet Company, designated the persons, including Henry, to be allowed access to the premises and selected and employed an independent detective agency to provide a 24 hour armed guard service.[3] But by none of the foregoing acts was Lawrence Warehouse Company absolved of its legal and contractual obligation as warehouseman to protect plaintiff's 22 property from risk of loss by fire. Nor was Lawrence Warehouse Company relieved of its duty by plaintiff's approval or selection of Capitol Chevrolet Company as agent of Lawrence Warehouse Company for the latter was under no compulsion to contract as it did with plaintiff. Having done so, it is bound thereby. There remains to be determined whether there is direct liability of Capitol Chevrolet Company to plaintiff. It cannot be disputed that Capitol Chevrolet Company accepted the tires for storage. Thereby it became a bailee for hire for the benefit of plaintiff. And there then rested upon it the legal duty toward the plaintiff to use due care for the preservation of plaintiff's property. California Civil Code, § 1814; Lough v. John Davis & Co., 30 Wash. 204, 70 P. 491, 59 L.R.A. 802, 94 Am.St.Rep. 848; Emery & Co. v. American Refrigerator Transit Co., 194 Iowa 926, 189 N.W. 824; Orcutt v. Century Building Co., 201 Mo. 424, 99 S.W. 1062, 8 L.R.A.,N.S., 929; Franklin v. May Department Stores, D.C., 25 F.Supp. 735. Capitol Chevrolet Company is not excused because its principal is liable, for it is its statutory and common law duty as well as its contract obligation which subjects it to liability. California Civil Code, Sections 1814, 1851, 1852. Mayer v. Thompson Hutchinson Bldg. Co., 104 Ala. 611, 16 So. 620, 28 L.R.A. 433, 53 Am.St. Rep. 88. The Amount of the Loss. The amount of damage alleged by plaintiff is $76,000.00. The basis upon which its calculation of the value of the graded tires and tubes destroyed is made namely, average cost, not of the destroyed graded tires and tubes, but of all such tires and tubes collected by plaintiff in Northern CaliforniaI find to be speculative and therefore legally improper. Muldrow v. Samuel Norris, 2 Cal. 74, 56 Am.Dec. 313. However mere uncertainty in amount is not an obstacle to the allowance of damages. In the case of uncertainty, the most reasonable basis within the boundaries of possibility should be formulated. Pacific Steam Whaling Co. v. Alaska Packers' Association, 138 Cal. 632, 72 P. 161; Hanlon D. & S. Co. v. Southern Pac. Co., 92 Cal.App. 230, 235, 268 P. 385; Story Parchment Co. v. Paterson, 282 U. S. 555, 51 S.Ct. 248, 75 L.Ed. 544; Eastman Kodak Co. v. Southern Photo Co., 273 U.S. 359, 47 S.Ct. 400, 71 L.Ed. 684; Rilovich v. Raymond, 20 Cal.App.2d 630, 67 P.2d 1062. The testimony of Alfred D. McClellan (Tr. 14) and the data contained in plaintiff's Exhibti #3 show the following to be the number and classification of the tires and tubes destroyed: Quantity Value Scrap tires 13 412 @ .20 each 2 682 40 Graded tires 14 189 @ 2.75 each 39 019 75 Graded tubes 50 @ 1.50 each 75 00 Scrap tubes 1 800 .11 each 198 00 _________ Total $41 975 15 The fair value, I have set out opposite the respective items. The manner of arriving at the values so fixed is set out in the margin.[4] *23 Judgment will enter in favor of plaintiff against defendants Lawrence Warehouse Company, Capitol Chevrolet Company and V. J. McGrew for $41,975.15 and costs and in favor of defendant Henry and against plaintiff for costs. Findings will be submitted pursuant to the rules. The court will retain jurisdiction to determine the issues of the cross-actions, if the parties therein concerned determine to pursue the same. Dated: January 9, 1946. NOTES [1] The so-called "prima facie" rule does not prevail in this circuit upon motion to dismiss in non jury cases after conclusion of plaintiff's evidence. The adjudication of the court in such a case is upon the merits after weighing the evidence according to the appropriate standards. Rule 41(b) Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Barr v. Equitable Life Assur. Soc., 9 Cir., 149 F.2d 634. See also Comment in 9 F.Rules Service, p. 37. [2] Direct and positive evidence is not prerequisite in this kind of case. See Wilson v. Southern Pacific Co., supra. [3] The evidence indicates that the armed guard service was purely an additional and independent protective activity to prevent pilferage of the tires. [4] Graded Tires. The record (Tr. 22; Plaintiff's Exhibit #4, Grade 4) shows that the lowest OPA price for graded tires was $2.75 per tire. (By plaintiff's unacceptable theory of average cost a value of $3.48 per tire was claimed. (Tr. 23)) The price of $2.75 does not in fact represent the lowest price paid by plaintiff for any graded tire, inasmuch as there was deducted from the OPA price on graded used tires 90¢ for each vulcanized spot repair needed and $1.70 for each reinforcement or sectional repair needed. (Plaintiff's Exhibit #4, Grade 4.) Since it is not unreasonable to assume that tire owners turned in under the "Idle Tire Purchase Plan" their poorest tires, many of such graded used tires must have been purchased by plaintiff at less than $2.75, thus serving to offset to some degree other tires purchased for more than $2.75. These factors would in my opinion reasonably tend to equalize the difference in price to such an extent that a value of $2.75 per tire may be fixed as a fair and reasonable value of the graded tires destroyed. Scrap Tires. No difficulty presents itself as to scrap tires, since plaintiff paid 20¢ each for all tires of this kind. Graded Tubes. Likewise appraisement of value here is free of difficulty for the reason that the lowest OPA price for a sound or repaired used tube was $1.50. (Plaintiff's Exhibit #4, Table VI). Coincidentally this is average cost per plaintiff's theory. Scrap Tubes. There is evidence neither of any OPA price for scrap tubes nor of the price paid by plaintiff, but plaintiff claims a value of 20¢ each. Since graded tubes appear to carry a value of 55% of the value of graded tires, it is fair and reasonable to conclude that a similar ratio of value obtained in the case of scrap tires and tubes. Consequently the value of the scrap tubes is fixed at 11¢ each.	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 01-3344 ___________ Terry Sanders, * * Appellant, * * v. * Appeal from the United States * District Court for the May Department Stores Company, * Eastern District of Missouri. * Appellee. * * ___________ Submitted: September 12, 2002 Filed: January 9, 2003 ___________ Before HANSEN, Chief Judge, RILEY and SMITH, Circuit Judges. ___________ SMITH, Circuit Judge. Terry Sanders ("Sanders") brought this employment action alleging that her former employer, the May Department Stores Company ("May"), violated the Family and Medical Leave Act ("FMLA"). Following trial, the jury entered a verdict in favor of May on all counts. Sanders appeals the District Court’s1 denial of her post-verdict motion. We affirm. 1 The Honorable Donald J. Stohr, United States District Court Judge for the Eastern District of Missouri. I. May hired Sanders as a financial analyst in October 1984. Sanders, then a male, worked productively at the company for nearly thirteen years until the spring of 1998. In March of that year, Sanders informed May that she suffered from gender dysphoria.2 To address this condition, Sanders told May that she intended to undergo gender reassignment surgery on June 4, 1998. Moreover, following the surgery, Sanders would no longer consider herself a male, but a female. Sanders also informed May that in order to prepare for this surgery, she was required to live as a woman for four to six weeks preceding the procedure. She expressed particular concern that some level of confidentiality be maintained during this pre-surgical lifestyle adjustment. In particular, she wanted to avoid workplace disclosure of her impending life change. Sanders especially emphasized that she did not desire this disclosure because of the adverse effect such disclosure might have on her spouse of twenty-five years. Consistent with her desire for privacy, Sanders tendered her resignation. In stating her intent to resign, Sanders also acknowledged her understanding that if she did not resign prior to surgery, she could have received sick pay during convalescence. As consideration, she sought from the company what she described 2 Gender dysphoria, also known as transexualism, has been defined as: The desire to live and be accepted as a member of the opposite sex, usually accompanied by the wish to make his or her body as congruent as possible with the preferred sex through surgery and hormone treatment. Harry Benjamin Int'l Gender Dysphoria Assoc., Standard of Care for Gender Identity Disorders (6th ed. Feb. 2001) available at http://www.hbigda.org/socv6. pdf; see also Davidson v. Aetna & Casualty Ins. Co., 420 N.Y.S.2d 450, 452 (N.Y. Sup. Ct. Trial Term 1979) (defining gender dysphoria). -2- as "due financial consideration" and a "leave of absence." Specifically, she wanted to cease reporting for duty in April, but continue as an employee through May 1, 1998. Sanders gave other personal grounds for this consideration. In reply, May explained to Sanders that severance pay was not an option under company policy because her departure was voluntary. May also expressed concern at this time that Sanders was leaving a job she had held for more than thirteen years. Sanders stated that she understood, but that her decision was well-reasoned. She had plans to rendevous in another state with her future partner, who was going to provide and care for her during her recuperative period. Afterwards, they planned to marry and begin their life together in that state. During this time, a representative of May's human resources office informed Sanders that she might qualify for FMLA leave. This representative also explained that in order to qualify for leave, the statute required Sanders to provide medical certification of the need for leave. Sanders reasserted her intent to resign and, because of her confidentiality concerns, stated that she did not want to provide the FMLA- required medical certification. May's personal-leave policy allows an employee to receive up to one week of leave for each year of service, at May's discretion. After the leave expires, if the employee wishes to return to work, he or she may do so if there is a position available. Under its personal-leave policy, May is not obligated to hold the position open for the employee. As an employee of thirteen years, Sanders was eligible for, and received, thirteen weeks of personal leave. The leave expired at the end of July 1998. In June 1998, during the leave period, Sanders underwent gender reassignment surgery. However, Sanders's personal plans apparently changed, and she sought reinstatement with May. May, however, had not reserved Sanders' previous position. -3- Nevertheless, May did rehire Sanders on February 16, 1999, to work as a Senior Financial Analyst in its MIS department. This position differed from the one she previously held for the company. On April 30, 1999, May terminated Sanders for poor performance. As a result, in March 2000 Sanders filed this action against May seeking damages for its alleged violation of FMLA. II. Sanders first appeals the denial of her post-trial "Motion for Judgment Notwithstanding the Verdict or in the Alternative for a New Trial."3 In the motion, Sanders argued that: (1) the jury's verdict was contrary to the evidence presented at trial; (2) May did not satisfy its FMLA notice requirements; (3) she did not volitionally waive her FMLA rights; (4) she was entitled to a new trial based on her retaliation claim. In addition, Sanders appeals the District Court's refusal of several of her jury instructions. As discussed below, each of these arguments is without merit. A. Judgment as a Matter of Law or New Trial Our review of a district court's denial of a motion for judgment as a matter of law is conducted de novo. We will evaluate all evidence and all reasonable inferences in the light most favorable to the prevailing party. Moring v. Arkansas Dept. of Correction, 243 F.3d 452, 455 (8th Cir. 2001); Vetter v. Farmland Indus. Inc., 120 F.3d 749, 752 (8th Cir. 1997). We will not disturb a jury's verdict unless we determine that no reasonable juror could have found for the non-moving party based on the trial record. Moring, 243 F.3d at 455. We review the denial of a motion for a new trial for an abuse of discretion. Duty v. Norton-Alcoa Proppants, 293 F.3d 481, 3 Based on the substance of Sanders's argument, we conclude that she filed this motion seeking judgment as a matter of law, in spite of the title of the motion. -4- 495 (8th Cir. 2002). "The key question is whether a new trial should have been granted to avoid a miscarriage of justice." Belk v. City of Eldon, 228 F.3d 872, 878 (8th Cir. 2000) (citations omitted). 1. Sanders first argued that the jury's finding was contrary to the evidence presented at trial. At trial, the jury found that May did not violate FMLA when it awarded her only personal leave instead of FMLA leave (in spite of her FMLA eligibility before her sexual reassignment surgery). An eligible employee, such as Sanders, may take FMLA leave for a period not to exceed twelve months "because of a serious health condition that makes the employee unable to perform the functions of his or her job." 29 U.S.C. § 2612(a)(1); see also, 29 C.F.R. §825.112(a). However, in order to invoke the protections of FMLA, an employee must notify his employer of his "intention to take leave." 29 U.S.C. §2612(e)(2)(B). At a minimum, an employee must give "at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave." 29 C.F.R. §825.302(c). While the employee does not have to mention FMLA by name, the employee has an affirmative duty to indicate both the need and the reason for the leave. 29 C.F.R. §825.302(c). Thus, in evaluating the jury's verdict, we must first consider whether Sanders made a valid request for FMLA leave. Sanders planned to have a sex change operation in June 1998. She notified May that she wanted to resign no later than May 1, 1998, in order to maintain a level of anonymity during the month prior to the operation. At that time, Sanders stated her intent clearly and articulated several factors supporting her decision. She: 1) feared ridicule from peers and colleagues; 2) anticipated impending trouble at the workplace from an ex-boyfriend; 3) believed that if she resigned her position prior to the surgery she would spare her spouse a measure of grief; 4) planned to move to another state with her future fiancee and begin life anew. -5- Also at the time of her resignation, Sanders requested severance pay noting that her departure prior to undergoing her scheduled surgical procedure would save May the expense of providing her with covered medical leave if she remained in its employ. Alternatively, Sanders requested that she be allowed to take a "leave of absence" during the month of April so that she would still accrue additional vacation leave until May 1, 1998. In response to Sanders dual request, May suggested that there was a "possibility" that she would qualify for FMLA leave.4 Sanders refused because she would be required to supply the company with a medical certification delineating her qualifying health condition. Thus, it is plain from these facts that Sanders did not actually attempt to pursue FMLA leave. This refusal was consistent with her articulated desire for non-disclosure of her gender reassignment. Instead of FMLA leave, May granted Sanders thirteen weeks of personal leave (one week for each year of service), which allowed her to continue receiving corporate benefits including medical insurance and accrual of leave. Sanders attempts to get around these facts. First, she argues that she provided May with sufficient notice of her need for FMLA leave because May acknowledged the possibility that her sexual reassignment would be an FMLA-qualifying event. However, such a conclusion is untenable; it ignores the fact that she dismissed the option outright. We hold May was not obligated to ignore Sanders's express resignation. Second, Sanders also maintains that because May granted her personal leave, it cannot be said that she also resigned her position. However, there is no mutual exclusivity to the grant of a personal leave and a resignation. Sanders, herself, best makes this point. In a letter she authored in March 1998, Sanders informed one of her 4 Because it is not essential to the resolution of the issues before us, we decline to address whether sexual reassignment qualifies as a serious-health condition under FMLA. -6- physicians that she would "be resigning" after a "leave of absense [sic]" and that she would be moving near her "boyfriend and future fiancee." She also noted in the letter that her "last day of work in the St. Louis area will be Thursday, April 23, 1998." Therefore, because Sanders did not actually pursue FMLA leave, and in fact, expressly rejected it, we conclude that a reasonable jury could determine that Sanders failed to request FMLA leave. As a result, a reasonable jury could further conclude that May had not violated FMLA. 2. Sanders next argues that the trial court erred when it refused to grant her a judgment as a matter of law on her claim that May did not satisfy its notice obligations under FMLA. Sanders relies on 29 C.F.R §825.301(c), which requires an employer to provide an employee with written notice. 29 C.F.R §825.301(c) (stating that an employer must provide an employee with written notice "no less often than the first time in each six-month period that an employee gives notice of the need for FMLA leave (if FMLA leave is taken during the six-month period)."). The notice must detail an employee's specific expectations and obligations under FMLA and explain any consequences of a failure to meet those obligations. Id. Under §825.301(c) of the FMLA, the detailed employer written notice obligation Sanders cites arises only after an employee gives sufficient information to the employer to apprize it of the need for leave due to a serious health condition. If an employee gives insufficient or no notice of a serious health condition, §825.301(c) does not apply. If Sanders failed to properly notify her employer of her need for leave, her employer would be under no obligation to comply with the requirements of 29 C.F.R §825.301(c). May presented evidence at trial that Sanders had been informed of her FMLA rights. The notice required by 29 C.F.R. 825.300(a) had been posted in May's human resources offices since FMLA's inception. Moreover, Sanders acknowledged that she received a memorandum from May describing FMLA's -7- protections as well as her rights and obligations as an employee. Given these facts, we hold a rational jury could resolve this issue against Sanders, and the trial court did not err in refusing to grant judgment as a matter of law in her favor. 3. Sanders next argues that the District Court erred when it denied her request for judgment as a matter of law on the issue of whether her decision to forego the FMLA leave option was volitional. She contends that May coerced her to waive her FMLA rights in a "trade-off" for personal leave under its policy. To buttress her argument, Sanders cites 29 C.F.R. §825.220(d). This section states that neither may employees "waive, nor may employers induce employees to waive, their rights under FMLA. For example, employees . . . cannot "trade-off" the right to take FMLA leave against some other benefit offered by the employer." Id. Sanders supports her argument with a May employee's deposition testimony. In it, the employee stated that she believed that Sanders chose personal leave over FMLA. However, to the extent that Sanders "chose" personal leave, it was by forfeit. She was informed of the possibility of FMLA leave (and the accompanying medical certification requirement) and for understandable personal reasons, opted not to pursue the FMLA alternative. The record before us does not support Sanders's contention that May required her to "trade away" her FMLA rights. In finding otherwise, the trier of fact was justified. Accordingly, we affirm the District Court's denial of Sanders's request for judgment as a matter of law. 4. Sanders also contends that the District Court should have granted her a new trial. Sanders argues that May fired her–from the second position she held at May– in retaliation for complaining that her FMLA rights had been violated in 1998. Sanders concedes that this claim rests on our disposition of her previous claims. The jury determined that May terminated Sanders from her second position based on poor -8- performance. The District Court refused to grant a new trial on that issue, and Sanders has not stated sufficient basis for this Court to conclude differently on appeal. B. Jury Instructions Finally, Sanders argues that the District Court erred when it refused several of the jury instructions submitted at trial. We review the jury instructions given by a district court for an abuse of discretion. See Brown v. Sandals Resorts Int'l, 284 F.3d 949, 953 (8th Cir. 2002). "Our review is limited to whether the jury instructions, taken as a whole, fairly and adequately represent the evidence and applicable law in light of the issues presented to the jury in a particular case." Id. (citations omitted). We will not reverse "unless we find that the error affected the substantial rights of the parties." Fogelbach v. Wal-Mart Stores, Inc., 270 F.3d 696, 699 (8th Cir. 2001). Sanders alleges that because the instructions she submitted were not accepted, she did not receive a fair trial. We disagree and find no abuse of the District Court's discretion. -9- Instructions 1B, 2, and 55 required the trial court to make a determination that Sanders could not refuse FMLA leave. The evidence demonstrated that May told Sanders that she might qualify for FMLA leave. Sanders declined, stating that she wanted to resign. There is no legal requirement that an employer must give an employee FMLA leave after such an offer has been rejected. Because each of these 5 The instructions read in their entirety: Instruction 1B You have heard testimony from Ron Antoniewicz that at a meeting with Plaintiff on March 16, 1998 [sic] he mentioned FMLA to Plaintiff and that Plaintiff immediately refused FMLA leave. Whether or not you believe such testimony from Ron Antoniewicz, I have decided that, under the applicable law, Defendant's obligations toward Plaintiff under FMLA, [sic] did not end because of Plaintiff's purported refusal of FMLA during the March 1998 meeting. I express no opinion, in this instruction, on any other issue in the case. Instruction 2 You have heard testimony from Ron Antoniewicz that at a meeting with Plaintiff on March 16, 1998 [sic] he mentioned FMLA to Plaintiff and that Plaintiff immediately refused FMLA leave. You have heard testimony that Plaintiff "Chose" [sic] a personal leave over a FMLA leave. Whether or not you believe such testimony, I have decided that, under the applicable law, Plaintiff did not waive or give up any of Plaintiff's FMLA rights as a result of the alleged refusal of FMLA or choosing of the personal leave during the March 1998 meeting. I express no opinion, in this instruction, on any other issue in the case. Instruction 5 You have heard testimony from Ron Antoniewicz that at a meeting with Plaintiff on March 16, 1998 [sic] he mentioned FMLA to Plaintiff and that Plaintiff immediately refused FMLA leave. Whether or not you believe such testimony from Ron Antoniewicz, I have decided that, under the applicable law, Plaintiff did not waive or give up any of Plaintiff's FMLA rights as a result of the alleged refusal of FMLA during the March 1998 meeting. I express no opinion, in this instruction, on any other issue in the case. -10- three instructions would, therefore, contain inaccurate declarations of the law, the District Court properly refused them. Proposed Instruction 1A6 asked the court to state that it had decided Sanders's second period of employment with May was not an "equivalent position." The effect of such an instruction would have caused the District Court to engage in fact-finding. That role is preserved for the members of the jury. As such, the District Court was correct to refuse it. Even if this was not the case, the record supports the conclusion that May's decision to rehire Sanders in 1999 was an independent event and was not a retroactive application of FMLA. Instruction 47 also asked the trial court to engage in fact-finding. Specifically, Sanders asked for an instruction to the jury stating that she had given May sufficient notice of her desire to take FMLA leave in March of 1998. The adequacy of one's notice in the FMLA context is not a question of law, but rather a fact issue. See Hopkins v. Quitman County Hosp. & Nursing Home, Inc., 126 F.3d 635, 640 (5th Cir. 1997) ("[I]t is our opinion that the adequacy of Hopson's notice is a fact issue."). Thus, the trial court properly refused to submit this instruction to the jury. 6 The instruction reads in its entirety: Instruction 1A. I have decided that Plaintiff's second period of employment with May Company, from February 1999 to April 1999, is not an "Equivalent Position" as defined in Instruction No. 19. 7 The instruction reads in its entirety: Instruction 4. I have decided that on March 16, 1999, Plaintiff gave sufficient "Notice" (to May Company) of the need for FMLA leave for planned medical treatment. I express no opinion, in this instruction, on any other issue in the case. -11- Sanders's final argument is that the trial court failed to properly explain to the jury the following: after Sanders gave notice to May of the need for leave, May was required to give her written notice of her rights and obligations under FMLA. The verdict director, Instruction 14a, sets forth the elements of this count.8 Furthermore, Instruction 14b goes on to state what an employer must tell an employee in order to adequately advise her of her rights. As a result, the verdict directors make clear that an employer’s duty to advise an employee of her rights under FMLA must come after notification of the need for leave.9 Therefore, we conclude that neither did the trial court abuse its discretion in refusing the instruction, nor did Sanders suffer any resulting prejudice from the instruction that was given. Moreover, to the extent that Sanders argues that the District Court's refusal to grant the requested instructions 8 That: Sanders had to give notice of her intent to take a leave, she had to prove she had a serious health condition, May had to fail to adequately advise her of her rights and obligations, and because of May's failure to adequately advise her, she forfeited her FMLA rights. 9 Notably, even if this instruction is incomplete, Sanders suffered no prejudice. There was sufficient evidence in the trial record that Sanders did not give notice of her intent to take a leave, she did not have a serious health condition when her leave commenced, and she was not damaged by not receiving any written notification of her rights after meeting with May officials in March 1998. Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81(2002); 29 C.F.R. §825.112(a); 29 C.F.R. §825.302(c). Sanders did not want FMLA leave in March 1998 because she was afraid of others learning of her secret life and plans. When orally told of her leave options, she refused to provide the necessary documentation. Sanders's rabid desire for confidentiality did not change until months later. As Sanders suffered no prejudice, even if this instruction were incomplete, it was harmless error, not a basis for reversal of the verdict in this case. Scamardo v. Scott County, 189 F.3d 707, 711 (8th Cir. 1999). -12- inflamed and prejudiced the jury, her argument is unpersuasive. She offers no convincing argument on appeal to support such a contention.10 Accordingly, for the foregoing reasons, the decision of the District Court is affirmed. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. 10 Finally, because we affirm the District Court on all points, we need not address whether Sanders's position at May after her rehiring constituted an equivalent position for purposes of the FMLA. -13-	{ "pile_set_name": "FreeLaw" }
COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 2-07-464-CR TIMOTHY RASHON WARNER APPELLANT V. THE STATE OF TEXAS STATE ------------ FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY ------------ MEMORANDUM OPINION 1 ------------ Appellant Timothy Rashon Warner appeals from his conviction and ninety- nine-year sentence for causing serious bodily injury to a child. In three points, he argues that the trial court erred by admitting into evidence statements obtained from Appellant in violation of Miranda,2 by admitting statements obtained from Appellant in violation of his right to counsel, and by denying his 1 … See Tex. R. App. P. 47.4. 2 … Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966); see Tex. Code Crim. Proc. Ann. art. 38.22, § 2 (Vernon 2005). request for a continuance when a witness was unavailable to testify at the trial’s punishment phase. We affirm. Background 3 On August 11, 2005, Appellant took the lifeless body of three-year-old Sierra Odom to a hospital emergency room.4 He told hospital personnel that he had just been in a car wreck and that Odom had been thrown from her car seat and injured. Efforts to revive Odom failed. Because the child appeared to have been dead longer than suggested by Appellant’s story and because of the relatively minor damage to his vehicle, hospital personnel believed Appellant had concocted the car-wreck story to hide a crime, and they notified the police. Arlington Police Detective Richard Nutt went to the hospital and interviewed hospital personnel. He introduced himself to Appellant and asked Appellant to accompany him to the police station and give a statement, and Appellant agreed. At the station, Detective Nutt gave Appellant the Miranda warnings and interviewed Appellant. At first, Appellant maintained that Odom had been injured in the car wreck. Later in the same interview, however, he admitted that Odom was injured in Appellant’s home while Appellant was 3 … Because Appellant does not contest the sufficiency of the evidence to support his conviction, we will set out only so much of the evidence as required to put Appellant’s points into context. 4 … Sierra was one of Appellant’s foster children. 2 attempting to discipline her. At the end of the interview, Detective Nutt drove Appellant back to Appellant’s house, where a search—to which Appellant’s wife had consented—was underway. Detective Nutt then took Appellant’s wife to the station, where another detective interviewed her. After Detective Nutt and Appellant’s wife had left the house, Appellant conversed with the officers searching his home. He eventually told them that he had shoved Odom toward a bookcase, causing her head to hit the bookcase, and that he had staged the car accident. In the meantime, Detective Nutt obtained a warrant for Appellant’s arrest. He drove Appellant’s wife back to Appellant’s home and arrested Appellant. Detective Nutt then took Appellant to the police station and read him his Miranda rights again. A few minutes into the interview, the following colloquy occurred: Detective Nutt: Why don’t you tell us about last night. Appellant: Alright. I just don’t want to make a mistake. If I’m gonna make a mistake, I—I can’t afford an attorney. Did I understand, the court appoint you one? Detective Nutt: If you want an attorney, that is your right. Appellant: The court appoint you one? Is that real, or not? Detective Nutt: Yeah, that’s real. Detective Lopez: Yeah, that’s one of the rights that he, that Detective Nutt (inaudible). That’s one of the 3 right’s that’s afforded to you. And that was one of the rights that, that Detective Nutt read to you, if you can’t afford an attorney, one may be appointed for you. I don’t—without reading it directly off the card, I can’t tell you exactly word-for-word how it reads, but that—that’s the case. Again, that’s not something that we handle. Detective Nutt: That’s your decision to make, if you want (inaudible). Appellant: I just want to tell the truth. Appellant then told the detectives that he had grabbed Odom by the face and shoved her into a bookcase and that he had faked the car crash to cover up the injuries. A grand jury indicted Appellant for intentionally or knowingly causing serious bodily injury to a minor with an unknown deadly weapon. A jury convicted Appellant as charged and made an affirmative finding to the deadly- weapon allegation. But the jury deadlocked on punishment, and the trial court granted Appellant’s motion for a mistrial on punishment. At a second trial on punishment, another jury assessed punishment at ninety-nine years’ incarceration, and the trial court rendered judgment accordingly. Discussion 1. Miranda violation In his first point, Appellant argues that the trial court erred by admitting testimony about the statements he made to the police officers who searched 4 his home after his first interview with Detective Nutt and before Detective Nutt arrested him because those statements were the result of a custodial interrogation and those officers did not warn him of his Miranda rights. The State argues that Appellant waived his complaint by failing to object each time witnesses testified about the statements in question. To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999). A party must continue to object each time the objectionable evidence is offered. Ethington v. State, 819 S.W.2d 854, 858–59 (Tex. Crim. App. 1991). A trial court’s erroneous admission of evidence will not require reversal when other such evidence was received without objection, either before or after the complained-of ruling. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); Johnson v. State, 803 S.W.2d 272, 291 (Tex. Crim. App. 1990), cert. denied, 501 U.S. 1259 (1991), overruled on other grounds by Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991). This rule applies whether the other evidence was introduced by the defendant or the State. Leday, 983 S.W.2d at 718. 5 When one of the officers who searched Appellant’s home—John Gonzales—testified, Appellant made three objections to Officer Gonzales’s testimony about Appellant’s statements. First, when the prosecutor asked Officer Gonzales about a statement Appellant made to his wife before Detective Nutt took her to the police station, Appellant objected, and the court ruled, as follows: [APPELLANT’S COUNSEL]: Your honor, I want a running objection to all of this testimony from the sergeant as to what [Appellant] said, because it’s a violation of Miranda and any other provision of the law. And this line of testimony is completely out of bounds for a fair trial. THE COURT: Your objection is overruled, and you may have a running objection to the testimony regarding a conversation that the Defendant had with his wife. Next, when the prosecutor asked Officer Gonzales what Appellant said when Officer Gonzales asked him what had happened, Appellant made the following objection: [APPELLANT’S COUNSEL]: Your honor, I’m going to have to object to hearsay. He asked for hearsay. THE COURT: Okay. You have a running objection to the statements made by the Defendant at the home, and it’s overruled. Finally, when the prosecutor asked Officer Gonzales what Appellant said when the officer told him he did not believe Appellant’s story, Appellant objected, [APPELLANT’S COUNSEL]: Your honor, I’m going to object to what he said at this time. He has not been warned by this officer of his Miranda rights. 6 THE COURT: Okay. And you have a running objection to all of the statements made by the Defendant in the home, and it’s overruled. But when another detective—Daniel Rhodes—testified extensively about Appellant’s in-home statements, Appellant made no objection. A running objection requested by defense counsel, if granted by the trial court, may be sufficient to preserve error when another witness testifies to the same matter if the objection was timely, stated the specific grounds, and requested the ruling later denied. Ethington, 819 S.W.2d at 858–59; Scaggs v. State, 18 S.W.3d 277, 292 (Tex. App.—Austin 2000, pet. ref’d); see Sattiewhite v. State, 786 S.W.2d 271, 283 n.4 (Tex. Crim. App. 1989) (observing that there are situations in which a running objection may be more appropriate than a redundant and disruptive series of objections) cert. denied, 498 U.S. 881 (1990). In Ford v. State, the court of criminal appeals held that a running objection extended to other witnesses when the defendant asked for a running objection to “extend to all witnesses,” if they testified to the same type of matter. 919 S.W.2d 107, 113 (Tex. Crim. App. 1996); see also Campos v. State, 256 S.W.3d 757, 760 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). In the case before us, unlike Ford, Appellant did not ask for his running objection to Officer Gonzales’s testimony to apply to all witnesses. See Scaggs, 18 S.W.3d at 292–93. And Appellant failed to object when Daniel 7 Rhodes testified about Appellant’s statements in the home. Thus, he failed to preserve his complaint as to that testimony. Leday, 983 S.W.2d at 718. We overrule Appellant’s first point. 2. Denial of Motion for Continuance In his second point, Appellant argues that the trial court erred by denying his motion for continuance at the second punishment trial when a witness—Appellant’s wife—was unavailable to testify, thereby violating Appellant’s Confrontation Clause rights. During the first trial’s guilt/innocence phase, Appellant’s wife testified that she was asleep on the night of Odom’s death when Appellant called her to a bedroom. When she went to the bedroom, she could see that something was wrong with Odom, who soon fell unconscious and died. Appellant’s wife dressed the corpse and helped Appellant strap it into a car seat in their vehicle. At the time of the second punishment trial, Appellant’s wife was apparently recuperating from a gunshot wound in a Louisiana hospital. The State read her testimony from the prior trial to the jury. The next day, Appellant orally moved for a continuance to secure her attendance at trial. Appellant’s counsel represented to the trial court that Appellant’s wife would testify that another child in Appellant’s home injured Odom. The trial court requested additional information about Appellant’s wife’s condition. Appellant’s counsel called the Louisiana hospital and learned that Appellant’s wife was in 8 intensive care and on a ventilator. The trial court denied Appellant’s request for continuance. A motion for continuance must be written or sworn; otherwise, it preserves nothing for review. Tex. Code Crim. Proc. Ann. arts. 29.03, 29.08 (Vernon 2006); Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Because Appellant’s motion was not in writing, he preserved nothing for our review, and we overrule his second point. 3. Violation of Right to Counsel In his third point, Appellant argues that the trial court erred by admitting into evidence Appellant’s second videotaped statement to Detective Nutt after the point in the interview when Appellant purportedly requested counsel. Appellant does not identify where in the record he objected to Detective Nutt’s testimony or the admission of the interview recordings on this basis, and our own review of the record reveals no such objection. Further, when the State offered the interview video recordings, Appellant stated that he had no objection to them. A defendant waives error if he affirmatively asserts that he has no objection when evidence is offered, even if he made an otherwise error- preserving objection before trial or outside the presence of the jury. See Jones v. State, 962 S.W.2d 158, 167 (Tex. App.— Fort W orth 1998, no pet.); 9 Tuffiash v. State, 948 S.W.2d 873, 876 (Tex. App.—San Antonio 1997, pet. ref’d). Because Appellant did not object to the admission of his statements made after his purported demand for counsel and affirmatively stated that he had no objection to their admission, we hold that he waived his complaint, and we overrule his third point. Conclusion Having overruled all of Appellant’s points, we affirm the trial court’s judgment. ANNE GARDNER JUSTICE PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: July 30, 2009 10	{ "pile_set_name": "FreeLaw" }
732 N.W.2d 540 (2007) PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dustin Andre JOLLY, Defendant-Appellant. Docket No. 132896. COA No. 274730. Supreme Court of Michigan. June 20, 2007. On order of the Court, the application for leave to appeal the January 4, 2007 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.	{ "pile_set_name": "FreeLaw" }
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 11 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MARYANN CELEDON, No. 17-16979 Plaintiff-Appellant, D.C. No. 1:16-cv-00440-JLT v. MEMORANDUM* ANDREW M. SAUL, Commissioner of Social Security, Defendant-Appellee. Appeal from the United States District Court for the Eastern District of California Jennifer L. Thurston, Magistrate Judge, Presiding Submitted September 9, 2019** Before: LEAVY, TROTT, and SILVERMAN, Circuit Judges Maryann Celedon appeals the district court’s judgment affirming the Commissioner of Social Security’s denial of her application for disability insurance benefits and supplemental security income benefits under Titles II and * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). XVI of the Social Security Act. At step four of the sequential evaluation process, the administrative law judge (ALJ) determined that Celedon could perform her past relevant work as a switchboard operator. We have jurisdiction under 28 U.S.C. § 1291. We review a district court’s decision not to apply the law of the case doctrine for abuse of discretion and whether an ALJ has followed the remand order of the district court in compliance with the rule of mandate de novo, Stacy v. Colvin, 825 F.3d 563, 567-68 (9th Cir. 2016), and we affirm. The district court did not abuse its discretion in declining to apply the law of the case doctrine. The district court remanded the ALJ’s initial decision because the record was not fully developed, and the ALJ on remand properly developed the record by eliciting additional vocational expert testimony and accepting additional medical evidence in order to clarify Celedon’s residual functional capacity (“RFC”). See id. at 567 (stating that the law of the case doctrine should not be applied “when the evidence on remand is substantially different.”). The district court did not err in concluding that the ALJ did not violate the rule of mandate with respect to the ALJ’s reformulation of Celedon’s RFC because the district court’s remand order did not preclude the ALJ from reformulating Celedon’s RFC. See id. at 568-69 (stating that an ALJ may “reexamine any issue on remand that is not foreclosed by the mandate.”). AFFIRMED. 2 17-16979	{ "pile_set_name": "FreeLaw" }
259 F.Supp.2d 586 (2003) Rebecca JUDE, et al. Plaintiffs v. FIRST NATIONAL BANK OF WILLIAMSON Defendant No. CIV.A.02-316-DLB. United States District Court, E.D. Kentucky, Pikeville. March 31, 2003. 588 Stephen L. Hogg, Stratton, Hogg & Maddox, P.S.C., Pikeville, KY, for Plaintiffs. Denise R. McClelland, Jerry M. Lovitt, Frost, Brown & Todd, LLC, Lexington, KY, for Defendant. OPINION & ORDER BUNNING, District Judge. This action is before the Court on Defendant's motion to dismiss. (Doc. # 3) Defendant contends that in personam jurisdiction before this Court is lacking, and therefore Plaintiffs' claims against it must be dismissed. Plaintiffs have filed their response, to which Defendant has replied, and the matter is ripe for adjudication. FACTUAL AND PROCEDURAL BACKGROUND Plaintiffs Rebecca Jude (Jude) and Robert Layne (Layne) currently reside in Pike County, Kentucky. In October of 1999, while living in West Virginia, Jude and Layne purchased real estate in Pike County on which they intended to construct a residence. To finance the purchase and construction, Jude and Layne obtained financing from Defendant First National Bank of Williamson (First National). First National agreed to loan Jude and Layne the sum of $170,000, which loan was secured by a promissory note and mortgage on the real estate. In addition, First National required Plaintiffs to pledge a $50,000 certificate of deposit. After Plaintiffs began construction of their home, Layne was seriously injured, from which he was rendered paralyzed. According to Plaintiffs, Defendant shortly thereafter refused to issue all agreed upon funds and instead demanded payment in full on the promissory note for the loan funds that had been disbursed. Plaintiffs allege that as a result of Defendant's conduct, they were unable to make payment to the vendors and contractors who performed construction services. Plaintiffs filed suit against First National in the state circuit court in Pike County, Kentucky. Their complaint asserts First National breached the contractual agreement for financing; violated the provisions of the federal Truth in Lending Act and Regulation Z as well as the Equal Credit Opportunity Act and Regulation B; and discriminated against Plaintiffs because of Layne's disability, in violation of the Kentucky Civil Rights Act and the federal Fair Housing Act. After being served with the complaint, First National removed the action to this Court. In its notice of removal, Defendant asserts this Court has subject matter jurisdiction over Plaintiffs' state law claims based upon diversity of citizenship jurisdiction pursuant to 28 U.S.C. § 1332, and also over Plaintiffs' federal claims based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331. Shortly after the case was removed, First National moved to dismiss this entire action for lack of personal jurisdiction pursuant to Federal Rule 12(b)(2). Defendant argues that Plaintiffs cannot rely upon the Kentucky long-arm statute, K.R.S. § 454.210, to establish in personam jurisdiction over it. Specifically, Defendant points out that while the long-arm statute permits exercise of personal jurisdiction for claims arising from a party's transacting 589 any business in Kentucky or having an interest in real property, the Kentucky legislature has also expressly provided that a foreign corporation's activities in lending money are not to be considered as transacting business, for purposes of the long-arm statute. K.R.S. § 287.670. Defendant asserts it engages in activities in Kentucky that are associated with the lending of money pursuant to a loan agreement with a borrower that may reside in Kentucky. It claims the activities associated with loans to Kentucky residents are completed from its facilities and operations located in West Virginia. First National advertises its banking business on a web site reaching Kentucky residents which states in part, "The First National Bank of Williamson's Board of Directors, Management and Employees are dedicated to serving people in our area. Now we want our bank to be your bank." First National receives all principal and interest payments on its loans at its Williamson, West Virginia, facilities and decisions and records concerning loan modifications, extensions, or renewals are made at the Bank's facilities in Williamson, West Virginia. Plaintiffs oppose the motion to dismiss. They contend that Kentucky's long-arm statute permits the exercise of personal jurisdiction to the fullest extent permitted by the due process clause. They argue that their claims are not based on Defendant's loan of monies to them, but upon Defendant's breach of the agreement to release agreed-upon funds. Plaintiffs' response also points out that they have asserted a discrimination claim under the Kentucky Civil Rights Act, and that Defendant should be subject to personal jurisdiction thereunder since one of the purposes of that Act is to safeguard Kentucky residents from discrimination. Plaintiffs also argue that their Fair Housing Act discrimination claim permits suit in any appropriate state or federal court, and since the dwelling giving rise to the alleged violation of the Fair Housing Act is in Kentucky, this Court is an appropriate court. In reply, First National submits that Plaintiffs' labeling their claim as one for breach of contract rather than being based on the lending of money Is a distinction without a difference. In response to Plaintiffs' argument that the Fair Housing Act permits suit in any appropriate state or federal court, First National notes that this statutory provision does not negate the need for personal jurisdiction before Plaintiffs may maintain a state or federal discrimination suit against it. ANALYSIS Standard of review Once a defendant challenges personal jurisdiction, plaintiff bears the burden of establishing that jurisdiction exists. In assessing whether that burden has been satisfied, a district court has three procedural alternatives: "[it] may determine the motion on the basis of affidavits alone; or it may permit discovery in aid of the motion, or it may conduct an evidentiary hearing on the merits of the motion." Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1272 (6th Cir. 1998) (quoting Serras v. First Tennessee Bank Nat'l Ass'n, 875 F.2d 1212, 1214 (6th Cir.1989)). If an evidentiary hearing on the motion is not held, ... the court must consider the pleadings and affidavits in a light most favorable to the plaintiff.... To defeat such a motion, [the plaintiff] need only make a prima facie showing of jurisdiction. Furthermore, a court ... does not weigh the controverting assertions of the party seeking dismissal.... Id. (quoting CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir.1996)). 590 Personal jurisdiction over Plaintiffs' state law breach of contract claim Keeping this standard in mind, the Court turns to the challenge to personal jurisdiction raised by First National. Plaintiffs seek to obtain personal jurisdiction over First National based upon its "transacting business" within the Commonwealth of Kentucky. Ordinarily "transacting business" within Kentucky may serve as a basis to assert personal jurisdiction pursuant to subsection (2)(a)(1) of the Kentucky long-arm statute, K.R.S. § 454.210. First National argues it has not "transacted business" under § 454.210 due to the statutory exemption provided by K.R.S. § 287.670. That statute provides that certain lending activities by banks outside of the Commonwealth are not considered doing, transacting, or carrying on business in Kentucky. ... any foreign lending institution ... shall not be considered to be doing, transacting, or carrying on business in this state solely by reason of engaging in any or all of the following activities ...: (1) The lending of money ..., secured in whole or in part by mortgages, deeds of trust or other forms of security on real or personal property in this state, if such activities are carried on from outside this state by the lending institution .... K.R.S. § 287.670(1). The purpose for and interpretation of this statutory provision is unclear. There is no reported Kentucky case either applying or interpreting this statute. There is one federal district court opinion applying the statute, Bank of Louisville v. California First Bank, 641 F.Supp. 59 (W.D.Ky. 1986). In that case, once the court eliminated from its consideration of "transacting business" the banking activities of the California bank that fell within K.R.S. § 287.670, the only remaining activity that could be considered in determining whether personal jurisdiction existed was the bank's guaranteeing of a signature on a stock certificate. The federal district court concluded this activity alone was insufficient to satisfy the minimum contacts test of due process and, therefore, granted the California bank's motion to dismiss. Id. at 60. This Court has some doubt as to whether, in enacting these exceptions to what is considered "doing, transacting, or carrying on business," the Kentucky legislature likewise intended these same activities should also not be considered as "transacting business" for purposes of asserting jurisdiction under Kentucky's long-arm statute. For example, in Great Atlantic & Pacific Tea Co., Inc. v. Hill-Dodge Banking Co., 255 Iowa 272, 122 N.W.2d 337, 340 (1963) the Iowa Supreme Court examined similar exceptions. That court noted that the state legislature likely enacted these exceptions only for the intended purpose of determining whether foreign corporations need obtain a certificate of authority, not whether the foreign corporation was amenable to personal jurisdiction; however, the state legislature had not adequately clarified the scope of the statute and therefore the denial of personal jurisdiction on this ground was upheld by the court.[1]Id. at 340. The Iowa Supreme Court noted this lack of clarification by the state legislature resulted in a restriction upon the broadened concept of personal jurisdiction over foreign corporations expressed in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), which broadened concept of personal 591 jurisdiction had been approved by the Iowa Supreme Court. Id. Kentucky has similarly embraced the broadened concept of personal jurisdiction. Its long-arm has been interpreted by its courts to be as broad as the limits of due process. Wright v. Sullivan Payne Co., 839 S.W.2d 250, 253 (Ky.1992); Texas American Bank v. Sayers, 674 S.W.2d 36, 38 (Ky.Ct.App.1984), cert. denied, 469 U.S. 1211, 105 S.Ct. 1180, 84 L.Ed.2d 328 (1985). Nevertheless, the intended scope of this statute is unclear. Therefore, absent some other indication from the state legislature or Kentucky courts on the scope of application of K.R.S. § 287.670, this Court is bound to apply the statute as posed by First National. In so doing, it is undisputed that the lending agreement between Plaintiffs and First National was negotiated and executed in the state of West Virginia. Plaintiffs were loaned funds for real estate in Kentucky, which loan was secured by a mortgage lien on the Kentucky property. Plaintiffs' payments on this loan were sent to First National in West Virginia. All of these activities would appear to fall within the category of activity described in K.R.S. § 287.670(1). To refute this conclusion, Plaintiffs argue that their claim is centered around a breach of contract, not the lending of money, and therefore K.R.S. § 287.670(1) does not apply. The Court agrees with Defendant's position that this is a distinction without a difference when it comes to application of the statute. Part and parcel of a financial institution's lending of money is that written contracts will be involved. If the Bank's lending of money pursuant to agreement and secured by a mortgage on real property in Kentucky is not considered "transacting business," it is axiomatic that the Bank's alleged breach of that agreement by its subsequent refusal to lend money falls within the same category of activity. Personal Jurisdiction over Plaintiffs' state and federal discrimination claims This conclusion does not, however, end the Court's analysis of whether this Court may exercise personal jurisdiction over First National. Plaintiffs point out they have also sued First National for discrimination in violation of K.R.S. Chapter 344 and the federal Fair Housing Act. Plaintiffs argue that Defendant should be subject to personal jurisdiction for violation of the Civil Rights Act because one of the purposes of the Act is to safeguard Kentucky residents from discrimination. Plaintiffs also argue that their Fair Housing Act claim permits suit in any appropriate state or federal court, with Kentucky appropriate because the property and dwelling are in this state. First National correctly points out that these points by Plaintiffs do not satisfy requirements of personal jurisdiction. However, First National states nothing more in terms of addressing the merits of whether First National is subject to personal jurisdiction on the discrimination claims. According to the complaint, Plaintiffs allege First National caused tortious injury when, after Plaintiffs had relocated to Kentucky, First National discriminatorily decided to withhold loan funds from them because Layne became disabled. Under the appropriate standard for review of Defendant's motion to dismiss, these allegations are viewed in the light most favorable to Plaintiffs and thereby accepted by the Court as credible for purposes of the pending motion. The criteria set forth in Kentucky's long-arm statute are stated in the alternative, not the conjunctive. Clay v. Hopperton Nursery, Inc., 533 F.Supp. 476, 479 (E.D.Ky.1982). That being said, unlike the Plaintiffs' claim for breach of contract, 592 Plaintiffs' claim for violation of the Kentucky Civil Rights Act is one sounding in tort. The long-arm statute allows for the exercise of personal jurisdiction as to a claim arising from tortious injury being caused by an act or omission by Defendant. K.R.S. § 454.210(2)(a)(3) & (4). Therefore, unlike the Plaintiffs' breach of contract claim, their claim for state civil rights violation turns upon application of a different provision of the long-arm statute for purposes of determining whether personal jurisdiction may be exercised over this claim. As for whether personal jurisdiction may be exercised over First National for purposes of Plaintiffs' Federal Housing Act claim, consideration is first directed to the basis on which defendant is amenable to service of process for this claim. Some federal statutes include express provisions for nationwide service of process. See, e.g., Medical Mutual of Ohio v. deSoto, 245 F.3d 561 (6th Cir.2001) (applying nationwide service clause of ERISA). When a federal statute provides for nationwide service of process, it becomes a statutory basis for personal jurisdiction. Haile v. Henderson National Bank, 657 F.2d 816, 824 (6th Cir.1981), cert, denied by First National Bank of Alabama-Huntsville v. Haile, 455 U.S. 949, 102 S.Ct. 1450, 71 L.Ed.2d 663 (1982). Here, the Court's examination of the Fair Housing Act fails to reveal any nationwide service of process provision. See Spann v. Colonial Village, Inc., 124 F.R.D. 1, 2 (D.D.C.1988), rev'd on other grounds, 899 F.2d 24 (D.C.Cir.1990) ("there is no federal statute or rule generally authorizing extraterritorial service in actions under ... the Fair Housing Act"). If the federal statute has no such express provision, federal trial courts are directed to look to the service of process provisions of Rule 4 of the Federal Rules of Civil Procedure, which authorize service consistent with that allowed by the law of the state in which the court sits.[2] Rule 4(k)(1)(A) provides: (1) Service of a summons or filing a waiver of service is effective to establish jurisdiction over the person of a defendant (A) who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located[.] Thus, obtaining personal service for both Plaintiffs' K.R.S. Chapter 344 claim and the Federal Housing Act claim are first analyzed by looking to Kentucky's long-arm statute, K.R.S. § 454.210. Exercising personal jurisdiction based upon causing tortious injury in Kentucky is addressed in two subsections of § 454.210(2)(a). Subsection (2)(a)(3) applies to those situations where tortious injury occurs in Kentucky by an act or omission also in Kentucky. Subsection (2)(a)(4) applies to those situations where tortious injury occurs in Kentucky by an act or omission outside of Kentucky. The case record thus far fails to identify the specific manner in which the alleged discrimination was consummated; that is, whether it was 593 by some verbal or written communication to Plaintiffs in Kentucky by which they were notified that no further funding would be forthcoming. But even construing this factual query in a light most favorable to Plaintiffs, the Court concludes subsection (2)(a)(4), causing tortious injury in Kentucky by acts or omissions outside Kentucky, is the appropriate subsection to apply. In Pierce v. Serafin, M.D., 787 S.W.2d 705 (Ky.Ct.App.1990), plaintiff filed an action for invasion of privacy against an out-of-state physician who mailed an allegedly tortious letter to plaintiffs treating Kentucky physician against whom plaintiff was considering bringing a malpractice suit. Plaintiff sought to assert personal jurisdiction pursuant to subsection (2)(a)(3), arguing that the tort was completed when the letter, which constituted the "act," was received in Kentucky. Id. at 705. The court disagreed, concluding that by simply mailing the letter the physician had not acted in the Commonwealth. Id. at 706. To conclude it was sufficient, the court said, would essentially obviate the need for subsection (2)(a)(4). Id. Applying, therefore, K.R.S. § 454.210(2)(a)(4) to this case based upon the rationale of Pierce v. Serafin, M.D. requires this Court to conduct a further inquiry. This statutory section provides for exercise of personal jurisdiction over a person as to a claim arising from the person's causing tortious injury in Kentucky by an act outside of Kentucky, but only if the person regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this Commonwealth, provided that the tortious injury occurring in this Commonwealth arises out of the doing or soliciting of business or a persistent course of conduct or derivation of substantial revenue within the Commonwealth[.] The record is lacking in sufficient information to permit the Court to reach a conclusion as to whether First National "regularly does ... business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered" in Kentucky. There is no information in the record suggesting First National engages "in any other persistent course of conduct" in Kentucky aside from engaging in banking related business activities with Kentucky residents. Nor is it possible from the record to measure or gauge whether First National regularly does business in Kentucky, particularly if "doing business" does not include those activities set forth in K.R.S. § 287.670. The record also contains no information as to what revenues First National derives from services it renders to Kentucky residents. There is, nevertheless, sufficient information to conclude Plaintiffs have made a prima facie showing that the requirements of K.R.S. § 454.210(2)(a)(4) are satisfied. This is because the subsection also speaks of the regular solicitation of business in Kentucky.[3] Plaintiffs point out that First National regularly solicits business by way 594 of a web site. The Court is aware of those decisions wherein web advertising was held insufficient contact with the forum. E.g., Auto Channel, Inc. v. Speed-vision Network LLC, 995 F.Supp. 761, 765 (W.D.Ky.1997) ("the fact that Internet users in Kentucky can view advertisements on web pages ... falls far short of demonstrating that Defendants advertise in Kentucky"). In this case, however, even assuming this web page is First National's only medium for the solicitation of business from Kentucky residents since it is the only medium referenced thus far in the record, the Court finds the targeted nature of the web site relevant to the statutory requirement. Defendant's home page reflects a mission statement focused on conveying to area residents that First National is a small, local bank there to serve the people in the immediate area, and encourages local area residents to make further inquiry. The web page states "Your Hometown Bank is Making a Difference." The page does not say that First National is there to serve the people of Williamson or the West Virginia county in which it is located. First National is located near the border of Kentucky and West Virginia, immediately adjacent to Pike County, Kentucky. The web page further reflects that questions or comments can be directed to the Bank's email, "[email protected]" (emphasis added). Given that the Court finds this activity to be sufficient regular solicitation of business, and Plaintiffs' state and federal claim for tortious injury for discriminatory lending practices arises from and is related to First National's solicitation of such banking business, the requirements of this provision of the long-arm statute have been satisfied. Although Kentucky's long-arm statute authorizes the exercise of personal jurisdiction over First National on Plaintiffs' state and federal discrimination claims, this exercise of jurisdiction must still be consistent with constitutional due process.[4] "The constitutional touchstone of the determination whether an exercise of personal jurisdiction comports with due process `remains whether the defendant purposefully established minimum contacts in the forum state.'" Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting International Shoe Co. v. Washington, 326 U.S. at 316 (1945)). The Supreme Court has expressed this personal jurisdiction test as follows: Due process requirements are satisfied when in personam jurisdiction is asserted over a nonresident corporate defendant that has `certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.' Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (quoting International Shoe Co., 326 U.S. at 316, 66 S.Ct. 154). The Sixth Circuit has established a threepart inquiry to implement the Supreme Court's requirements for personal jurisdiction: 595 ... 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. Southern Machine Co. v. Mohasco Indus., Inc., 401 F.2d 374, 381 (6th Cir.1968); see also Wilson v. Case, 85 S.W.3d 589, 593 (Ky.2002) (approving Southern Machine three-part test, first adopted in Kentucky by its court of appeals in Tube Turns Division of Chemetron Corp. v. Patterson Co., Inc., 562 S.W.2d 99, 100 (Ky.Ct.App. 1978)). Here, First National has availed itself of the privilege of acting in Kentucky through its targeted business solicitation of area Kentucky residents to form banking and other financial relationships with them. See Clay v. Hopperton Nursery, Inc., 533 F.Supp. 476 (E.D.Ky.1982) (finding K.R.S. § 454.210(2)(a)(4) satisfied by regular solicitation for customers in trade journal). In addition, at the time the real estate financing transaction was entered into between it and Plaintiffs, First National was aware the monies were to be used for property in Kentucky and secured its interest with a mortgage lien on this Kentucky property and Plaintiffs' relocation to Kentucky. Since we assume for purposes of the pending motion that Plaintiffs were subsequently treated in a discriminatory manner, without adjudicating that they were in fact discriminated against, such conduct caused a consequence within Kentucky. It is reasonable to expect to be haled into Kentucky to answer for discriminatory conduct directed at Kentucky residents. Moreover, and as discussed above when analyzing the longarm statute, First National's activities in soliciting residential mortgage business gave rise to Plaintiffs' state and federal claims for discrimination. The final inquiry under the three-part test is whether First National's contacts have a substantial enough connection with Kentucky to make the exercise of personal jurisdiction over it fundamentally fair. Where there is a finding of purposeful availment and a finding that the cause of action arose from the defendant's contacts with the forum state, then an inference arises that the third factor is also met. CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1263 (6th Cir.1996). In light of the foregoing, the Court finds that it has personal jurisdiction over First National for purposes of Plaintiffs' discrimination claims. Exercising personal jurisdiction over Defendant for the remaining claims Since the Court concludes that it has personal jurisdiction over Plaintiffs' state and federal law discrimination claims, this raises the question to what extent this Court may exercise personal jurisdiction over Defendant for Plaintiffs' remaining claims, including the state breach of contract claim where personal jurisdiction is lacking under the statutory "transacting business" exceptions of K.R.S. § 287.670. The Court has been unable to locate decisions of Kentucky courts expressly addressing the issue of whether personal jurisdiction may be exercised by its trial courts over an entire cause of action involving multiple claims, where personal jurisdiction over some of those claims is lacking. It is not, however, necessary for this Court to speculate as to how Kentucky would resolve this question in light of the fact that Plaintiffs have also asserted federal claims. One of the bases for Defendant's removal of this action was this Court's exercise of federal question jurisdiction 596 under 28 U.S.C. § 1331, which serves as an independent basis for subject matter jurisdiction in federal district courts. As already concluded above, valid personal jurisdiction exists over Plaintiffs' Fair Housing Act claim. The question therefore becomes, if this federal court has valid personal jurisdiction over at least one federal question claim before it, may personal jurisdiction thereby be exercised over all other claims before it? In the federal arena, consideration by courts faced with this question has given rise to a doctrine commonly referred to as pendent personal jurisdiction. That is, where a federal court has valid personal jurisdiction over a defendant for one or more claims, but personal jurisdiction over other claims is lacking, may the court nevertheless require the defendant to respond to all claims on the basis of extending personal jurisdiction over those claims pendent to the action? See 4A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1069.7 (3d ed.2002) (discussing history and application of the doctrine). Though there is no reported decision from the Sixth Circuit discussing this doctrine, each of the federal circuit courts presented with the circumstance has applied pendent personal jurisdiction. See Linda Sandstrom Simard, Exploring the Limits of Specific Personal Jurisdiction, 62 Ohio St. L.J. 1619, 1625 & n. 25 (2001). There are differing viewpoints on the doctrine among the federal district courts, though the majority of federal trial courts have applied the doctrine. Simard, supra, at 1626 & n. 26. At least one federal district court within this judicial circuit has approved of and applied the doctrine. Iron Workers Local Union No. 17 Insurance Fund v. Philip Morris Inc., 23 F.Supp.2d 796, 804-05 (N.D.Ohio 1998) (finding exercise of pendent personal jurisdiction over state law claims appropriate where personal jurisdiction existed under RICO's nationwide service of process provision and state law claims derive from common nucleus of operative fact). Most of the cases thus far that have had occasion to consider the doctrine involved circumstances where the federal statute sued upon authorized nationwide service of process. See discussion in Simard, supra, at 1632-36. Another circumstance where pendent personal jurisdiction might be considered is that where, as with the case herein, the federal statute sued upon does not provide for nationwide service of process, so application of state service of process rules is instead looked to pursuant to Federal Rule 4(k). See discussion in Simard, supra, at 1626-27 & n. 26. Although decisions from courts faced with this circumstance are few, at least some of these courts have found the rationale behind application of pendent personal jurisdiction equally compelling in cases where the federal statute requires application of state service of process rules. See Simard, supra, at 1630, 1636-40 (discussing Anderson v. Century Prods. Co., 943 F.Supp. 137 (D.N.H.1996) wherein court had personal jurisdiction over tort claim and exercised pendent personal jurisdiction over contract claim arising from same facts but over which specific personal jurisdiction was lacking). In Hargrave v. Oki Nursery, Inc., 646 F.2d 716 (2d Cir.1980), the Second Circuit found it was reasonable to exercise pendent personal jurisdiction for all claims by analogy to the authority of federal courts to exercise subject matter jurisdiction over entire controversies arising out of a common nucleus of operative fact. Id. at 719. The Court concludes that the exercise of pendent personal jurisdiction in this case is appropriate. See Simard, supra, at 1645-50, 1652-61 (concluding exercise in nonnationwide service of process situations is not restricted by the language 597 of Civil Rule 4(k)(1) or the federal civil rules generally; that federal jurisprudence favors discretion to adjudicate entire actions; and that finding due process is satisfied is reasonable given that implied consent to personal jurisdiction on compulsory counterclaims has been held not to offend due process rights). Each of the claims asserted by Jude and Layne arises from the same underlying transaction with First National. Judicial economy also suggests the more appropriate course is to process all related claims in one action. See Salpoglou v. Widder, 899 F.Supp. 835, 838 (D.Mass.1995) (finding that since court could exercise personal jurisdiction over defendant for breach of contract claim, requiring defendant to also litigate malpractice claim arising from same facts did not impose a significant burden on defendant and would further economy for the litigants and court). The Court concludes, therefore, that Plaintiffs have made a prima facie showing that First National is subject to personal jurisdiction in this Court for the discrimination claims, and that First National is subject to personal jurisdiction in this Court for all other claims based upon pendent personal jurisdiction. Accordingly, IT IS ORDERED as follows: (1) That Defendant's motion to dismiss (Doc. # 3) is hereby DENIED; (2) That Defendant is hereby ordered to respond to Plaintiffs' complaint within twenty (20) days from the date of this Order; and, (3) That the parties shall thereafter move forward with their Rule 26 conference and file a report of planning meeting on or before May 10, 2003. NOTES [1] The Iowa legislature has since repealed the involved statute and replaced it with a more specific one which clarifies that certain activities are not considered transacting business, but only for purposes of determining when a foreign corporation must obtain a certificate of authority. See Iowa Code § 490.1501. [2] In 1987 in Omni Capital Int'l v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987) the Supreme Court found there was no court created nationwide service of process provision, nor did the federal statute sued upon provide for nationwide service. 484 U.S. at 107-08, 108 S.Ct. 404. Therefore, the plaintiff was limited to the state long arm to complete service over a foreign defendant, which provided insufficient contacts. Id. at 108, 108 S.Ct. 404. In 1993 Federal Rule 4 was amended and then sections (e) and (f) were in large part replaced by 4(k). Specifically 4(k)(2) now allows for nationwide federal service of process over alien defendants for claims arising under federal law. But where defendant is a non-resident of the forum but within the United States, Rule 4(k) still provides that federal courts look to state rules for service of process. [3] The Court recognizes that in Bank of Louisville v. California First Bank, 641 F.Supp. 59 (W.D.Ky.1986) that court reasoned that if certain banking activities are excluded under K.R.S. § 287.670 from consideration as "transacting business," then soliciting such activities would likewise not be viewed as "transacting business." Id. at 60. But given this Court's questioning of the intended scope of applying this statute to the assessment of whether personal jurisdiction exists, as well as Kentucky's expressed commitment to a broadened concept of personal jurisdiction, this Court is not willing to extend § 287.670 beyond the activities specifically identified in the statute, which list does not include solicitation. [4] For Plaintiffs' state claim, constitutional due process requires the exercise of personal jurisdiction also satisfy the Fourteenth Amendment due process clause. Fourteenth Amendment standards still apply in those federal question cases involving a non-foreign defendant where nationwide service is not provided by statute and the federal court instead must utilize the state long arm. Id. at 612, 616. See also Graphic Controls Corp. v. Utah Medical Prods., Inc., 149 F.3d 1382 (C.A.Fed.1998) (federal courts use state statute in determining whether personal jurisdiction exists, even in federal question cases). If the exercise of jurisdiction is permitted by the Fourteenth Amendment, it would necessarily be permitted by the Fifth Amendment Due Process Clause as well.	{ "pile_set_name": "FreeLaw" }
Order Michigan Supreme Court Lansing, Michigan December 21, 2012 Robert P. Young, Jr., Chief Justice 146042-4 & (63) Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly ANTHONY SPALLONE, Brian K. Zahra, Plaintiff-Appellant, Justices v SC: 146042-4 COA: 306739, 308376, 308388 Ingham CC: 11-001041-CZ DEPARTMENT OF MILITARY AND VETERANS AFFAIRS and GRAND RAPIDS HOME FOR VETERANS ADMINISTRATOR, Defendants-Appellees. _________________________________________/ On order of the Chief Justice, a stipulation signed by counsel for the parties agreeing to the dismissal of this application for leave to appeal is considered, and the application for leave to appeal is DISMISSED with prejudice and without costs. I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. December 21, 2012 _________________________________________ t1218 Clerk	{ "pile_set_name": "FreeLaw" }
IN THE SUPREME COURT OF IOWA No. 07–1534 Filed October 8, 2010 THE SHERWIN-WILLIAMS COMPANY, Appellee, vs. IOWA DEPARTMENT OF REVENUE, Appellant. On review from the Iowa Court of Appeals. Appeal from the Iowa District Court for Polk County, Carla T. Schemmel, Judge. Department of Revenue seeks further review of court of appeals’ decision affirming district court’s decision on judicial review that taxpayer was entitled to an exemption from use tax. DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED; CASE REMANDED. Thomas J. Miller, Attorney General, and Marcia E. Mason, Assistant Attorney General, for appellant. Bruce W. Baker of Nyemaster, Goode, West, Hansell & O’Brien, P.C., Des Moines, and John A. Panno, Joseph F. Timmons, and Laura T. Gorjanc of The Sherwin-Williams Company, Cleveland, Ohio, for appellee. 2 TERNUS, Chief Justice. The appellee, The Sherwin-Williams Company, paid Iowa use tax on certain machines used in its Iowa retail outlets to mix base paint with colorant. The appellant, Iowa Department of Revenue, denied Sherwin- Williams’ refund claim for these taxes, refusing to apply the so-called manufacturing exemption set forth in Iowa Code section 422.45(27)(a)(1) (1999). 1 On judicial review, the district court reversed the department’s ruling, and the Iowa Court of Appeals affirmed the district court. We granted the department’s application for further review. Concluding the exemption applies, we affirm the decision of the court of appeals and the judgment of the district court. I. Background Facts and Proceedings. Sherwin-Williams is an Ohio-based company that manufactures, distributes, and sells paint and paint-related products. It owns and operates thirty-eight retail outlets in Iowa and, in addition, sells its products to independent retail stores such as Menards, Home Depot, and Lowes. Since the 1960s, Sherwin-Williams has used a decentralized manufacturing process that requires retailers to mix colorants with a base liquid according to precise formulas to create usable paint. 2 To implement this process, each Sherwin-Williams retail location must have a spectrographic color-matching machine that determines the mixing formula to achieve the precise color desired; a dispensing/tinting machine, known as a mini accutinter, to insert the colorant into the base; and a mixer/shaker to combine the colorant and base. The base is a thick liquid 1This Code section is now found at Iowa Code section 423.3(47)(a)(1) (2009). 2Paint has approximately a one-year shelf life after colorant is added to the base. The decentralized system allows the company to offer 3000 color choices in different sheens without maintaining a large inventory or disposing of great quantities of unsold product, which is classified as a hazardous waste. 3 composed of binders and resins. The colorant, which contains additives such as glycol and water, gives the base paint flow and leveling abilities. Neither the colorant nor the base is salable at retail or usable by itself. This legal proceeding began when Sherwin-Williams filed a refund claim for use taxes it paid from July 1, 1992, through December 31, 2000, on the machinery used to produce paint in its Iowa stores. It contended it had no liability for use tax, relying on a manufacturing exemption contained in Iowa Code section 422.45(27)(a). The department denied a refund for taxes paid prior to July 1, 1997, the effective date of an amendment to the manufacturing exemption that expanded its scope, and issued a refund check for taxes paid after the amendment went into effect. Sherwin-Williams requested a review of the department’s denial of a refund of pre-July 1, 1997 taxes. This review request prompted the department to ask the company for additional information. Upon reviewing the additional information submitted by Sherwin-Williams, the department not only refused to change its denial of a refund for pre-July 1, 1997 taxes, but also revoked its earlier decision granting a refund for the post-July 1, 1997 taxes. Thereafter, Sherwin- Williams formally withdrew its request for a refund of taxes paid prior to the 1997 expansion of the manufacturing exemption. The department then issued a notice of tax due in the amount of the original refund plus interest, which was followed by a notice of assessment. Sherwin-Williams filed a protest, prompting an evidentiary hearing before an administrative law judge (ALJ). The ALJ issued a proposed decision that Sherwin-Williams was a “manufacturer” as that term is defined by statute, exempted from payment of use taxes by section 422.45(27)(a). The department appealed, and the department director issued a final decision that Sherwin-Williams was not a “manufacturer” and did not qualify for the exemption. The agency decision was reversed by the district court on 4 judicial review. As noted above, the court of appeals affirmed the district court. This court granted the department’s application for further review. II. Applicable Statutes and Administrative Rules. It is helpful to provide a context for our discussion of this case by first reviewing the applicable statutes and agency rules. At the time relevant to this lawsuit, Iowa Code section 423.2 imposed a five percent tax “on the use in this state of tangible personal property purchased for use in this state,” calculated on the purchase price of the property. Iowa Code section 423.4(4) exempted from use tax tangible personal property exempt from sales tax under section 422.45. At issue in this case is the manufacturing exemption set forth in section 422.45(27)(a)(1). Prior to 1997, certain sales of machinery and equipment were exempted from use tax, including [t]he gross receipts from the sale . . . of industrial machinery, equipment and computers . . . if the following conditions are met: a. The industrial machinery, equipment and computers shall be directly and primarily used in the manner described in section 428.20 in processing tangible personal property or in research and development of new products or processes of manufacturing, refining, purifying, combining of different materials or packing of meats to be used for the purpose of adding value to products . . . . .... b. The industrial machinery, equipment and computers must be real property within the scope of section 427A.1, subsection 1, paragraph “e” or “j”. Iowa Code § 422.45(27) (1997) (emphasis added). Iowa Code section 428.20, to which reference is made in paragraph (a), states: A person who purchases, receives, or holds personal property of any description for the purpose of adding to its value by a process of manufacturing, refining, purifying, combining of different materials, or by the packing of meats, with a view to selling the property for gain or profit, is a “manufacturer” for the purpose of this title. 5 Iowa Code § 428.20. Section 427A.1(1)(e), to which reference is made in paragraph (b), provides that “[m]achinery used in manufacturing establishments” is assessed and taxed “as real property.” The term “manufacturing establishments” was not defined in the tax statutes. An agency rule, however, provided the following definition: A manufacturing establishment is a business entity in which the primary activity consists of adding to the value of personal property by any process of manufacturing, refining, purifying, the packing of meats, or the combination of different materials with the intent of selling the product for gain or profit. Iowa Admin. Code r. 701—71.1(6)(a) (emphasis added). During the 1997 legislative session, section 422.45(27) was amended. 1997 Iowa Acts ch. 87, § 1. According to the explanation contained in the house bill that was adopted by the legislature, the bill rewrote the statute “by defining those manufacturing activities which give rise to the [sales and use tax] exemption.” H.F. 126, 77th G.A., Reg. Sess., explanation (Iowa 1997). As of July 1, 1997, the effective date of this amendment, section 422.45(27)(a) exempts the following receipts from use tax: The gross receipts from the sale or rental of computers, machinery and equipment . . . if such items are any of the following: (1) Directly and primarily used in processing by a manufacturer. Iowa Code § 422.45(27)(a)(1) (1999) (emphasis added). Iowa Code section 422.45(27)(d)(4) provides that “ ‘[m]anufacturer’ means as defined in section 428.20.” A comparison of the pre and postamendment versions of this statute reveals two notable changes effected by the amendment. First, the requirement that the items sold “be real property,” i.e., “used in manufacturing establishments,” was eliminated. Second, the amendment changed the interplay between the manufacturing exemption and section 6 428.20. Under the amended statute, the equipment must be used “by a manufacturer” as defined in section 428.20. Prior to the 1997 amendment, the statute only required that the equipment be used “in the manner described in section 428.20.” The fiscal note that accompanied the bill predicted a decrease in revenue to the general fund of approximately $4 million in fiscal year 1998 and thereafter. H.F. 126, 77th G.A., Reg. Sess., fiscal note (Iowa 1997). We conclude from this information that the general assembly understood the amendment would have the effect of broadening the applicability of the manufacturing exemption, thereby resulting in less sales and use tax collections. The department’s primary argument in support of its position that the amended exemption does not apply under the facts of this case is that Sherwin-Williams is not a “manufacturer” for purposes of machinery used in its retail operation. 3 The department relies in part on its administrative rule defining the term “manufacturer”: “Manufacturer” means any . . . corporation that purchases, receives, or holds personal property for the purpose of adding to its value by any process of manufacturing, refining, purifying, combining of different materials, or by packing of meats with an intent to sell at a gain or profit. Iowa Admin. Code r. 701—18.58(1). This definition essentially mirrors the statutory definition of “manufacturer.” Compare id., with Iowa Code § 428.20. The departmental rule goes on, however, to provide examples of businesses that do and do not fall within this definition: Those who are in the business of printing, newspaper publication, bookbinding, lumber milling, and production of drugs and agricultural supplies are illustrative, nonexclusive examples of manufacturers. Construction contracting; 3The department also contends the spectrographic color-matching machines fail to qualify for the exemption for the additional reason that they are not “directly used” in processing as required by the manufacturing exemption. We discuss this contention separately below. 7 remanufacture or rebuilding of tangible personal property (such as automobile engines); provision of health care; farming; transportation for hire; and the activities of restaurateurs, hospitals, medical doctors, and those who merely process data are illustrative, nonexclusive examples of businesses which are not manufacturers. See Associated General Contractors of Iowa v. State Tax Commission, 255 Iowa 673, 123 N.W.2d 922 (1963) and River Products Co. v. Board of Review of Washington County, 332 N.W.2d 116 (Iowa Ct. App. 1982). The term “manufacturer” includes a contract manufacturer. Ordinarily, the word does not include those commercial enterprises engaged in quarrying or mining. Id. Before we consider whether the department correctly decided that Sherwin-Williams was not entitled to the manufacturing exemption for equipment used in its retail outlets, we must determine the appropriate standard of review. III. Scope of Review. Our review of this agency decision is governed by Iowa Code chapter 17A. See Iowa Code § 17A.19. 4 The department asserts it has discretion to interpret the statutory manufacturing exemption and, therefore, urges us to apply the standard of review reserved for matters vested in the discretion of the agency: The court shall reverse, modify, or grant other appropriate relief from agency action, equitable or legal and including declaratory relief, if it determines that substantial rights of the person seeking judicial relief have been prejudiced because the agency action is any of the following: .... l. Based upon an irrational, illogical, or wholly unjustifiable interpretation of a provision of law whose interpretation has clearly been vested by a provision of law in the discretion of the agency. Id. § 17A.19(10)(l) (emphasis added). Relying on this standard of review, the department claims its interpretation of section 422.45(27)(a)(1)––the 4All references to the Iowa Administrative Procedure Act are to the 2009 Iowa Code. 8 manufacturing exemption––can be overturned only if it is “irrational, illogical or wholly unjustifiable.” Id. Sherwin-Williams argues only an agency’s “official” interpretation of a statute is entitled to deference, and here, the department has no rule on point to which deference could be given. On the latter point, we agree. The application of the manufacturing exemption in this case turns initially on whether Sherwin-Williams is a “manufacturer” for purposes of its use of the equipment at issue. With a few insignificant changes, the department’s rule defining the term “manufacturer” simply parrots the statutory definition of this term, and consequently, the rule does not interpret the statute. See Webster’s Third New International Dictionary 1182 (unabr. ed. 2002) (defining “interpret” as “to explain or tell the meaning of”). The text that follows the rule’s paraphrasing of the statutory definition lists examples of businesses that do and do not fall within that definition. In our view, this part of the rule represents the department’s illustrative application of the statutory definition to specific businesses. We conclude, therefore, that the department has not further explained––by rule––the meaning of the term “manufacturer.” We consider, then, whether only an agency’s interpretation of a statute as embodied in an agency rule is entitled to deference or whether an agency’s interpretation of a statute in a specific matter pending before it can also be accorded deference. In addressing this question, we turn first to the relevant language of section 17A.19(10)(l), which focuses on the agency’s “interpretation of a provision of law whose interpretation has clearly been vested by a provision of law in the discretion of the agency.” There is nothing in this language that restricts the “irrational, illogical or wholly unjustifiable” standard of review to interpretations embodied in an agency rule. Therefore, the fact that an agency’s interpretation is made in the 9 course of a pending proceeding does not mean the agency’s action cannot be reviewed under this more deferential standard. 5 We have recently clarified and refined our analysis for deciding when an agency has been granted interpretative authority with respect to a statute. See Renda v. Iowa Civil Rights Comm’n, 784 N.W.2d 8, 10–14 (Iowa 2010). In the absence of an express statement by the legislature granting interpretive authority to an agency, we review “the precise language of the statute, its context, the purpose of the statute, and the practical considerations involved” to determine whether the interpretation of a statute has been clearly vested in the discretion of the agency. Arthur E. Bonfield, Amendments to Iowa Administrative Procedure Act, Report on Selected Provisions to Iowa State Bar Association and Iowa State Government 63 (1998) [hereinafter “Bonfield, Amendments to Iowa Administrative Procedure Act”]. This search for legislative intent focuses on the specific statutory provision or language at issue. Renda, 784 N.W.2d at 12. Indications that an agency has interpretive authority include rule-making authority, decision-making or enforcement authority that requires the agency to interpret the statutory language, and the agency’s expertise on the subject or on the term to be interpreted. Id. at 12–14. With respect to the department of revenue, the legislature has granted the department “the power and authority to prescribe all rules not 5InGeneral Electric Co. v. Iowa State Board of Tax Review, this court held the department of revenue was not entitled to deference with respect to the matter at issue in that case. 702 N.W.2d 485, 489 (Iowa 2005). We noted there was no “agency regulation that [was] directly on point,” and therefore, the agency had “no official interpretation to which [the] court should defer.” Id. In reaching this conclusion, we relied on our decision in City of Marion v. Iowa Department of Revenue & Finance, 643 N.W.2d 205, 206–07 (Iowa 2002). In City of Marion, we gave the department’s interpretation of a statute, as set forth in an agency rule, “appropriate deference” under section 17A.19(11)(c). 643 N.W.2d at 207. We did not state, however, that only an interpretation found in an agency rule could be given deference. We disavow any contrary implication in our General Electric opinion. 10 inconsistent with the provisions of [chapter 422], necessary and advisable for its detailed administration and to effectuate its purposes.” Iowa Code § 422.68(1). Moreover, the department director’s enforcement power certainly requires the director to interpret the Code provisions relevant to a taxpayer’s liability. See id. § 422.70 (detailing director’s power to ascertain correctness of return and to hold hearings on that issue). We have held in prior cases that the legislature has given the department discretion to interpret chapter 422. See, e.g., Ranniger v. Iowa Dep’t of Revenue & Fin., 746 N.W.2d 267, 268 (Iowa 2008); City of Sioux City v. Iowa Dep’t of Revenue & Fin., 666 N.W.2d 587, 590 (Iowa 2003). Notwithstanding these indications of interpretive discretion, it is difficult to find a clear legislative delegation of interpretive authority with respect to the precise statutory term at issue here––“manufacturer.” Significantly, the dispute here does not center on an interpretation of the manufacturing exemption in general or even on an interpretation of the statutory definition of “manufacturer.” The issue here is simply whether a retail establishment can be considered a “manufacturer” under the statutory definition of that term. The insurmountable obstacle to finding the department has authority to interpret the word “manufacturer” in this context is the fact that this word has already been interpreted, i.e., explained, by the legislature through its enactment of a statutory definition. See id. §§ 422.45(27)(d)(4), 428.20. Under these circumstances, we do not think the legislature intended that the department have discretion to interpret––give meaning to––this term. Because the legislature has not clearly vested the interpretation of the word “manufacturer” in the discretion of the agency, the deferential standard of review in section 17A.19(10)(l) does not apply. Accordingly, we review the 11 agency decision on this issue to determine whether it was “[b]ased upon an erroneous interpretation of a provision of law.” See id. § 17A.19(10)(c). IV. Parties’ Positions. Sherwin-Williams contends the statutory definition of “manufacturer” is unambiguous and clearly encompasses the equipment used in its retail stores to produce usable paint. It asserts: Sherwin-Williams holds personal property for the purpose of adding to its value by a process of combining different materials, specifically precisely measured base and colorants, with a view to selling the newly created colored paint for a gain or profit. Notably, the director similarly opined in his decision, “It is true that Sherwin-Williams may hold property, mix materials, and sell the combined product for a profit.” Nonetheless, the department contends that only equipment used by one whose principal business is manufacturing is exempt. It suggests two reasons for this result: (1) the term “manufacturer” is ambiguous, and ambiguous terms in a tax exemption statute must be interpreted in favor of taxation; and (2) allowing the exemption to be applied to a retail establishment would produce the absurd result of including “as manufacturers restaurants, bars, lemonade stands, and various home- improvement stores.” To avoid such a broad and absurd interpretation of this tax exemption, argues the department, the word “manufacturer” must be interpreted consistently with its common meaning, encompassing only those whose principal business is manufacturing. Because the equipment at issue here is used in establishments whose principal business is retail sales, the department argues the manufacturing exemption does not apply. In considering the parties’ arguments, we keep in mind that “ ‘[t]ax exemption statutes are construed strictly, with all doubts resolved in favor of taxation.’ ” Dial Corp. v. Iowa Dep’t of Revenue, 634 N.W.2d 643, 646 (Iowa 12 2001) (quoting Heartland Lysine, Inc. v. State, 503 N.W.2d 587, 588 (Iowa 1993)). Sherwin-Williams, as the party relying on the exemption, bears the burden of proving it is entitled to the benefit of the exemption. See id. V. Discussion of “Manufacturer” Definition. We commence our discussion by determining whether the term “manufacturer” is ambiguous. “A statute is ambiguous if reasonable minds could differ or be uncertain as to the meaning of the statute.” Carolan v. Hill, 553 N.W.2d 882, 887 (Iowa 1996); accord 2A Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 46:4, at 179 (7th ed. 2007) [hereinafter “Sutherland Statutory Construction”] (“A statute is ambiguous when it is capable of being understood by reasonably well- informed persons in two or more different senses.”). “Ambiguity may arise from specific language used in a statute or when the provision at issue is considered in the context of the entire statute or related statutes.” Midwest Auto. III, LLC v. Iowa Dep’t of Transp., 646 N.W.2d 417, 425 (Iowa 2002); accord State v. McCullah, 787 N.W.2d 90, 94 (Iowa 2010) (“Ambiguity arises in two ways––either from the meaning of specific words or ‘from the general scope and meaning of the statute when all of its provisions are examined.’ ” (quoting Carolan, 553 N.W.2d at 887)). It is significant that the legislature has chosen to define the word “manufacturer” as used in the manufacturing exemption. “We recognize the legislature ‘may act as its own lexicographer.’ When it does so, we are normally bound by the legislature’s own definitions.” State v. Fischer, 785 N.W.2d 697, 702 (Iowa 2010) (quoting Henrich v. Lorenz, 448 N.W.2d 327, 332 (Iowa 1989)). Under these circumstances, “ ‘the common law and dictionary definitions which may not coincide with the legislative definition must yield to the language of the legislature.’ ” Hornby v. State, 559 N.W.2d 23, 25 (Iowa 1997) (quoting State v. Steenhoek, 182 N.W.2d 377, 379 (Iowa 13 1970)). Therefore, this court is obligated to apply the statutory definition of “manufacturer” as written, absent an ambiguity in that definition. The department has not directed this court to any language in the statutory definition that is capable of being reasonably understood to require that a “manufacturer” be principally engaged in the business of manufacturing. Rather, it relies on this court’s decision in Associated General Contractors of Iowa v. State Tax Commission, 255 Iowa 673, 123 N.W.2d 922 (1963), in which we held the term “manufacturer” as used in Iowa Code section 422.42(11) (1958) was ambiguous. In Associated General Contractors, the tax commissioner sought to impose a use tax on a paving contractor’s mixing of asphaltic concrete that it then used to pave the roadbed. 255 Iowa at 674, 123 N.W.2d at 922–23. Iowa Code section 422.43 (1958) imposed a tax on “all sales of tangible personal property . . . sold at retail in the state to consumers or users.” Id. at 677, 123 N.W.2d at 924. The commissioner relied on section 422.42(11), which provided that “ ‘a sale at retail’ ” included the use of “ ‘tangible personal property by the manufacturer thereof, as building materials . . . in the performance of construction contracts or for any other purpose except for resale or processing.’ ” Id. at 674, 123 N.W.2d at 923 (emphasis added) (quoting Iowa Code § 422.42(11) (1958)). At that time, the term “manufacturer” was defined in section 428.20 similarly to the current definition, and this statutory definition was, by its own terms, applicable to chapter 422. Id. at 675, 123 N.W.2d at 923; see also Iowa Code § 428.20 (1958) (defining “manufacturer” as one who adds to the value of personal property by any process of manufacturing “with a view to selling the same for gain or profit”). Prior to the legislature’s enactment of section 422.42(11), this court had suggested the intent underlying the statutory definition of “manufacturer” in section 428.20 14 “was to exempt from taxation manufacturers who are engaged in manufacturing personal property for sale, and not builders or ‘constructors’ who are engaged in erecting permanent structures, such as paving, which become a permanent part of the real estate.” Id. (emphasis added) (quoting In re Koss Constr. Co., 214 Iowa 125, 128, 241 N.W. 495, 497 (1932)). 6 The ambiguity in section 422.42(11) arose from the fact that this statute in essence provided that the manufacturer was the consumer of the manufactured product. Id. at 677, 123 N.W.2d at 924. In other words, the use contemplated in section 422.42(11) did not contemplate a sale of the manufactured personal property to another party. Yet, that statute used the defined term, “manufacturer,” which this court had interpreted to contemplate a sale of the manufactured goods. The commissioner argued the legislature used the term “manufacturer” in section 422.42(11) in a sense different than the meaning set forth in section 428.20, intending that term to encompass “one who performs construction contracts making an article for use in performance of such contracts.” Id. at 676, 123 N.W.2d at 923. This court noted the ordinary meaning of “manufacturer” supported the commissioner’s interpretation of the statute. Id. at 677–78, 123 N.W.2d at 924. For several reasons, however, we concluded the term “manufacturer” in section 422.42(11) had the meaning ascribed to that term in section 428.20, and 6It is clear from a reading of In re Koss Construction Co. that the factor prompting the court to hold that a paving contractor was not a “manufacturer” was that the contractor did not sell the product it manufactured. We said in our opinion, [i]t is apparent from the stipulation that the appellee does not make a product and sell it to some other party who in turn uses it to make a pavement. It not only “combines” the several ingredients, but it uses this combination itself in making the finished product which becomes a permanent part of the realty. In re Koss Constr. Co., 214 Iowa at 127, 241 N.W. at 496. 15 therefore, the paving contractor was not a “manufacturer” and was not subject to the use tax. Id. at 680, 123 N.W.2d at 926. We do not find our conclusion that the term “manufacturer” was ambiguous as used in section 422.42(11) to be persuasive authority for finding the term “manufacturer” ambiguous as used in the manufacturing exemption. As our decision in Associated General Contractors made apparent, there was an inherent conflict in section 422.42(11) because its express terms encompassed a use that did not include a sale, which was at odds with the statute’s reference to “the manufacturer,” a defined term that envisioned a sale of the manufactured goods. The department has identified no similar, inherent conflict in section 422.45(27)(a)(1). Section 422.45(27)(a)(1) exempts sales of equipment “used in processing by a manufacturer,” a concept compatible with the statutory definition of “manufacturer.” Perhaps the most support for the department’s position found in the Associated General Contractors opinion is the following statement by this court regarding an agency rule that referred to a “manufacturer”: “The word ‘manufacturer’ as used in [the agency rule] is used in the sense of one whose principal business is manufacturing.” 255 Iowa at 679, 123 N.W.2d at 925. The basis for this conclusion is not apparent from our opinion. 7 More importantly, however, this statement was not pertinent to our resolution of 7The agency rule provided: “Where a manufacturer uses or consumes tangible personal property which has been made, compounded, fabricated or assembled by him, he is liable for either retail sales or use tax as the case may be. The measure of the tax is two per cent of the cost of the manufacture of the tangible personal property so used and consumed.” Associated Gen. Contractors, 255 Iowa at 678, 123 N.W.2d at 925 (quoting agency rule 10). The court did not explain how this language supported the conclusion that the rule refers to “one whose principal business is manufacturing.” 16 the statutory interpretation issue in that case, which depended on whether one could be a “manufacturer” if one did not intend to sell the manufactured property to another. Whether a manufacturer was only “one whose principal business is manufacturing” was not outcome determinative in that case or even pertinent to the basis for our ultimate decision. This court’s observation regarding the agency rule was, therefore, dicta. See Wilson v. Farm Bureau Mut. Ins. Co., 714 N.W.2d 250, 260 (Iowa 2006) (refusing to follow reasoning expressed in prior case because it was dicta, stating reasoning was not pertinent to issue that resulted in reversal); Keystone Nursing Care Ctr. v. Craddock, 705 N.W.2d 299, 308 (Iowa 2005) (disavowing discussion of statute in prior case with respect to specific factual scenario, concluding it was dicta because claim made in prior case did not involve facts addressed in dicta). Although the department has not demonstrated an ambiguity arising from the language of the statutory definition of “manufacturer,” an ambiguity may arise from the general scope of the statute when it is considered in its entirety. As noted earlier, the department claims a literal interpretation of the statutory definition of “manufacturer” would result in application of the manufacturing exemption to businesses that typically are not viewed as being engaged in manufacturing. The department suggests such a broad application of the exemption is absurd. This court has said that, “[w]here the language is of doubtful meaning, or where an adherence to the strict letter would lead . . . to absurdity, or to contradictory provisions, the duty of ascertaining the true meaning devolves upon the court.” 8 Case v. Olson, 234 Iowa 869, 872, 14 N.W.2d 717, 719 8This court has also noted that “[a]voidance of unreasonable or absurd consequences is one of several rules of construction courts apply only in case of ambiguity.” Kruck v. Needles, 259 Iowa 470, 478, 144 N.W.2d 296, 301 (1966) (emphasis added). Notwithstanding this statement, we believe that, when a literal interpretation of a statute 17 (1944) (emphasis added); accord Sutherland Statutory Construction § 45:12, at 101 (“It is fundamental, however, that departure from the literal construction of a statute is justified when such a construction would produce an absurd and unjust result and would clearly be inconsistent with the purposes and policies of the act in question.”). Nonetheless, we are mindful of the cautionary advice of one commentator that “the absurd results doctrine should be used sparingly because it entails the risk that the judiciary will displace legislative policy on the basis of speculation that the legislature could not have meant what it unmistakably said.” Sutherland Statutory Construction § 45:12, at 105–07. The Hawaii Supreme Court articulated the proper balance in such situations when it stated: [E]ven in the absence of statutory ambiguity, departure from literal construction is justified when such construction would produce an absurd and unjust result and the literal construction in the particular action is clearly inconsistent with the purposes and policies of the act. Pac. Ins. Co. v. Or. Auto. Ins. Co., 490 P.2d 899, 901 (Haw. 1971). As noted, the department contends application of the manufacturing exemption to establishments whose principal business is retail sales produces an absurd result. The absurdity of this result is not self-evident, however. Although it may appear counterintuitive, we will not ignore clear legislative language merely because it leads to a result that seems contrary to the court’s expectations. See State ex rel. Miller v. Cutty’s Des Moines Camping Club, Inc., 694 N.W.2d 518, 524–25 (Iowa 2005) (relying on statutory definition, even though it was counterintuitive). The department points out a potential contradiction, however, observing the same definition of “manufacturer” at issue here applies to _________________________ results in absurd consequences that undermine the clear purpose of the statute, an ambiguity arises. 18 property-tax issues. See generally Sutherland Statutory Construction § 46:4, at 188–89 (“Even when a statute appears unambiguous on its face it can be rendered ambiguous by its interaction with and its relation to other statutes.”). Under the agency rules applicable to property taxes, the agency classifies as industrial only “manufacturing establishments.” Iowa Admin. Code r. 701—71.1(6)(a). Under this rule, which we quoted previously, [a] manufacturing establishment is a business entity in which the primary activity consists of adding to the value of personal property by any process of manufacturing, refining, purifying, the packing of meats, or the combination of different materials with the intent of selling the product for gain or profit. Id. (emphasis added). In contrast, the department’s classification rules provide that “commercial real estate” includes land and structures “which are primarily used or intended as a place of business where goods, wares, services, or merchandise is stored or offered for sale at wholesale or retail.” Id. r. 701—71.1(5) (emphasis added). Sherwin-Williams’ retail stores are assessed for property-tax purposes as commercial real estate, not industrial real estate. The primary-use requirement employed in classifying property as industrial or commercial makes sense because the entirety of the real estate (land, improvements, and structures) is subject to property tax. Therefore, the whole must be classified as either industrial or commercial; it cannot be both. See id. r. 701—71.1(1) (“There can be only one classification per property. An assessor shall not assign one classification to the land and a different classification to the building or separate classifications to the land or separate classifications to the building (dual classification).”). It makes sense, then, that the classification of the whole would depend on the primary use of the property. 19 But for purposes of taxing the use of equipment located on the property, it is not absurd or illogical to impose the tax based on the use of the specific equipment as opposed to the taxpayer’s use of the premises as a whole. See Heartland Lysine, Inc., 503 N.W.2d at 589 (stating “the propriety of a use tax assessment or exemption turns largely on the specific use made of the property”). Consequently, we are not convinced it would be absurd for the legislature to accord a retailer a manufacturer’s exemption when specific equipment is used by the retailer in the same manner and for the same purpose as such equipment would be used by a taxpayer whose principal business is manufacturing. 9 9Our research revealed two state agency proceedings in which a taxing authority considered the very process at issue here––the mixing of base and colorants to produce usable paint––for purposes of determining the applicability of relevant tax statutes. See The Sherwin-Williams Co. v. Comm’r of Revenue, No. C259901, 2003 WL 21040567 (Mass. App. Tax Bd. May 9, 2003) (administrative review of decision of the commissioner of revenue); Op. Comm’r of Tax. & Fin., No. TSB–A–99(21)5, 1999 WL 304816 (N.Y. Tax. Comm’r April 8, 1999) (advisory opinion of commissioner of taxation and finance). In both proceedings, Sherwin-Williams’ retail outlets were given tax treatment reserved for manufacturers or manufacturing, some indication that the application of Iowa’s manufacturing exemption to Sherwin-Williams’ retail outlets is not absurd. In the Massachusetts administrative proceeding, the appellate tax board ruled that Sherwin-Williams’ retail stores in that state qualified as “manufacturing corporations” based on their business of “mix[ing] colorants with base paint to create colored paints” for sale. 2003 WL 21040567, at 1, 5. The facts before the board showed that “77% of Sherwin- Williams’ sales are from the sale of paint, and that 80–90% of those sales are sales of colored paint produced at the retail stores.” Id. at 2. The board stated these activities fall within the broad definition ascribed to manufacturing of “change wrought through the application of forces directed by the human mind, which results in the transformation of some preexisting substance or element into something different, with a new name, nature or use.” Id. at 5 (quoting Assessors of Boston v. Comm’r of Corps. & Taxation, 84 N.E.2d 129, 136 (Mass. 1949)). In the New York tax commissioner’s advisory opinion, Sherwin-Williams asked whether its “mixing and blending machinery and equipment, and related computer equipment, used in the paint tinting process” in its company-owned retail stores were exempt from sales and use tax. 1999 WL 304816, at 1. It relied on an exemption for “ ‘[m]achinery or equipment for use . . . directly and predominantly in the production of tangible personal property . . . by manufacturing, processing . . . .’ ” Id. at 2 (quoting N.Y. Tax Law § 1115(a)(12)). The commissioner opined that “the Color Matching Systems, Automatic Colorant Dispensers, Shakers and related computer equipment [were] used 20 The department also contends giving a retailer like Sherwin-Williams the benefit of the manufacturing exemption is contrary to the purpose underlying this exemption. Quoting an Oklahoma case, the department suggests “[t]he object of this exemption was undoubtedly to encourage manufacturing industries to locate in the state.” Dairy Queen of Okla., Inc. v. Okla. Tax Comm’n, 238 P.2d 800, 802 (Okla. 1951). An Arizona court, however, has suggested a broader purpose of such an exemption: “The purpose is to encourage manufacturing businesses and investment in manufacturing equipment by exempting sales of such equipment.” Ariz. Dep’t of Revenue v. Blue Line Distrib., Inc., 43 P.3d 214, 216 (Ariz. Ct. App. 2002) (emphasis added). We cannot conclude that allowing Sherwin-Williams an exemption for its investment in equipment to process paint at its retail locations in Iowa is contrary to our legislature’s purpose in adopting a manufacturing exemption. See State v. Hopkins, 465 N.W.2d 894, 896 (Iowa 1997) (stating court looks “beyond the ordinary meaning of the statutory language when a statute’s literal terms are in conflict with its general purpose” (emphasis added)). A significantly stronger showing that legislative intent would be undermined by permitting an exemption under the facts of this case is required before we will ignore the statutory definition of “manufacturer.” See Sutherland Statutory Construction § 46:4, at 178 (“The plain meaning of the statute is conclusive, except in a case where a literal application of the statute will produce a result demonstrably at odds with the intention of the drafters.” (Emphasis added.)). We have also examined four cases cited by the department in support of its position and conclude they are readily distinguishable. See Blue Line Distrib., 43 P.3d 214; HED, Inc. v. Powers, 352 S.E.2d 265 (N.C. Ct. App. _________________________ directly in the production of paint for sale” and, therefore, were exempt from sales and use tax. Id. at *4. 21 1987); McDonald’s Corp. v. Okla. Tax Comm’n, 563 P.2d 635 (Okla. 1977); Dairy Queen of Okla., Inc., 238 P.2d 800. In each of these cases, retail establishments, Little Caesar’s Pizza, Hardee’s, McDonald’s, and Dairy Queen, were denied the benefit of a manufacturing exemption from sales or use tax because they were not a manufacturer or did not engage in manufacturing within the meaning of the statutory exemption. Blue Line Distrib., 43 P.3d at 216; HED, Inc., 352 S.E.2d at 267; McDonald’s Corp., 563 P.2d at 641; Dairy Queen of Okla., Inc., 238 P.2d at 802. In the Arizona case, the exemption applied to sales of “ ‘[m]achinery, or equipment, used directly in manufacturing, [and] processing . . . operations. The terms “manufacturing” [and] “processing” . . . as used in this paragraph refer to and include those operations commonly understood within their ordinary meaning.’ ” Blue Line Distrib., 43 P.3d at 215 (emphasis added) (quoting Ariz. Rev. Stat. § 42–5061(B)(1) (Supp. 2000)). Given the absence of a statutory definition of “manufacturing,” there was no barrier to the reviewing court’s acceptance of the agency’s rule that interpreted the exemption as applying only to “ ‘[m]anufacturing [as] the performance as a business of an integrated series of operations’ that transform personal property into a different product.” Id. (quoting Ariz. Admin. Code r. 15–5– 120(A)). Applying this agency rule, the Arizona court concluded a Little Ceasar’s pizzeria is not commonly understood to be a manufacturing operation. Id. at 216. The North Carolina exemption considered in the HED, Inc. case applied to “manufacturing industries and plants.” 352 S.E.2d at 266. Like the Arizona statute, the North Carolina statute did not define these terms, so the court applied the common meaning of these words. Id. The North Carolina court reviewed decisions from other jurisdictions that had considered whether a restaurant qualifies as a manufacturer, and observed: 22 One discernible pattern is that when the statutes do not provide a definition of manufacturing, as is the case in North Carolina, courts tend to apply a common sense approach and conclude that a restaurant is not a manufacturer. On the other hand, when the statute does provide a definition, that definition is mechanically applied and courts conclude that a restaurant is a manufacturer. Id. at 267. Relying on the common meaning of “manufacturing,” the North Carolina court concluded a Hardee’s restaurant was not a “manufacturing” industry or plant. Id. In Oklahoma, the manufacturing exemption is more explicit. It allowed an exemption for the use of certain machinery and equipment “ ‘used by persons in the operation of manufacturing plants.’ ” McDonald’s Corp., 563 P.2d at 636 (quoting Okla. Stat. tit. 68, § 1305(p) (1971)). The Oklahoma statute further states: “ ‘The term “manufacturing plants” shall mean those establishments primarily engaged in manufacturing or processing operations, and generally recognized as such.’ ” Id. (emphasis added) (quoting Okla. Stat. tit. 68, § 1305(p)). Clearly, the Oklahoma court’s decisions in McDonald’s Corp. and Dairy Queen of Oklahoma, Inc. are readily distinguishable given the clearly expressed legislative intent that the exemption only be given to businesses primarily engaged in manufacturing. The comparable Iowa statute simply does not contain that limitation. 10 Finally, we state that we are also influenced by the legislative history of the manufacturing exemption. As we explained earlier in our opinion, prior to the 1997 amendment, the exemption encompassed machinery and equipment (1) “used in the manner described in section 428.20” and (2) qualifying as “real property within the scope of section 427A.1[(1)(e)].” Iowa 10Some states specifically exclude certain businesses or establishments that incidentally engage in manufacturing or processing. See, e.g., Elias Bros. Rests., Inc. v. Treasury Dep’t, 549 N.W.2d 837, 839 (Mich. 1996) (applying exemption that excluded “ ‘the preparation of food and beverages by a retailer for retail sale’ ” (quoting Mich. Comp. Laws § 205.94(g)). Iowa’s statutory exemption does not do so. 23 Code § 422.45(27) (1997) (emphasis added). Section 427A.1(1)(e) referred to machinery used in “manufacturing establishments,” a term not defined by the legislature. Id. § 427A.1(1)(e). The prior statute did not use the term “manufacturer” and did not otherwise unambiguously incorporate that term or its full definition into the manufacturing exemption other than to incorporate “the manner” of use of the machinery and equipment as described in section 428.20. Under the prior statute, therefore, the agency had much greater leeway in interpreting the term “manufacturing establishment” in a manner consistent with its meaning in the property-law context. When the legislature amended the manufacturing exemption in 1997, however, it had the stated intent to broaden its applicability. To achieve this purpose, the legislature removed the reference to section 427A.1(1)(e) and its focus on “manufacturing establishments” and in its place imposed the requirement that the entity seeking the exemption be a “manufacturer” “as defined in section 428.20.” We are convinced it would be contrary to the principles that guide our interpretation of legislative enactments to ignore these changes and give the exemption the same meaning with respect to the taxpayers who qualify for the exemption that this statute had prior to its amendment in 1997. Accordingly, we reject the department’s contention that only those taxpayers who are primarily engaged in manufacturing are eligible for the exemption. The department’s interpretation of section 428.20 is, therefore, erroneous. We agree with the district court that Sherwin-Williams qualifies as a “manufacturer” under section 422.45(27). VI. Direct Use of Spectrographic Color-Matching Machine. In addition to concluding Sherwin-Williams was not a “manufacturer,” the department’s director ruled the spectrographic color-matching machine 24 did not qualify for the exemption because it was not “directly and primarily used in processing” as required by section 422.45(27)(a)(1). Before we determine whether this ruling should be upheld, we address the standard applicable to our review. A. Standard of Review. The director’s decision turned on whether the color-matching machine was used “directly” in processing. The term “directly” is not defined in the statute, but is defined in an agency rule. Sherwin-Williams does not question the agency’s definition of this term. Rather, the dispute between the parties with respect to the color-matching machine is the director’s application of that definition to the facts of this case. In a contested case such as the one before us, the agency has discretion in its application of the law to the facts. Iowa Ag Constr. Co. v. Iowa State Bd. of Tax Review, 723 N.W.2d 167, 174 (Iowa 2006) (holding application of law to facts in proceeding in which taxpayer sought refund of sales/use tax was vested in the discretion of the agency); see also Drake Univ. v. Davis, 769 N.W.2d 176, 183 (Iowa 2009) (holding workers’ compensation commissioner had discretion to apply the law to the facts in contested-case proceeding under workers’ compensation statute). Therefore, the appropriate standard of review is found in Iowa Code section 17A.19(10)(m). Iowa Ag Constr. Co., 723 N.W.2d at 174 (applying standard of review found in section 17A.19(10)(m) to agency’s application of law to facts in decision denying sales/use tax refund); see also Insituform Techs., Inc. v. Employment Appeal Bd., 728 N.W.2d 781, 801 (Iowa 2007) (applying same standard of review to agency’s assessment of penalty for OSHA violation). 25 Section 17A.19(10)(m) provides: The court shall reverse, modify, or grant other appropriate relief from agency action, equitable or legal and including declaratory relief, if it determines that substantial rights of the person seeking judicial relief have been prejudiced because the agency action is any of the following: .... m. Based upon an irrational, illogical, or wholly unjustifiable application of law to fact that has clearly been vested by a provision of law in the discretion of the agency. A decision is “irrational” when it is “not governed by or according to reason.” Webster’s Third New International Dictionary 1195. A decision is “illogical” when it is “contrary to or devoid of logic.” Id. at 1127. A decision is “unjustifiable” when it has no foundation in fact or reason. See id. at 2502 (defining “unjustifiable” as “lacking in . . . justice”); id. at 1228 (defining “justice” as “the quality or characteristic of being just, impartial or fair”); id. (defining “just” as “conforming to fact and reason”). One commentator has suggested that the “irrational, illogical, or wholly unjustifiable” standard of review is substantively similar to “the unreasonable, arbitrary, capricious, and abuse of discretion standards.” Bonfield, Amendments to Iowa Administrative Procedure Act 69. B. Discussion. As noted, the department asserts the spectrographic color-matching machine does not qualify for the tax exemption because it is not “directly and primarily used in processing” as required by section 422.45(27)(a)(1). The color-matching machine determines the mixing formula to achieve the precise color desired. In explaining his decision that this machine did not qualify for the exemption, the director stated: The Spectrograph machine does not come into contact with the base or final product being purchased by the customer in any way. This machine does not change the substance or color of the paint. Instead, this color eye only provides Sherwin- Williams with a formula for the color of paint desired by the customer. Consequently, . . . the Spectrograph machine is one 26 step removed from processing and would not qualify for the exemption from Iowa sales tax under this statute. Iowa Code section 422.45(27)(d)(5) defines processing as “a series of operations in which materials are manufactured, refined, purified, created, combined or transformed by a manufacturer, ultimately into tangible personal property.” The statute does not define “directly,” but an agency rule states that “[p]roperty is ‘directly used’ only if it is used to initiate, sustain, or terminate an exempt activity.” Iowa Admin. Code r. 701— 18.58(1). This rule suggests three factors to consider in determining whether property is “directly used”: 1. The physical proximity of the property in question to the activity in which it is used; 2. The proximity of the time of use of the property in question to the time of use of other property used before and after it in the activity involved; and 3. The active causal relationship between the use of the property in question and the activity involved. Id. Rule 701—18.58(1) also states: “The fact that a particular piece of property may be essential to the conduct of the activity because its use is required either by law or practical necessity does not, of itself, mean that the property is directly used.” The agency’s definition is consistent with the dictionary meaning of “directly”: “without any intervening space or time : next in order.” Webster’s Third New International Dictionary 641; see Iowa Ag Constr. Co., 723 N.W.2d at 176 (noting department’s definition of “directly” as used in the section 422.45(39) exemption tracked dictionary definition, citing Iowa Admin. Code r. 701—18.48(1)(e)). Applying the agency rule and the factors deemed relevant to determining when property is “directly used” in processing, we conclude the agency’s decision that the color-matching machines do not qualify for the manufacturing exemption is wholly unjustifiable. In contrast to the 27 machinery and equipment considered in the cases cited by the department, which we discuss below, the color-matching machine plays an integral role in the actual processing of usable paint. This machine initiates the in-store process of manufacturing usable paint by selecting the formula for the customer’s desired color. The color-matching machine is integrated with the mini accutinter, sending the formula directly to the mini accutinter where the proper type and amount of colorant is dispensed into the can of base paint. The color-matching machine is located in physical proximity to the mini accutinter and the mixer/shaker. The time of use of the color-matching machine is immediately prior to the tinting of the base paint. In addition, the color-matching machine has an active causal connection to the processing of the paint, dictating the type and amount of colorant and base paint used in that process. We are convinced the director’s contrary conclusion does not conform to the facts and is an unreasonable application of the agency rule. We have studied the four cases upon which the department relies to support the director’s determination that the color-matching machines are not “directly used” in processing paint and find them distinguishable. In Iowa Ag Construction Co., we affirmed the denial of an exemption for a mower used to cut grass around hog confinement centers and associated sewage lagoons because it was not used directly in the production of livestock, as required by the exemption. 723 N.W.2d at 180–81. The mower was not part of the process of raising the livestock; it simply supported the ancillary environment for that process, a very different situation than that presented in the case before us. In Heartland Lysine, this court affirmed the department’s denial of an exemption for electrical equipment that regulated the flow of electricity in a lysine plant to ensure the production equipment provided the environment 28 necessary for the manufacture of lysine. 503 N.W.2d at 590–91. The exemption at issue in that case required that the equipment “ ‘be directly and primarily used in the manner described in section 428.20 in processing tangible personal property.’ ” Id. at 590 (quoting Iowa Code § 422.45(27) (1987)). Noting the electrical equipment’s function was “preliminary to the actual processing,” this court held the equipment did not “directly perform the manufacturing functions contemplated by section 428.20.” Id. at 591. In contrast, the color-matching machine at issue in the present case initiates the tinting process by sending the required formula to the mini accutinter which then dispenses colorant into the base in accordance with that formula. See Iowa Admin. Code r. 701—18.58(1) (“Property is ‘directly used’ only if it is used to initiate, sustain, or terminate an exempt activity.” (Emphasis added.)). A third case cited by the department, Dial Corp., 634 N.W.2d 643, involved an exemption that also had the same language as the statute at issue in the present appeal: “directly and primarily used in . . . processing.” 634 N.W.2d at 647 (quoting Iowa Code § 422.45(27) (1997)). In Dial Corp., we affirmed the denial of the taxpayer’s exemption request for machinery and equipment that produced usable electricity for the assembly line, holding the equipment played “no part in changing the form, context or condition” of the product being manufactured. Id. at 648–49. Citing Heartland Lysine, we also noted the equipment’s “function [was] preliminary to processing, not part of it.” Id. at 649 (emphasis added). As the undisputed facts in the present case show, the function of the color- matching machine is not “preliminary to processing”; rather, this machine initiates the process, a function falling within the agency rule. Finally, in Dain Manufacturing Co. v. Iowa State Tax Commission, 237 Iowa 531, 22 N.W.2d 786 (1946), we held a drill grinding machine “used to 29 service the machinery or equipment that was being ‘directly’ used in the actual act of processing property” was not within an exemption for equipment “directly used” in manufacturing. 237 Iowa at 538, 22 N.W.2d at 790–91. We noted the drill grinding machine “did not come in physical contact with the property that was being made salable or . . . take any part in the actual processing of that property.” Id. at 538, 22 N.W.2d at 791 (emphasis added). This case is also clearly distinguishable from the case before us in which the color-matching machine played an integral part in the actual processing of the paint. While these cases provide some illumination of the meaning of “directly used,” the department’s own rule on this subject is the most pertinent to our analysis. Focusing on that rule, we conclude the department’s application of its rule to the facts of this case to reach a conclusion that the color-matching machines are not “directly used” in processing salable paint has no foundation in fact or reason and is, therefore, wholly unjustifiable. Accordingly, we reverse the department’s decision holding the color-matching machines are not eligible for the manufacturing exemption. VII. Conclusion and Disposition. We hold Sherwin-Williams qualifies for an exemption from use tax for the spectrographic color-matching machines, dispensing/tinting machines, known as mini accutinters, and the mixers/shakers used in its retail stores to process base paint and colorant into usable, salable paint. The decision of the court of appeals and the judgment of the district court are affirmed. We remand this case to the district court for remand to the department for further proceedings consistent with our opinion. DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED; CASE REMANDED. All justices concur except Wiggins, J., who takes no part.	{ "pile_set_name": "FreeLaw" }
7 F.3d 1561 Prod.Liab.Rep. (CCH) P 13,714Fernando BENITEZ and Alina Benitez, His Wife, Plaintiffs-Appellees,v.STANDARD HAVENS PRODUCTS, INC., a foreign corporation,Defendant/Third Party Plaintiff-Appellant. No. 92-4470. United States Court of Appeals,Eleventh Circuit. Nov. 29, 1993. Kathleen M. O'Connor, Thornton, David, Murray, Richard & Davis, P.A., Miami, FL, for Standard Havens Products, Inc. G. William Bissett, Hardy & Bissett, P.A., Miami, FL, for Benitez. Appeal from the United States District Court for the Southern District of Florida. Before EDMONDSON and CARNES, Circuit Judges, and HILL, Senior Circuit Judge. PER CURIAM: 1 CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF FLORIDA PURSUANT TO ARTICLE 5, SECTION 3(b)(6) OF THE FLORIDA CONSTITUTION. 2 TO THE SUPREME COURT OF FLORIDA AND ITS HONORABLE JUSTICES: 3 This case comes to the United States Court of Appeals for the Eleventh Circuit on appeal from the United States District Court for the Southern District of Florida. It involves a question of Florida law which is determinative of the cause, but unanswered by controlling precedent of the Supreme Court of Florida. We therefore certify this question for resolution by the highest court of Florida. 4 Fernando Benitez, an employee of Community Asphalt Corporation, was injured at work on June 5, 1987, when his leg was caught and partially amputated by an auger mechanism situated at the bottom of a pollution control apparatus known as a "baghouse." The baghouse was designed and manufactured by Standard Havens Products, Inc. It operates like a giant vacuum cleaner, collecting in fourteen-foot long fabric bags the dust produced during the manufacture of asphalt. The bags are "pulsed" to remove the accumulated dust which falls into a v-shaped hopper. At the bottom of the hopper is a thirty-foot long auger, much like a horizontal screw, which removes the collected debris. Benitez was injured after he entered the baghouse, with the auger mechanism running, to clean the dust from the inside walls of the baghouse. As Benitez was raking debris from the walls, he stepped off of the screen panels covering the opening to the auger, causing his foot to be pulled into the spinning auger. 5 Benitez and his wife brought this products liability action against Standard Havens, and Standard Havens brought in Benitez's employer, Community Asphalt, as a third-party defendant. Community Asphalt has been dismissed from this appeal on joint motions by Standard Havens and Community Asphalt. Benitez argued at trial that Standard Havens was negligent in designing the baghouse without proper safety measures to prevent an accident such as his, including an adequate protective screen over the auger mechanism and proper warnings of the dangers presented by the mechanism. Benitez also claimed that the defects to the baghouse rendered it unreasonably dangerous and, therefore, Standard Havens was strictly liable for his injuries caused by those defects.1 Standard Havens defended that Benitez's own negligence was the cause of the injuries and that Benitez had knowingly misused the baghouse and assumed any risk of injury. Standard Havens presented evidence that Benitez's employer had in place a policy, of which Benitez was fully aware, that instructed employees to "lockout" motorized equipment like the baghouse auger mechanism before doing work on or near such equipment. This policy was consistent with the procedures outlined in the baghouse operations and maintenance manual provided by Standard Havens. Benitez acted in contravention of the lockout policy, intentionally turning on the auger before entering the baghouse. 6 At the close of all of the evidence, the district court instructed the jury on the law of products liability premised on negligent design or manufacture as well as strict liability, and further instructed the jury relating to Standard Haven's defenses of comparative negligence, product misuse, and assumption of risk. 7 Following its instruction on Benitez's negligent design and manufacture theory, the court instructed the jury on Standard Havens's comparative negligence defense: 8 The Defendant contends that the Plaintiff was himself negligent and that such negligence was a legal cause of his own injury. This is a defensive claim and the burden of proving that claim, by a preponderance of the evidence, is upon the Defendant who must establish: 9 First: That the Plaintiff was also "negligent;" and 10 Second: That such negligence was a "legal cause" of the Plaintiff's own damage. 11 If you find in favor of the Defendant on this defense, that will not prevent recovery by the Plaintiffs, it only reduces the amount of Plaintiffs' recovery. 12 The court then instructed on Benitez's strict liability claim. Included in that instruction was the following: "A product is unreasonably dangerous because of its design if the product fails to perform as safely as an ordinary person would expect when used as intended or in a manner reasonably foreseeable by the manufacturer or the risk of danger in the design outweighs the benefits." The court then instructed on Standard Havens's defenses to Benitez's strict liability claim: 13 The Defendant contends that FERNANDO BENITEZ's injury occurred as the result of his knowing "misuse" of the Alpha/Mark III Baghouse. A manufacturer is entitled to expect a normal use of his product. If the Plaintiff's injury occurred because he knowingly used the product in a manner for which the product was not made or adapted, and not reasonably foreseeable to the Defendant, then the Plaintiff cannot recover. It is for you to decide whether the Plaintiff was knowingly using the product at the time of the accident in a manner for which the product was not made or adapted, and whether this use was reasonably foreseeable to the Defendant. 14 If you find that the Defendant has established this defense by a preponderance of the evidence, then your verdict will be for the Defendant on the defective design and manufacture claim. 15 The Defendant also contends as another defense, that the Plaintiff was negligent and that such negligence was a contributing legal cause of his own injury. Specifically, Defendant alleges that: 16 (1) the Plaintiff intentionally operated the Alpha/Mark III Baghouse contrary to its operation and its maintenance manual, and 17 (2) that FERNANDO BENITEZ assumed the risk of injury because there was a dangerous situation or condition which was open and obvious, the Plaintiff knew of this dangerous situation, the Plaintiff voluntarily exposed himself to this danger and was injured thereby. 18 Following another recitation of standard negligence law, the court again instructed the jury on the principles of comparative negligence as a defense: "If you find in favor of the Defendant on the defense of comparative negligence, that will not prevent recovery by the Plaintiff, it will only reduce the amount of Plaintiff's recovery." 19 The case was then sent to the jury with a verdict form containing special interrogatories, which the jury answered as follows: 20 1. Was there negligence on the part of the Defendant, STANDARD HAVENS PRODUCTS, INC., in designing, manufacturing and assembling the Alpha/Mark III Baghouse which was a legal cause of injury or damage to the Plaintiffs? Yes X No 21 2. Was the Alpha/Mark III Baghouse, designed, manufactured and sold by the Defendant, defective when it left the possession of the Defendant and such defect a legal cause of injury or damage sustained by the Plaintiffs[?] Yes X No 22 If both of your answers to questions 1 and 2 are "no," your verdict is for the Defendant, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 2 is "yes," please answer question 3. 23 3. Did FERNANDO BENITEZ knowingly misuse the Alpha/Mark III Baghouse in a manner for which the product was not made and not foreseeable to the Defendant which was a legal cause of his injury? Yes X No 24 If either of your answers to question 1 or 2 was "yes," please answer question 4. 25 4. Was there any negligence on the part of FERNANDO BENITEZ, which was a legal cause of the Plaintiffs' damage or injuries[?] Yes X No 26 The jury determined that Fernando Benitez's total damages were $1,500,000.00 and that Alina Benitez's total damages were $250,000.00. Because the jury apportioned 70% fault to Standard Havens and 30% to Benitez, the court entered judgment on the jury's verdict, awarding $1,050,000.00 to Fernando and $175,000.00 to Alina. 27 On appeal, the dispute centers on whether the jury's finding that Benitez knowingly misused the baghouse in a manner unforeseeable to Standard Havens barred recovery on the claim of negligent design or manufacture. The court's charge to the jury instructed on misuse as a defense only to Benitez's strict liability claim, and the verdict form given to the jury was consistent with those instructions. In addition, a brief colloquy between counsel for Standard Havens and the court, during a conference immediately preceding the parties' closing arguments, confirms the court's assumption that knowing misuse would act to bar only the strict liability claim: 28 [DEFENSE COUNSEL]: If you look at question number 3, on misuse, it doesn't tell the jury what to do if they answer it no, or yes. 29 THE COURT: Well, I don't think we need to tell them that. 30 [DEFENSE COUNSEL]: If they answer it no, it is a verdict for the [plaintiff]. If they answer, yes, there was misuse, it was a verdict for the [defendant]. 31 [PLAINTIFFS' COUNSEL]: Not on negligence. 32 THE COURT: It is a verdict for the defendant on the claim of strict liability. 33 [DEFENSE COUNSEL]: I believe it would apply to both. 34 THE COURT: No, I don't think so. 35 After review of Florida law, we conclude that the controlling question of whether knowing misuse of a product in a manner that was not only unintended but also unforeseeable bars a simple negligence claim is unanswered by controlling precedent of the Supreme Court of Florida. 36 It appears settled under Florida law that, as instructed by the district court, the jury's finding of an unforeseeable misuse barred recovery on Benitez's strict liability claim. The Florida Supreme Court recently stated in High v. Westinghouse Elec. Corp., 610 So.2d 1259, 1262 (Fla.1992), that "[i]n order for strict liability to apply to the manufacturer, the [product] in this instance must have been used for the purpose intended." The jury's finding that Benitez knowingly misused the baghouse in a manner for which it was not made and which was unforeseeable to Standard Havens foreclosed Benitez's strict liability claim. However, the effect of that jury finding on Benitez's negligence claim is less certain. In High, the supreme court went on to address the merits of the plaintiff's negligent failure to warn claim after concluding that the unintended use of the defendant's product barred recovery under strict liability: "We find that a manufacturer has a duty to warn of dangerous contents in its products which could damage or injure even when the product is not used for its intended purpose." Id. at 1262. This holding appears to indicate that there is no absolute bar to recovery in negligence for an unintended use that is foreseeable. Nonetheless, the High court did not discuss the effect of an unforeseeable, unintended use on a products liability action sounding in negligence. In fact, the High court's strict liability discussion did not address foreseeability either. See id. at 1263 (Barkett, J., concurring in part and dissenting in part) (noting that the majority did not clarify whether "intended uses" includes unintended uses that were reasonably foreseeable and arguing that the question whether dismantling of defendant's product was foreseeable was for jury). 37 Standard Havens argues that the jury's unforeseeable misuse finding precludes recovery for negligence as well as strict liability. Standard Havens has cited us to no case, and we are aware of none that clearly establishes the principle it argues. A recent decision of this Court, Mosher v. Speedstar Div. of AMCA Int'l, Inc., 979 F.2d 823, 825 (11th Cir.1992), appears at first blush to indicate to the contrary. That decision reversed the district court in part for instructing the jury that "an abnormal use by the plaintiff which was not reasonably foreseeable by the manufacturer will negate liability." We stated in Mosher that "Florida law does not suggest that misuse will 'negate liability' as the district court instructed. Instead, misuse is simply to be considered as part of the comparative fault calculus." Id. at 826. Upon closer examination, however, that decision is not dispositive because, as the opinion in it points out, there was no issue of unforeseeable misuse before the jury in Mosher. The record in that case showed that the misuse there had been foreseeable. Id. Thus, the broad statement in the Mosher opinion is non-binding dictum and cannot control a case such as the present one, in which the misuse was actually unforeseeable. 38 Standard Havens points to the decision in Clark v. Boeing, 395 So.2d 1226, 1229 (Fla.Dist.Ct.App.1981), where the court stated: "A knowing misuse of a manufacturer's product creates no liability on the part of the manufacturer." While appearing to support the broad proposition argued by Standard Havens, the Boeing court's statement is not dispositive of the issue facing us in this case either. That statement is found in the court's discussion of the plaintiff's strict liability claim; no mention was made of that absolute bar to recovery in the portion of the court's opinion addressing the plaintiff's negligence claim. Moreover, the court followed up that holding with the following: "Under that circumstance, the sole cause of the injury is the misuse of the product." Id. This last statement indicates that the court's holding was based on the particular facts of the case and the lack of causation between any alleged defect and the plaintiff's injuries, not on an absolute bar to recovery for knowing misuse. In the present case, by contrast, the jury found that negligence of Standard Havens was a legal cause of injury to Benitez. 39 Other cases cited by Standard Havens also involve proximate cause holdings. In Watson v. Lucerne Mach. and Equip., 347 So.2d 459, 461 (Fla.Dist.Ct.App.1977), the court found that the decedent's death was caused not by any defect, but solely by his disregarding warnings from his supervisors to stay away from a machine that presented obvious dangers during operation. The Lucerne court's conclusion that the plaintiff's own actions were the sole proximate cause of his death is not the equivalent of a finding that unforeseeable, knowing misuse is an absolute bar to recovery. See also Kroon v. Beech Aircraft, 628 F.2d 891 (5th Cir.1980) (applying Florida law and upholding summary judgment on grounds that plaintiff's negligence in failing to release aircraft "gust lock" device was "sole proximate cause" of damage to plane).2 40 We believe the issue of Florida law raised by the parties in this appeal is appropriate for resolution by the highest court of Florida. While that court has resolved similar issues involving questions of whether certain defenses operate as absolute bars or simply merge into the comparative negligence calculation under strict liability, e.g., Auburn Mach. Works Co., Inc. v. Jones, 366 So.2d 1167, 1170-72 (Fla.1979) (holding that obvious and patent danger rule merged into comparative negligence); Blackburn v. Dorta, 348 So.2d 287, 292-93 (Fla.1977) (holding that implied assumption of risk merged into comparative negligence), we are aware of no decision that has addressed this issue with respect to a knowing misuse, unforeseeable to the manufacturer, in the context of products liability action based on negligence. We, therefore, certify the following question: 41 DOES A PLAINTIFF'S KNOWING MISUSE OF A PRODUCT IN A MANNER NEITHER INTENDED NOR FORESEEABLE BY THE DEFENDANT MANUFACTURER BAR RECOVERY, AS A MATTER OF LAW, ON A PRODUCTS LIABILITY CLAIM SOUNDING IN NEGLIGENCE? 42 We do not intend the particular phrasing of this question to limit consideration of the problems posed by the entire case. The Court is at liberty to consider the problems and issues involved in this case as it perceives them to be. In order to assist the determination, the entire record, along with the briefs of the parties, shall be transmitted to the Supreme Court of Florida. 1 In addition to the claims for negligence and strict liability, the original complaint set out claims for breach of implied warranty of fitness for a particular purpose, breach of implied warranty of merchantability, and breach of express warranty. The warranty claims were dismissed by order of the district court prior to trial and are not at issue in this appeal 2 In moving for a directed verdict at trial and for judgment notwithstanding the verdict after trial, Standard Havens argued that Benitez's injuries were not proximately caused by any of the defects alleged by Benitez, but were proximately caused solely by Benitez's own knowing misuse of the baghouse by entering it with the auger running	{ "pile_set_name": "FreeLaw" }
974 F.2d 170 Galanv.Wolf* NO. 91-3888 United States Court of Appeals,Fifth Circuit. Aug 28, 1992 1 Appeal From: E.D.La. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2	{ "pile_set_name": "FreeLaw" }
This opinion is subject to administrative correction before final disposition. Before KING, TANG, and LAWRENCE, Appellate Military Judges _________________________ UNITED STATES Appellee v. Brian H. DELNEVO Lance Corporal (E-3), U.S. Marine Corps Appellant No. 201900017 Decided: 24 February 2019. Appeal from the United States Navy-Marine Corps Trial Judiciary. Military Judge: Major Terrance J. Reese, USMC. Sentence adjudged 10 October 2018 by a general court-martial convened at Marine Corps Base Camp Lejeune, North Carolina, consisting of a military judge sitting alone: reduction to paygrade E-1, confinement for twenty months, and a dishonorable discharge. Sentence approved by the con- vening authority: as adjudged. For Appellant: Captain Marcus N. Fulton, JAGC, USN; Lieutenant Commander Derek C. Hampton, JAGC, USN. For Appellee: Lieutenant Joshua C. Fiveson, JAGC, USN. _________________________ This opinion does not serve as binding precedent, but may be cited as persuasive authority under NMCCA Rule of Appellate Procedure 30.2. _________________________ United States v. Delnevo, NMCCA No. 201900017 PER CURIAM: A military judge sitting as a general court-martial convicted Appellant, consistent with his pleas, of two specifications of conspiring to commit larceny of military property with a value greater than $500 and to wrongfully sell that property; one specification of conspiring to obstruct justice; three specifications of larceny of military property; two specifications of wrongful sale of military property; and one specification of dereliction of duty in violation of Articles 81, 92, 108, and 121, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 892, 908, 921 (2016). Appellant claims that he received a highly disparate sentence compared to that of his co-actors. We disagree, find no prejudicial error, and affirm. I. BACKGROUND Appellant and three other Marines, all of whom worked in a supply ware- house at 3d Marine Raider Battalion, pleaded guilty in accordance with their pretrial agreements to charges involving stealing military property from that warehouse and selling it to a local pawnshop. In addition to entering into a conspiracy with Corporal (Cpl) Anne to do so, Appellant admitted to stealing and selling this military property. He also admitted that he conspired with Cpl Anne to obstruct justice by replacing the hard drive in the warehouse video surveillance system. Some of this property was stolen with the assis- tance of Cpl Galan-Perez and Lance Corporal (LCpl) Torres. The latter two Marines eventually stopped stealing and attempted to convince Appellant to do the same. He did not. Instead, he and Cpl Anne conspired to steal and sell 25 Solar Portable Alternative Communications Energy Systems, with a cumulative value of over $323,000. They were apprehended before they could do so. The Marines entered into pretrial agreements. 1 Cpl Anne’s case was re- ferred to a general court-martial where he pleaded guilty to three specifica- tions of conspiracy; two specifications of larceny of military property greater than $500; two specifications of wrongful sale of military property; one specification of attempted wrongful sale of military property; one specifica- tion of dereliction of duty; and one specification of obstruction of justice. Facing over 70 years of confinement, Cpl Anne was sentenced to confinement for twenty-eight months, reduction to pay grade E-1, a fine of $4,000, and a dishonorable discharge. 1 Appellant’s pretrial agreement had no impact on the approved sentence. 2 United States v. Delnevo, NMCCA No. 201900017 Cpl Galan-Perez’s case was referred to a special court-martial. As part of his pretrial agreement, he pleaded guilty to one specification of conspiracy; two specifications of wrongful sale of military property; and two specifications of larceny of military property. Cpl Galan-Perez was sentenced to confine- ment for six months, reduction to pay grade E-1, and a bad-conduct dis- charge. Finally, LCpl Torres’s charges were also disposed of at a special court- martial, where he pleaded guilty to one specification of dereliction of duty; two specifications of wrongful sale of military property; and two specifications of larceny of military property. LCpl Torres was sentenced to five months confinement, reduction to pay grade E-1, and a bad-conduct discharge. Appellant now argues his sentence was highly disparate to the closely related sentences of LCpl Torres and Cpl Galan-Perez because those two Marines received substantially shorter terms of confinement than Appellant did. He also argues that his sentence was highly disparate from that of Cpl Anne, because Cpl Anne, while “more culpable” received “only a slightly larger sentence.” We disagree, find no prejudicial error, and affirm the findings and sentence. 2 II. DISCUSSION We review sentence appropriateness de novo, United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006), and generally without reference or comparison to sentences in other cases. United States v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985). We will engage in sentence comparison only “in those rare instances in which sentence appropriateness can be fairly determined only by reference to 2 Appellant raises three additional assignments of error pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). First, Appellant requests that we set aside the sentence and remand the case for a rehearing in order for “the inconsisten- cies and inaccuracies of Major Norman’s testimony to be properly presented to the sentencing judge.” Appellant’s Brief of 22 May 2019 at 7-8. Second, that trial defense counsel was ineffective for failing to negotiate a pretrial agreement including a waiver of forefeitures in exchange for an allotment directed toward Appellant’s spouse. Appellant’s Brief of 25 Nov 2019 at 2. Third, that a sentence extending to twenty months’ confinement, reduction to pay grade E-1, and a dishonorable discharge is inappropriately severe. Id. at 4. We have considered and find no merit in Appellant’s second, third, and fourth assignments of error. Having carefully considered those assignments of error, we find them to be without merit. See United States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987), cert. denied, 485 U.S. 968 (1988). 3 United States v. Delnevo, NMCCA No. 201900017 disparate sentences adjudged in closely related cases.” United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001) (quoting Ballard, 20 M.J. at 283). When arguing for relief based on sentence disparity, an appellant must demonstrate “that any cited cases are ‘closely related’ to his or her case and that the sentences are ‘highly disparate.’ If the appellant meets that burden . . . then the Government must show that there is a rational basis for the disparity.” United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999). “Closely related” cases involve “offenses that are similar in both nature and serious- ness or which arise from a common scheme or design.” United States v. Kelly, 40 M.J. 558, 570 (N.M.C.M.R. 1994). In assessing whether sentences are highly disparate, “adjudged sentences are used because there are several intervening and independent factors between trial and appeal—including discretionary grants of clemency and limits from pretrial agreements—that might properly create the disparity in what are otherwise closely related cases.” United States v. Roach, 69 M.J. 17, 21 (C.A.A.F. 2010). Moreover, we are “not limited to a narrow comparison of the relative numerical values of the sentences at issue,” but may also consider “the disparity in relation to the potential maximum punishment.” Lacy, 50 M.J. at 289. Finally, co-conspirators are not entitled to similar sentences and disparity between them does not necessarily render one sentence inappropriate, “provided each military accused is sentenced as an individual.” United States v. Durant, 55 M.J. 258, 261 (C.A.A.F. 2001). This is so because the point of examining disparate sentences is not only to eliminate actual unfairness or injustice, but also to ensure the “appearance of fairness and integrity, without which the public, members of Congress, and service personnel will lose confidence in the military justice system.” Kelly, 40 M.J. at 570. We begin here by concurring with the Government that, “nothing in the [r]ecord evinces the facts underlying [Cpl Galan-Perez’s or LCpl Torres’s] charges, or the evidence presented during their trials, making meaningful comparison impossible.” 3 However, even had Appellant met his burden, he would still fail. Assuming without deciding that Appellant’s case is “closely related” to those of LCpl Torres and Cpl Galan-Perez, and even that the sentences were “highly disparate,” we nonetheless find rational bases for any disparity. 3 Appellee’s Brief of 22 Jul 2019 at 11. 4 United States v. Delnevo, NMCCA No. 201900017 First, Appellant’s charges were disposed of at a general court-martial while LCpl Torres’s and Cpl Galan-Perez’s cases were referred to a special court-martial. The choice of forum at which to dispose of criminal charges is part of prosecutorial discretion, for which convening authorities are afforded “broad discretion.” Kelly, 40 M.J. at 570. Even were we to question the convening authority’s forum decision, the record presented to us demonstrates that it was a reasonable one. Appellant and Cpl Anne were far more engaged in this criminal conduct than were LCpl Torres and Cpl Galan-Perez. Appellant was involved in this scheme from beginning to end. He conspired with Cpl Anne to steal hundreds of thousands of dollars in military equipment. He then conspired with Cpl Anne to obstruct justice by destroying evidence of their misdeeds. The difference in culpability alone is also sufficient to establish for us a “rational” reason for Appellant’s greater sentence. Nor do we find merit in Appellant’s contention that his sentence is highly disparate since it was only “slightly” less than Cpl Anne’s, even though Appellant claims Cpl Anne was the “more culpable party and . . . the admit- ted instigator of the criminal scheme.” 4 Appellant and Cpl Anne engaged in largely the same course of misconduct over several months, namely, stealing or attempting to steal hundreds of thousands of dollars of government property from the warehouse they were entrusted to secure, selling some of that property to enrich themselves, and then conspiring to cover their tracks. Cpl Anne, the non-commissioned officer of the two, went on to actually obstruct justice and was sentenced to eight months more of confinement and an additional $4,000 fine. We are therefore satisfied that Appellant was sentenced as an individual and that the delta between his sentence and Cpl Anne’s does not create risk to the “appearance of fairness [or] integrity” of the military justice system. Kelly, 40 M.J. at 570. The same factors that inform our conclusion that Appellant’s sentence is not inproperly disparate when compared to his cohorts, guide us to the conclusion that his sentence is not inappropriately severe. 5 The appropriate- ness of a sentence involves “the judicial function of assuring that justice is done and that the accused gets the punishment he deserves.” United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988). Our Court is constrained by the 4 Appellant’s Brief of 23 May 2019 at 7. 5Appellant raises the closely-related issue of sentence severity pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), 5 United States v. Delnevo, NMCCA No. 201900017 requirements of Article 66(c), UCMJ, that we may only affirm “the sentence, or such part or amount of the sentence” that we find “correct in law and fact” and that “on the basis of the entire record, should be approved.” Our analysis requires that we consider the accused individually, and on the basis of “the nature and seriousness of the offense and the character of the offender.” United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (citation and internal quotation marks omitted). Appellant engaged in a large-scale conspiracy to steal over $300,000-worth of military property. He did so from a position of trust, and ultimately conspired to obstruct justice in an attempt to avoid responsibility for his actions. We find that Appellant’s sentence is correct in fact and law, and that, after a careful review of the record, should be approved. III. CONCLUSION The approved findings and sentence are correct in law and fact and no error materially prejudicial to Appellant’s substantial rights occurred. Arts. 59, 66, UCMJ, 10 U.S.C. §§ 859, 866. Although not raised by Appellant, we note that the court-martial order (CMO) does not accurately reflect the disposition of all charges and specifications to which Appellant entered pleas of not guilty. The CMO indicates that Charge I, Specification 2, and the sole specifications under Charge IV and Charge VI were dismissed without prejudice. However, the CMO fails to indicate that the dismissals were to ripen into prejudice upon completion of appellate review in which the findings and sentence have been upheld. The appellant is entitled to have court-martial records that correctly reflect the content of his proceeding. United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998). Accordingly, the supplemental CMO shall properly reflect this disposition. With this correction, the findings and sentence as approved by the convening authority are AFFIRMED. FOR THE COURT: RODGER A. DREW, JR. Clerk of Court 6	{ "pile_set_name": "FreeLaw" }
996 A.2d 567 (2010) PNC BANK v. SNS BUDDIES. No. 327 MDA 2009. Superior Court of Pennsylvania. March 19, 2010. Affirmed.	{ "pile_set_name": "FreeLaw" }
214 U.S. 19 (1909) SMITHSONIAN INSTITUTION v. ST. JOHN, EXECUTOR OF WALLACE C. ANDREWS, DECEASED. No. 613. Supreme Court of United States. Argued April 5, 6, 1909. Decided May 17, 1909. ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK. 23 Mr. Frank W. Hackett and Mr. Edmund Wetmore for plaintiffs in error. Mr. James W. Hawes, Mr. Virgil P. Kline and Mr. Harold Nathan for defendants in error. Mr. Hawes for defendant in error St. John. 27 MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court. It is difficult to spell out from the record in this case the decision of any question arising under the Constitution and laws of the United States. Neither in the pleadings nor in the opinions is there a direct reference to any special provision of the Federal Constitution. It is true that after the decision by the Court of Appeals an affidavit was filed by one of the counsel for plaintiffs in error in support of a petition for a rehearing, stating that in the brief, as well as upon the oral argument in that court, a Federal question (describing it) had been presented and discussed, which petition was denied by the Court of Appeals in these words: "Ordered, that the said motion be and the same hereby is denied, with ten dollars costs, no Federal question having been raised in this court." It is unnecessary to determine whether this of itself is sufficient to give jurisdiction to this court. The language of the Court of Appeals may be construed as denying that any such matter was brought to its attention as stated in the affidavit, or as holding that it presented no Federal question. Mallett v. North Carolina, 181 U.S. 589; M., K. & T. Ry. Co. v. Elliott, 184 U.S. 530; Leigh v. Green, 193 U.S. 79; McKay v. Kalyton, 204 U.S. 458. Counsel further contend that there was necessarily involved in the decision of the case the determination of a question arising under the Constitution and laws of the United States, and that hence this court has jurisdiction of this writ of error, even if the question was not formally referred to by counsel 28 or the state courts. Chapman v. Goodnow, 123 U.S. 540-548; Navigation Company v. Homestead Company, 123 U.S. 552; McCullough v. Virginia, 172 U.S. 102, 117; M., K. & T. Ry. Co. v. Elliott, 184 U.S. 530, 534; Rogers v. Alabama, 192 U.S. 226, 230, in which last case it is said: "It is a necessary and well-settled rule that the exercise of jurisdiction by this court to protect constitutional rights cannot be declined when it is plain that the fair result of a decision is to deny the rights. . . . There can be no doubt that if full faith and credit were denied to a judgment rendered in another State upon a suggestion of want of jurisdiction, without evidence to warrant the finding, this court would enforce the constitutional requirement. See German Savings Society v. Dormitzer, ante, p. 125." The question upon which counsel rely arises upon Article IV, § 1, of the Federal Constitution, which reads: "Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof." It is not pretended that any judgment of the State of Ohio was disregarded by the courts of New York, but it is contended that full force and effect was not given to the constitution of the State of Ohio. This duty is as obligatory as the similar duty in respect to the judicial proceedings of that State. Town of South Ottawa v. Perkins, 94 U.S. 260, 268; Chicago & Alton Railroad Company v. Wiggins Ferry Company, 119 U.S. 615, 622, in which Mr. Chief Justice Waite said: "Without doubt the constitutional requirement, art. IV, sec. 1, that `full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State,' implies that the public acts of every State shall be given the same effect by the courts of another State that they have by law and usage at home. This is clearly the logical result of the principles announced as early as 1813 in Mills 29 v. Duryee, 7 Cranch, 481, and steadily adhered to ever since." Hancock National Bank v. Farnum, 176 U.S. 640, 642. On the other hand, it is settled that the mere construction by a state court of the statute of another State, without questioning its validity, does not deny to it the full faith and credit demanded by the constitutional provision. Glenn v. Garth, 147 U.S. 360; Lloyd v. Matthews, 155 U.S. 222; Banholzer v. New York Life Insurance Company, 178 U.S. 402; Johnson v. New York Life Insurance Company, 187 U.S. 491; Finney v. Guy, 189 U.S. 335; Allen v. Alleghany Company, 196 U.S. 458. In the light of these decisions we pass to consider the particular question presented. Sections 1 and 2 of article 13 of the Ohio constitution read: "SEC. 1. The general assembly shall pass no special act conferring corporate powers. "SEC. 2. Corporations may be formed under general laws; but all such laws may, from time to time, be altered or repealed." By § 3235, 2 Bates's Ann. Ohio Statutes (6th ed.), p. 1836, it is provided: "Corporations may be formed in the manner provided in this chapter for any purpose for which individuals may lawfully associate themselves, except for carrying on professional business;" and immediately following this section are those naming the conditions and methods of incorporation. After the death of the testator, and on March 19, 1902, the general assembly of the State of Ohio passed an act (Laws 1902, p. 61), the first section of which is as follows: "SEC. 1. Whenever, by the last will and testament of any person which has heretofore been, or shall hereafter be, duly admitted to probate in this State or elsewhere, any decedent has devised or bequeathed, or may devise or bequeath, his or her property, or any portion thereof, for charitable uses within this State, or for the establishment and maintenance of any industrial or educational school or institution to be located at any place within this State; and whenever, in any 30 such will and testament it has been, or may be, provided that the executor or executors thereof shall organize a corporation under the laws of this State for the purpose of receiving the property so devised or bequeathed, and carrying out the charitable purposes in such will expressed, or establishing and maintaining the institution or school therein provided for, and such will further provides for the management of such corporation by a board of trustees or directors, consisting, in part, of officials of this State, of the county in which such charities are to be administered or such institution or school located, the officials of any municipal incorporation in said county, and the member of Congress for the district of which said county forms a part, or any of such officials, and names any other person or persons to be associated with said officials or any of them, and provides for the appointment of a successor or successors to the person or persons so appointed to act with such officials in any manner specified in said will, such executor or executors, or his or their successors in office, and the persons hereinafter named, may constitute themselves a body corporate, with the general powers of benevolent incorporations." The second section requires that a copy of the will or testament, for the carrying out of the provisions of which the corporation is organized, shall be set forth in the articles of incorporation. Thereafter the Andrews Institute for Girls was incorporated, containing, as required by § 2, the will of the testator. Now it is contended by counsel for the plaintiffs in error that this act was a special act conferring corporate powers, and that therefore it and the incorporation made under it was in conflict with the constitution of Ohio. It is not suggested that there has been any decision of the courts of Ohio in reference to the validity of the act or subsequent incorporation of the Andrews Institute, but it is insisted that it is so obvious that the act is a special act conferring corporate powers, inasmuch as the terms of the will of an individual are the basis of the act and the incorporation that the courts of 31 New York could not have given force and effect to the prohibitions of the constitution of Ohio. Nevertheless, whether rightly or wrongly, the New York courts held that there was no violation of the constitution of Ohio, the Court of Appeals saying in its opinion: "At the death of the testator the general statutes of Ohio provided that corporations might be formed for any purpose for which individuals might lawfully associate themselves, except for carrying on professional business. 2 Bates's Ann. Ohio Statutes (6th ed.), p. 1836. "Subsequent to the death of the testator and in March, 1902, an act was passed by the general assembly of the State of Ohio entitled `An act to provide for the administration of charitable trusts in certain cases.' If we assume that such act was passed to aid in the incorporation of the Andrews Institute for Girls, it is not necessarily unconstitutional for that reason. It is not an uncommon thing in any State for questions to arise making it desirable or perhaps necessary for further general legislation to enable persons interested to carry out desired and desirable measures. The fact that such further general statute is passed to aid a particular person for the time being does not make the act a special, as distinguished from a general one. Whether an act, general in form, is a mere device to evade a wholesome constitutional provision is largely dependent upon the special circumstances of each case. If the act relates to persons, places and things as a class, and is neither local nor temporary, the mere fact that its practical effect is special and private does not necessarily prove that it violates constitutional provisions against special legislation. Matter of N.Y. El. R.R. Co., 70 N.Y. 327-344; In the Matter of Church, 92 N.Y. 1; Matter of Henneberger, 155 N.Y. 420, 426; People v. Dunn, 157 N.Y. 528; Kittinger v. Buffalo Traction Co., 160 N.Y. 377; People ex rel. Clauson v. Newburgh & S. Plank Road Co., 86 N.Y. 1; Matter of N.Y. & L.I. Bridge Co., 148 N.Y. 540; Waterloo W.M. Co. v. Shanahan, 128 N.Y. 341; Ferguson v. Ross, 126 N.Y. 32 459; Sun P. & Pub. Association v. Mayor &c. of N.Y., 152 N.Y. 257. "The act so passed by the general assembly of the State of Ohio in 1902 would not seem to be in violation of the constitution of that State. Platt v. Craig, 66 Ohio St. 75; State ex rel. v. Spellmire, 67 Ohio St. 77; Gentsch v. State of Ohio, 71 Ohio St. 151; Cinn. Street R.R. Co. v. Horstman, 72 Ohio St. 93; State of Ohio v. Sherman, 22 Ohio St. 411. "Subsequent to the death of the testator, and on the 8th day of May, 1902, `The Andrews Institute for Girls' was incorporated pursuant to the laws of the State of Ohio `for the purpose of receiving the property devised and bequeathed in and by the wills of Wallace C. Andrews and Margaret M. St. John Andrews, late of the city and State of New York, to the corporation therein directed to be formed and for the purpose of carrying out the charitable purposes in such wills expressed, and of establishing and maintaining the institution therein provided for.' "The articles of incorporation include a complete copy of the will of the testator and also of the will and codicil of Margaret M. St. John Andrews. They also provide that the corporation shall be located in the town of Willoughby, Ohio, and name as members of the corporation the persons proposed in the will of said testator, together with two other persons in the State of Ohio, which persons so named constitute the board of directors for the administration and management of the property and trust or other funds of the corporation, and for the control and management of said institution. Said act of the general assembly of the State of Ohio among other things provides: `The attorney-general of the State of Ohio shall in his official capacity have power to bring proceedings in any court of record and enforce any such devise or bequest whenever he deems such action necessary for the protection and carrying out of the purposes named in said last will and testament without waiting for the organization of such corporation.'" 33 That there is some foundation for the conclusion reached by the Court of Appeals is obvious from the opinions of the Supreme Court of Ohio, cited in the foregoing quotation. It is unnecessary to hold that there was no error in the ruling of the Court of Appeals. It is enough for the purposes of this case to hold that that court did not question the validity of any provision of the constitution of the State of Ohio, and did not sustain any act or incorporation which it held to be in conflict with such provision. At most, there was simply a matter of error and not a repudiation of the obligations of the Federal Constitution. We do not see that any provision of the Federal Constitution has been violated, and the writ of error is Dismissed. THE CHIEF JUSTICE did not hear the arguments and took no part in the decision of this case.	{ "pile_set_name": "FreeLaw" }
486 F.2d 1314 159 U.S.App.D.C. 54 L'Enfant Plaza North, Inc.v.District of Columbia Redevelopment Land Agency 72-1558, 72-1725, 72-1980 UNITED STATES COURT OF APPEALS District of Columbia Circuit 10/16/73 D.C.D.C., 345 F.Supp. 508 AFFIRMED	{ "pile_set_name": "FreeLaw" }
ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Tech Projects, LLC ) ASBCA No. 58789 ) Under RFP Nos. W9124Q-08-T-0003 ) W9124Q-08-R-0004 ) APPEARANCE FOR THE APPELLANT: Joseph E. Schmitz, Esq. Schmitz & Socarras LLP McLean, VA APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney CPT Evan C. Williams, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE YOUNGER ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION Appellant Tech Projects, LLC (Tech Projects), a participant in the Small Business Set-Aside Program, seeks to recover costs incurred in connection with two requirements issued by the White Sands Missile Range, New Mexico (White Sands or Army). The first requirement was to design and install a virtual fence, and the second was to operate and maintain target control services. The government subsequently withdrew one requirement and cancelled the other. The government now moves to dismiss, arguing that we lack jurisdiction because no contracts were awarded. Tech Projects opposes, chiefly arguing that it has made the requisite non-frivolous allegation of jurisdiction. We deny the motion. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION A. Virtual Fence Requirement 1. By letter to White Sands dated 12 May 2008, a lead business development specialist in the Small Business Administration (SBA), pursuant to section 8(a) of the Small Business Act, 15 U.S.C. § 637(a), accepted a requirement for design and installation of a virtual fence on behalf of Tech Projects (gov't mot., ex. G-1 ). 2. In his letter to White Sands, the specialist stated that SBA's "preliminary analysis indicates that this requirement is suitable for 8(a) contracting, and that TECH PROJECTS, LLC has the requisite capabilities to ... perform the work" (gov't mot., ex. G-1). 3. By letter to SBA dated 8 September 2008, White Sands advised of its decision "to withdraw the Virtual Fence requirement from Tech Projects" based upon "difficulties in getting detailed information from the contractor in a timely manner" (gov't mot., ex. G-2 at 1). B. Target Control Services Requirement 4. By letter to White Sands dated 23 May 2008, a lead business development specialist at SBA, pursuant to section 8(a), accepted a requirement for the operation, maintenance, and other support of Target Control Services on behalf of Tech Projects (gov't mot., ex. G-3). 5. By email dated 26 September 2008 to SBA, the contracting officer advised that the requirement "has been cancelled in its entirety and will be performed in-house by government personnel" (gov't mot., ex. G-4 ). C. Claim and Appeal 6. By letter to the contracting officer dated 10 December 2008, Tech Projects submitted a certified claim aggregating $185,346.40 for both the Virtual Fence and the Target Control System requirements (R4, tab 27). 7. Following multiple difficulties in auditing the claim, as well as an initial decision in 2009, and a reconsideration request in 2011, the contracting officer rendered his final decision by date of 22 March 2013. The contracting officer determined that Tech Projects was entitled to reimbursement for a portion of its initial claim and denied a supplemental claim in its entirety. (R4, tab 50 at 10) In his decision, the contracting officer also asserted that "[t]he government is in agreement with Tech Projects that there is an implied contract when SBA acceptance occurs" (id. at 3). The contracting officer further stated that "[i]t is understood that there was never a formal written contract but the SBA Acceptance Letter and actions by the government could be reasonably perceived by Tech Projects (or any other 8 (a) contractor) to constitute an implied contract" (id. at 4). 8. By letter to the Recorder dated 20 June 2013, Tech Projects brought this appeal. In its notice of appeal, which is in the nature of a complaint, Tech Projects alleges that the contracting officer "properly recognized that there was a contract in fact" regarding the Target Control System requirement (Notice of Appeal at 2). Tech Projects further asserted that it disputed the contracting officer's assertion that "there was no contract for the Virtual Fence requirement" and asked the Board to 2 "acknowledge that there were two contracts and that[,] in each case, the Contracting Officer's actions amounted to a termination for the convenience of the Government" (id. at 2). A. Contentions of the Parties DECISION I In moving to dismiss, the Army first contends that we lack jurisdiction because the two requirements were withdrawn before contract award (gov't mot. at 3-4). The Army also urges that Tech Projects fails to allege sufficient facts to establish an implied-in-fact contract (id. at 4-5). Finally, the Army asserts that we lack jurisdiction over implied-in-law contracts (id. at 5-6). In opposing the Army's motion, Tech Projects asserts that it does not claim jurisdiction "based on either an express contract or an implied-in-law contract" (Memorandum of Law in Opposition to Government's Motion to Dismiss for Lack of Jurisdiction (app. opp'n) at 1). Tech Projects then argues that the contracting officer's determination that "there is an implied contract when SBA acceptance occurs" (see statement 7) is conclusive (app. opp'n at 2-5). After filing its opposition to the government's motion, Tech Projects filed both a supplemental response and a sur-reply. In both, Tech Projects asserted that the record supports "two implied-in-fact contracts (if not two express contracts)" (Supplemental Response to the Government's Motion to Dismiss for Lack of Jurisdiction (app. supp. resp.) at 1-2; Sur-Reply to Government's Reply to Supplemental Response to Government's Motion to Dismiss for Lack of Jurisdiction (app. sur-reply) at 7). Tech Projects also says that it "need only prove that either an express or an implied-in-fact contract exists" to establish jurisdiction (app. sur-reply at 6). We address these contentions below. B. Implied-In-Fact Contract We deny the Army's motion to dismiss. We conclude that Tech Projects has made a non-frivolous allegation that it had implied-in-fact contracts with the government. Under 41 U.S.C. § 7102(a), our Contract Disputes Act jurisdiction is limited to appeals involving "express or implied contracts for the procurement of services and property and for the disposal of personal property." Coastal Corp. v. United States, 713 F.2d 728, 730 (Fed. Cir. 1983). In Engage Learning, Inc. v. Salazar, 660 F.3d 1346 (Fed. Cir. 2011) the court recited its prior interpretation of a comparable provision in the Tucker Act, 28 U.S.C. § 149l(a)(l), which it read to "require[] no more than a non-frivolous allegation of a contract with the government." Engage, 660 F.3d at 1353. The court further explained that "a plaintiff need only 3 allege the existence of a contract to establish the Board's jurisdiction under the [Contract Disputes Act] 'relative to' an express or implied contract with an executive agency." Id. We followed Engage Learning in American General Trading & Contracting, WLL, ASBCA No. 56758, 12-1 BCA ~ 34,905, and in Tele-Consultants, Inc., ASBCA No. 58129, 13 BCA ~ 35,234. In American General, we rejected the government's argument that the contractor "must prove the existence of an implied-in-fact contract for the Board to exercise jurisdiction" over a breach claim. Instead, we quoted Engage to reemphasize that "a claimant 'need only allege the existence of a contract to establish the Board's jurisdiction." American General, 12-1BCA~34,905 at 171,640 (quoting Engage Learning, 660 F.3d at 1353). Similarly, in Tele-Consultants, 13 BCA ~ 35,234 at 172,994, we denied a motion to dismiss for lack of jurisdiction in which the government argued that the record contained no evidence of an implied-in-fact contract. We explained that "[g]iven [the contractor's] contention here that it did indeed directly enter into an implied-in-fact contract with the government..., we conclude we possess jurisdiction over this claim." The record here supports a similar conclusion. We reject the Army's argument that the appeal must be dismissed because Tech Projects "does not allege adequate facts to show that an implied-in-fact contract was ever formed" (gov't mot. at 5). To the contrary, Tech Projects has advanced more than a "non-frivolous allegation," Engage, 660 F .3d at 1353. The record contains the contracting officer's decision, in which he stated that "[t]he government is in agreement with Tech Projects that there is an implied contract when SBA acceptance occurs" and then declared that "the SBA Acceptance Letter and actions by the government could be reasonably perceived by Tech Projects (or any other 8 (a) contractor) to constitute an implied contract" (statement 7). Relying upon the contracting officer's decision, Tech Projects has alleged that he "properly recognized that there was a contract in fact" regarding the Target Control System requirement," and Tech Projects prayer for a determination "that there were two contracts and that[,] in each case, the Contracting Officer's actions amounted to a termination for the convenience of the Government" (statement 8), cannot be dismissed as frivolous. Given their grounding, they must be regarded as non-frivolous and sufficient to defeat the jurisdictional challenge posed by the present motion. We stress that we here decide only the issue of whether we have jurisdiction over Tech Projects' appeals. Our cases do not support converting a motion to dismiss for lack of jurisdiction to one for summary judgment. Tele-Consultants, 13 BCA ~ 35,234 at 172,994; American General, 12-1 BCA ~ 34,905 at 171,640; Aries Marine Corp., ASBCA No. 37826, 90-1 BCA ~ 22,484 at 112,846-47. 4 We accordingly defer ruling whether contracts were formed regarding the two requirements to a merits proceeding, whether on a motion for summary judgment or after a hearing. CONCLUSION The government's motion to dismiss is denied. Dated: 26 March 2015 f Administrative Judge Armed Services Board of Contract Appeals I concur ~~~ Administrative Judge RICHARD SHACKLEFORD Administrative Judge Acting Chairman Vice Chairman Armed Services Board Armed Services Board of Contract Appeals of Contract Appeals I certify that the foregoing is a true copy of the Opinion and Decision of the Armed Services Board of Contract Appeals in ASBCA No. 58789, Appeal of Tech Projects, LLC, rendered in conformance with the Board's Charter. Dated: JEFFREY D. GARDIN Recorder, Armed Services Board of Contract Appeals 5	{ "pile_set_name": "FreeLaw" }
468 F.Supp. 593 (1979) Turi CAIAZZO and Frank Caiazzo, Plaintiffs, v. VOLKSWAGENWERK, A. G., and James Valentine, Defendants. No. 73 C 1277. United States District Court, E. D. New York. March 19, 1979. 594 595 596 Jay W. Dankner, New York City (Lipsig, Sullivan, Mollen & Liapakis, P.C., New York City, of counsel), for plaintiffs. Edward L. Birnbaum, New York City (Herzfeld & Rubin, P.C., Michael Hoenig and Jeffrey L. Chase, New York City, of counsel), for defendant Volkswagenwerk A. G. John V. Griffin, Jr., Merrick (Curtis, Hart & Zaklukiewicz, Merrick, of counsel), for defendant Valentine. MEMORANDUM and ORDER DOOLING, District Judge. On January 17, 1972, plaintiffs husband and wife were driving westbound on the Long Island Expressway enroute from East Quogue to Pelham in their 1965 Volkswagen Minibus, and defendant Valentine, overtaking them in his 1963 Oldsmobile, struck the Volkswagen Minibus in the rear; the minibus swerved to the right, rolled over and finally came to rest facing east just off the right side of the expressway. Plaintiffs, in one action, sued Valentine, alleging his negligent operation of his vehicle, and also Volkswagenwerk, A. G. (hereafter VWAG), claiming, inter alia, that the inner door latch handle and the outside handle of the Volkswagen were defective in design so that in the course of the accident the doors were opened resulting in enhanced injury to plaintiffs over and above the injuries they would have sustained but for the allegedly defective door latch mechanisms. After a jury trial the case was submitted to the jury on twenty-five interrogatories and the jury found that the defendant Valentine was driving negligently, that his negligence caused the accident, that the plaintiffs were not driving negligently at any time, that the design and positioning of the outside and inside door handles were defective, that both plaintiffs had been ejected from the Volkswagen in the course of the accident by reason of the defective design of the inside and outside door handles, that the injuries of both plaintiffs in the accident were definitely aggravated beyond the injuries they would have sustained if there had been no design defect, that (disregarding the seat belt matter) neither plaintiff could by the exercise of reasonable care have averted the aggravation of injury caused by the design defect, that VWAG was negligent in the design of the door handles and their positioning and such negligence resulted in the design defect, that the whole amount of the plaintiff Turi Caiazzo's damages was $750,000, the whole amount of Frank Caiazzo's damages was $200,000, that reasonably prudent persons in plaintiffs' circumstances would have been using the seat belts at the time of the accident and that if plaintiff Turi Caiazzo had been using her seat belt her damages would have been prevented to the extent of $187,500 and that had plaintiff Frank Caiazzo been using his seat belt his damages would have been prevented to the extent of $50,000. The jury found that Turi Caiazzo's injuries were aggravated by reason of the design defect in the bus beyond the injuries she would have sustained if there had been no defect to the extent of 597 $500,000 and that her husband's injuries were so aggravated by reason of the design defect to the extent of $150,000. The jury concluded that plaintiff Turi Caiazzo's injuries due to the design defect would have been prevented by the use of her seat belt to the extent of $125,000, and Frank Caiazzo's damages due to the defect would have been prevented by the use of his seat belt to the extent of $37,500. The jury concluded finally that use of the seat belt would not in the case of either plaintiff have prevented that plaintiff from sustaining all of the aggravation of injuries sustained by reason of the defect in door design. In sum, the jury concluded that Turi Caiazzo was entitled to recover $562,500 against defendant Valentine and $375,000 against defendant VWAG (plaintiff being entitled of course only to satisfactions aggregating $562,500), and the jury awarded plaintiff Frank Caiazzo $150,000 against defendant Valentine and $112,500 against defendant VWAG (plaintiff being entitled only to satisfactions aggregating $150,000). Defendant VWAG has moved, or renewed motions appropriately made and reserved during and at the close of the trial, for a directed verdict in its favor, or, alternatively for a new trial on the ground that the verdicts are contrary to and against the weight of the evidence, and, finally, setting the verdicts aside on the ground that they are excessive in amount and were rendered under the influence of passion and prejudice. Defendant Valentine has moved for a directed verdict on the ground that negligence on his part and freedom from contributory negligence on plaintiffs' part was not shown, and, in the alternative, for a finding that defendant Valentine should recover over against VWAG for so much of the verdict against Valentine as equals the amount found against VWAG as aggravation of the injuries beyond those which would have been sustained had the VW not been found defective. Defendant Valentine has moved further for a new trial on the ground that the verdict is contrary to law, contrary to the weight of the evidence, and grossly excessive and unreasonable in amount, and on the further ground that the reduction in the aggregate verdict based on the failure of the plaintiffs to wear seat belts was grossly inadequate and was contrary to the Court's instructions. Defendant Valentine moves also on the ground that plaintiff's counsel misstated the nature of the plea of guilty that the defendant Valentine entered to the traffic charge made against him in consequence of the accident. The argument on the motions has ranged over a very wide field and, in line with the objections and arguments made during the trial, brings up the practical applications of many points often discussed in the lore of strict liability and of the "second collision." To deal adequately with the points made by the motions it is necessary to state in some detail that evidence which the jury might have drawn upon in arriving at its verdict, that is, to state the evidence that tends to the support of the verdict. [Detailed discussion of evidence omitted.] Proximate cause. That all the damage the plaintiffs sustained (other than the damage that could have been averted by wearing seat belts) was a proximate consequence of Valentine's negligent driving is self-evident. The substantial questions relate to determining whether the evidence supports the jury's conclusion that two thirds of Turi Caiazzo's injury and damage and three quarters of Frank Caiazzo's injury and damage were proximate consequences of the defect in door handle design and positioning except to the extent that they could have been averted by wearing seat belts. Some injury to each plaintiff was implicit in their both being thrown from the van; that immediate inference the jury could not avoid. Plaintiffs' medical witness made no attempt to say how much of each plaintiff's physical injury was due to being thrown from the van as distinguished from being injured inside the van, but he did express the opinion that a substantial rear end impact on the van could result in injuries to plaintiff Turi Caiazzo's feet from entanglement in the floor pedals. Defendant's 598 expert testified in substance that even belted riders in a van could sustain crushed skulls in rollover collision; neither he nor any other witness distinctly testified that such belting either would or would not have prevented distinctly identifiable injuries due to the opening of the doors. No expert testimony sought to quantify by fractions or percentages the distribution of injury and damage over possible causes and possible preventives. An allocation of the kind which the jury made in the present case does not reveal its logic, and cannot be pinned to specific items of evidence. It is in the nature of the jury as an institution that its verdicts must remain inscrutable in cases of the present sort. Taking first the seat belt factor as it affected the defendant Valentine: the finding that use of the seat belts would have averted one-quarter of the injury and damage to each plaintiff was appropriate. The jury had to determine the issue, on which Valentine had the burden of proof, as well as it could from the evidence. It had to decide whether the injuries of the plaintiffs would have been the same or more or less if they had worn their seat belts, and then the jury had to quantify it. It is not possible to say that no view of the evidence which the jury could reasonably take would support its conclusion that use of the seat belts would have prevented a quarter of the damage sustained by each plaintiff. Where the evidence could not be specific and was not, the jury used a reasonable estimate. The necessary terms of VWAG's contentions do not separate the matter of the damages due to the door latch defect from the effect of the failure to wear seat belts. Indeed, the argument against the jury's allocation of the greater part of the total damage to plaintiffs' being thrown from the van extends to criticism of the jury's refusal to treat the seat belt availability as neutralizing the door defect. The jury reasonably found that the greater part of plaintiffs' injuries were sustained because they were thrown from the van, and that using the seat belts would have prevented each plaintiff from sustaining one-quarter of the injuries sustained by reason of the design defect in the doors. The jury could infer from the evidence that in a rollover in which the doors opened the plaintiffs' heads could have been dashed against the ground in the course of the rollover, or that other injuries could have been sustained through the wrenching and twisting of their upper bodies in the course of the rollover under the constraint of the seat belts but without the protection of the closed doors to limit the motion of and the injury to their upper bodies. Quantifying the reduction in injury and damages that might have been effected by wearing seat belts presented the jury a problem without any assured or definite solution, and VWAG, on whom (it is concluded) rested the burden of proof, could not produce physical evidence that could determine the issue. What might have happened is rarely susceptible of proof, and since the jury could find that the belts would not have averted all injury, the jury's duty and problem was to arrive at a reasonable estimate. The expert testimony, which did a good deal and could easily have done a great deal more to elucidate the mechanics of the accident, to indicate the different reconstructions of the sequence that might be inferred, and to describe the physical injuries sustained by each plaintiff and the damaging forces that could be inferred from those injuries, could add nothing decisive. The experts' opinions on causation offered argument from fact, not specialized expertness, to answer the final questions about connecting the accident events and physical objects to specific injuries to the persons of the two plaintiffs. Mainly, the expert testimony was descriptive; it opened the way for the jury to draw direct logical inferences from the evidence of the facts. The ultimate answers to the decisive questions were as accessible to the disinterested corporate judgment of the jurors, given the experts' descriptions of the factors in the total equation, as they were to the interested opinions of the experts. In any case it was the burden of VWAG and Valentine to 599 prove to the jury the extent of the damage that might have been averted by wearing the seat belts, and to establish what portion of the injury and damage was due to the door defects. Some damage from being thrown from the van was incontestable, and the expert testimony did no more than point to alternative paths of causation that evinced no special ranking of probabilities and presented no standard of quantification. The jury had the duty and power to deal directly with the evidence, illuminated by the experts' explanations, and their estimate represents an allocation that the evidence supports. Defendants' contentions. Defendant Valentine does not advance any particular arguments, except to argue that the jury did not allow enough abatement because of the failure to wear seat belts, and an argument that plaintiffs' summation mis-stated the nature of Valentine's plea to a traffic offense. The first argument is sufficiently answered by what has already been said. The second argument touches on a matter that was not of any real moment and which was sufficiently dealt with when it occurred. Defendant Valentine owed both plaintiffs the duty to drive carefully as he overtook them, and his breach of that duty made him answerable to them for the damages "proximately" caused to plaintiffs, or, in the language of § 430 of the Restatement (Second) of Torts, for the harm to them of which his negligence was a "legal" cause. Defendant Valentine's liability would extend to injuries sustained through the cooperating negligent design of the doors on the Volkswagen van and would include the injury that flowed from the failure to wear seat belts unless defendant Valentine proved the extent of the damage that could have been prevented by using the seat belts. See Restatement (Second) of Torts, §§ 435, 442B; Section 433A, comment c; Spier v. Barker, 1974, 35 N.Y.2d 444, 363 N.Y.S.2d 916, 323 N.E.2d 164. Defendant VWAG owed a different duty to plaintiffs, but a duty addressed to the same interest of the plaintiffs, that is, their interest in freedom from physical injury. VWAG contends that there was no evidence warranting the submission of the case to the jury as against it because plaintiffs' evidence furnished the jury with no basis for finding that any identifiable aggravation of injury was due to the opening of the doors in the course of the collision. In addition VWAG contends that under the evidence the jury had to find that the plaintiffs would not have been thrown out of the van if they had been wearing their seat belts, and contends that there is no basis in the evidence for a finding that, had they been wearing their seat belts, they would have sustained any identifiable aggravation of injury because of the defect in the door latches. VWAG does not at this time argue that the instructions on the law given to the jury failed to present the issues on the necessity for proving "aggravation" of injury to the jury, but it does contend that the answers of the jury to the interrogatories were without evidentiary support by the standards imposed by the instructions on the law. The heart of VWAG's contention is that notwithstanding that the very gist of plaintiffs' claims against it was that the defect in door design inflicted injuries on plaintiffs over and above those that they would have sustained had the doors been correctly designed (Bolm v. Triumph Corp., 1973, 33 N.Y.2d 151, 159, 350 N.Y.S.2d 644, 305 N.E.2d 769), not only does the evidence fail to show any distinct amount of such enhanced or aggravated damages leaving that a matter of speculation but, on the contrary, it shows that plaintiffs' failure to wear their seat belts accounted for their ejection from the vehicle and thus precluded any finding by the jury that the design defect in the door was a factor in producing whatever aggravated damages there may have been (Cf. Spier v. Barker, 1974, 35 N.Y.2d 444, 451, 363 N.Y.S.2d 916, 323 N.E.2d 164 and footnote 3). VWAG's argument in considerable part rests on the premise that plaintiff had and failed to sustain the burden of isolating the particular injury and consequent damage 600 specifically attributable to the defective door design, and it places much reliance in its argument on Huddell v. Levin, 3rd Cir. 1976, 537 F.2d 726, 737-738, holding that in "second collision" cases plaintiff must, in addition to showing that there was an available safe design, show, first, the extent of the injuries that would have been suffered if the safe design had been in use, and, second, must offer some method of establishing the extent of enhanced injuries attributable to the defective design. The Court said that the one clear thing in crash-worthiness cases was (537 F.2d at 738) ". . . the automobile manufacturer is liable only for the enhanced injuries attributable to the defective product. This being the essence of the liability, we cannot agree that the burden of proof on that issue can properly be placed on the defendant manufacturer. "Without proof to establish what injuries would have resulted from a non-defective head restraint, the plaintiff could not and did not establish what injuries resulted from the alleged defect in the head restraint. Without such proof, the jury could not have properly assessed responsibility against [the defendant manufacturer] . . .." The Court rejected a concurrent tort liability analysis on the question-begging ground that the two successive torts in the "second collision" cases "do not implicate `clearly established double fault' for the same occurrence" (emphasis in original). The Court, that is, rejected the rule in § 433B of the Restatement (Second) of Torts § 433B(1) and (2): "(1) Except as stated in Subsections (2) and (3), the burden of proof that the tortious conduct of the defendant has caused the harm to the plaintiff is upon the plaintiff. (2) Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor." And see Illustration 8. See, expressly rejecting the analysis in Huddell, Fox v. Ford Motor Co., 10th Cir. 1978, 575 F.2d 775, 787; Chrysler Corp. v. Todorovich, Wyo. 1978, 580 P.2d 1123, 1131. The tort principles. It does not appear, on analysis, that the law applicable in "second collision" cases has the recherche complexity that VWAG suggests. The cases in the "second collision" field have, to be sure, been dogged by "enhancement" and "aggravation" language, but certainly the working out of the basis of liability in cases of this type turns entirely on zone of risk analysis, and not at all upon such fanciful analyses of damage ingredients and non-events as Huddell posits. Cf. Fox v. Ford Motor Co., 1978, 575 F.2d 774, 787 (enhancement equated with proximate cause). The only novel issue in these cases has been the plain question, Must the manufacturer in designing his product make it safe against expectable misuse (such as a highway accident)? Bolm v. Triumph Corp., 1973, 33 N.Y.2d 151, 159, 350 N.Y. S.2d 644, 651, 305 N.E.2d 769, 773, 774, said, bluntly, ". . . what possible justification is there for disallowing a claim against the manufacturer whose defective product results in injury after a foreseeable intervening cause? It is well settled that foreseeable intervening cause will not relieve a wrongdoer of liability in other situations [citations]. We can perceive no reason why a manufacturer of motor vehicles should be held to a lesser degree of liability. Accordingly, we reject the `second collision rule' in favor of traditional rules of negligence and warranty." Micallef v. Miehle Co., 1976, 39 N.Y.2d 376, 385-386, 384 N.Y.S.2d 115, 348 N.E.2d 571, made even more explicit the general duty of a manufacturer so to design his product that it avoids unreasonable risk of harm to anyone using the product either in the manner of its intended use or in an unintended but foreseeable use. The Bolm and other cases use the language of "aggravation" and "enhancement" 601 so that it seems to imply that unless there is demonstrable aggravation, the defendant goes free, although his liability is in principle based on a breach of duty that, while it does not occasion the accident which initiates the whole chain of damages, is nevertheless a factor in bringing about the aggregate of damage ultimately sustained. The language of enhancement and aggravation was, without objection, used throughout the charge in this case: the jury was asked to determine whether the defects "in design caused [plaintiffs'] injuries, sustained in the accident, to be worse than they would have been if the alleged defects in design had not existed." The jury was, however, also instructed that if it was "satisfied from the evidence that the injuries of one or other or both plaintiffs were definitely aggravated in fact by the design defect in the bus, but are also satisfied that it is not possible to determine from all the evidence how much of the injury and damage is due to the basic collision damage and how much to the aggravation due to design defect, then it is proper for you to answer by saying that the whole damage is due to the design defect, and that the whole damage is one for which both defendants are together liable." It had been made clear to plaintiffs at the commencement of the trial that they had the burden of proving what was called "the fact of damage", and that they could not rest simply on proof that there was a defect in design and that there were general damages arising in the accident which could not be definitely attributed to either of the two possible causes, that is, operator's negligence on the part of Valentine and design defect on the part of VWAG. See Restatement (Second) of Torts § 433B(2) quoted above and Illustration 2. It would appear, on reflection, that the charge was too favorable to VWAG in requiring a finding of some aggravation of damage rather than a finding that the defect in design was a factor in causing plaintiffs' injury and damage. The underlying principle in these cases of uncertainty of measurement and identification is that enunciated in Story Parchment Co. v. Paterson Parchment Paper Co., 1931, 282 U.S. 555, 562-563, 51 S.Ct. 248, 250-251, 75 L.Ed. 544, where the Court said: "it is true that there was uncertainty as to the extent of the damage, but there was none as to the fact of damage; and there is a clear distinction between the measure of proof necessary to establish the fact that petitioner had sustained some damage and the measure of proof necessary to enable the jury to fix the amount. * * * * * * "Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate. The wrongdoer is not entitled to complain that they cannot be measured with the exactness and precision that would be possible if the case, which he alone is responsible for making, were otherwise." VWAG's contentions do fairly address themselves to the "fact of damage", whether framed as a challenge to the sufficiency of the plaintiffs' evidence to carry the case to the jury or framed as an objection that the fact of damage due to VWAG's fault was not shown. But the fatal defect in VWAG's argument is that it wrongly assumes that plaintiffs had to show not only the fact but also the extent of their damage due to VWAG's fault. The evidence outlined above supports the jury's conclusion that plaintiffs were thrown from the van and that the injuries that they sustained were worsened by their being thrown from the van. So much, in the instant of the events' unfolding was "the prompt assurance of self-evidence." That is not to say that a contrary verdict, one in 602 VWAG's favor, would have had to be set aside as against the weight of the evidence. The jury had to evaluate the damage evidence which it heard to form a judgment about the distribution of physiological damage and pain and suffering as between the collision and rollover itself and, on the other hand, the ejection from the vehicle in the course of the rollover. None of the physiological injury and pain and suffering could be precisely quantified, nor quantified except within very wide limits. The problem required just the sixth sense, life-experience evaluation that has been traditionally and gratefully given over to the judgment of juries. VWAG points out that the evidence indicated that Turi Caiazzo's right foot was injured by entanglement in the foot pedals, and that her shoulder damage happened when she was jarred backwards at impact; finally, it is argued, the evidence indicates that the injury to the right ankle was the worst of plaintiff Turi Caiazzo's injuries, and yet the jury made only a modest allocation of damage to the basic collision. But the evidence was also that the right foot injury reflected the application of a twisting component of force, and that the horizontal fracture in the left malleolus was not explained by entanglement in the foot pedals. The jury did not have to make the arguable inference that the right foot was entangled in the foot pedals, nor the inference that, if it was so entangled, it became so when Turi Caiazzo was jolted backwards rather than when she was thrown to one or the other side, and through the open doorway of the vehicle. Similarly, while the fracture of the scapula could well have been ascribed to a jolt against the seat back and the bulkhead, the jury was free to infer that it occurred in the course of ejection through contact with some other part of the car or with the ground. Turi Caiazzo's injuries were multiple; the allocation of damage awards to different aspects of those injuries was for the jury. It is enough that the evidence established the fact of damage and afforded a substantial basis for allocation of damage. The traditional rules. Bolm directed application of the traditional rules. It has long been settled in New York that where distinct torts of two different persons contribute separate but indistinguishable amounts of damage to a single damage aggregate, both persons are liable for the whole of the damage. In Slater v. Mersereau, 1876, 64 N.Y. 138, 146, the Court said: "Although they acted independently of each other, they did act at the same time in causing the damages, etc., each contributing toward it, and although the act of each, alone and in itself, might not have caused the entire injury, under the circumstances presented, there is no good reason why each should not be liable for the damages caused by the different acts of all." After pointing out that there was no way of determining the separate injury caused by each tort-feasor the Court continued (64 N.Y. at 147): "Here also the contractor and sub-contractors were separately negligent, and although such negligence was not concurrent, yet the negligence of both these parties contributed to produce the damages caused at one and the same time. It is no defense for a person against whom negligence which caused damage is proved, to prove that without fault on his part the same damages would have resulted from the act of another . . ." Where two separate torts are committed at distinctly successive times but unite to produce an indivisible damage such as death of a plaintiff's intestatethe tort-feasors are jointly and severally liable. Hawkes v. Goll, 2d Dept.1939, 256 App.Div. 940, 9 N.Y. S.2d 924, aff'd, 1939, 281 N.Y. 808, 24 N.E.2d 484. Mr. Justice Shapiro in a dissenting opinion expressed the general New York rule applicable in multiple tort-feasor cases in this language (Thrower v. Smith, 2d Dept.1978, 62 A.D.2d 907, 920, 406 N.Y. S.2d 513, 521) "It is now well-settled law that where several defendants cause injuries to a plaintiff, but it cannot be determined 603 which injuries were caused by the defendants found to be negligent, each of the defendants is liable for all of the injuries . . . . Further, it is generally accepted that where several defendants, who are found to be tort-feasors, are guilty of acts, only one of which caused the injury, all are liable absent a showing as to whose act was [a] cause . . . ." The Justice cited for the latter statement Restatement (Second) of Torts § 433B(3). Where the specific injury caused by each of two successive torts is distinctly identifiable, and the first tort is not causally linked to the second, each tort-feasor is liable simply for the injury that his own tort caused; in the common case in which the first tort in point of time is in fact, and therefore in law, the cause of the whole damage including that identifiably caused by the second tort, the first tort-feasor is liable for the whole damage, the second only for the damage due to his wrong. Cf. Zillman v. Meadowbrook Hospital Co., Inc., 2d Dept.1974, 45 A.D.2d 267, 358 N.Y.S.2d 466; Dubicki v. Maresco, 2d Dept.1978, 64 A.D.2d 645, 407 N.Y.S.2d 66; cf. Wiseman v. 374 Realty Corp., 1st Dept.1976, 54 A.D.2d 119, 387 N.Y.S.2d 612. See cases dealing with "the same injury" concept under N.Y.C.P.L.R. § 1401; Pezzella v. Catholic Medical Center, 2d Dept.1976, 52 A.D.2d 596, 382 N.Y.S.2d 113; Engram v. Kingston Hospital, Ulster Co. 1975, 82 Misc.2d 540, 371 N.Y.S.2d 364. As the Zillman case makes clear the second of two successive torts may be such that it is not in the class of those tortious and nontortious consequences which normally follow from the commission of the first tort. And the victim of two successive torts may be found to be contributorily negligent in respect of the later of the two torts though he exercised due care up to the time of the occurrence of the first tort. See Krauth v. Richmond Memorial Hospital, 1st Dept.1963, 18 A.D.2d 908, aff'd 1963, 13 N.Y.2d 949, 244 N.Y.S.2d 318, 194 N.E.2d 133. The immediate question is really the extent to which these now general principles apply to the claim of plaintiff against VWAG and the claims over of Valentine against VWAG and VWAG against Valentine. This is an Erie Railroad v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 case, but it must be conceded that the lore of "strict liability" and "second collision" tends to be generalized across state boundaries and to borrow precedent from the federal courts. But the bellwether in the second collision field has been Larsen v. General Motors Corp., 8th Cir. 1968, 391 F.2d 495. The Larsen case, involved a claim that, because of defective design, the plaintiff had received injuries he would not otherwise have received or, alternatively, his injuries would not have been as severe if the design of the vehicle had not been defective. The Court in Larsen conceived that it was (391 F.2d at 504) ". . . imposing a duty on the manufacturer to use reasonable care in the design of its products to protect against an unreasonable risk of injury or enhancement of injury to a user of the product . . . ." The law of New York neither imposes on a plaintiff the burden of proving the injuries that would have occurred from the first of two torts if the second had not occurred a daunting task that could rarely be carried out successfully nor would the law of New York confine the liability of the second tort-feasor to the instance in which the damages which its wrong inflicted were an identifiable and measurable addendum to the damages flowing from the earlier tort. That is clear from the New York cases cited above (supra pp. 602 603). As Judge Rosen, concurring, pointed out in Huddell (537 F.2d at 745), there is no reason at all for departing from the general law as it has been summarized into the Restatement (Second) of Torts § 433B(2); cf. Wiseman v. 374 Realty Corp., 1st Dept.1976, 54 A.D.2d 119, 387 N.Y.S.2d 612; Oberman v. Alexander's Rent-A-Car, 1st Dept.1977, 56 A.D.2d 814, 392 N.Y.S.2d 662. In Navigazione Libera Triestina S.A. v. Newton Creek Towing Co., 2d Cir. 1938, 98 F.2d 694, 697, Judge Learned Hand rejected the argument that the injured person has 604 the burden of showing that the tort-feasor whom he pursues caused the damage and of showing the amount of damage he caused. He said "On the other hand, since it is impossible to prove what share the act of either of the tort feasors contributed, or whether it contributed any at all, if this prevailed, each would escape an absurd result. To overcome this difficulty, the law imposes upon each tort feasor the impossible burden of proof, contenting itself with limiting the injured person's total recovery to one indemnity. The situation is the same when one of the two contributing factors is not the result of an actionable fault: again, the single tort feasor cannot be allowed to escape through the meshes of a logical net. He is a wrongdoer; let him unravel the casuistries resulting from his wrong." See also Higginbotham v. Ford Motor Co., 5th Cir. 1976, 540 F.2d 762, 773-774. See, more generally, 2 F. Harper & F. James, The Law of Torts, § 20.3, particularly at pp. 1130-1131. See Note, Apportionment of Damages in the "Second Collision" Case, 1977, 63 Va.L.Rev. 475, 499-501. The seat-belt "defense." VWAG makes the separate argument that plaintiffs' failure to wear their seat belts was contributory negligence that must bar their recovery since the experts on both sides testified that wearing the belts would have prevented ejection from the van. VWAG agrees that ordinarily failure to wear a seat belt only mitigates damages: Spier v. Barker, 1974, 35 N.Y.2d 444, 363 N.Y.S.2d 916, 323 N.E.2d 164, held that failure to wear a seat belt "does not constitute negligence per se." Spier, however, did hold that the jury was to consider the failure to use an available seat belt in assessing the damages where defendant showed that the seat belt would have prevented at least a portion of the injuries. The Court answered the argument that the jury would be unable to segregate the injuries caused by impact from those caused by failure to use the seat belt by saying (35 N.Y.2d at 452-453, 363 N.Y.S.2d at 922, 323 N.E.2d at 169) "In addition to underestimating the abilities of those trained in the field of accident reconstruction, this argument fails to consider other instances in which the jury is permitted to apportion damages (i. e., as between an original tort-feasor and a physician who negligently treats the original injury). Furthermore, if the defendant is unable to show that the seat belt would have prevented some of the plaintiff's injuries, then the trial court ought not submit the issue to the jury." The case as it affects VWAG appears at first blush distinctly different. In such a second collision case as the present one, must not the failure to wear a seat belt afford the defendant a substantive defense of contributory negligence, since the risk that well-designed door latches protect against is the risk of ejection, and VWAG here had provided seat belts that protected against exactly that ejection risk's eventuating? Failure to use the belts that would have prevented the ejection was necessarily, VWAG argues, negligence contributing to the happening of the only accident ejection with respect to which it was at fault. Velez v. Craine & Clark Lumber Corp., 1973, 33 N.Y.2d 117, 350 N.Y.S.2d 617, 305 N.E.2d 750. Exactly the contrary conclusion must be deduced from the underlying theory of the manufacturer's liability in these second collision cases: the manufacturer's design responsibilities derive from the realities of the actual use of their products. The failure of riders in vehicles to use seat belts is plainly within the range of "reasonable apprehension" of the manufacturer. (Bolm, 33 N.Y.2d at 160, 350 N.Y.S.2d 644, 305 N.E.2d 769). The door design is defective in part because it does not adequately safeguard the interest of the expectably careless rider who fails to fasten the available seat belt. That is the lesson not only of the Bolm case (in its acceptance of the principle of the Larsen case) but, more emphatically of the Micallef case, supra, 39 N.Y.2d at 385-386, 384 N.Y.S.2d 115, 348 N.E.2d 571. Cf. Melia v. Ford Motor Co., 8th Cir. 1976, 534 F.2d 795, 799-800. 605 In addition, as indicated earlier, the jury had before it evidence from which it could infer that wearing the belts would not have averted all injury from the opening of the doors during the rollover. VWAG is in part here presenting in different form its argument that the evidence did not furnish a basis for determining that substantial damages would have been sustained if the belts had been worn. But the burden of proof is on VWAG under the Spier case, and the jury did accord weight to its evidence. While Vizzini v. Ford Motor Co., 3rd Cir. 1977, 569 F.2d 754, is based on principles which New York law has rejected, the concurring and dissenting opinion does appear to express the New York law and relies heavily on the Spier case; Judge Weis said (569 F.2d at 771): "I am not persuaded by the objection that acceptance of seat belt testimony by a jury will require speculation on the proper amount of damages. It is naive indeed to say that the law does not permit juries to speculate on damages when daily they are asked to determine the value of future pain and suffering. There are few things more uncertain in this world than the length of a particular person's life, yet juries regularly determine damages in death cases. Indeed, in this very case that problem was submitted to the jury. Damage apportionment in a seat belt case would not be more conjectural." Wilson v. Volkswagen of America, Inc., E.D.Va., 1978, 455 F.Supp. 1368, 1372-1373, explicitly follows the New York rule. VWAG cites Endicott v. Nissan Motor Corp., 1977, 73 Cal.App.3d 917, 141 Cal.Rptr. 95, where plaintiff sued the manufacturer alone alleging only that his seat belt broke in the course of a single car accident. The trial court declined to charge that if the belt was defective, burst in the accident, and failed to constrain the plaintiff's motion, then the defendant had to prove affirmatively the injuries that plaintiff would have sustained if the belt had not broken. The court instead told the jury that plaintiff had the burden of proving that the rupture of the seat belt enhanced his injuries. The appellate court sustained the jury's verdict for the defendant. Plainly a New York court would have given the case to the jury upon an instruction that if they found the belt defective and that the defect in the belt was in whole or in part a cause of plaintiff's injury and damage, they should find for the plaintiff, determining from all the evidence the extent of the injuries caused by the rupture of the seat belt. The "enhancement" charge simply deprived the plaintiff of his day in court. Contrast Navigazione Libera Triestina S.A. v. Newton Creek Towing Co., quoted supra p. 604, Restatement (Second) of Torts § 433B; American Motorcycle Ass'n v. Superior Court, 1978, 20 Cal.3d 578, 146 Cal. Rptr. 182, 578 P.2d 899. The Spier case recognized the necessity for apportionment of damages rather than a pursuit of the will-o'-the-wisp of specifically identifiable injury (35 N.Y.2d at 452-453). Cf. Langford v. Chrysler Motor Corp., E.D.N.Y.1974, 373 F.Supp. 1251, 1255-1256 (denying any mitigation based on failure to use seat belt, citing Spier in the court below), aff'd, 2d Cir. 1975, 513 F.2d 1121. But see Benner v. Interstate Container Corp., E.D.Pa.1977, 73 F.R.D. 502, 504. See Annotations, 1967, 13 A.L.R.3d 1428, and, 1977, 80 A.L.R.3d 1033. Cousins v. Instrument Flyers, Inc., 1st Dept.1977, 58 A.D.2d 336, 396 N.Y. S.2d 655, aff'd 1978, 44 N.Y.2d 698, 405 N.Y.S.2d 441, 376 N.E.2d 914 does not contribute to VWAG's argument. The facts are not fully reported but it seems that plaintiff rented a Piper airplane from Instrument Flyers and was injured when he crash-landed the plane enroute to an airport in Ohio. Apparently the sole claim made was that the aircraft's lack of shoulder harnesses and other crash-worthiness features caused plaintiff to sustain injuries in excess of those he would have suffered had the aircraft been crash-worthy. The court gave the case to the jury as a strict liability case and instructed it on contributory negligence as a defense; the jury found for the defendants. Plaintiff argued on appeal that Spier required the court to charge that his "contributory negligence" went only to mitigation 606 of damage in such a case. The court held that the Spier mitigation of damages principle should not be considered on the issue of liability; that proposition, the court said "has no discernible relation to a theory that would remove contributory negligence as a bar to secondary or aggravated injuries" (Codling v. Paglia, 1973, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622). In Cousins the defect consisting in the absence of a shoulder harness, was manifest to the plaintiff, who had negligently, the jury found used such aircraft twenty-eight times. While Cousins may have overlooked Micallef v. Miehle Co., 1976, 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571, the Cousins case is inapplicable here: plaintiffs charge defective door catches, not the absence of seat belts. The failure to use the belts was properly considered in mitigation of the damages flowing from the other wrong, on the familiar principle that a tort-feasor is liable for the proximate but not for the avoidable consequences of his tort. In the present case the jury were very particularly charged on the issue of contributory negligence in respect of the door latch defect: the jury found that neither plaintiff could have discovered in the exercise of reasonable care and have perceived the danger of the design defect in the door. That precisely parallels the issue of contributory negligence which the trial judge must have given to the jury in the Cousins case. There appears to be a very direct cause and effect connection between the opening of the doors and the failure to use the seat belt, and there is always the argument that the defendant's vehicle should be viewed as a whole, given the benefit, as it were, of the safeguard which one of its elements supplied against a deficiency in another of its elements. But, again, the Spier case is clear that the automobilist is not negligent in failing to wear a seat belt, and that anticipatable omission is one of the hazards that safe door lock designs are calculated to neutralize. The manufacturer is entitled only to the Spier doctrine of avoidable damage consequences. Biss v. Tenneco, Inc., 4th Dept.1978, 64 A.D.2d 204, 207-208, 409 N.Y.S.2d 874, 876-877 holds that, because the risk of rollover is a function of the type of job-site on which a loader is to be used, as a matter of law a loader is not defective because it does not have a rollover cab installed on it. The court considered that it was enough for the manufacturer and dealer to offer the purchaser the option of buying the rollover cab as an added safety feature. It follows from what has been said that the verdict comprised in the answers to the interrogatories cannot be set aside and a verdict directed for either defendant, nor can the answers to the interrogatories be set aside as being against the weight of the evidence. The amount of the damage awards. Defendants' motions include also motions to set the damage awards aside on the ground that they are excessive in amount. When a trial is protracted to any degree and experts are brought in to train a substantial apparatus of scientific learning on the accident issues, the importance evidently attached to the case by the parties must translate into an expansive view of the damage evidence; where the defendant is an automobile manufacturer, it may be, no tempering factor intrudes itself: perhaps each verdict is a communication to automobile manufacturers generally. Both plaintiffs were dramatically effective witnesses on the issue of their personal injuries, and, particularly as affected Turi Caiazzo, her pain and suffering. The damage awards could not include anything for lost earnings or diminution in earning capacity; they were not claimed and the jury did not even learn the plaintiffs' occupations. The evidence does not support an inference that Frank Caiazzo sustained any material impairment of physical abilities, or any impairment in any bodily function, and his testimony with respect to continuing occasional pain did not suggest any serious degree of discomfort. The award of $200,000 was so grossly excessive that it cannot in conscience be permitted to stand. On all the evidence the maximum reasonable 607 award for the whole amount of plaintiff Frank Caiazzo's damages is $100,000. The case of plaintiff Turi Caiazzo differs principally because of the credible evidence of pain in the first stages of hospitalization, the fairly protracted period of immobilization after her release from the hospital, the continuance of episodes of pain, the narrowing of her recreational activities, and the evidence of impaired function in her right foot and, to some extent, in her left foot. However, she has been able to carry on as a wife and mother and is by no means incapacitated in any substantial sense. It may be that further orthopedic surgery is indicated, and the evidence embraced the costs of it but there is no basis for an inference that such surgery, or other conservative measures appropriate to her condition, will not in substantial degree mitigate if not eliminate her surviving complaints. On all of the evidence the maximum reasonable award for the whole amount of the damages of plaintiff Turi Caiazzo is $400,000. While the maxima found are very substantially less than the jury's awards, the jury's answers to the interrogatories clearly indicate that they dealt discriminatingly with the issues before them and were not guided, or influenced by passion or prejudice. Nothing in the answers suggests that the answers germane to the issues of liability should be set aside. For reasons indicated earlier in this memorandum there is no reason to change the allowances which the jury made for failure to use the seat belt nor to disturb the apportionment of damages as between the defendants. Under the jury's awards the judgment would have been that plaintiff Turi Caiazzo recover $562,500 of defendant Valentine and $375,000 of defendant VWAG and that plaintiff Frank Caiazzo recover $150,000 of defendant Valentine and $112,500 against defendant VWAG. Those damage awards will be set aside and a new trial will be ordered on the issue of damages unless plaintiff Turi Caiazzo remits $350,000 of the total award so that the judgment in her favor against Valentine would be $300,000, and against VWAG would be $200,000, and unless the plaintiff Frank Caiazzo remits $100,000 of the total award so that the judgment in his favor against defendant Valentine would be $75,000 and against VWAG would be $56,250. Counsel will understand that if plaintiffs accept the remittitur, defendant retains its right to appeal on all the issues in the case. See Southern Ry. v. Neese, 4th Cir. 1954, 216 F.2d 772, rev'd, sub nom. Neese v. Southern Ry., 1955, 350 U.S. 77, 76 S.Ct. 131, 100 L.Ed. 60. If plaintiffs do enter into the remittitur, they cannot appeal the remittitur order. Donovan v. Penn Shipping Co., 1977, 429 U.S. 648, 97 S.Ct. 835, 51 L.Ed.2d 112. The defendants' cross-claims. Defendant Valentine has moved for judgment over against defendant VWAG in the amount of the aggregate damage found by the jury to be due to the defect in the vehicle. Defendant VWAG has pointed out that, although the parties defendant agreed that the cross-claims would be disposed of after verdict and not submitted to the jury, there has been no agreement that the record is closed on the claims over. The interrogatories, VWAG points out, do not ask the comparative culpability questions needed to resolve the cross-claims. Some attention to Dole v. Dow and C.P. L.R. § 1401 et seq. at this point may help to solve the issues between the parties defendant. Both Dole v. Dow Chemical Co., 1972, 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, and Section 1401 deal with "same injury" or same harm cases. In Dole v. Dow different negligences of two defendants were involved in bringing about the death of the workman. Apportionment of liability between the defendants was in terms of "differential culpability", something not radically different from the "factual disparity" in "delinquency" of earlier law, nor from the "relative responsibility" which the court treated as governing the rights of apportionment. So any apportionment of responsibility between defendants here would seem to relate only to that harm for which both are responsible, that is, that 608 part of the aggregate damage awarded against defendant Valentine which was also awarded against VWAG on the basis of its "second collision" culpability. The troublesome case of Zillman v. Meadowbrook Hospital Co., 2d Dept.1974, 45 A.D.2d 267, 358 N.Y.S.2d 466, decided before amended Section 1401 became effective, is explicit that the Dole v. Dow rule of apportionment can apply in cases involving independent and successive tort-feasors, where the first tort-feasor's conduct not only injures the grievant but makes it likely that the grievant will sustain further injuries at the hands of the second tort-feasor: the second tort is a proximate consequence of the first. See 45 A.D.2d at 270, 358 N.Y.S.2d at 469-470. While the court in Zillman did not regard the two torts there involved as connected by cause and effect, it recognized that the first tort-feasor would be liable to the injured plaintiff not only for its own negligent acts but also for any aggravation of the plaintiff's condition caused by the second tort-feasor although as between themselves the first tort-feasor would not be responsible for the second tort-feasor's conduct. The court, finally, noted that since in the case before it the second tort-feasor could not in any case be made liable in damages to the plaintiff for the first tort-feasor's negligence it could not have any claim over against the first tort-feasor. That last very doubtful conception appears to be carried on into Pezzella v. Catholic Medical Center, 52 A.D.2d 596, 382 N.Y.S.2d 113; the court there dismissed a second tort-feasor's claim over against the first tort-feasor on the authority of Zillman although it would seem that in Pezzella the first tort-feasor would have been liable for the damages flowing from the second tort, which was a claim for negligent treatment of the injury inflicted by the first tort. Wiseman v. Presbyterian Hospital, 1st Dept.1976, 54 A.D.2d 119, 387 N.Y.S.2d 612, may well, as Professor Farrell has suggested (1978, 29 Syracuse L.Rev. 449, 491), be inconsistent with Zillman in refusing to dismiss the cross-claims of subsequent tortfeasors (a treating hospital and its physicians) against the first tort-feasor (the owner of the building in which plaintiff sustained a severely injurious fall on a defective stairway). The court approved of so much of Zillman as said that apportionment among independent and successive tort-feasors might be permissible, but distinguished Zillman's denial of the right of the second tort-feasor to claim apportionment from the first as depending upon the court's earlier statement that the second tort was not one that had been rendered likely by the first tort. Wiseman cannot confidently be treated as a clear holding that in this case the second tort-feasor, liable only for a part of the whole damage, can claim over against the first tort-feasor on a comparative culpability basis; in Wiseman, the court pointed out, the parties were treating the case as one of indivisible damage, death, which the acts of each tort-feasor were claimed without distinction to have brought about. Dubicki v. Maresco, 2d Dept.1978, 64 A.D.2d 645, 407 N.Y.S.2d 66, followed Zillman in holding that the third of three tort-feasors, liable only for his identifiable aggravation of the original injury, could not claim over against the first or second tort-feasors. There a negligently inflicted automobile injury was first maltreated at a hospital and then was additionally maltreated by a physician; the injured plaintiff was held to be entitled to a judgment against the automobilist for the whole of his damages but only for the final aggravation of damage as against the physician. The first step said the Court, should have been to sever the damage into three quanta: those sustained solely through the negligence of the automobilist, those sustained solely through the hospital's malpractice and those sustained solely through the doctor's malpractice. Then the two latter quanta of damage should have been separately apportioned: the damages due solely to the hospital's malpractice should have been apportioned between the automobilist and the hospital; the damages attributable solely to the malpractice of the doctor should have been apportioned between the automobilist, the hospital and the doctor. The result of the 609 review in Dubicki, however, followed a different pattern because of the procedural posture of the case in the appellate court. It is not clear that the analysis is not closer to Wiseman than to Zillman. The theory of Dole v. Dow and of Sections 1401-1403 seems to require a determination of relative fault, that is a determination of relative responsibility for bringing about the event which caused the injury for which both tort-feasors are being held liable. Cf. Gannon Personnel Agency v. City of New York, 1st Dept.1977, 57 A.D.2d 538, 394 N.Y.S.2d 5. That is plainly what Kelly v. Long Island Lighting Co., 1972, 31 N.Y.2d 25, 29-30, 334 N.Y.S.2d 851, 286 N.E.2d 241 calls for. In a word, it is only the injury and related damage for which two defendants are in common liable that can be the subject of a Dole v. Dow apportionment of liability in accordance with fault. So, in the present case, it would appear that the whole amount for which VWAG is liable cannot be apportioned to it as between it and Valentine since Valentine shares responsibility for the whole of that damage liability. The question is, What is the relative contribution of fault of the two defendants to that part of the damage for which VWAG has been held liable by the jury's answer to the interrogatories? None of the interrogatories asked the jury to determine relative fault as between defendants. Counsel may consider that further evidence might throw light on this issue and might, in any event, wish to submit argument precisely directed to evaluation of relative fault in the light of the present determination.	{ "pile_set_name": "FreeLaw" }
553 F.2d 557 Craton LIDDELL, a minor, by Minnie Liddell, his mother andnext friend, et al., Appellees,andThe Board of Education of the City of St. Louis, State ofMissouri, et al., Appellees,v.Earline CALDWELL, a minor, by Lillie Caldwell, her mother,and next friend, et al., Appellants. No. 76-1228. United States Court of Appeals,Eighth Circuit. Jan. 28, 1977. 1 This matter comes before the court on defendant's motion for stay of mandate pending petition for certiorari. The motion is denied and the mandate is ordered to be issued forthwith. 2 In order for the parties and the district court to fully understand the court's denial of the stay, we set forth our reasoning. 3 The only issue decided by this court, as specifically recited in the court's opinion filed December 13, 1976, related to the district court's order denying the petition for intervention. The consent decree requiring integration of the St. Louis School District1 entered by the district court on the 24th of December 1975, was interlocutory in form. In paragraph 9 of the decree the district court expressly ordered that a further report be made to the court, "on or before January 15, 1977, with implementation to begin September 1977." 4 The intervenors limited their objections to the decree to the proposed overall remedy and made substantial allegations that the original plaintiffs were not adequately representing the class in obtaining constitutional relief from an admittedly segregated school system. This court allowed intervention to assure the plaintiff class adequate representation and to provide the district court with meaningful input from all parties to achieve a constitutional plan. The merits of the consent decree were not before this court. 5 This court views the consent decree, although interlocutory as to remedy, still obligatory on the respective parties to go forward with implementation of a desegregation plan; we assume that in doing so all of the parties will proceed in good faith to make "every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation." Davis v. Board of School Comm'rs., 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577 (1971). 6 Under the decree, the parties have a constitutional obligation to proceed immediately to comply with the district court's order to prepare a plan for its approval and to implement that plan beginning in September 1977. A further stay at this time, particularly in view of the fact that the consent decree is still interlocutory, would simply delay further implementation of that plan and the achievement of equal educational opportunity for the plaintiff class in a non-discriminatory school district. 7 It is so ordered. 1 Paragraph 4 of the consent decree reads: 4 Defendants, their agents, officers, employees and successors, and all those in active concert and participation with them shall be enjoined and prohibited from discriminating on the basis of race or color in the operation of the School District of the City of St. Louis, and shall be required to take affirmative action to secure unto plaintiffs their right to attend racially nonsegregated and nondiscriminatory schools, and defendants will afford unto plaintiffs equal opportunities for an education in a nonsegregated and nondiscriminatory school district, and shall be required to take the affirmative action hereinafter set forth	{ "pile_set_name": "FreeLaw" }
26 P.3d 185 (2001) 174 Or. App. 524 EMC MORTGAGE CORPORATION, Appellant, v. Drew A. DAVIS, Sr., Respondent. FED99-12-152; A108992. Court of Appeals of Oregon. Submitted on Record and Briefs April 6, 2001. Decided June 6, 2001. 186 Robert C. Dougherty, Portland, filed the briefs for appellant. Drew A. Davis, Sr., filed the brief pro se. Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges. BREWER, J. In this action for forcible entry and detainer (FED), the trial court awarded plaintiff a judgment for restitution of the premises. However, the court denied plaintiff's request that the judgment provide that a notice of restitution or writ of execution could be issued more than 60 days after entry of the judgment, as permitted by ORS 105.154(9).[1] Defendant appealed from the judgment of restitution, and plaintiff cross-appealed from the trial court's refusal to provide an extended enforcement period for the judgment. Defendant failed to file and serve an opening brief on appeal, and we dismissed his appeal. Therefore, only plaintiff's cross-appeal remains for our consideration. Because the statute that governed the trial court's decision accorded the court discretion, we review that decision for abuse of discretion. Hiestand v. Wolfard, 272 Or. 222, 224-25, 536 P.2d 520 (1975). We remand. The relevant facts are undisputed. Defendant owned the real property at issue in this case until 1998, when Norwest Mortgage, Inc., (Norwest) acquired the property in a non-judicial trust deed foreclosure sale. When defendant failed to vacate the property, Norwest filed an FED action against him. Norwest prevailed in the action and, in June 1999, the trial court entered a restitution judgment in its favor. Defendant then filed a bankruptcy petition. After Norwest obtained relief from the automatic stay effect of the bankruptcy proceeding, defendant filed another bankruptcy petition. As a result of the delay caused by defendant's efforts, the judgment became unenforceable under ORS 105.154(9), because the trial court had not provided that a writ of execution could issue beyond 60 days after its entry. Norwest then filed a second FED action. Before that action was tried, Norwest conveyed the property to plaintiff. At trial, the court dismissed the second FED action, because Norwest no longer owned the property. In December 187 1999, plaintiff filed this action to evict defendant from the property. At trial, defendant acknowledged that he had filed the two bankruptcy proceedings between the first and second FED actions in order to delay the foreclosure and his eventual eviction from the premises. He also admitted that both bankruptcy proceedings had been dismissed. Defendant asserted, but did not coherently develop, a "fraud" theory of defense at trial. The trial court rejected the defense and announced that it would enter a restitution judgment in plaintiff's favor. Counsel for plaintiff asked the trial court, in light of defendant's evident delaying tactics, to provide expressly in the judgment that a notice of restitution and a writ of execution could issue more than 60 days after entry of the judgment. The trial court denied the request, stating, "Well, no, I'm not going to make any special concessions on behalf of the plaintiff in this case under the circumstances." The court did not explain what circumstances it regarded as justifying its denial of plaintiff's request. Defendant told the court that he intended to appeal the judgment and to post an undertaking for the appeal. As he had indicated, defendant appealed from the judgment and posted a supersedeas bond to prevent enforcement of the judgment pending appeal. Plaintiff cross-appealed from the court's denial of its request for an extended period within which to enforce the judgment. As noted, only plaintiff's cross-appeal remains for our consideration. Plaintiff argues that, unless and until an FED trial court extends the execution period on a restitution judgment, defendant can delay his eviction endlessly through serial bankruptcies and appeals. Defendant responds that the trial court properly exercised its discretion to deny plaintiff's request for an extended period to enforce the judgment and, in any event, that the cross-appeal is now moot because the judgment may no longer be enforced. Defendant is mistaken on both counts. ORS 105.154(9) does not specify any particular circumstances under which a court either must or cannot extend the execution period for an FED judgment. It simply provides that execution may not issue more than 60 days after entry of judgment unless the judgment otherwise provides. Defendant is correct that, as phrased, the court's decision calls for an exercise of discretion. "Discretion" generally refers to the authority of the trial court to choose among several legally correct outcomes. State v. Rogers, 330 Or. 282, 312, 4 P.3d 1261 (2000). Although we review the trial court's decision for abuse of discretion, a court can "abuse" its discretion in different ways, depending on the circumstances; thus, the term has no hard and fast meaning. Liberty Northwest Ins. Corp. v. Jacobson, 164 Or.App. 37, 45-46, 988 P.2d 442 (1999). A familiar but non-exclusive test for determining whether discretion has been abused is whether the decision reached was "clearly against reason and evidence." Id. A court abuses its discretion, for example, when the relevant evidence is undisputed and does not rationally support the decision the court made. See Lambert v. American Dream Homes Corp., 148 Or.App. 371, 377, 939 P.2d 661 (1997) (holding that, where the relevant facts were undisputed, the only question for review was whether there was any evidence or reason to support a dismissal for want of prosecution). That is the case here. At trial, defendant admitted that he had devised and executed a strategy to delay his eviction. That strategy had been carried out successfully in prior proceedings. In view of defendant's stated intent to appeal the judgment in this caseand to post an undertaking that undoubtedly would prevent enforcement of the judgment for more than 60 dayshis strategy was destined to succeed again in this case unless the court extended the period for enforcement. Under the circumstances, the judgment of restitution offered plaintiff a hollow victory. In that respect, this case presents a virtual mirror-image of the facts in State v. Hewitt, 162 Or.App. 47, 985 P.2d 884 (1999). In Hewitt, we held that where the state requests a postponement so that it may seek review of a ruling on a significant unsettled issue of law, in the absence of a showing by *188 the defendant of substantial prejudice, a trial court abuses its discretion if it dismisses a charge with prejudice rather than permit the state an opportunity to seek appellate review. Id. at 54-55, 985 P.2d 884. Here, rather than depriving a party of a meaningful opportunity to seek appellate review, the trial court's decision essentially guaranteed that defendant's appeal would be successful in undercutting the very judgment that the court had entered. The trial court articulated no reason, based on any particular circumstances of the case, for denying plaintiff's request. Nor can we discern one. Defendant did not contend that extension of the judgment enforcement period would have caused any prejudice beyond terminating his ability to forestall eviction. Under the circumstances, the court's decision was not supported by reason or the undisputed evidence. Therefore, the court abused its discretion in refusing to permit enforcement of the judgment more than 60 days after its entry. Contrary to defendant's alternative argument, plaintiff's appeal is not moot by virtue of the expiration of the 60-day period provided in ORS 105.154(9). It is true that in Rogers v. Kasch's Garden Centers and Nurseries, 101 Or.App. 565, 568, 792 P.2d 439 (1990), we held that an appeal from a restitution judgment was moot, because "[t]he passing of the 60-day period provided in [ORS 105.154(9) ] after the notice of appeal was filed rendered the judgment nonenforceable." However, in Rogers, the plaintiff failed to seek execution of the judgment within 60 days. Instead, the plaintiff sought, and the trial court attempted to permit, issuance of execution after the 60 days had run. We held that there was no authority for the revival of the judgment after it became unenforceable. Id. Here, on the other hand, the passage of the 60-day period does not render plaintiff's appeal moot. Plaintiff timely objected to the trial court's refusal to permit extended enforcement of the judgment. Our remand of the trial court's decision will, on remand, result in the judgment remaining enforceable despite the passage of the 60-day period. Because a decision on the merits will have a practical effect on the parties' rights, plaintiff's appeal is not moot. See McGinley and McGinley, 172 Or.App. 717, 720, 19 P.3d 954 (2001) (holding that this court's power to correct an error prevented appeal from becoming moot because of the fulfillment of the judgment obligation appealed from). Remanded with instructions to enter modified judgment providing that clerk may issue notice of restitution or writ of execution of judgment of restitution more than 60 days after judgment is entered. NOTES [1] ORS 105.154(9) provides: "Unless the judgment otherwise provides, the clerk shall not issue a notice of restitution or a writ of execution of judgment of restitution more than 60 days after the judgment is entered or after any date for possession as specified in the judgment, whichever is later."	{ "pile_set_name": "FreeLaw" }
FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT December 23, 2015 _________________________________ Elisabeth A. Shumaker Clerk of Court CHRIS HOGAN, Plaintiff - Appellant, v. No. 14-4138 (D.C. No. 1:11-CV-00064-TS) UTAH TELECOMMUNICATIONS (D. Utah) OPEN INFRASTRUCTURE AGENCY; TODD MARRIOTT, Executive Director of Utah Telecommunication Open Infrastructure Agency, Defendants - Appellees. _________________________________ ORDER AND JUDGMENT* _________________________________ Before TYMKOVICH, Chief Judge, SEYMOUR and LUCERO, Circuit Judges. _________________________________ Chris Hogan appeals the dismissal of his wrongful termination in violation of public policy claim. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. I For purposes of this appeal, we accept the allegations in Hogan’s complaint as true and view them in the light most favorable to him. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). The Utah Telecommunication Open Infrastructure Agency (“UTOPIA”) is an inter-municipal cooperative entity and a political * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. subdivision of the State of Utah. It was formed by several Utah municipalities to construct a fiber optic network. UTOPIA entered into a contract with Hogan on May 9, 2009, under which he served as an independent contractor for a two-year term. At that time, UTOPIA’s Executive Director was Todd Marriott. Toward the end of Hogan’s contract term, UTOPIA issued a request for proposals (“RFP”) seeking contractors to build secondary fiber optic lines. The RFP was managed by Jerod Pantier; Hogan was not responsible for the RFP process. In response to the RFP, Tetra Tech—a company which employed Marriott’s brother in its upper management—submitted a bid. According to Hogan, Tetra Tech’s bid was very close to the undisclosed internal cost projections made by UTOPIA. UTOPIA initially planned to complete the project in two phases. However, after receiving bids for the first phase, UTOPIA changed course and decided to issue an RFP seeking a contractor to oversee both phases. It withdrew the original RFP and began the process of preparing a second RFP. In this second process, Hogan believed that Corning, Inc. would submit a bid, and that Corning would propose to use Tetra Tech as a subcontractor. Hogan was concerned that if Tetra Tech worked on the project, UTOPIA could be viewed as engaging anticompetitive practices. Acknowledging he could be wrong about his concerns, Hogan nevertheless suggested that Pantier tell UTOPIA’s executive board about Marriott’s relationship to Tetra Tech. Instead, Pantier informed Marriott of Hogan’s accusations. Marriott then terminated Hogan’s contract. -2- Hogan filed suit against UTOPIA and Marriott advancing several claims. On summary judgment, the district court ruled in favor of Hogan on his claims for breach of contract and breach of the covenant of good faith and fair dealing and awarded him $23,000. Hogan v. Utah Telecomm. Open Infrastructure Agency, No. 1:11-CV- 64 TS, 2013 WL 1619818, at 6 (D. Utah Apr. 15, 2013) (unpublished). It dismissed his other claims. Id. at 2. We affirmed the district court in all respects save one: we held that Hogan’s complaint could permit a factfinder to conclude he was an employee rather than a contractor, and thus remanded Hogan’s claim for wrongful termination in violation of public policy. Hogan v. Utah Telecomm. Open Infrastructure Agency, 566 F. App’x 636, 640, 642 (10th Cir. 2014) (unpublished). On remand, the district court concluded that Hogan failed to state a claim under Fed. R. Civ. P. 12(b)(6) because he did not point to a cognizable public policy to support relief for wrongful termination and because Utah’s Governmental Immunity Act bars his claim. Because we agree with the district court that Hogan failed to state a claim, we do not reach the question of immunity. II We review the district court’s Rule 12(b)(6) dismissal de novo. Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010). To prevail on a claim for wrongful discharge in violation of public policy in Utah, Hogan must show that his conduct brought a clear and substantial public policy into play. Touchard v. La-Z-Boy Inc., 148 P.3d 945, 955 (Utah 2006). Although “[c]ourts often use the term public policy as a broad reference to anything that has a tendency to be injurious to the public, or -3- against the public good,” for purposes of this tort claim, cognizable public policies are “much narrower than traditional notions of public policy.” Pang v. Int’l Document Servs., 356 P.3d 1190, 1197 (Utah 2015) (quotations omitted). To survive a Rule 12(b)(6) motion, Hogan’s “complaint must identify a public policy so clear and weighty, and as to which the public interest is so strong that the policy should be placed beyond the reach of contract.” Id. (quotations and alterations omitted). To determine whether an asserted policy is sufficient, Utah courts consider: (1) whether the policy at issue is reflected in authoritative sources of state public policy [such as legislative enactments, constitutional standards, or judicial decisions], (2) whether the policy affects the public generally as opposed to the private interests of the employee and employer, and (3) whether countervailing policies outweigh the policy at issue. Id. (footnotes omitted). Hogan argues that three public policies are at issue. First, he contends that UTOPIA violated Utah’s public policy of allowing employees to express concerns about potentially illegal employer conduct. But Hogan fails to identify any authority that would make the alleged conduct by UTOPIA illegal. Hogan points generally to the Utah Procurement Code (“UPC”), but does not explain how UTOPIA violated or might violate the UPC. And in any event, the UPC expressly exempts interlocal cooperative entities like UTOPIA from its provisions. See Utah Code § 63G-6a- 104(15)(b) (exempting “political subdivision[s] created under Title 11, Chapter 13, Interlocal Cooperation Act”). This factor distinguishes this case from Heslop v. Bank of Utah, 839 P.2d 828 (Utah 1992), in which the Utah Supreme Court -4- recognized a wrongful discharge claim premised on the employee’s insistence that his employer adhere to a particular provision of the Utah Financial Institutions Act that governed the employer’s conduct. Id. at 837-38. In essence, Hogan argues that public policy requires UTOPIA to comply with a statute from which it is expressly exempted. Utah precedent bars such an approach. See Burton v. Exam Ctr. Indus. & Gen. Med. Clinic, Inc., 994 P.2d 1261, 1266 (Utah 2000) (rejecting a wrongful discharge in violation of public policy claim premised on a statute containing an exception for defendant employer). Hogan’s second asserted policy—encouraging good faith and fair dealing in contracts—fails for two reasons. Hogan does not mention this public policy in his opening brief and thus it is waived. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are waived.”). Further, the Utah Supreme Court has explained that “[t]he covenant of good faith is read into contracts in order to protect the express covenants or promises of the contract, not to protect some general public policy interest” and thus “[t]he very nature of the public policy exception . . . distinguishes it from the implied covenant of good faith and fair dealing.” Peterson v. Browning, 832 P.2d 1280, 1284 (Utah 1992) (quotation omitted). Finally, Hogan argues that he was terminated for performing his “public obligation” to ensure that UTOPIA complies with its legal duties. Although Utah courts have recognized a public policy against “discharging an employee for performing a public obligation,” Touchard, 148 P.3d at 948 (quotation omitted), the -5- term refers to activities “such as jury duty,” Hansen v. Am. Online, Inc., 96 P.3d 950, 952 (Utah 2004). Hogan’s conduct did not involve a legally required duty owed to the public like jury duty; and he does not identify any action he was obligated to perform.1 Because Hogan has not identified any public policy to support relief, we agree with the district court that he has failed to state a claim.2 III For the foregoing reasons, we AFFIRM. We DENY Hogan’s motion to certify. Entered for the Court Carlos F. Lucero Circuit Judge 1 Hogan suggests in his reply brief that his public obligation is rooted in a Utah Constitutional provision which states that “[i]t is the policy of the state of Utah that a free market system shall govern trade and commerce” and that “[e]ach contract . . . or conspiracy in restraint of trade or commerce is prohibited.” Utah Const. art. XII § 20. Because Hogan did not advance this argument in his opening brief, it is waived. Adler, 144 F.3d at 679. 2 For the same reasons that Hogan fails to state a claim against UTOPIA, we hold that he fails to state a claim against Marriott. We thus do not reach the question of whether Hogan properly preserved his claim against Marriott. Nor do we reach the question of whether the Utah Governmental Immunity Act grants UTOPIA immunity against a claim for wrongful termination in violation of public policy. -6-	{ "pile_set_name": "FreeLaw" }
502 So.2d 959 (1987) ROLLINS BURDICK HUNTER OF NEW YORK, INC., Appellant, v. EUROCLASSICS LIMITED, INC., Appellee. Nos. 85-1326, 85-2698. District Court of Appeal of Florida, Third District. February 3, 1987. Rehearing Denied March 12, 1987. 960 McDermott, Will & Emery and Robert T. Palmer and Steven E. Siff, Miami, for appellant. Palmer & Lazar and Bruce Lazar, Miami, for appellee. Before HENDRY, NESBITT and FERGUSON, JJ. NESBITT, Judge. Rollins Burdick Hunter of New York, Inc. (RBH) appeals an amended final judgment for Euroclassics Limited, Inc. (Euroclassics) in Euroclassics' action to collect benefits under an insurance policy. RBH further appeals the denial of its motion for relief from judgment and new trial on the 961 ground of newly discovered evidence. The two appeals are consolidated. We reverse the trial court's judgment. Jack Kartee, Euroclassics' president and sole officer, retained RBH, an insurance broker, to procure coverage for Euroclassics' twin-engine airplane. The airplane later disappeared under mysterious circumstances in the Caribbean while the policy was in effect. The policy's underwriter, Federal Insurance Company (Federal), denied Euroclassics' subsequent claim for insurance benefits on the ground that the policy did not cover losses occurring in the Caribbean. Euroclassics sued both Federal and RBH, alleging that Federal breached its agreement to provide the coverage (count I), or that RBH breached its agreement to obtain a policy with the proper geographic scope (count II), or that RBH negligently failed to obtain a proper policy (count III). Federal's sole defense, consistent with its basis for denying the claim for benefits, was that the policy simply did not cover losses occurring in the Caribbean. RBH, however, interjected affirmative defenses which asserted that Euroclassics was not entitled to coverage because the plane was being used for illegal activities at the time of its disappearance and because Euroclassics had materially misrepresented its intended usage of the plane at the time it applied for the insurance coverage. During discovery RBH deposed Kartee. RBH asked Kartee whether he had ever been convicted of a crime. Kartee answered in the affirmative and revealed that he had been convicted of conspiracy. Kartee refused, however, to answer any further questions concerning his criminal activities and instead invoked his fifth amendment privilege against self-incrimination. RBH moved for an order to compel Kartee to answer the questions or to strike Euroclassics' pleadings on the ground that RBH's ability to prove its affirmative defenses based on the illegal use of the aircraft was thwarted by Kartee's refusal to answer. The trial court denied the motion. At the bench trial, RBH presented no evidence of the aircraft's alleged involvement in illegal activities, although reference to rumors of such involvement was made throughout the trial. On the evidence presented the court entered judgment against RBH for the insured value of the airplane, plus interest. The court found Federal not liable. Shortly after the trial, Kartee testified in a federal criminal case under a grant of immunity. His testimony revealed that the aircraft had been used continuously, from the approximate time of its purchase until it disappeared, to smuggle drugs. Based on this newly discovered evidence, RBH moved for relief from judgment. The motion was denied. On appeal RBH argues that any negligence on its part in failing to procure the proper insurance coverage was not the proximate cause of Euroclassics' loss. Instead, RBH contends, Kartee's use of the insured aircraft for drug smuggling would have precluded Euroclassics from obtaining insurance in the first place. RBH further contends that since its affirmative defenses relied upon proof of Kartee's illegal activity, the trial court's order denying RBH's motion to compel discovery was erroneous and effectively prevented RBH from proving at trial what would have amounted to a valid defense. We agree. Generally, the scope of discovery is broad with parties being entitled to discover "any matter, not privileged, that is relevant to the subject matter of the pending action ... [and] appears reasonably calculated to lead to the discovery of admissible evidence." Fla.R.Civ.P. 1.280(b)(1); see Simons v. Jorg, 384 So.2d 1362 (Fla.2d DCA 1980); Murray Van & Storage, Inc. v. Murray, 343 So.2d 61 (Fla. 4th DCA 1977); Spencer v. Spencer, 242 So.2d 786 (Fla. 4th DCA 1970), cert. denied, 248 So.2d 169 (Fla. 1971). The trial judge gave no reason for denying RBH's motion to compel. Even taking into account the broad discretion afforded the trial court in discovery matters, see, e.g., Dickinson v. Wells, 454 So.2d 758 962 (Fla. 1st DCA 1984), when viewed in light of the above enunciated rule, the trial court abused its discretion in denying RBH's motion to compel. Not only did RBH's questions to Kartee appear to be reasonably calculated to lead to admissible evidence, but the answers they would have evoked were necessary for RBH to prove its defenses which had been validly raised in its answer to the complaint. It would appear that the trial judge relied on Kartee's fifth amendment argument in denying RBH's motion to compel. This was also error. A civil litigant's fifth amendment right to avoid self-incrimination may be used as a shield but not a sword. This means that a plaintiff seeking affirmative relief in a civil action may not invoke the fifth amendment and refuse to comply with the defendant's discovery requests, thereby thwarting the defendant's defenses. City of St. Petersburg v. Houghton, 362 So.2d 681, 683 (Fla.2d DCA 1978); see also Minor v. Minor, 240 So.2d 301 (Fla. 1970); Zabrani v. Riveron, 495 So.2d 1195 (Fla. 3d DCA 1986); Fischer v. E.F. Hutton & Co., 463 So.2d 289 (Fla.2d DCA 1984). See generally Annotation, Dismissing Action or Striking Testimony Where Party to Civil Action Asserts Privilege Against Self-Incrimination As to Pertinent Question, 4 A.L.R.3d 545 (1965). The proper sanction where the plaintiff does so is to dismiss the action or strike the pertinent portions of the pleadings. See Minor, 240 So.2d at 302; Houghton, 362 So.2d at 685. While plaintiffs cannot be compelled to incriminate themselves, when seeking affirmative relief they may not use the same right to avoid answering pertinent questions and thereby prevail in a civil suit. In the instant case the plaintiff, Euroclassics, has done precisely that. Kartee claimed to have a fifth amendment right to avoid answering questions involving his criminal activities. Once the trial court upheld this alleged privilege by denying RBH's motion to compel, RBH's ability to defend itself against Euroclassics' claim was severely hampered. It is clear that the trial court's denial of RBH's motion was harmful error. On appeal, RBH relies primarily on its assertion that Kartee's representation made at the time of application, that the plane would be used solely for pleasure trips, was a material misrepresentation which would have voided the policy. RBH claims, and the evidence supports the contention, that both RBH and Federal would have refused to contract with Kartee had he told them that he had been using the plane and planned to use it in the future for drug smuggling. Consequently, regardless of RBH's alleged negligence, Euroclassics would not have been entitled to insurance coverage because of Kartee's misrepresentation. This affirmative defense is valid and would have exonerated RBH of liability if proven at trial. See C.A. Hansen Corp. v. Aetna Ins. Co., 455 So.2d 1329 (Fla. 4th DCA 1984) (evidence held to amount to a material misrepresentation voiding insurance coverage on a vessel where insurer was told that vessel would be used for fishing trip but was actually used for smuggling); Northwestern Nat'l Ins. Co. v. General Elec. Credit Corp., 362 So.2d 120 (Fla. 3d DCA 1978) (vessel owners not entitled to recover proceeds of insurance policy on destroyed vessel where vessel was used for drug smuggling in contravention of a "pleasure boat" provision in contract), cert. denied, 370 So.2d 459 (Fla. 1979); see also Phillips v. Ostrer, 418 So.2d 1104 (Fla.3d DCA 1982) (insurance policy induced by misrepresentation is void), review denied, 429 So.2d 6 (Fla. 1983); § 627.409, Fla. Stat. (1985). Euroclassics cannot possibly be entitled to greater coverage because RBH failed to follow its instructions than it would have been had RBH followed them. Consequently, the error is not harmless. Furthermore, because the trial court's decision effectively deprived RBH of the opportunity to defend itself, the trial court's judgment must be reversed. See § 59.041, Fla. Stat. (1985); see also Saunders v. Florida Keys Elec. Coop. Ass'n, 471 So.2d 88 (Fla.3d DCA 1985) (judgment reversed where trial court 963 erroneously denied motion to compel discovery concerning prior similar accidents). Because we hold that the court committed reversible error in denying RBH's motion to compel, we do not deem it necessary to address RBH's contention that the trial court erred in denying its motion for a new trial based on newly discovered evidence. It is interesting to note, however, that had Kartee admitted the same facts in response to the questions asked during his deposition as he later testified to at the criminal trial he would have proven RBH's defenses. In view of the trial court's error, the judgment under review is reversed and the cause is remanded for a new trial.	{ "pile_set_name": "FreeLaw" }
215 F.Supp.2d 783 (2002) MT. HAWLEY INSURANCE COMPANY, Plaintiff, v. STEVE ROBERTS CUSTOM BUILDERS, INC., Defendant. No. 4:01-CV-288. United States District Court, E.D. Texas, Sherman Division. July 25, 2002. 784 785 James Richard Harmon, Thompson, Coe, Cousins & Irons, Dallas, TX, for Plaintiff. Matthew Kegan Davis, Jones, Davis & Byers, Dallas, TX, Lee Howard Shidlofsky, 786 Nickens, Lawless & Flack, Austin, TX, for Defendant. MEMORANDUM OPINION AND ORDER PAUL N. BROWN, District Judge. On this day came on for consideration Defendant's Partial Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment. Having considered the Motions, the Responses to the respective motions, and the Replies together with the summary judgment evidence, the Court is of the opinion that Defendant's Partial Motion for Summary Judgement should be granted in its entirety and Plaintiffs Cross-Motion for Summary Judgment should be denied in its entirety. INTRODUCTION Defendant Steve Roberts Custom Builders, Inc. ("SRCB") is a custom home builder. Plaintiff Mt. Hawley Insurance Company ("Mt. Hawley") is an insurer from which SRCB purchased general commercial liability policy no. MGL 116443, effective May 20, 1996 to May 20, 1997, (the "Policy"), which is the subject of this dispute. SRCB was sued by two individuals, for whom SRCB constructed a home, in the 367th District Court of Denton County, Texas (the "Underlying Suit"). SRCB tendered the defense and requested indemnity from Mt. Hawley on May 30, 2000, July 6, 2001, and July 31, 2001. Mt. Hawley has refused to defend or indemnify SRCB under the Policy. The Underlying Suit SRCB constructed a single family residence for Larry and Sandra McCown. Construction of the residence was completed in 1996. In connection with the construction of the McCown residence, SRCB placed a portion of the McCown's driveway across the property line and onto the neighboring lot. The McCowns granted an easement on one side of their property with the belief that they would be or had been granted an easement on the neighboring property on the other side of their property. SRCB claims that it believed that the developer and the title company had obtained and filed the necessary paperwork to procure an easement for the McCown's driveway. SRCB claims that upon that belief, it caused the driveway of the McCown residence to be poured in such a manner that it encroached upon approximately two feet of the neighboring property, but not beyond the area for which SRCB believed it had obtained an easement. However, the developer failed to obtain the easement, and the McCown's were ultimately sued by their neighbors, the Horowitzes, for the encroachment. The McCowns eventually removed two feet of their driveway. As a result of the removal, it is difficult to maneuver vehicles out of the driveway, and the driveway does not provide reasonable, safe access in and out of the property. The McCowns allege that they must now widen their driveway and correct the misalignment of a fence, which will entail the relocation of a retaining wall, the mailbox and other landscaping and irrigation on the property. As a result of these events and resulting problems, the McCowns sued SRCB for breach of contract, breach of warranty, negligence, negligent misrepresentation, statutory fraud and violations of the Texas Deceptive Trade Practices Act ("DTPA"). Procedural Posture Mt. Hawley filed the present lawsuit, seeking a declaratory judgment from this Court that Mt. Hawley did not have a duty to defend or a duty to indemnify SRCB in the Underlying Suit. SRCB filed counter-claims against Mt. Hawley for declaratory judgment, breach of contract and for violation of the prompt payment of claims provision of the Texas Insurance Code. SRCB subsequently filed its Partial Motion for 787 Summary Judgment on Mt. Hawley's claim for declaratory judgment on the duty to defend and on SRCB's counterclaim for violation of the Texas Insurance Code Article 21.55. Mt. Hawley filed its Cross-Motion for Summary Judgment seeking a declaration from this Court that it has no duty to defend and no duty to indemnify SRCB under the general commercial liability policy in this case. The Court will discuss these motions simultaneously. DISCUSSION SRCB seeks declaratory judgment from this Court that Mt. Hawley has a duty to defend SRCB in the Underlying Suit. Mt. Hawley, in turn, seeks declaratory judgment from this Court that Mt. Hawley has no duty to defend SRCB, and as a result, has no duty to indemnify SRCB in the Underlying Suit. Mt. Hawley argues that the petition in the Underlying Suit does not allege an "occurrence" under the policy, that no "property damage" as defined by the policy resulted in the Underlying Suit and finally, that three different exclusions apply to the facts in the Underlying Suit, which preclude Mt. Hawley from owing SRCB a duty to defend and a duty to indemnify. Mt. Hawley filed its lawsuit in this Court on the basis of diversity of citizenship; therefore, when determining whether Mt. Hawley has a duty to defend, the Court will apply Texas law. In order to determine whether an insurer has a duty to defend its insured, Texas courts apply the "eight corners rule." National Union Fire Ins. Co. v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.1997). In applying the "eight corners rule" the insurer's duty to defend is determined solely by the allegations in the most recent petition and the insurance policy. Id. The initial burden is on the insured to show that the claim against it is potentially within the scope of the insurance policy's coverage. Employers Casualty Co. v. Block, 744 S.W.2d 940, 945 (Tex.1988). "The general rule is that the insurer is obligated to defend [its insured] if there is, potentially, a case under the complaint within the coverage of the policy." Merchants Fast Motor Lines, Inc., 939 S.W.2d at 141. Doubts as to "whether or not the [factual] allegations of a complaint against the insured state a cause of action within the coverage of a liability policy sufficient to compel the insurer to defend the action, ... will be resolved in [the] insured's favor." Id. Under the "eight corners rule," the "factual allegations of the underlying complaint are given a liberal interpretation in determining whether or not the duty to defend is triggered." Id. When reviewing the underlying complaint, the focus is on the factual allegations rather than the legal theories asserted. Id. If potential for coverage exists as to any portion of the suit, the insurer must defend the entire suit. Lafarge Corp. v. Hartford Cas. Ins. Co., 61 F.3d 389, 393 (5th Cir.1995). The duty to defend and the duty to indemnify are two distinct and separate duties. Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 821-22 (Tex.1997). Therefore, an insurer may have a duty to defend the insured, but may not ultimately have a duty to indemnify the insured. Farmers Tex. County Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 82 (Tex.1997). A. Whether the Petition in the Underlying Suit alleges an Occurrence under the Policy. The initial step in determining whether Mt. Hawley has a duty to defend SRCB is to determine whether the McCowns alleged an occurrence in the underlying lawsuit. Under Section I: COVERAGES, the Policy provides: 1. Insuring Agreement. a. We will pay those sums that the insured becomes legally obligated to 788 pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will seek and have the right and duty to defend any "suit" seeking those damages. We may at our discretion investigate any "occurrence" and settle any claim or "suit" that may result. b. This insurance applies to "bodily injury" or "property damage" only if: (1) The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory"; and (2) The "bodily injury" or "property damage" occurs during the policy period. Policy No. MGL 11643 at 1. The Policy further provides that "`Occurrence' means an accident including continuous or repeated exposure to substantially the same general harmful conditions." Id. at 12. Texas courts have found "accident" in the context of an insurance policy to mean "negligent acts of the insured causing damage which is undesigned and unexpected." Massachusetts Bonding and Ins. Co. v. Orkin Exterminating Co., 416 S.W.2d 396, 400 (Tex.1967) (citations omitted); Federated Mutual Ins. Co. v. Grapevine Excavation, Inc., 197 F.3d 720, 725 (5th Cir.2000). Mt. Hawley argues that even though the McCowns alleged claims of negligence and negligent misrepresentation in the Underlying Suit, the factual allegations in the petition do not support a negligence claim; therefore, there is no accident, and as a result, no occurrence under the Policy. In determining whether the Underlying Suit is covered by the Policy, the Court must look to the Sixth Amended Petition to determine whether the McCowns' factual allegations constitute a claim for negligence against SRCB. In Plaintiff's Sixth Amended Petition in the Underlying Suit, the McCowns allege that: Roberts failed to exercise reasonable care or competence in obtaining or communicating the information to Plaintiffs and, alternatively, Roberts failed to exercise reasonable care or competence in obtaining or communicating the information for obtaining the easement to the developer/owner of the adjoining lot to the north, so as to create an easement as represented. Plaintiff's Sixth Amended Petition p. 8. When giving this section a liberal construction, it is sufficient to allege negligence on the part of SRCB in obtaining an easement or in ensuring an easement was obtained by the developer. A determination of whether SRCB's acts actually constituted negligence is not necessary for the purpose of determining whether Mt. Hawley has a duty to defend SRCB in the Underlying Suit. All that is necessary is that the petition actually allege facts which fall under the Policy's definition of "occurrence." Mt. Hawley argues that the petition only alleges a misrepresentation on the part of SRCB and that an alleged misrepresentation is not an occurrence under Texas law. However, the McCowns also alleged that SRCB was negligent in its failure to obtain the necessary easement and negligent in placing the driveway in such a manner that it encroached on the neighboring property. SRCB relies heavily on McKinney Builders II, Ltd. v. Nationwide Mutual Ins. Co., 1999 WL 608851 (N.D.Tex.1999), in its assertion that the petition in the Underlying Suit is sufficient to allege an "occurrence" under the Policy. In McKinney Builders, the Plaintiff and insured, McKinney Builders, sold two homes to two different buyers on adjoining lots. In connection with the sale and financing of these homes, McKinney Builders provided the buyers with a copy of an on-the-ground survey of 789 their properties performed by a surveyor hired by McKinney Builders. Several years later, both buyers were informed that their houses encroached on neighboring lots. The buyers subsequently sued McKinney Builders in state court for negligence in misplacing the houses, negligence in the hiring of surveyors, misrepresentation, and fraud. The court in McKinney Builders rejected the defendant's reliance on Argonaut Southwest Ins. Co. v. Maupin, 500 S.W.2d 633, 635 (Tex.1973), for the proposition that the plaintiffs in the underlying lawsuit had not alleged an "occurrence," which was covered by the insurance policy. The court determined that Maupin was not controlling because in Maupin the plaintiffs in the underlying suit alleged trespass, an intentional tort, against the insured, rather than negligence. McKinney Builders, 1999 WL 608851 at 5. "Accident" under an insurance policy has been found to include "negligent acts of the insured causing damage which is undesigned and unexpected." Id. The court found that the Maupin court's analysis of coverage for an intentional tort was inapposite to a case in which negligence was alleged. The court in McKinney Builders also rejected the defendant's reliance on Federated Mut. Ins. Co. v. Grapevine Excavation, Inc., 18 F.Supp.2d 636 (N.D.Tex. 1998), because Grapevine involved a general contractor's suit of a subcontractor for failing to meet contract specifications. The court in Grapevine found that the "defective construction was not an accident because Grapevine's `actions in failing to meet contract specifications are the natural and probable consequence of its conduct in allegedly breaching its contract by failing to meet the contract specifications.'" McKinney Builders, 1999 WL 608851 at 6 (citing Grapevine, 18 F.Supp.2d at 648). Conversely, the court in McKinney Builders found that the construction of the encroaching homes was not the natural and probable consequence of Plaintiffs' reliance on an incorrect survey; therefore, an occurrence had been alleged in the underlying lawsuit, which invoked the insurance company's duty to defend Id. Mt. Hawley argues that McKinney Builders is distinguishable from the present case because SRCB intentionally built the encroaching driveway on property it knew to be a part of the neighboring lot; whereas in McKinney Builders, the contractor built the homes without the knowledge that the homes rested on land that were actually a part of the adjoining properties. While it is true that SRCB did not rely on an incorrect survey in its placement of the driveway onto the neighboring property, the petition in the Underlying Suit is sufficient to allege that SRCB was negligent in failing to ensure that the easement for the driveway was obtained or that SRCB was negligent in constructing a driveway in such a way that it encroached onto the neighboring property. SRCB claims that it believed that the easement had been obtained; thus, it did not intentionally construct an encroaching driveway. This mistaken belief that a use-easement existed is analogous to McKinney Builder's reliance on an inaccurate survey. In both instances the builders did not believe they were encroaching on the neighboring property; thus, the encroachment and resulting damages were not an intended or expected result. See Harken Exploration Co. v. Sphere Drake Ins. PLC, 261 F.3d 466, 473 (5th Cir.2001) (stating that "if the act is deliberately taken, performed negligently, and the effect is not the intended or expected result had the deliberate act been performed non-negligently, there is an accident"). Mt. Hawley also argues that the court's emphasis on intent in McKinney Builders was misplaced based on recent cases from Texas Courts of Appeals and a 790 federal district court. Mt. Hawley relies on Hartrick v. Great American Lloyds Ins. Co., 62 S.W.3d 270 (Tex.App. Houston [1st Dist.2001]), in discrediting the court's analysis in McKinney Builders; however, Hartrick only involved the insurance company's duty to indemnify the insured when a jury had determined that the insured was not negligent. Hartrick is inapposite to the present case in that a factual determination had already been made on the negligence claim by a jury, and that determination had a bearing on whether the insurer had a duty to indemnify the insured; whereas, in the present case, no such determination has been made, and this Court must determine whether the insurer owes the insured a duty to defend.[1] A determination on the ultimate issue of negligence need not be made in order to invoke Mt. Hawley's duty to defend. The petition in the underlying lawsuit must simply allege facts for which a potential for coverage exists. The Court is of the opinion that the allegations in the Underlying Suit sufficiently allege an "occurrence" under the Policy; thus a potential for coverage exists.[2] B. Whether the McCowns Seek Damages Constituting "Property Damages." Mt. Hawley argues that no coverage exists because the underlying petition does not allege "property damage" as required by the policies. Mt. Hawley asserts that the McCowns did not allege physical injury to tangible property caused by SRCB's conduct. The Policy defines "property damage" as: a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or b. Loss of use of tangible property that is not physically injured. All such loss shall be deemed to occur at the time of the "occurrence" that caused it. Policy at 12. SRCB's failure to obtain a use-easement or its failure to ensure that such an easement was obtained for the McCowns' driveway resulted in an encroachment on the neighboring property. This property was owned by the Horowitzes. In 1998, Bernard Horowitz notified the McCowns that their driveway was encroaching on his property and that the McCowns must remove the part of the driveway that was situated on his property. The Horowitzes eventually sued the McCowns, demanding that they remove the encroaching portion of the driveway. The McCowns ultimately engaged a contractor to demolish the portion of their driveway that encroached on the Horowitzes' property, which was approximately 791 two feet. The McCowns also planted grass on the Horowitzes' property in the area where the driveway had been removed. The McCowns made a demand on SRCB for indemnity of the McCowns' attorneys fees and expenses incurred as a result of the encroachment and the Horowitzes' suit against them, including the cost of demolishing and remodeling the driveway. The McCowns' allegation that their driveway encroached on the Horowitzes' property is sufficient to allege physical injury. McKinney Builders, 1999 WL 608851 at 8. The allegation in and of itself constitutes an allegation of physical injury. Id.; See also Saks v. Nicosia Contracting Corp., 215 A.D.2d 832, 625 N.Y.S.2d 758, 760 (N.Y.App.Div.1995) (stating "[t]here can be little doubt that the real property on which the [misplaced] house encroaches sustained damage, and we are of the view that there was corresponding damage to plaintiffs' real property because of the encroachment.") The Horowitzes' real property was damaged by the McCowns' encroaching driveway. Mt. Hawley asserts that because the encroaching driveway has been removed, no property damage exists. The Court is not persuaded by this argument. The fact that the McCowns removed the encroachment does not negate that the Horowitzes suffered damage to their real property and the McCowns incurred expenses in remedying the encroachment. Further, the McCowns' seek indemnification for the expenses incurred in connection with the Horowitzes' property damage. The allegations in the Underlying Suit are sufficient to allege "property damage" under the Policy; therefore, Mt. Hawley has a duty to defend SRCB. C. Whether Mt. Hawley is Relieved of Its Duty to Defend by Policy Exclusions. Mt. Hawley claims that even if the petition in the Underlying Suit alleged an "occurrence" and "property damage" under the Policy, it is relieved of its duty to defend by three policy exclusions: exclusion (a), exclusion (l), and exclusion (m). 1. Exclusion (a) Exclusion (a) of the Policy provides: This insurance does not apply to: a. "Bodily injury" or "property damage" expected or intended from the standpoint of the insured. This exclusion does not apply to "bodily injury" resulting from the use of reasonable force to protect persons or property. Policy at 1. In stating that this exclusion applies to the present case, Mt. Hawley simply reiterates the arguments it put forth when claiming that an "occurrence" was not alleged in the Underlying Suit. Mt. Hawley insists that SRCB would necessarily have expected the damages that resulted from the encroachment. In Harken Exploration Co. v. Sphere Drake Ins. PLC, 261 F.3d 466, 473-74 (5th Cir.2001), the court rejected such an argument when determining whether an "occurrence" was alleged under the insurance policy. The court found that, under Texas law, it was "to focus on whether the effect is intended or expected not whether the negligent performance is intended or expected." Id. at 474. SRCB claims it believed the easement had been obtained by the developer, and the McCowns allege SRCB was negligent in its communications with the developer concerning obtaining the easement. Construction of a driveway on land for which SRCB believed a use-easement had been obtained would not result in an encroachment nor the resulting property damage. The focus should not be on whether the damage should have been expected when SRCB performed its duties negligently; rather the court should focus 792 on the intended or expected results when SRCB performed those duties non-negligently. Therefore, the Court is of the opinion that encroachment on the Horowitzes property was not an intended or expected result of SRCB's construction of the driveway, and exclusion (a) is not applicable. 2. Exclusion (l) Exclusion (l) provides: This insurance does not apply to: 1. "Property damage" to "your work" arising out of it or any part of it and included in the "products-competed operations hazard." This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a sub-contractor. Policy at 3. The Policy also provided the following definitions relevant to the exclusion: 11. "Products-completed operations hazard" includes: a. all "bodily injury" and "property damage" occurring away from premises you own or rent and arising our of "your product" or "your work" except: (1) Products that are still in your physical possession; or (2) Work that has not yet been completed or abandoned. b. "Your work" will be deemed completed at the earliest of the following times: (1) When all of the work called for in your contract has been completed ... (3) When that part of the work done at a job site has been put to its intended use by any person or organization other than another contractor or subcontractor working on the same project. Work that may need service, maintenance, correction, repair or replacement, but which is otherwise complete will be treated as completed. 15. "Your work" means: a. Work or operations performed by you or on your behalf; and b. Materials, parts or equipment furnished in connection with such work or operations. "Your work" includes: a. Warranties or representations made at any time with respect to fitness, quality, performance or use of "your work"; and b. The providing or failure to provide warnings or instructions. Id. at 12. This exclusion applies to property damage to SRCB's work. While it would exclude damage done to the driveway itself, which constitutes SRCB's work, it would not apply to the property damage to a third party's property. In the present case, SRCB's alleged negligence caused an encroachment on the Horowitzes' property. The damage to the Horowitzes' property is separate and apart from any damage to the driveway or other materials or structures constituting "your work" under the Policy. Accordingly, exclusion (l) does not apply to the present case. 3. Exclusion (m) Exclusion (m) provides: This insurance does not apply to: m. "Property damage" to "impaired property" or property that has not been physically injured arising out of: (1) A defect, deficiency, inadequacy or dangerous condition in "your product" or "your work;" or 793 (2) A delay or failure by you or anyone acting on your behalf to perform a contract or agreement in accordance with its terms. This exclusion does not apply to the loss of other property arising out of sudden and accidental physical injury to "your product" or "your work" after it has been put to its intended use. Id. at 4. The Policy provides the following definition for "impaired property": 5. "Impaired property" means tangible property, other than "your product" or "your work," that cannot be used or is less useful because: a. It incorporates "your product" or "your work" that is known or thought to be defective, deficient, inadequate or dangerous; or b. You have failed to fulfill the terms of a contract or agreement; if such property can be restored to use by: a. The repair, replacement, adjustment or removal of "your product" or "your work"; or b. Your fulfilling the terms of the contract or agreement. Id. at 10. The Court has previously determined that the encroachment of the driveway on the Horowitzes' property constituted "physical injury." Exclusion (m) applies to "impaired property" and not to property that has been physically injured.[3] The exclusion is inapplicable to these allegations because physical injury to property was alleged; therefore, exclusion (m) does not relieve Mt. Hawley of its duty to defend SRCB in the Underlying Suit. D. Whether Mt. Hawley owes SRCB a Duty to Indemnify. Mt. Hawley also seeks a determination from this Court that it has no duty to indemnify SRCB. Mt. Hawley urges that because it does not have a duty to defend SRCB, it is likewise relieved of its duty to indemnify; however, the Court has determined that Mt. Hawley does have a duty to defend SRCB. Accordingly, the issue of whether Mt. Hawley has a duty to indemnify SRCB, and if so to what extent, is not ripe for determination at this time. Aetna Casualty and Surety Co. v. Metropolitan Baptist Church, 967 F.Supp. 217, 224 (S.D.Tex.1996). "It is well-settled that a trial court `is without authority to decide the insurer's duty to indemnify in the absence of a final judgment in the underlying tort action.'" Id. (citing Nationwide Property & Cas. Ins. Co. v. McFarland, 887 S.W.2d 487, 491 (Tex.App. Dallas 1994, writ denied)). Therefore, this Court will not make a determination on Mt. Hawley's duty to indemnify, as issues in the Underlying Suit have not been fully litigated or remain unsettled. E. Whether Article 21.55 of the Texas Insurance Code is Applicable in this Case. SRCB also seeks a declaratory judgment from this Court that Mt. Hawley has violated Article 21.55 of the Texas Insurance Code, or the "Prompt Payment of Claims Statute." TEX.INS.CODE ANN. art. 21.55 (Vernon Supp.2000). The Prompt Payment of Claims Statute provides for an 794 eighteen percent (18%) penalty and reasonable attorney's fees when an insurer wrongfully refuses or delays payment of a claim. Higginbotham v. State Farm Mut. Auto. Ins. Co., 103 F.3d 456, 461 (5th Cir.1997). Article 21.55 defines a claim as "a first party claim made by an insured or a policyholder under an insurance policy ... that must be paid by the insurer directly to the insured or beneficiary." TEX. INS.CODE ANN. art. 21.55 § 1. The statute does not provide a definition of "first party." Mt. Hawley argues that Article 21.55 does not apply in this case because it is a third party liability claim. In E & R Rubalcava Const., Inc. v. Burlington Ins. Co., 148 F.Supp.2d 746, 750 (N.D.Tex.2001), the court found that Rubalcava's claim for the duty to defend was a first party claim under Article 21.55, and that the insurance company, Burlington, was subject to the statutory penalty under Article 21.55 for its wrongful rejection of the claim. Mt. Hawley claims that the Rubalcava opinion has no precedential value because the court in Rubalcava relied on Sentry Ins. Co. v. Greenleaf Software, Inc., 91 F.Supp.2d 920 (N.D.Tex. 2000), which was later vacated; however, in a Supplemental Order, the Rubalcava court acknowledged that Sentry had been vacated, but stated that it remained "of the view that this case now involves a first party claim, and that Article 21.55 applies to such a claim." Rubalcava, 148 F.Supp.2d at 751. Additionally, in Ryland Group, Inc. v. Travelers Indemnity Co. of Illinois, 2000 WL 33544086 (W.D.Tex. 2000), the court concluded that "while [the insured's] claim for defense costs may not be what is traditionally thought of as a first party claim, the claim does fit within the definition of `claim' contained in Article 21.55."[4] Mt. Hawley cites Hartman v. St. Paul Fire and Marine Ins. Co., 55 F.Supp.2d 600 (N.D.Tex.1998), for the proposition that SRCB's claim for the duty to defend is a third party claim and not covered by Article 21.55. The court in Hartman, states that it is persuaded by the defendant's argument that, at the time of making his claim, the relationship between Hartman and the insurance company was no longer insured/insurer; rather, it was that of creditor/judgment debtor. Id. SRCB correctly states that this language was dicta and was not the basis of the ultimate determination by the court that Article 21.55 did not apply. Instead, the court found that the defendant insurance company complied with the statute "by tendering a defense subject to the reservation of rights." Id. Therefore, this Court is not persuaded by Mt. Hawley's argument that SRCB's claim for a duty to defend should be treated as a third party claim. As in Rubalcava and Ryland, the Court is of the opinion that SRCB's claim for the duty to defend is a first party claim asserted against Mt. Hawley under Article 21.55 of the Texas Insurance Code, and the statutory penalty will apply to such sums. CONCLUSION For the aforementioned reasons, the Court is of the opinion that Mt. Hawley has a duty to defend SRCB in the Underlying Suit. Whether Mt. Hawley has a duty to indemnify SRCB is not ripe for determination at this time. Finally, Mt. Hawley 795 has failed to comply with Article 21.55 of the Texas Insurance Code and is subject to the statutory penalties provided therein. It is so ORDERED. NOTES [1] The insurance company in Hartrick did not dispute its duty to defend; rather it incurred the cost for defending the suit under the terms of the insurance policy. [2] Mt. Hawley also cites Devoe v. Great American Ins., 50 S.W.3d 567 (Tex.App. Austin 2001) and Martin Marietta Materials Southwest, Ltd. v. St. Paul Guardian Ins. Co., 145 F.Supp.2d 794 (N.D.Tex.2001), in support of its attempt to discredit the court's analysis in McKinney Builders. These cases are also distinguishable from the present case. In Devoe, the court found that in the underlying lawsuit, events or a series of events that could be construed as an accident were not alleged; rather, substandard construction was alleged. In Martin Marietta, the court found that while the extent of the harm may not have been intended or foreseen, the fact that diverting water would result in a reduction of downstream waters, which could foreseeably harm downstream users, was expected. In the present case, the Court is of the opinion that events that could constitute an accident have been alleged, and an encroachment is not an intended or expected result when a driveway is constructed on property for which a use-easement has actually been obtained. [3] The court in McKinney Builders determined that an identical exclusion was inapplicable because physical injury to property had been alleged. The court went on to find that the exclusion was ambiguous because a different result would be reached if the allegations were construed as property damage caused by loss of use. The Court does not reach a determination on whether the exclusion is ambiguous at this time. It simply does not apply to these facts in order to relieve Mt. Hawley of its duty to defend SRCB. [4] The Court in Ryland also relied upon the subsequently vacated Sentry opinion in determining that the insured's claim for the duty to defend was a first party claim and covered under Article 21.55; however, the court also relied on a law review article, which discussed how the duty to defend is a form of first-party insurance contained within the liability insurance policy, in reaching its conclusion. Ryland, 2000 WL 33544086 at 12 (relying on Ellen S. Pryor, Mapping the Changing Boundaries of the Duty to Defend in Texas, 31 TEX.TECH.L.REV. 869, 930 n. 317 (2000)).	{ "pile_set_name": "FreeLaw" }
IN THE TENTH COURT OF APPEALS No. 10-14-00230-CV IN RE KSH SERVICES, LLC Original Proceeding MEMORANDUM OPINION The petition for writ of mandamus is denied. Relator’s Emergency Motion for Temporary Relief is dismissed as moot. REX D. DAVIS Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins Petition denied Opinion delivered and filed September 25, 2014 [OT06] In re KSH Servs., LLC Page 2	{ "pile_set_name": "FreeLaw" }
[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 09-13963 ELEVENTH CIRCUIT Non-Argument Calendar APRIL 5, 2010 ________________________ JOHN LEY CLERK Agency No. A099-826-143 ANA MIRIAM GUEVARA-ACOSTA, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals _________________________ (April 5, 2010) Before BLACK, MARCUS and PRYOR, Circuit Judges. PER CURIAM: Ana Miriam Guevara-Acosta, a native and citizen of El Salvador, through counsel, seeks review of the Board of Immigration Appeals’ (“BIA”) dismissal of her appeal from the immigration judge’s (“IJ”) order finding her removable and denying her application for asylum and withholding of removal under the Immigration and Nationality Act (“INA”) and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (“CAT”), 8 U.S.C. §§ 1158, 1231, 8 C.F.R. § 208.16(c). On appeal, Guevara-Acosta argues that the BIA erred in finding that young, single, working females do not constitute a particular social group under the INA for asylum and withholding of removal purposes and that she qualified for CAT relief. After careful review, we deny the petition. When the BIA issues a decision, we review only that decision, except to the extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). Here, because the BIA adopted the IJ’s factual findings and then issued its own opinion, we review the IJ’s factual findings and the BIA’s decision. We review questions of law de novo, with appropriate deference to the BIA’s reasonable interpretation of the INA. Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1326 (11th Cir. 2003). We follow the BIA’s interpretation of what constitutes a particular social group under the INA unless the interpretation is unreasonable, arbitrary, capricious, or clearly contrary to law. Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1196 (11th Cir. 2006). We review the BIA’s factual determinations under the substantial evidence test. Forgue v. U.S. Att’y 2 Gen., 401 F.3d 1282, 1286 (11th Cir. 2005). Under this highly deferential test, we affirm the BIA’s decision “if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Id. (quotation omitted). First, we reject Guevara-Acosta’s argument that the BIA erred in finding that young, single, working females do not constitute a particular social group under the INA for asylum and withholding of removal purposes. To qualify for asylum or withholding of removal, the petitioner must establish that she is unable or unwilling to return to her home country because of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)(i), 1231(b)(3)(A). Pursuant to the BIA, a group may qualify as a “particular social group” under the INA if the group has both immutability and social visibility. See Castillo-Arias, 446 F.3d at 1193, 1196. In Castillo-Arias, we held that the BIA’s legal definition of what constitutes a particular social group was reasonable and “neither arbitrary, capricious, nor clearly contrary to law.” Id. at 1196. As for immutability, a “particular social group” must have a “common, immutable characteristic . . . [that] is fundamental to [its members’] individual identities or consciences.” Id. (citing Matter of Acosta, 19 I. & N. Dec. 211, 233- 34 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. 3 Dec. 439, 447 (BIA 1987)). Examples of a common, immutable characteristic include sex, color, kinship ties, or in certain circumstances “a shared past experience such as former military leadership or land ownership.” Id. at 1193. The common characteristic must be something other than the risk of being persecuted. See id. at 1198. As for social visibility, the fact that “a characteristic or association is shared by a large number of people does not mean that either society at large, let alone other members within that same group, will recognize that characteristic or association.” Id. In Castillo-Arias, we concluded that non-criminal informants working against a Colombian drug cartel were not a particular social group under the INA because they were not socially visible, the group was too numerous and inchoate, and their defining attribute was their persecution by their cartel once their identities were revealed. Id. at 1197-98. We emphasized that a “particular social group” should not be the “‘catch all’ for all persons alleging persecution who do not fit elsewhere.” Id. at 1198. Here, the BIA’s interpretation that young, single, working females do not constitute a particular social group under the INA is reasonable because the group lacks social visibility.1 There is no evidence in the record that Guevara-Acosta was 1 Moreover, Guevara-Acosta’s argument that the social visibility test is arbitrary and capricious fails because we have previously held that the test is both reasonable and neither arbitrary nor capricious. See Castillo-Arias, 446 F.3d at 1196. 4 part of an identifiable group of young, single, working women who were harassed by gangs. Instead, the evidence demonstrates that the gangs equally robbed and harassed males, females, young, old, married, or single. Because Guevara-Acosta has not demonstrated past or future persecution based on a statutorily protected group, she is not entitled to asylum or withholding of removal.2 We likewise reject Guevara-Acosta’s claim for CAT relief. To be entitled to relief under CAT, an applicant must establish that it is “more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). “Torture” is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. 8 C.F.R. § 208.18(a)(1). 2 Additionally, Guevara-Acosta has failed to offer any argument for asylum and withholding based on political opinion. Although Guevara-Acosta mentions the term “political opinion” in her opening brief and implies that her political opinion is her belief in family, she does not argue how that belief constitutes a “political opinion” or how she was persecuted because of it. See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (holding that the petitioner must establish the that persecutors persecuted him or will persecute him because of that political opinion). Thus, she has failed to offer argument on the issue had has abandoned that issue on appeal. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005). 5 Substantial evidence supports the IJ’s and BIA’s finding that Guevara- Acosta is not entitled to CAT relief because she has not established that it is more likely than not that she would be tortured by or with the acquiescence of the government upon her return to El Salvador. Indeed, there is no evidence in the record that Guevara-Acosta had every been physically or mentally abused by the gangs. Moreover, according to the Country Report, although there is widespread gang-related violence in El Salvador, that country’s government generally tries to protect human rights. Accordingly, we deny the petition for review. PETITION DENIED. 6	{ "pile_set_name": "FreeLaw" }
240 F.2d 452 Joseph THOMPSON and Leola Thompson, His Wife, Appellants,v.HARRY C. ERB, Inc. No. 11940. United States Court of Appeals Third Circuit. Argued October 5, 1956. Decided January 16, 1957. Samuel P. Lavine, Philadelphia, Pa. (Blanc, Steinberg, Balder & Steinbrook, Philadelphia, Pa., on the brief), for appellants. Joseph X. Heincer, Philadelphia, Pa. (Robert C. Kitchen, Philadelphia, Pa., on the brief), for appellee. Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges. McLAUGHLIN, Circuit Judge. 1 In 1953, defendant-appellee entered into a contract with the City of Philadelphia to repair and repave the track area of Lancaster Avenue, Philadelphia from 50th Street to 51st Street. By the contract, the defendant (party of the second part) agreed inter alia as follows: 2 "Party of the second part shall be alone liable and responsible for, and shall pay, any and all loss and damage sustained by any person or party either during the performance or subsequent to the completion of the work covered by this agreement by reason of injuries to person and damage to property * * * that may occur either during the performance or subsequent to the completion of the work covered by this agreement, or that may be sustained as a result or consequence thereof, irrespective of whether or not such injuries or damage be due to negligence or to the inherent nature of the work." (Emphasis supplied.) 3 In the course of the performance of the contract work, the defendant excavated a portion of Lancaster Avenue. On or about April 7, 1953, plaintiffs suffered personal injuries and property damage when their automobile fell into the excavation made by the defendant. 4 On October 19, 1955, the plaintiffs filed this diversity action in the district court. The claim for damages for personal injuries is in excess of the requisite $3,000. The claim for property damage is less than $3,000, so that federal jurisdiction is dependent on the claims for personal injuries. 5 The original complaint is titled as "Complaint in Assumpsit". It is divided into two causes of action. The first relies on the theory that plaintiffs are third-party beneficiaries of the contract between the defendants and the City by virtue of the above-quoted paragraph. It further alleges the following: 6 "* * * The said defendant thereby created a pit, excavation or depression in the said highway which constituted a danger and hazard to travel upon the said highway." (Emphasis supplied.) 7 The alternative cause of action alleges defendant's negligence in numerous acts and omissions surrounding the accident. 8 On motion, the complaint was dismissed for failure to state a claim upon which relief can be granted.1 D.C., 138 F.Supp. 342. The court held that the action was governed by Pennsylvania law, and therefore the claims for personal injuries were barred by Section 2 of the Act of 1895, P.L. 236, 12 P.S. § 34 which reads: 9 "Every suit hereafter brought to recover damages for injury wrongfully done to the person, in case where the injury does not result in death, must be brought within two years from the time when the injury was done and not afterwards; * * " (Emphasis supplied). 10 Accordingly, on February 15, 1956, judgment was entered dismissing the claims for personal injuries on that ground, and dismissing the property damage claim for lack of jurisdiction. It is from that judgment this appeal was taken on April 13, 1956. Thereafter, the record was transmitted to this court on May 14, 1956. On May 22, 1956, the parties stipulated that an amended complaint be substituted for the original complaint, which stipulation was approved by the order of the district judge filed May 23, 1956. The amended complaint is substantially the same as the original first cause of action except that the above quoted allegation regarding danger and hazard is deleted. 11 The attempted substitution of the amended complaint is ineffective. The signature of the district judge on the stipulation gives no life to the amended complaint as the taking of the appeal had divested the district court of jurisdiction of the cause of action and transferred the latter to this tribunal. Secretary of Banking of Pennsylvania v. Alker, 3 Cir., 1950, 183 F.2d 429; Walleck v. Hudspeth, 10 Cir., 1942, 128 F. 2d 343. See 7 Moore's Federal Practice, 2nd ed. 73.13. 12 Appellants contend the district court erred in dismissing their first cause of action because it is not "brought to recover damages wrongfully done to the person * " and consequently is not barred by the expiration of the two year period in the Act of 1895, but is governed by the Act of March 27, 1713, 1 Smith's laws 76, Sec. 1, 12 P.S. § 31 which provides that all actions of "debt grounded upon any * * contract without specialty * * * shall be commenced and sued within * * * six years * * ." Great emphasis is placed on the word "wrongful" in the Act of 1895, and it is argued the injuries to the plaintiff were not "wrongful". It is conceded that if the injuries were "wrongfully done" the action is barred though in contract since the Pennsylvania Supreme Court has specifically so held in Jones v. Boggs & Buhl, Inc., 1946, 355 Pa. 242, 49 A.2d 379. See also Nightlinger v. Johnson, 1932, 18 Pa.Dist. & Co.R. 47; Ravetz v. Upjohn Company, D.C.E.D.Pa.1955, 138 F.Supp. 66. 13 In Keefer v. Lombardi, 1954, 376 Pa. 367, 102 A.2d 695, the Supreme Court of Pennsylvania had before it a contract with the City of Philadelphia containing precisely the same "irrespective" clause as is before us. It was held there that the contractor had an absolute liability to pay for damage which was the immediate and direct result of the work performed under the contract. Reversal was sought on the ground that plaintiffs did not allege or prove negligence. In its opinion the court treats the factual situation as a matter of contractual obligation, pointing out at page 371 of 376 Pa., at page 697 of 102 A.2d that the "law of Pennsylvania is clearly in accord with the Restatement of the Law of Contracts, Section 145, on this subject: `A promisor bound to the United States or to a state or municipality by contract to do an act or render a service to some or all of the members of the public, is subject to no duty under the contract to such members to give compensation for the injurious consequences of performing or attempting to perform it, or failing to do so, unless (a) an intention is manifested in the contract, as interpreted in the light of the circumstances surrounding its formation, that the promisor shall compensate members of the public for such injurious consequences * '". In illustration of the above principle, the following example, comparable to our present problem, is given: "3. A, a municipality, enters into a contract with B, by which B promises to build a subway and to pay damages directly to any person who may be injured by the work of construction. Because of the work done in the construction of the subway, C's house is injured by the settling of the land on which it stands. D suffers personal injuries from the blasting of rock during the construction. B is under a contractual duty to C and D." 14 Appellee argues that the instant agreement was solely intended to provide for compensation where there was common law liability. It is asserted that the reference to "negligence or the inherent nature of the work" bespeaks tort liability alone. To thus interpret the contract would read out of it the word "irrespective". With that word in the text, quite evidently the parties, having considered the conventional theories of common law tort liability, then specifically provided that compensation was to be paid regardless of whether there was such basis for recovery. Accordingly, the conclusion is inescapable that the compensation provided for by the contract was independent of common law liability. 15 The district court took the view that the contract merely "contained the customary save harmless agreement in favor of the City." [138 F.Supp. 343.] Appellee similarly contends the covenant is one of simple indemnity and cites authority to the effect that an indemnity contract does not impose an insuror's liability on the indemnitor. Perry v. Payne, 1907, 217 Pa. 252, 66 A. 553, 11 L.R.A.,N.S., 1173. That argument must fail for while the contract includes an indemnitor's responsibility, it is by its express term not limited thereto and extends the contractor's liability far beyond damages which might otherwise be recoverable from the municipality. Appellee in an effort to overcome the "irrespective" clause argues very well regarding the intention of the parties to this contract. However, the language is unambiguous. And the intent of the City to have protection given for all injuries and damages caused by the work without regard to limitations of conventional tort claims must be accepted from that final phrasing of the agreement. What the contractor may now protest it understood its liability to be, is hardly an appropriate consideration in the face of this detailed formal municipal contract, apparently awarded after publication of the terms and the receipt of bids from the public. Act of May 23, 1874, P.L. 230, Sec. 6, 53 P.S. § 282. 16 The suggestion that the consideration paid the contractor under the contract was inadequate to support the broad liability indicated is without merit. Flynn v. City of Philadelphia, 1901, 199 Pa. 476, 49 A. 249, is relied on for that thought. There the city sought construction of a contract containing an indemnity provision against "`all suits or actions'" for any damages "`by or from the contractor, his agents or servants, in performance of the work * *.'" The Supreme Court of Pennsylvania held that the last quoted phrase limited the coverage of "`all suits or actions'", so that the contractor could not be held liable for the damages resulting from the negligence of the city officials in their supervision of the performance of the contract. There is comment in the opinion that any other construction of the clause would be "`repugnant to reason and to natural justice'" because the liabilities might exceed the contract price. Flynn with only an indemnity clause involved is of no help. The word "irrespective" in the instant contract radically increases the protection afforded. And it was following the Flynn decision where Philadelphia was a party as here that "irrespective" was inserted in the City of Philadelphia agreement at bar which deals with work of the same nature as that contemplated in the Flynn contract. The serious practical question of the extent of appellee's possible liability in comparison to the value of the contract is not for this court. In appellee's type of work, the personal injuries and damages for which it may be liable without any express indemnity provision in its agreement with the owner may greatly exceed the consideration to be paid it though predicated merely on the usual duty of due care. The voluntary assumption of a substantially broader obligation would seem to be a business choice depending on various circumstances, none of which is pertinent on this appeal. 17 With the original complaint, which is all that is before us, stating a wrongful act in its first count and itemized negligence in its alternative count, as it stands, it is within the Jones v. Boggs and Buhl, Inc., supra, rule and under the two year statute of limitations. Absent those allegations, as we see it, the Jones opinion forces the conclusion that under Pennsylvania law the six year bar would apply to what would, in that event, be a straightaway contract action. The facts and precise question in the Jones opinion as stated in 355 Pa. at page 245, 49 A.2d at page 381 of that report were: "It is conceded that the plaintiff suffered from an `injury wrongfully done to the person,' and that the injury resulted from wearing the defective coat. Her injury, as an element of damage, is squarely within the words of the Act of 1895, so that the question is whether she may avoid the Act of 1895 by declaring as for breach of contract and thereby enlarge the period in which she may sue, notwithstanding the two year limitation." (Emphasis supplied.) The all important element was that the injury had been wrongfully done. In Nightlinger v. Johnson, 1932, 18 Pa.Dist. & Co.R. 47, the court as in Jones, highlighted the restriction of the 1895 statute to injuries wrongfully done, holding at page 47: "Certainly the terms of the statute are both explicit and inclusive. No distinction is made by it between trespass and assumpsit, none between direct trespasses and trespasses on the case. The legislature made no attempt to classify actions to which the act should apply upon any of the bases just indicated. On the contrary, it classified them simply into suits brought to recover damages for injuries wrongfully done to the person, on the one hand, and on the other, all other cases." (Emphasis supplied.) The court went on to say "The act therefore applies to assumpsit brought to recover damages for personal injuries and to trespass suits brought for the same purpose". Reasonably, there is no contradiction in that statement with the court's above carefully considered interpretation of the Act. The latter does apply, as the court had already found, to all wrongfully done personal injuries even though sued in assumpsit. But there is nothing in the court's view as expressed to justify supposition that the court in its next sentence intended to brush aside the just pronounced rationale of its decision and so eliminate the key-words of the statute.2 Pennsylvania law, as we view it, puts a suit by a person injured and damaged through being precipitated into the excavation involved under the six year statute of limitations where the cause is founded purely on the contract between appellee and the owner. 18 The judgment of the district court will be vacated and the cause remanded to that court to allow appellants an opportunity, if proper and desired, to perfect their contract cause of action by further steps in this litigation or, if necessary, a new suit and for any other and further proceedings not inconsistent with this opinion. Notes: 1 While characterized motion for summary judgment, there remained issues of fact in this suit and the reasoning of the district court indicates dismissal on a question of law 2 And see Ravetz v. Upjohn Company, supra, 138 F.Supp. at page 69, which also involved a wrongful injury and followed the Jones opinion	{ "pile_set_name": "FreeLaw" }
680 F.Supp. 309 (1988) INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, et al., Plaintiffs, v. JOHNSON CONTROLS, INC., Defendant. No. 84-C-472. United States District Court, E.D. Wisconsin. January 21, 1988. As Amended February 24, 1988. Miriam Horwitz, Zubrensky, Padden, Graf & Maloney, Milwaukee, Wis., for plaintiffs. Stanley S. Jaspan, Foley & Lardner, Milwaukee, Wis., for defendant. 310 DECISION AND ORDER WARREN, Chief Judge. This case presents the issue of whether a fetal protection policy which prohibits women who are capable of bearing children from working in jobs where there is a likelihood that their blood lead[1] levels will rise above 30 micrograms violates Title VII of the 1964 Civil Rights Act. Defendant, Johnson Controls, Inc. ("Johnson Controls") has filed a motion for summary judgment. After carefully reviewing all the submissions from both parties and the law on this issue, it is the Court's conclusion that the fetal protection policy at issue does not violate Title VII, and the defendant's motion for summary judgment is hereby GRANTED. I. Background Facts Defendant has seventeen plants in its battery division. Fourteen of these plants manufacture batteries. Lead is the principal active material used in batteries. It is the main ingredient in the paste which forms the plates of the batteries, and it forms the structure for all the conductive elements in the battery for transmitting current. On February 25, 1985, as a result of a stipulation between the parties, the Court certified the following class: all past, present and future production and maintenance employees employed in bargaining units represented by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, and/or one of its Local Unions at Defendant's Battery Division plants located in Garland, Texas; Holland, Ohio; Fullerton, California; Owosso, Michigan; Louisville, Kentucky; Texarkana, Arkansas; Bennington, Vermont; Middletown, Delaware; and Atlanta, Georgia, who have been and continue to be affected by Defendant's Fetal Protection Policy implemented in 1982. The policy at issue was implemented in 1982 by the defendant. The policy excludes women who are capable of bearing children from working in jobs where their blood lead level will rise above 30 micrograms. Women are presumed capable of bearing children until they medically prove contrary. Women who are required to transfer out of jobs because of the policy are paid medical removal protection benefits to compensate for lost earnings. Women who are in positions where their blood lead levels do not rise to 30 micrograms are prohibited from transferring into positions where their blood lead levels will rise above 30 micrograms. The plaintiffs allege that this policy discriminates against both women and men. Based on this policy plaintiffs allege that there is sex discrimination in recruitment and hiring, job assignments, wages, promotions and transfers within the bargaining unit, seniority, overtime, layoff and recall, demotions, on-the-job training, maternity policies, on-the-job harassment, fringe benefits, and health and safety conditions. There is no dispute between the parties regarding the fact that excessive exposure to lead can result in significant harm to persons. There is a dispute, however, on the issues of whether there is a significant risk of harm to the fetus from lead exposure and whether that risk is substantially confined to the offspring of females, as opposed to male workers. There is also a dispute as to whether a fetus is more sensitive to lead than a post-natal child. Depositions and affidavits of experts have been submitted by plaintiffs and defendant, and the Court has closely reviewed those documents. Following is a brief summary of the testimony of the experts. A. Expert Opinions Dr. Anthony R. Scialli is a practicing physician and director of the Reproductive Toxicology Center. The Center serves as a source of information on the potential reproductive toxicity of environmental and physical agents. Dr. Scialli holds the opinion that because a fetus undergoes extremely rapid development of the internal nervous system during gestation, the fetus is even more sensitive to the effects of lead 311 than a young child. Dr. Scialli further stated that damage of the central nervous system includes intellectual and motor retardation, behavioral abnormalities and deficiencies in learning abilities which may be permanent. According to the affidavit, Dr. Scialli is aware of no studies which show that male blood lead levels of up to 50 micrograms results in any abnormality of offspring, and further that lead does not cause any change in the sperm that would be transmitted to offspring and result in abnormality in the offspring. Finally, the affidavit states that a man with a blood lead level of 50 micrograms would not have an increased risk of fathering a child with abnormalities. Dr. J. Julian Chisolm who is a pediatrician and director of the Lead Program at the John F. Kennedy Institute set forth the following opinion: During pregnancy the lead in the mother's blood transfers across the placenta to the fetal circulation. The concentration of lead in the fetal tissue increases rapidly during the last trimester of pregnancy. At birth, the fetus generally has the same blood lead level as the mother. However, the fetus is medically judged to be at least as sensitive, and, indeed, is probably even more sensitive to lead than the young child. This is particularly true during the latter part of the gestation period when the central nervous system of the fetus is developing very rapidly and is extremely susceptible to the toxic effects of lead. Medical studies released in the last year or two out of Boston, Cincinnati and Port Pirie, South Australia suggest that exposure to the fetus of blood lead levels as low as 10 micrograms presents [a] grave risk of permanent harm to the central nervous system of the fetus. The risk of harm to the fetus increases proportionately with the increase of blood lead levels over 10 micrograms. Such harm includes stillbirth, reduced birth weight and gestational age, and retarded cognitive development which may result in learning deficiencies and behavioral disorders. There is no medical evidence that lead exposure to the adult, male or female, has any adverse effect on the offspring. Rather, the available medical evidence establishes that it is the exposure directly to the fetus, through the pregnant woman, which causes harm to the offspring. Likewise, the affidavit of Paul B. Hammon, Professor of Environmental Health at the University of Cincinnati and director of a study currently being conducted in Cincinnati of the effects of lead exposure on children, stated that he was unaware of any human studies which conclude that blood lead levels of up to, and even exceeding, 50 micrograms in the adult male will cause any demonstrable effect on the development of the fetus. The deposition of Seymore Legator, professor and director of the division of environmental toxicology was submitted wherein Professor Legator states that there is "no question that lead is hazardous to the fetus by embryo exposure" and that children are very sensitive to lead. Professor Legator also stated that lead poses a threat to both men and women, but it is still unknown about male sensitivity, but he recognized that there is a problem and that lead probably causes a genetic lesion during spermatogenesis. Another physician, M. Donal Whortin, is the Senior Occupational Physician/Epidemologist for a company that conducts research in the areas of occupational and environmental health and is a primary medical consultant for a number of companies. Dr. Whortin holds the opinion that "the current OSHA lead standard of 50 micrograms per decileter of whole blood should generally protect adults of either sex from significant adverse effects in the various adult systems." Dr. Whortin was a coinvestigator in a 1981 study which compared the quality of the semen of lead exposed workers with non-exposed males. The study discovered no changes in the semen quality of lead exposed workers. Nevertheless, Dr. Whortin stated that recent medical studies have shown that a fetus' central nervous system can be injured by exposure to blood lead levels of 10 micrograms. Dr. Whortin concluded that 312 the central nervous system of the fetus and not the reproduction systems of the male or female worker is at greatest risk. The testimony of Charles W. Fishburn was also submitted for purposes of the motion. Dr. Fishburn is a physician and Assistant Clinical Professor at the University of Wisconsin. Dr. Fishburn is certified in occupational medicine. Occupational medicine involves the study of the relationships of injury and disease caused by chemical exposures in occupations. He states that children are particularly sensitive to lead because children do not have a barrier between the brain and the blood. Further, children develop a barrier around the age of five. Until the barrier is developed, if children ingest lead, they can be poisoned immediately. The child also can go into convulsions resulting in damage to the central nervous system. In a fetus, the central nervous system is one of the first systems that develops and the first to be affected. A fetus gets its blood from the mother and there is no way, according to Dr. Fishburn, to protect a fetus when it is overexposed to lead. Dr. Fishburn states that damage to the central nervous system is apparently permanent. Michael Silverstein, an Occupational-Health Physician in the Health and Safety Department of the United Auto Workers, is of the opinion that there is no evidence that reproductive risks are different for men and women at equal blood-lead levels. Furthermore, Dr. Silverstein states that "the toxic effects of lead exposure on human adults is similar and equivalent in impact to that observed in children at equivalent exposure levels." Dr. Silverstein discussed one study published in 1972, Hilderbrand, where it was found that male rats with blood levels between 14 and 26 resulted in impotence and a decrease in sperm mobility. Dr. Silverstein stated that it could be speculated that an abnormal sperm could carry damaged genetic material which could result in damaged offspring or functional infertility. Assistant Professor of Occupational Medicine at the University of Michigal School of Public Health, Kelly Ann Brix, states the conclusion, based upon a review article, that there is a clear effect of lead upon the male reproductive tract in mammals. Ellen Silbergeld, a toxicologist and a senior scientist for the environmental defense fund, holds the opinion that all persons should not be exposed to lead levels above 12 micrograms.[2] Silbergeld also states that there is no evidence that a fetus is more sensitive than a post-natal child. Further, in animals, Silbergeld states, that high doses of lead in the first trimester can cause spontaneous abortion of an embryo. Silbergeld also stated that "a woman may be exposed to lead early in pregnancy and deficits noted in the child after birth, but those deficits might have been associated with the on-going exposure which occurred in the late stages of pregnancy ... [because] for all purposes there is a continuing exposure to lead even after removal from sources of lead...." Silbergeld estimated that if a person, after exposure to lead, is placed in a lead-free environment, the turnover of lead is about 100 days, "so within a year or so there would be a reduction in lead." This time estimate according to Silbergeld is accurate in a lead-free environment, but in the absence of a lead-free environment, there is a continuing exposure to lead. II. Prior Law There are essentially two types of Title VII cases: Disparate treatment and disparate impact. Disparate treatment occurs when an employee has been treated less favorably because of sex. There are two types of disparate treatment cases: facial and pretextual. "Facial discrimination occurs when an employer adopts a policy that explicitly treats some employees differently from others on the basis of race, religion, national origin, or gender (pregnancy)." Hayes v. Shelby Memorial Hosp., 726 F.2d 1543, 1547 (11th Cir.), reh'g denied, 732 F.2d 944 (11th Cir.1984). The 313 only defense to a charge of facial discrimination is a bona fide occupational qualification (BFOQ). A second theory under disparate treatment occurs when the employer adopts a facially neutral policy, but which is a pretext for discrimination. A disparate impact suit exists when although a policy is neutral, it has a disparate impact on a protected class. Discriminatory motive is not required, and the defense to an allegation of disparate impact is business necessity. Only three jurisdictions have reviewed Title VII actions involving the health of the fetus.[3] The Fourth Circuit Court of Appeals was the first circuit court to address the fetal vulnerability program in Wright v. Olin Corp., 697 F.2d 1172, 1177 (4th Cir.1982). Olin Corporation instituted a fetal vulnerability policy which restricted fertile females from jobs which required contact with toxic chemicals. The Fourth Circuit determined that the disparate treatment analysis was inappropriate for this particular case because under disparate treatment, the plaintiff must show that the employer intended to treat the class less favorable. The Wright court stated: Here the claim is that the intention to "treat less favorably" is manifest in the very nature of the program and the factual defense is not truly aimed at rebutting that indisputable fact but at justifying it on the basis that the purpose behind it was benign in relation to the claimant's sex. 697 F.2d at 1185 n. 20. The court stated that the disparate impact theory with the business necessity defense was appropriate. The court held that the fetal protection policy establishes a prima facie case of discrimination. The court went on to find, however, that a business necessity defense existed in this situation by analogizing the fetus to invitees and licensees who are legitimately on the business premises. The court stated that "the safety of unborn children of workers would seem no less a matter of legitimate business concern than the safety of the traditional business licensee or invitee upon the employer's premises." 697 F.2d at 1189. The Fifth Circuit was the next circuit to address the issue of fetal protection in Zuniga v. Kleberg County Hospital, 692 F.2d 986 (5th Cir.1982). In Zuniga, a female x-ray technician was terminated from employment because of the effects of exposure of the fetus to x-ray radiation, and the concern of future liability of the hospital to the child. The Fifth Circuit found that the plaintiff rebutted the business necessity defense by showing that the hospital failed to utilize less discriminatory means. Id. at 992. The next circuit to address this issue was the Eleventh Circuit in Hayes v. Shelby Memorial Hospital, 726 F.2d 1543 (11th Cir.), reh'g denied, 732 F.2d 944 (11th Cir. 1984). Hayes also involved a plaintiff who was a female x-ray technician and who was fired because she was pregnant. The Eleventh Circuit reviewed the case under both the disparate treatment analysis and the disparate impact analysis. Under the disparate treatment analysis, the court did not find that an analysis of pretextual discrimination was appropriate because the plaintiff was fired because of her pregnancy. A BFOQ defense could not be established because there was no evidence that plaintiff's pregnancy would interfere with her ability to perform her job and the hospital failed to provide evidence that the level of radiation to which the plaintiff would be exposed 314 posed an unreasonable risk of harm to the fetus.[4] The Court, however, found that a facial discrimination analysis was proper. A presumption of facial discrimination applies when the policy at issue only applies to women. "That presumption may be rebutted, however, if the employer can show that although its policy applies only to women, the policy is neutral in the sense that it effectively and equally protects the offspring of all employees." Hayes, 726 F.2d at 1548. The Hayes court went on to state that even if the employer proves that the policy is justified in a scientific basis and is not required to protect the offspring of male employees, the policy still has a disproportionate impact on women; only women are excluded from the jobs. The Hayes court stated that the plaintiff established an automatic case of disparate impact for which the defendant must raise a business necessity defense. The business necessity defense is generally related to job performance. The Hayes court recognized that fetal protection does not have any relation to job performance. The court, however, did not find that the business necessity defense does not apply, but rather found that "the defense in a fetal protection case is justified by a genuine desire to promote the health of employee offspring...." Id. at 1552-53 n. 15. The court went on to further hold that the business necessity defense "automatically" applies because at the point where the court undertakes a disparate impact analysis, the employer "has already proved to overcome the presumption of facial discrimination that its policy is justified on a scientific basis and addresses a harm that does not affect men." Id. at 1553. If a business necessity defense exists, the burden then shifts to the plaintiff to show that there are no "acceptable alternative policies that would better accomplish the purposes of promoting fetal health, or that would accomplish the purpose with a less adverse impact on one sex." Id. In brief three elements were set forth by the Wright court for reviewing a fetal protection policy: (1) that a substantial risk of harm exists; (2) that the risk is borne only by members of one sex; and (3) that the employee fails to show that there are acceptable alternative policies that would have a lesser impact on the affected sex. Id. at 1554. If these three elements are met, the policy does not violate Title VII. III. Analysis Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." A factual dispute will not preclude summary judgment unless the fact is "outcome determinative according to the governing law." Reardon v. Wroan, 811 F.2d 1025, 1027 (7th Cir.1987). A. Disparate Treatment Reviewing this case under a disparate treatment analysis results in the conclusion that the plaintiffs have established a prima facie case of discrimination because the fetal protection policy excludes women from positions which men are not excluded from. The Hayes court stated that there is a "presumption that if the employer's policy by its terms applies only to women, then the policy is facially discriminatory." 726 315 F.2d at 1548. This presumption is rebutted by demonstrating that there are "significant risks of harm to the unborn children of women workers from their exposure during pregnancy to toxic hazards in the workplace make necessary, for the safety of the unborn children, that fertile women workers though not men workers, be appropriately restricted from exposure to those hazards and that its program of restriction is effective for the purpose." Wright, 697 F.2d at 1190; Hayes, 726 F.2d at 1548. In the present case, there is a disagreement among the experts regarding the effect of lead on the fetus and the effect of lead on male and female reproduction. This dispute, however, is not outcome determinative. The Fourth Circuit stated: To establish the requisite degree and cast of the risk of harm, it is not necessary to prove the existence of a general consensus on the points within the qualified scientific community. If suffices to show that within that community there is so considerable a body of opinion that significant risk exists, and that it is substantially confined to women workers, that an informed employer could not responsibly fail to act on the assumption that this opinion might be the accurate one. The expert opinion in this case demonstrates that there is a considerable body of opinion which holds that lead is hazardous to the fetus through embryo exposure, and a fetus that is exposed to lead carries the significant risk that the central nervous system will be damaged. Further, a significant opinion exists which holds that the fetus cannot be protected when it is overexposed to lead from the mother's blood. Although plaintiffs state that today "reproduction is now largely discretionary," Dr. Chisolm stated that many pregnancies are unplanned. It is very likely that a women could be pregnant without being aware of it. If this women has a blood lead level of above 10 micrograms, her child could be born with abnormalities even if, after she discovers that she is pregnant, she removes herself from the lead environment because the fetus has been exposed to lead during early development when the central nervous system was developing. Also, lead remains in the body for a significant period of time. Furthermore, lead builds up in the blood, soft tissues, and bones. If the lead leaves the blood and soft tissues, lead still remains in the bones; it takes even longer for the lead to leave the bones. According to the experts, it takes about two or three times as long for the blood leads to decrease as it did for such blood levels to increase. Further, a fetus that has been exposed to lead may be stillborn. The fetus may have a reduced birth weight and gestational age, and retarded cognitive development which may result in learning deficiencies and behavorial disorders. This is a significant and unreasonable risk of harm to the fetus. The fetal protection policy is necessary. The employer has carried its burden of "showing that the body of opinion believing that significant risk exists is so considerable `that an informed employer could not responsibly fail to act on the assumption that this opinion might be the accurate one.'" Wright, 697 F.2d at 1191. The next step to consider is whether the hazard does not apply to the offspring of male employees. In Hayes, the court stated, "[i]n those instances in which scientific evidence points to a hazard to women, but no scientific evidence exists regarding men, an employer may be allowed to adopt a suitable policy aimed only at women." 726 F.2d at 1549. Expert opinion has been provided which holds that lead also affects the reproductive abilities of men and women. Some experts hold that these effects are as great as the effects of exposure of the fetus. Although the Court believes that men, women, and fetuses should be protected from lead exposure, there is expert opinion that fetuses are subject to a greater risk because the fetuses central nervous system is developing, and further, a fetus could be exposed to lead without the mother's knowledge. One legal writer has stated that "an employer may be justified in excluding all women of childbearing capacity from working with compounds that cause 316 reproductive injury to the female worker prior to her knowledge of pregnancy." Comment, Gender Specific Regulations in the Chemical Workplace, 27 Santa Clara L.Rev. 353, 370 (1987). Although adults of both sexes may be subject to equivalent susceptibility of reproduction hazards, a great body of experts are of the opinion that the fetus is more vulnerable to levels of lead that would not affect adults. The Court simply cannot overlook this possibility of severe harm only to the fetus. As a concern for society and future generations this Court must uphold the fetal protection policy. The fetus deserves special protection from lead. If women always knew when they were going to become pregnant, the mother could remove herself from the lead environment; this predictability does not always occur with accuracy. "Unlike abortion, in which a woman makes a knowing decision to end fetal life, workplace hazards may harm a worker's reproductive system on unborn offspring without his or her knowledge or consent." Timko, Exploring the Limits of Legal Duty: A Union's Responsibilities With Respect to Fetal Protection Policies, 23 Harv.J. on Legis. 159, 167 (1986). Because of the fetuses possibility of unknown existence to the mother and the severe risk of harm that may occur if exposed to lead, the fetal protection policy is not facially discriminatory.[5] Further, plaintiffs have failed to establish that there is an acceptable alternative policy which would protect the fetus. Perhaps with the improved development of pregnancy testing, an alternative may develop, but even if a pregnant woman is removed from lead exposure once she is aware of the pregnancy, the lead level does not decrease as quickly as it built up; lead remains in the body for some time. Thus, the fetus would be exposed to lead even if the mother is removed from the lead environment. Additionally, based upon the affidavits submitted, it is apparent that the company is doing all that it can to reduce lead exposure levels to safe levels. Since 1978, the defendant has spent approximately 15 million dollars on environmental engineering controls in its Battery Division Plants. Although plaintiffs state that "in the opinion of Toxicologist Ellen Silbergeld, the technology exists to reduce blood lead levels below 15 micrograms," Ms. Silbergeld's deposition transcript reveals that she is not aware that there is technology which exists that would reduce blood lead levels at Johnson Controls to 12 micrograms. Plaintiffs have failed to demonstrate that acceptable alternative policies exist. B. Disparate Impact Although the fetal protection policy is facially neutral, it has a disproportionate impact on women; thus, a prima facie case of disparate impact exists. The employers only defense in this situation is a business necessity defense, but "[o]ne problem with business necessity as defined under traditional Title VII analysis, but applied in the context of an employer's fetal protection program, is the requirement that the employer's policy be related to job performance because fetal protection does not in a strict sense have anything to do with job performance." Hayes, 726 F.2d at 1552. The Hayes court expanded the business necessity defense to cover the fetal protection case because "the defense in a fetal protection case is justified by a genuine desire to promote the health of employee offspring...." Id. at 1553. This Court agrees. There is a business necessity to protect fetuses. The fetus, from exposure to lead, faces a substantial risk of harm, and this exposure exists only for pregnant women. Men simply cannot expose a fetus to lead in the same way women can. The Wright court analogized fetuses to licensees 317 and invitees, and stated that "[c]ertainly the safety of unborn children of workers would seem no less a matter of legitimate business concern than the safety of the traditional business licensee or invitee upon an employer's premises." 697 F.2d at 1189. In view of the fact that a significant risk exists for fetuses exposed to lead, the fetuses safety cannot be ignored. A business would not expose its customers to lead. Furthermore, although not of primary importance, a business should be able to protect itself from future lawsuits which may arise because a child was prenatally exposed to lead. Thus, the business necessity defense applies to a lead fetal protection policy. There is a general societal interest in protecting the health of fetuses and children. C. Toxic Substance Control Act (TSCA) Plaintiffs argue that although there is a societal interest in fetal safety, the obligation of protecting society's interest has been delegated to the Environmental Protection Agency in the TSCA. The TSCA requires producers of chemicals to report to the EPA information about substances which pose a substantial risk. The EPA is required to take regulatory action within 180 days after receiving information that a substantial risk may exist. If the EPA determines that a substantial risk exists, the EPA can regulate the substance. One commentator has criticized the effectiveness of the Act: Despite its broad scope, TSCA's usefuless in dealing with fetal toxins, teratogens, and mutagens has been limited. The EPA has substantial discretion under the statute, and the agency has tended to exercise this discretion to avoid active regulation. The EPA has announced that it intends to regulate at most two or three substances per year, with relevant studies taking up to two years per substance to prepare. The Office of Management and Budget under the Reagan administration has been relentless in criticizing the EPA's modest efforts to regulate dangerous chemicals. Consequently, fetal toxins, mutagens, and teratogens have escaped regulatory review. When the EPA does examine a chemical, it may consider the availability of substitutes and the economic consequences of regulation before making a pre-regulation determination that the chemical poses an "unreasonable risk." Furthermore, the promulgation of regulations involves consideration not only of their economic consequences but also of the available level of technology. A consideration of both these factors would probably lead to an acceptance of hazards that may not pose significant risks to employees but do pose grave risks to their unborn children. Timko, supra, p. 16, at 172. Based upon the foregoing, the Court is not persuaded that the TSCA is protecting fetuses from lead exposure. Furthermore, eliminating the use of lead in battery production has not yet been achieved. The use of lead is still necessary at this point. The company is, however, continuing to "study, develop, and implement engineering controls to reduce the lead exposure and blood lead levels of all employees." Beaudoin Affidavit, ¶ 17. Although no evidence has been presented to the Court demonstrating that the EPA has reviewed the lead situation at issue here, it is unlikely that the EPA would prevent the use of lead in the absence of a substitute. Further, because the TSCA is gender neutral, it would fail to protect the fetus which faces a significant risk from lead exposure because male and female are treated equally under the Act. IV. Conclusion Society has an interest in protecting fetal safety. Lead poses a substantial risk of harm to the fetus. This risk is born only by women who are pregnant or will become pregnant. The plaintiffs have not shown that there is an acceptable alternative that would have a lesser impact on females. Johnson Controls fetal protection policy does not violate Title VII. Stillbirths, reduced birth weight and gestational age, and retarded cognitive development are abnormalities too serious for this Court to find unimportant. *318 Defendant's motion for summary judgment is hereby GRANTED. NOTES [1] A word frequently used by the experts is blood lead. Blood lead is a measure of the amount of lead that is present in the circulation where venous blood is drawn. [2] Silbergeld also states that "I think the blood leads that are called for monitoring are much too high, and I also don't understand why it applies only to women." [3] Despite a lack of case law on this issue, many legal writers have addressed the issue. See generally, Comment, Maternal Liability: Courts Strive to Keep Doors Open to Fetal Protection But Can They Succeed?, 20 J. Marshall L.Rev. 747 (1987); Comment, Gender Specific Regulations in the Chemical Workplace, 27 Santa Clara L.Rev. 353 (1987); Buss, Getting Beyond Discrimination: A Regulatory Solution to the Problem of Fetal Hazards in the Workplace, 95 Yale L.J. 577 (1986); Timke, Exploring the Limits of Legal Duty: A Union's Responsibilities with Respect to Fetal Protection Policies, 23 Harv.J. on Legis. 159 (1986); Comment, Fetal Protection Programs under Title VII Rebutting the Procreation Presumption, 46 U.Pitt.L.Rev. 757 (1985); Note, Wright v. Olin Corp.: Title VII and the Exclusion of Women from the Fetally Toxic Workplace, 62 N.C.L.Rev. 1067 (1984); Williams, Firing the Woman to Protect the Fetus: The Reconciliation of Fetal Protection with Employment Opportunity Goals under Title VII, 69 Geo.L.J. 641 (1981). [4] The Hayes court further noted: Because the Hospital failed to prove its policy was necessary we need not reach the factual issue of whether x-ray radiation affects the offspring of employees only through pregnant women, or whether similar effects can occur from exposure to males. Documents cited by amici do suggest that radiation induced mutations can pass to offspring from male sperm, but neither party developed on this issue at trial. Hayes v. Shelby Memorial Hosp., 726 F.2d 1543, 1552 (11th Cir.), reh'g denied, 732 F.2d 944 (11th Cir.1984). The parties in this case have, however, submitted affidavits and depositions regarding the effects males exposed to lead and their offspring. [5] Because this Court has determined that the lead fetal protection policy is not facially discriminatory, this Court does not have to undertake a bona fide occupational qualification's (BFOQ) analysis. "Under traditional analysis, the BFOQ defense is available only when the employer can show that the excluded class is unable to perform the duties that constitute the essence of the job, duties that Title VII defines as `necessary to the normal operation of the particular business or enterprise.'" Hayes, 726 F.2d at 1549. Although not required to address, this Court merely notes that an employee's job performance would not be affected by pregnancy.	{ "pile_set_name": "FreeLaw" }
815 F.Supp. 944 (1993) Steven D. BOND, Plaintiff, v. MORTON BUILDINGS, INC., Defendant. Civ. A. No. 3:92-0335. United States District Court, S.D. West Virginia, Huntington Division. March 18, 1993. 945 Stephen Flesher, Huntington, WV, for plaintiff. Peter D. Levy, Levy & Trautwein, L.C., Huntington, WV, for defendant. MEMORANDUM OPINION AND ORDER HADEN, Chief Judge. This case commenced to trial before a jury on March 9, 1993. To prove liability the Plaintiff presented four witnesses to testify to the Defendant's alleged negligence. At the close of the liability testimony the Defendant moved for directed verdict, which the Court treated as a motion for judgment as a matter of law under Rule 50(a) of the Federal Rules of Civil Procedure. For reasons discussed below, the Court GRANTS the defense motion. Under Rule 50(a) a court may grant judgment as a matter of law during a jury trial, after a party has been fully heard on the issue, if "there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue." The court must consider the evidence in the light most favorable to the nonmoving party and determine whether reasonable triers of fact could draw only one conclusion. Townley v. Norfolk & Western Ry. Co., 887 F.2d 498, 499 (4th Cir.1989). To avoid judgment as a matter of law, the nonmoving party must produce at trial more than a scintilla of evidence to support the material aspects of his case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-252, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986). As developed at trial, the relevant facts are as follows. The Plaintiff contracted with the Defendant to construct the shell of a storage building. The Plaintiff, an experienced carpenter, intended to finish out the building by his own labor. After the construction contract was completed by the Defendant and accepted by the Plaintiff, the Plaintiff attempted to climb up "two by four" furring "strips" installed per contract by the Defendant. These furring strips encircled the interior of the building, horizontally and parallel to the floor, with the furring at the twelve foot height level covered by a clear plastic vapor barrier. While climbing the furring strips the Plaintiff reached for the strip at the twelve foot level which was covered by vapor barrier. He was unable to establish a grip and fell to the concrete floor, 946 breaking his leg and suffering other injuries. The Plaintiff testified he was unable to see the vapor barrier, although he had worked in the same area immediately previous to the accident. Plaintiff was alone at the time of the fall. The Plaintiff asserted the vapor barrier was negligently installed. Negligence consists of the doing of something a reasonable person would not do under the same or similar circumstances or the failure to do something a reasonable person would do under like circumstances. Given the opportunity to do so, the Plaintiff failed to offer a scintilla of evidence suggesting the vapor barrier was installed in a negligent, unreasonable manner.[1] No evidence was presented that Defendant failed to comply with either contract specifications or industry standards. The Court concludes the Defendant is entitled to judgment as a matter of law on the claim for negligent installation. The Plaintiff also claimed the Defendant negligently breached its duty to warn him of a dangerous condition. The putative "duty" to warn arose from knowledge imparted by Plaintiff to two employees of Defendant that Plaintiff would be working at the twelve foot height level to install overhead storage bins. One of these employees, Lee Sullivan, was the outside salesman who sold the building to the Plaintiff. The other, Dwight Edwards, was a friend of the Plaintiff and a base level construction worker for Morton Buildings. The Plaintiff testified at least one of these employees informed him the furring could be used as a ladder substitute. The Defendant's job foreman, Scott Sudman, denied having such conversations with the Plaintiff, and Plaintiff could not recall any discussions with Sudman. A duty to warn arises if a party is on notice of a dangerous condition brought about by its activities, or if it was reasonably foreseeable to that party that its activities would pose a foreseeable danger to the Plaintiff. As noted, Plaintiff offered no proof of a defect or dangerous "condition." From the evidence the Defendant was never "on notice" of a dangerous condition and the correlative duty to warn never arose. The Plaintiff also failed to offer a scintilla of proof that Morton Buildings should have foreseen the Plaintiff's decision to use furring as a ladder substitute twelve feet above the surface of the floor. Specifically, Plaintiff offered no evidence that Sullivan or Edwards acted within their scope of authority in advising Plaintiff to use the furring strips. Neither Sullivan, an outside salesman, nor Edwards, a base level construction worker, had or claimed authority. Proper authority, if any, belonged to the job foreman, Scott Sudman. Morton Buildings cannot be bound by the gratuitous advice of Sullivan and Edwards, assuming it was given by either or both of them. From the evidence adduced, the Court could not allow the jury to speculate on what the Defendant's duty to warn the Plaintiff was or could have been. The Court further notes that case law relied on by the Plaintiff does not support the duty urged here.[2] Accordingly the Court GRANTS the motion for judgment as a matter of law. NOTES [1] Prior to ruling on Defendant's motion for judgment as a matter of law, the Court asked Plaintiff's counsel whether he had any additional evidence to prove Defendant's alleged negligence. The Plaintiff responded in the negative, and stated that all further witnesses for the Plaintiff would be testifying only on damages issues. With this inquiry the Court attempted to comply with the intent of the drafters of Rule 50(a)(1), as expressed in the "Notes of Advisory Committee on Rules, 1991 Amendment": ... [Rule 50(a)(1)] authorizes the court to consider a motion for judgment as a matter of law as soon as a party has completed a presentation on a fact essential to that party's case ... In no event, however, should the court enter judgment against a party who has not been apprised of the materiality of the dispositive fact and been afforded an opportunity to present any available evidence bearing on that fact. [2] Jury instructions requested by Plaintiff refer to the following cases, none of which address a duty to warn: Sides v. Richard Mach. Works, Inc., 406 F.2d 445 (4th Cir.1969); Barnes v. Sears, Roebuck & Co., 406 F.2d 859 (4th Cir.1969); Sewell v. Gregory, 179 W.Va. 585, 371 S.E.2d 82 (W.Va. 1988).	{ "pile_set_name": "FreeLaw" }
32 F.3d 386 65 Fair Empl.Prac.Cas. (BNA) 1063 Wanda J. MILLER, Plaintiff-Appellant,v.Marvin T. RUNYON, U.S. Postmaster, Defendant-Appellee. No. 93-3300. United States Court of Appeals,Eighth Circuit. Submitted May 11, 1994.Decided Aug. 19, 1994. Perlesta Arthur Hollingsworth, Little Rock, AR, argued, for appellant. Brian Reimer, Washington, DC, argued, (Paula J. Casey, Lesa Bridges Jackson, R. Andrew German and Brian M. Reimer, on the brief), for appellee. Before LOKEN, Circuit Judge, BRIGHT, Senior Circuit Judge, and HANSEN, Circuit Judge. HANSEN, Circuit Judge. 1 Wanda J. Miller appeals the district court's1 judgment in favor of the United States Postmaster General, Marvin T. Runyon, in her employment discrimination action brought pursuant to 42 U.S.C. Sec. 2000e-16 (1988). Miller's complaint alleged that the Postal Service improperly terminated her employment on the basis of her race and sex. The district court dismissed Miller's complaint, finding that she did not timely exhaust her administrative remedies and that she was not entitled to have the administrative filing deadline equitably tolled. We affirm. I. Background 2 In May 1985, the United States Postal Service hired Miller, an African-American woman, as a clerk at the Management Sectional Center in Little Rock, Arkansas, where she worked for approximately five years. The Postal Service terminated Miller's employment in 1990, claiming that she had falsified her employment application. The falsification was discovered while the Postal Inspection Service was conducting an investigation into conduct unrelated to this case. As a part of that investigation, postal inspectors reviewed the official personnel folders of each employee. During this process, a postal inspector discovered that part of Miller's employment application had been altered. 3 The Postal Service then began to investigate the circumstances under which Miller's employment application had been altered. This investigation revealed that Miller had previously been employed by the Postal Service in Chicago, Illinois, and that she was terminated for her conduct of being absent without leave. Miller's current employment application originally indicated that Miller had not previously been a federal civilian employee. During the investigation, Miller admitted that she altered the application but contended that she did so with the consent of John Talley, the supervisor who hired her. Talley told investigators, however, that based upon the policy existing at the time Miller was hired, he would not have hired her had he known her true employment record with the Postal Service. The investigation report concluded that Miller had intentionally falsified her application in order to obtain her current employment with the Postal Service and then corrected it at a later date. After speaking to Miller about the matter, Jeff Arnette, Miller's immediate supervisor, concluded that the investigation report correctly found that Miller falsified her application. Arnette, an African-American male, decided to request Miller's termination. Miller's second-level supervisor, Harold Simmons, reviewed and approved Arnette's request for termination. 4 Miller sought counseling with a Postal Service Equal Employment Opportunity (EEO) counselor, and on December 12, 1990, she had her final interview. At that meeting, Miller received a written notice pursuant to 29 C.F.R. Sec. 1613.214(a)(1)(ii), informing her of her right to file a formal complaint of discrimination in the Postal Service with the EEO office within 15 days of her final interview. Also at the final interview, the counselor specifically told Miller of her right to file a formal complaint within 15 days. Miller did not file her complaint until January 2, 1991 (the Postal Service file stamped it January 1, 1991), 20 days after receipt of notice at the final interview. The Postal Service rejected Miller's complaint as untimely and informed Miller that she had the option of appealing to the Equal Employment Opportunity Commission (EEOC) or filing a civil action. 5 Miller timely filed a Title VII action in federal district court, alleging race and sex discrimination in her termination. Postmaster General Runyon raised an affirmative defense claiming that Miller failed to timely exhaust her administrative remedies. The district court held a hearing to determine the timeliness of Miller's administrative complaint. Miller contended that she was entitled to have the 15-day filing period equitably tolled because her EEO counselor had led her to believe that she had a five-day filing extension. 6 Miller testified that she was in Chicago, Illinois, to attend a funeral on December 24, 1990. Due to bad weather, she was unable to return to Little Rock in time to file her administrative complaint within the 15-day period. On the last filing day, December 27, 1990, Miller called her EEO counselor to request "some extended time" in which to file her complaint with the Postal Service. (Trial Tr., Vol. 1 at 7.) As Miller understood the telephone conversation, the counselor advised her that, although extensions were not usually granted, Miller could have an extra five days to file the complaint. The EEO counselor understood the conversation differently. According to the EEO counselor's testimony, she advised Miller that she could not grant an extension but that Miller could complete the required form and mail it to the Postal Service. The counselor advised that if the form was postmarked on the last day to timely file her complaint, the agency would honor the postmark even if the complaint did not actually arrive until three to five days later. (Id. at 35.) 7 The district court found that a mutual misunderstanding occurred between Miller and the EEO counselor during the telephone conversation on December 27, 1990. The district court did not find affirmative misconduct on the part of the EEO counselor and was "not able to rule that we had a situation that was so beyond the control of Ms. Miller that I should substitute my own judgment for the Office's." (Id. at 83-84.) This ruling compelled dismissal of Miller's complaint for failure to timely exhaust administrative remedies, but the court nonetheless allowed Miller the opportunity to proceed with the bench trial on the merits in the event the timeliness ruling was later ruled incorrect. After hearing the testimony on the merits of the complaint and noting that this was a very close case, the district court concluded that Miller had not carried her burden to prove intentional discrimination. 8 Following the bench trial, Miller moved for relief from the judgment or for a new trial on the basis of newly discovered evidence relating to her sex discrimination claim. Miller claimed to have found three male employees who, like Miller, had falsified their employment applications, but unlike Miller, had been subsequently rehired by the Postal Service. The district court overruled this motion without a hearing on the merits, relying on its dismissal of the complaint as untimely. The district court ruled that a hearing would be held on the matter if the Eighth Circuit overturned the timeliness ruling. Miller appeals. II. Discussion 9 Miller raises two issues on appeal. First, she contends that her agency complaint was timely filed based upon the doctrine of equitable tolling. Second, she contends that the district court erred in determining that she did not prove pretext and intentional discrimination. Because we affirm on the first issue, we do not reach the second. 10 "All personnel actions affecting employees ... in the United States Postal Service ... shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. Sec. 2000e-16(a). An aggrieved employee may file a civil action in federal district court to review a claim of employment discrimination by the Postal Service but attached to that right "are certain preconditions. Initially, the complainant must seek relief in the agency that has allegedly discriminated against him." Brown v. General Serv. Admin., 425 U.S. 820, 832, 96 S.Ct. 1961, 1967, 48 L.Ed.2d 402 (1976); see also 42 U.S.C. Sec. 2000e-16(c). Administrative regulations require a complainant to file a formal written complaint with the federal agency's EEO office within 15 days after the date when the notice of the right to file a complaint is received. 29 C.F.R. Sec. 1613.214(a)(1)(ii) (1987). The 15-day filing deadline, however, is expressly subject to equitable tolling: 11 The agency shall extend the time limits in this section when the complainant shows that he/she was not notified of the time limits and was not otherwise aware of them, was prevented by circumstances beyond the complainant's control from submitting the matter within the time limits; or for other reasons considered sufficient by the agency. 12 29 C.F.R. Sec. 1613.214(a)(4); see also Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982) (filing a timely charge of discrimination is "a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling."). "Equitable tolling arises upon some positive misconduct by the party against whom it is asserted," DeBrunner v. Midway Equip. Co., 803 F.2d 950, 952 (8th Cir.1986) (construing ADEA's 180-day filing deadline), or a misrepresentation as to the filing deadline, see Hrzenak v. White-Westinghouse Appliance Co., 682 F.2d 714, 718 (8th Cir.1982) (construing the ADEA's filing deadline). See also Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96, 111 S.Ct. 453, 457-458, 112 L.Ed.2d 435 (1990) (holding that equitable tolling applies equally to suits against the government). Equitable tolling is precluded once it is shown that the employee was generally aware of her rights. Hamilton v. West, 30 F.3d 992, 994 (8th Cir.1994); DeBrunner, 803 F.2d at 952. 13 Here, the district court found that Miller's agency complaint was not timely filed, that the Postal Service engaged in no misconduct causing Miller to miss the filing deadline, and that the situation was not so beyond Miller's control that equity required tolling of the filing deadline. Miller contends that the district court's findings and conclusions of law are erroneous. She argues that she is entitled to equitable tolling of the 15-day deadline because the EEO counselor misled her into believing that she had a five-day extension in which to file her complaint. We review the factual issues underlying a claim for equitable tolling under the clearly erroneous standard. See Hrzenak, 682 F.2d at 718. 14 We have carefully reviewed the record in this case, and we agree with the district court's characterization of the purported five-day extension as a mutual misunderstanding, not an act of affirmative misconduct intended to cause Miller to delay filing her charge. The record indicates that Miller had actual knowledge of the requirement that she file a formal complaint within 15 days of her final interview. Miller received not only written notice of the deadline but also oral notice from her counselor, both accurately relaying the 15-day deadline. Miller called the EEO counselor requesting an extension on the last possible day to file, also indicating that she was aware of the filing deadline. The district court found the counselor's testimony to be credible. The counselor did not mislead Miller but accurately indicated that if Miller postmarked the complaint on that day, the Postal Service would honor the postmark and deem the complaint timely. This case involves a mere misunderstanding on the part of a complainant who received accurate information. There was no misconduct on the part of the Postal Service. Furthermore, we agree with the district court's finding that the circumstances were not so beyond Miller's control that the court should equitably toll the agency filing deadline. The district court's findings of fact are not clearly erroneous and do not require equitable tolling of the 15-day filing deadline. 15 Relying on Warren v. Dep't of Army, 867 F.2d 1156 (8th Cir.1989), and Martinez v. Orr, 738 F.2d 1107 (10th Cir.1984), Miller contends that she is entitled to equitable tolling without showing intentional misconduct on the part of the Postal Service. Both cases, however, involve situations where the employer issued an incorrect or misleading written notice of the time or manner in which to file a claim. See Warren, 867 F.2d at 1159-61; Martinez, 738 F.2d at 1111-12. Neither Warren nor Martinez compel equitable tolling in this case because the Postal Service gave Miller actual and accurate notice of the time and manner in which she should file a formal complaint, and her failure to do so was no fault of the Postal Service. III. Conclusion 16 Miller's administrative complaint was not filed within 15 days of when she received notice of her right to file a formal complaint. The district court's finding that Miller's late filing resulted from a mutual misunderstanding, not misconduct or circumstances beyond Miller's control, is not clearly erroneous. Therefore, Miller was not entitled to equitable tolling, and the district court properly dismissed her complaint for failure to timely exhaust administrative remedies. Having so concluded, we need not and do not reach the merits of Miller's discrimination claim. Accordingly, we affirm the judgment of the district court. 1 The Honorable Stephen M. Reasoner, Chief Judge, United States District Court for the Eastern District of Arkansas	{ "pile_set_name": "FreeLaw" }
10 So.3d 740 (2009) Russell A. VARMALL and Tracy Varmall v. William Paul CHRISTY, the Estate of William. Paul Christy, and XYZ Insurance Company. No. 2009-CC-0969. Supreme Court of Louisiana. June 19, 2009. *741 Denied.	{ "pile_set_name": "FreeLaw" }
The Attorney General of Texas December 31. 1982 MARK WHITE Attorney General Mr. Robert 0. Viterna Opinion No.MW-559 Supreme Court Building Executive Director P. 0. BOX 12546 Austin, TX. 76711. 2546 Commission on Jail Standards Re: Whether county holding 512/475-2501 P. 0. Box 12985 rooma in separate court Telex 910/674-1367 Austin, Texas 78711 building are part of jail Telecopier 51214750266 Dear Mr. Viterna: 1607 Main St., Suite 1400 Dallas. TX. 75201-4709 You ask whether the Texas Commission on Jail Standards has the 2141742-6944 authority to require that holding cells in county facilities, separate and distinct from the county jail, comply with minimum jail standards. 4624 Alberta Ave., Suite 160 El Paso. TX. 79905-2793 Article 2351. V.T.C.S., enumerates the general powers and 915/533-3464 responsibilities of the county commissioners and requires that they "provide and keep in repair court houses, jails and all necessary public buildings." Article 6872, V.T.C.S., provides that "sheriffs 1220 Dallas Ave., Suite 202 shall have charge and control of the court houses of their respective Houston. TX. 77002.6966 7131650.0666 counties, subject to such regulations as the commissioners court may prescribe...." The specific duties of the county commissioners and the sheriff with respect to their county jails are governed by article 606 Broadway. Suite 312 5115.1, V.T.C.S., which created the Texas Commission on Jail Lubbock, TX. 79401.3479 Standards. This statute authorizes the Commission on Jail Standards 60+1747-5236 to formulate and enforce minimum jail standards against the county sheriff and county commissioners for the care, custody,and treatment 4309 N. Tenth, Suite B of prisoners and for county jail construction, maintenance, and McAlle”, TX. 76501-1685 operation. Article 5115.1, V.T.C.S., in section 2 defines a county 5121662.4547 jail as "any jail, lockup, or other facility that is operated by or for a county for the confinement of persons accused or convicted of an 200 Main Plaza, Suite 400 offense." San Antonio. TX. 762052797 5121225-4191 A statute should be given a fair and sensible construction in order to carry out the purpose for which it was enacted and should not An Equal Opportunityl be construed in such a manner as to nullify or defeat its purpose. Affirmative Action Employer Citizens Bank of Bryan V. First State Bank of Hearne, 580 S.W.2d 344, 348 (Tex. 1979); Salas V. State, 592 S.W.2d 653, 655 (Tex. Civ. App. - Austin 1979, no writ); Lopez V. Ramires, 558 S.W.2d 954, 957 (Tex. Civ. App. - San Antonio 1977, no writ). The enactment of article 5115.1, V.T.C.S., makes clear the legislative intent that the Texas Commission on Jail Standards improve conditions of confinement for county jail inmates. See Texas -- p. 2050 Mr. Robert 0. Viterna - Page 2 (Mw-559) Legislative Council, Statutory Standards and Present Conditions in Texas Jails, Report No. 62-2 (1973). The legislative intent to improve the conditions of confinement for county jail inmates coupled wi;h the broad definition of "county jail" leads to the conclusion that the Jail Commission has statutory authority to regulate the conditions of confinement for inmates in a county's custody wherever they are confined. This would include holding cells whether they be a part of the jail facility itself or located elsewhere. As long as a county is utilizing a facility, even if it is a one-room holding cell in a court's building distinct from the jail, the sheriff and the commissioners court would be subject to the provisions of article 5115.1, V.T.C.S., and the minimum jail standards promulgated by the Texas Commission on Jail Standards in the operation and maintenance of that facility. SUMMARY The Texas Commission on Jail Standards is authorized under article 5115.1, V.T.C.S., to require that holding cells in county facilities, separate and distinct from the county jail, comply with minimum jail standards. MARK WHITE Attorney General of Texas JOHN W. FAINTER, JR. First Assistant Attorney General RICHARD E. GRAY III Executive Assistant Attorney General Prepared by Mary Noel Golder Assistant Attorney General APPROVED: OPINION COMMITTEE Susan L. Garrison, Chairman Jon Bible Rick Gilpin Patricia Hinojosa Jim Moellinger p. 2051	{ "pile_set_name": "FreeLaw" }
OFPKE OF THE ATTORNEY GENERAL. STATE OP TEXAS JOHN CORNYN October 22, 1999 The Honorable Florence Shapiro Opinion No. JC-0129 Chair, State Affairs Committee Texas State Senate Re: Whether a law enforcement authority may P.O. Box 12068 register a parolee who is not required by statute Austin, Texas 7871 l-2068 to register as a sex offender, and related questions (RQ-0046-JC) Dear Senator Shapiro: For at least ten years after a person has been adjudicated delinquent based upon certain sex- related offenses, the local law enforcement authority in the community where the parolee resides is requiredtoregisterthatparolee as asex offender. S~~TEX.CODECRIM.PROC.ANN.~~~S.~~.O~(~), 62.02,62.06,62.12 (Vernon Supp. 1999) (defining “reportable adjudication” and establishing duty to register). You ask three questions regarding a local law enforcement authority’s discretion to register, under chapter 62 of the Code of Criminal Procedure, a sex offender who reports to the authority for registration: 1. Whether the law precludes a local law enforcement authority from registering a parolee when they have been required to register as a condition of parole. 2. Whether the parolee’s prior juvenile adjudication constitutes a reportable conviction or adjudication, and, if so, whether a law enforcement agency has any discretion in registering that person as a sex offender. 3. Whether a law enforcement authority may register a parolee who otherwise is not required by statute to register as a sex offender under Chapter 62 and what the liabilities might be, if any, for doing so. In this opinion we will refer to a sex offender’s actual registration with a law enforcement authority and report to a law enforcement authority to verify a previous registration as “registration.” Additionally, in this opinion a law enforcement authority’s duty to register a parolee as a sex offender refers to the authority’s duty to forward an individual’s completed registration form to the Department of Public Safety, see TEX.CODE GRIM.PROC.ANN. art. 62.02(c) (Vernon Supp. 1999), The Honorable Florence Shapiro - Page 2 (JC-0129) and in certain cases to publish notice of the individual’s name and intended residence, see id. art. 62.03(e), (f). You indicate that you seek to clarify Attorney General Opinion JC-0010. See Letter from Honorable Florence Shapiro, Chair, State Affairs Comm., Texas State Senate, to Attorney General John Comyn, Office of the Attorney General (Mar. 19, 1999) (on tile with Opinion Committee). That opinion concludes that a local law enforcement authority is not required “as a matter of law to register a parolee as a sex offender on the sole ground that the parolee’s parole contract mandates that he or she ‘comply with the Sex Offender Registration Program.“’ Tex. Att’y Gen. Op. No. JC-0010 (1999) at 1. Attorney General Opinion JC-0010 assumes that the parolee’s previous juvenile adjudication was not a reportable conviction or adjudication. See id. at 3. You aver that your current questions stem from a criminal case in Arlington, Texas. An individual serving a sentence for burglary was reviewed by the Board of Pardons and Paroles in April of 1997. Because of the individual’s history as a juvenile sex offender, the Board required he register as a sex offender as a condition of parole. However, when he presented himself to register at the Arlington Police Department, the law enforcement agency refused to register the parolee. Letter from Honorable Florence Shapiro, Chair, State Affairs Comm., Texas State Senate, to Honorable John Comyn, Attorney General (Mar. 19,1999) (on file with Opinion Committee). These facts suggest, to contradistinguish the facts here from those specified in Attorney General Opinion JC-00 10, that the individual’s juvenile sex offense warranted a parole requirement that the individual register as a sex offender. See in@ pp. 4-5 (discussing whether prior adjudication is in fact reportable). These facts also suggest that the individual’s burglary conviction was not reportable, although burglary may constitute a reportable conviction in certain circumstances. See TEX.CODE CRIM. PROC.ANN.art. 62.01(5)(D) (Vernon Supp. 1999) (listing burglary with intent to commit sex- related felony as reportable conviction). Chapter 62 of the Code of Criminal Procedure, adopted by Act of May 26, 1991,72d Leg., R.S., ch. 572, § 1, 1991 Tex. Gen. Laws 2029, 2029-30, establishes a sex offender registration program for persons convicted of or adjudicated for certain sex-related offenses. Under the statute, a “person who has a reportable conviction or adjudication shall register . . with the local law enforcement authority in any municipality where the person resides or intends to reside for more than seven days.” TEX. CODE GRIM.PROC.ANN. art. 62.02(a) (Vernon Supp. 1999). A person with a reportable conviction or adjudication who is being released from a penal institution is to register prior to leaving the institution and, upon release, report to the local law enforcement authority where the registrant intends to reside to verify the registration information. See id. art. 62.03(a)-(e). Failure to register, among other things, is a state jail felony. See id. art. 62.10(a), (b). The Honorable Florence Shapiro - Page 3 (X-0129) Chapter 62 imposes several concomitant duties upon local law enforcement agencies. Using a registration form provided by the Department of Public Safety, see id. art. 62.01(l) (defining “Department”), the local law enforcement authority must obtain certain information from an individual with a reportable conviction or adjudication, such as the registrant’s identifying characteristics; the type of reportable offense the registrant committed; and whether the registrant is discharged or conditionally released. See id. art. 62.02(b). The local law enforcement authority must forward a copy of the completed form to the Department ofPublic Safety, see id. art. 62.02(c), for inclusion into its central data base, see id. art. 62.08. The local law enforcement authority also must publish notice if the registrant’s victim in the sex offense was less than seventeen years old, Id. art. 62.03(e). In certain circumstances, the local law enforcement authority must notify local school officials as well. See id. An individual’s duty to register and a local law enforcement authority’s corresponding duty to forward the registration or to publish notice hinge on whether the individual has a “reportable conviction or adjudication” that occurred on or after September 1, 1970. The phrase “reportable conviction or adjudication” is specifically defined to include numerous sex-related offenses: “Reportable conviction or adjudication” means a conviction or adjudication, regardless of the pendency of an appeal, that is: (4 a conviction for a violation of Section 21.11 (Indecency with achild), 22.011 (Sexual assault), 22.021 (Aggravated sexual assault), or 25.02 (Prohibited sexual conduct), Penal Code; (W a conviction for a violation of Section 43.05 (Compelling prostitution), 43.25 (Sexual performance by a child), or 43.26 (Possession or promotion of child pornography), Penal Code; (C) a conviction for a violation of Section 20,04(a)(4) (Aggravated kidnapping), Penal Code, ifthe defendant committed the offense with intent to violate or abuse the victim sexually; CD) a conviction for a violation of Section 30.02 (Burglary), Penal Code, if the offense is punishable under Subsection (d) of that section and the defendant committed the offense with intent to commit a felony listed in Paragraph (A) or (C); (El the second conviction for a violation of Section 21.08 (Indecent exposure), Penal Code; (F) a conviction for an attempt, conspiracy, or solicitation, as defined by Chapter 15, Penal Code, to commit an offense listed in P=waph (A), W, 0, or(D); The Honorable Florence Shapiro - Page 4 (JC-0129) ((3 an adjudication of delinquent conduct based on a violation of one ofthe offenses listed in Paragraph (A), (B), (C), (D), or(F) or for which two violations of the offense listed in Paragraph (E) are shown. Id. art. 62.01(5)(A)-(G). An individual with a reportable conviction or adjudication generally has a duty to register for at least ten years following the conviction or adjudication. See id. art. 62.12(b). Thus, “if the person’s duty to register is based on an adjudication of delinquent conduct, [the duty to register expires] on the 10th anniversary of the date on which the disposition is made or the person completes the terms of.the disposition, whichever date is later.” Id. art. 62.12(b)(l). But an individual convicted of or adjudicated for a sexually violent offense or an offense under section 25.02, 43,05(a)(2), or 43.26 of the Penal Code has a duty to register until his or her death. See id. art. 62.12(a); see also TEX.PEN.CODE ANN. $5 25.02,43.05(a)(2), 43.26 (Vernon 1994 & Supp. 1999) (prohibiting, respectively, incest, compelling prostitution, and possession or promotion of child eomograehy). With this brief explanation of the sex offender registration program established by chapter 62 of the Code of Criminal Procedure, we turn to your questions. You ask first whether a local law enforcement authority has discretion to register a parolee or adjudication who is required to register solely as a condition of parole. Nothing in chapter 62 forbids a local law enforcement authority to register as a sex offender such a parolee. Although a local law enforcement authority is not required to register an individual who does not have a reportable conviction or adjudication, regardless of the parole conditions to which the person has agreed, see Tex. Att’y Gen. Op. No. JC-0010 (1999) at 3, chapter 62 does not preclude it from doing so in the absence of such a requirement. While a local law enforcement agency may register a parolee who is not otherwise required by chapter 62 to register, it is less clear that the registration can be effectuated with the Department of Public Safety. In this regard, we note that article 6208(a) of the Code of Criminal Procedure permits the .Department to “maintain a computerized central database containing only the information requiredfor registration under this chapter.” TEX.CODECRIM.PROC.ANN.art. 62.08(a) (Vernon Supp. 1999) (emphasis added). Arguably, based upon article 62.08(a), the Department of Public Safety may not enter information into its central database on an individual who does not have a reportable conviction or adjudication. You next ask about the duties of a parolee with a reportable conviction or adjudication and the corresponding duties of the local law enforcement authority. Initially, you ask whether the parolee’s prior juvenile adjudication is reportable. Because we have not been informed as to the nature of the parolee’s juvenile adjudication, we cannot determine whether it is in fact a reportable adjudication as that term is defined in article 62.01(5) of the Code of Criminal Procedure. You suggest that the parolee was required to register as a condition of parole because he had a history as The Honorable Florence Shapiro - Page 5 (X-0129) a sex offender, and we will therefore assume for purposes of this opinion that the adjudication is reportable. Given this assumption, you ask whether a local law enforcement authority has any discretion in registering a parolee with a reportable adjudication. It does not. The law enforcement agency must register a person as a sex offender if that person has a statutory duty to register with the law enforcement agency. A sex offender has a duty to register for at least ten years following the disposition of a juvenile adjudication, see id. art. 62.12(b)(l), or until death, see id. art. 62.12(a). Thus, for example, if the parolee described in Attorney General Opinion JC-0010 had a reportable adjudication, he had a duty to register because of that adjudication for at least ten years following the date of the disposition of the adjudication or the date he completed the terms of the disposition, see id. art. 62.12(b)(l), which we were informed was approximately March 1991. Accordingly, the individual described in that opinion would have had a duty to register as a sex offender until at least March 2001 if his adjudication had been reportable. In addition, if the individual described in Attorney General Opinion JC-0010 had a reportable adjudication under article 62.01(5) of the Code of Criminal Procedure, but had most recently been convicted of a nonreportable offense, he still would have a duty to register as a sex offender based upon the previous adjudication. As long as an individual’s duty to register has not yet expired, a law enforcement authority has no discretion to decide whether to register the individual. It must register all persons who are required by statute to register. Finally, you ask whether a law enforcement authority may register a parolee whom the statute does not require to register as a sex offender and what liability the law enforcement authority may face for registering the individual in these nonmandatoly circumstances. As we stated in answer to your first question, we know of no statute that forbids a local law enforcement authority to register an individual who is not statutorily required to register. Conversely, nothing in the law requires the law enforcement authority to register the individual. See Tex. Att’y Gen. Op. No. JC-0010 (1999) at 3. A local law enforcement authority that registers a parolee who need not register under the statute does not commit an offense under chapter 62. The only offense listed in that chapter is for a sex offender’s failure to comply with registration requirements. See TEX.CODE GRIM.PROC.ANN. art. 62.10 (Vernon Supp. 1999). Consequently, a local law enforcement authority that registers a parolee who need not register faces no liability under chapter 62. Depending upon the facts of a particular situation, we can imagine that other actions might lie against the local law enforcement agency for libel, defamation of character, invasion ofprivacy, equal protection violations, or similar actions. Given that the parolee registered in spite of the fact that he or she was not required by statute to do so, however, we think the parolee’s chance of succeeding in such an action is small absent bad-faith conduct on the law enforcement agency’s part. The Honorable Florence Shapiro - Page 6 (X-0129) SUMMARY Nothing in chapter 62 of the Code of Criminal Procedure precludes a local law enforcement authority from registering as a sex offender a parolee who does not have a reportable conviction or adjudication but who is required as a condition of his or her parole to register. A parolee’s juvenile adjudication, which occurred prior to the parolee’s most recent conviction, is a reportable adjudication if it is “an adjudication of delinquent conduct based on a violation of one of the offenses listed in” article 62.01(5)(A) - (D), (F) of the Code of Criminal Procedure or based on two violations of the offense listed in article 62.01(5)(E). The parolee’s duty to register as a sex offender for that reportable adjudication continues until the duty expires as specified in article 62.12(a), (b) ofthe Code of Criminal Procedure, regardless of the nature of any subsequent adjudications or convictions. If the parolee has a duty to register under chapter 62, the local law enforcement authority in the community in which the parolee intends to reside is required to register the parolee. A law enforcement authority that registers as a sex offender an individual who registers him- or herself as such, although the individual does not have a reportable conviction or adjudication, is not subject to liability under chapter 62 of the Code of Criminal Procedure, but may, depending upon the facts, face liability for various civil causes of action. Yours very trul , 4JGT- JO&N CO\RNYN Attorney General of Texas ANDY TAYLOR First Assistant Attorney General CLARK KENT ERVIN Deputy Attorney General - General Counsel ELIZABETH ROBINSON Chair, Opinion Committee Kymberly K. Oltrogge Assistant Attorney General - Opinion Committee	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION DEC 16 2015 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 14-50429 Plaintiff - Appellee, D.C. No. 3:14-cr-00843-LAB v. MEMORANDUM* GROSBIN MARTINEZ-GEORGE, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Submitted December 9, 2015** Before: WALLACE, RAWLINSON, and IKUTA, Circuit Judges. Grosbin Martinez-George appeals from the district court’s judgment and challenges the 36-month sentence imposed following his guilty-plea conviction for being a removed alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Martinez-George argues that his sentence is substantively unreasonable in light of his alleged cultural assimilation, the disparity that resulted from the district court’s denial of the fast-track departure under U.S.S.G. § 5K3.1, the court’s imposition of supervised release, and the fact that he will be subject to deportation after his release from custody. The district court did not abuse its discretion in imposing Martinez-George’s sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances, including Martinez-George’s criminal and immigration history and the 28-month sentence imposed on his prior conviction for illegal reentry. See Gall, 552 U.S. at 51. AFFIRMED. 2 14-50429	{ "pile_set_name": "FreeLaw" }
358 F.2d 224 FLOTILL PRODUCTS, INC., a corporation, Mrs. Meyer L. Lewis,Albert S. Heiser, and Arthur H. Heiser,individually and as officers of saidcorporation, Petitioners,v.FEDERAL TRADE COMMISSION, Respondent. No. 19521. United States Court of Appeals Ninth Circuit. March 16, 1966.Rehearing Granted June 20, 1966.As Amended by Court en banc Aug. 15, 1966. William Simon, J. Wallace Adair, John H. Quinn, Jr., of Howrey, Simon, Baker & Murchison Washington, D.C., Jefferson E. Peyser, San Francisco, Cal., for petitioners. James McI. Henderson, Gen. Counsel, J. B. Truly, Asst. Gen. Counsel, E. K. Elkins, Gerald J. Thain, Attys., F.T.C., Washington, D.C., for respondent. Before BARNES and HAMLEY, Circuit Judges, and MATHES, Senior District judge. BARNES, Circuit Judge: 1 This is a petition to review and set aside an order of the Federal Trade Commission against petitioners. The Federal Trade Commission had jurisdiction to conduct the proceedings below pursuant to section 11(a) of Clayton Act, 15 U.S.C. 21(a). This court has jurisdiction to review the order of the Commission pursuant to section 11(c) of the Clayton Act, 15 U.S.C. 21(c), and section 5(c) of the Federal Trade Commission Act, 15 U.S.C. 45(c). 2 Petitioners in this proceeding are Flotill Products, Inc., which in June 1961 changed its name to Tillie Lewis Foods, Inc., and Mrs. Meyer L. Lewis Albert S. Heiser, and Arthur H. Heiser, the owners and officers of the corporate petitioner. Flotill is a California corporation engaged in the processing, canning, and sale of certain fruit and vegetable items. Flotill also packs a line of dietetic foods which were not involved in the proceedings below. Mrs. Lewis owns 94.5% Of Flotill's stock and is its president and executive officer. Albert S. Heiser owns 2.744% Of Flotill's stock and is its vice president in charge of sales. Arthur H. Heiser owns 2.748% Of the Flotill stock and is its vice president in charge of production. The Heisers are nephews of Mrs. Lewis. 3 On August 6, 1958, the FTC issued a complaint against the corporate and individual petitioners, alleging violations of sections 2(c) and (d) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. 13(c), (d). The section 2(c) charges were founded on the conduct of Flotill in: 4 (1) Discontinuing the payment of a 2 1/2% Commission to the brokerage firm of Bushet & Wright, sometime prior to 1955, on sales made directly to the Nash-Finch Company, a large mindwestern wholesale gorcer, and the subsequent payment to Nash-Finch of a 2 1/2% Allowance for advertising and promotion which the FTC counsel contended were really payments 'in lieu of brokerage' proscribed by section 2(c); and 5 (2) the payment by Flotill and Nash-Finch of 1/2% Each to Bushey & Wright for work in arranging 'pool car' shipments from Flotill to Nash-Finch of less than car-load lots which was instituted after Flotill had stopped paying Bushey & Wright the 2 1/2% Commission on its direct sales to Nash-Finch. 6 The section 2(d) charges were based on the discriminatory payment by Flotill of promotional allowances in 1956-1957 to Elm Farm Foods Company and Stop & Shop, Inc., retail grocers in the Boston, Massachusetts area, while not paying such promotional allowances to First National Stores, Great Atlantic & Pacific Tea Company, Star Market Company, and Supreme Markets, Inc., who were in competition with the 'favored' customers in the Boston area. 7 Proceedings before a hearing examiner of the FTC began on July 7, 1959, but were delayed while the petitioners' refusal to comply with a subpoena duces tecum was being litigated. 6 F.T.C. Statutes and Court Decisions 665 (1959), Flotill Products, Inc. v. F.T.C., 278 F.2d 850 (9th Cir.), cert. denied, 364 U.S. 920, 81 S.Ct. 284, 5 L.Ed.2d 260 (1960). At the conclusion of resumed hearings, the hearing examiner issued his opinion on March 25, 1963, in which he sustained the section 2(d) charge and that portion of the 2(c) charge relating to discounts 'in lieu of brokerage' to Nash-Finch, but found that petitioners' dealing with field brokers did not violate section 2(c) and that the persons named as respondents in the complaint should not be held in their individual capacities for the violations found to exist. Cross-appeals were taken from the hearing examiner's decision to the Commission, which issued its decision on June 26, 1964, upholding the hearing examiner's determination as to the 2(c) and 2(d) violations, but reversing his determination that the order to be entered should not apply to the individual petitioners as well as to the corporation. 8 Procedural questional arise as a result of the hearing before the Commission, in that the full Commission consists of five members but only three participated in the dicision because there was one vacancy and one commissioner did not hear the oral arguments and did not join in the decision. The opinion for the Commission was written by Chairman Dixon; Commissioner MacIntyre wrote a separate opinion concurring with Dixon with the exception of the dismissal of the charge concerning dealings with 'field brokers'; and Commissioner Elman filed a separate opinion in which he concurred in the result as to the 2(d) charge and the inclusion in the order of the corporate officers in their individual capacities, agreed with the result but differed on the reasoning as to the dismissal of the 2(c) charge insofar as it pertained to 'field brokers' transactions, and dissented from the holding that the allowances which Flotill gave to Nash-Finch were 'in lieu of brokerage and the therefore violated section 2(c).' 9 Following the issuance of the Commission decision, petitioners here filed a petition for reconsideration before the Commission. Reconsideration was denied in an order issued September 3, 1964, in which the grounds for reconsideration were answered by the Commission. This petition to review and set aside the final order of the Commission followed. 10 I-- Alleged Procedural Defects. 11 Petitioners contend that the Commission's order must be set aside as to both the section 2(c) and 2(d) orders because at least three members of a five member commission must affirmatively vote for an order, and must vote for it on the same grounds, in order for it to become a valid order of the commission. Petitioners argue that this requirement was not met as to the section 2(c) order because only Commissioners Dixon and MacIntyre agreed to it and Commissioner Elman dissented, and was not met as to the section 2(d) order because Commissioner Elman's concurrence does not indicate that it was on the same grounds or relied on the same evidence as that relied upon by Dixon and MacIntyre. 12 First, as to the sectin 2(c) decision in which only two Commissioners agreed. We have examined the authority and arguments put forth by both parties and find ourselves in agreement with petitioners that, absent statutory authority or instruction to the contrary, three members of a five member commission must concur in order to enter a binding order on behalf of the commission. (Tr. 119). This was not done in the case of the 2(c) order here in dispute. 13 Respondent places primary reliance on the case of Atlantic Refining Company v. F.T.C., 344 F.2d 599 (6th Cir. 1965). We agree that the language used by the court in that case is authority for respondent's position, but find ourselves unconvinced by the 'succinct' disposal of the issue in that case. The court's entire treatment of the point here in dispute is contained in this statement: 14 'As to other issues presented by petitioner, we can be more succinct. The rules of the Federal Trade Commission since its inception have provided for decision by the majority of panels of three members, We believe this rule is within the Commission's power to make and is wholly valid. Drath v. Federal Trade Commission, 99 U.S.App.D.C. 289, 239 F.2d 452 (1956), cert, denied 353 U.S. 917, 77 S.Ct. 666, 1 L.Ed.2d 664 (1957).' (344 F.2d at 607). 15 Petitioners correctly point out that the court in Atlantic Refining both misconstrued the FTC rule1 and relied upon a case, Drath, supra, which is not shown to be in point. In the Drath case the court expressed its approval of the Commission rule that 'A majority of the members of the commission shll constitute a quorum for the transaction of business.' It does not appear that the order which resulted from a three man panel hearing the cause was concurred in by less than three, which would be a majority of the Commission. This did not raise the issue here in dispute. Since the statement from Atlantic Refining states a bare conclusion, and makes no attempt to support its position in reason, we are unenlighted as to why the court thought the 'majority of the quorum' rule applicable or desirable. 16 We readily agree respondent's position is also supported by Frischer & Co. v. Bakelite Corporation, 39 F.2d 247 (C.C.P.A.), cert. denied 282 U.S. 852, 51 S.Ct. 29, 75 L.Ed. 755 (1930), wherein the Court of Customs and Patent Appeals stated that 'the trend of modern authority is that in collective bodies other than courts, even though they may exercise judicial authority, a majority of a quorum is sufficient to perform the function of the body.' (39 F.2d at 255.) But the court then proceeds to support its statement with a series of state decisions dealing with town meetings and city councils, which frankly strike us as inapposite when we seek to determine the rule which is to govern decisions of a statutorily created administrative tribunal like the Federal Trade Commission. 17 Respondent has previously used this case, and the Drath case, supra, to support the authority of a two-man majority of a three-man quorum. Borden Co., F.T.C. Docket No. 7474, April 10, 1964 (15 Pike and Fischer Administrative Law (2d) 344-5.) 18 Respondent seeks also to support its position by reference to section 1 of the Federal Trade Commission Act, 15 U.S.C. 41, and to a rule of the FTC, 16 C.F.R. 1.7. We do not consider this authority determinative. The pertinent provision in section 1 of the FTC Act (last sentence of first paragraph) states 'A vacancy in the commission shall not impair the right of the remaining commissioners to exercise all the powers of the commission.'2 This provision only has the effect of authorizing action by less than the full commission; it does not provide that less than a majority of the full commission may enter a final order, for in the event of a single vacancy a majority of the remaining commissioners is still three. The FTC rule, referred to earlier in the Atlantic Refining case, supra, provides that 'A majority of the members of the Commission constitutes a quorum for the transaction of business.' We could, perhaps, agree that the reasonable construction of such a rule would be that a majority of the quorum would be sufficient to render a decision, but do not find that argument dispositive in the absence of a clear showing that the FTC regulation is within the power of the FTC to adopt, tested in the light of the extent of the power conferred upon the FTC by Congress. Respondent stresses the fact that such a rule has been in effect for forty years. We cannot believe that a long adherence to an improper rule (if indeed it is improper) gives the Commission any vested right to continue such adherence. As petitioners accurately point out, when Congress wanted to authorize the exercise of the powers of an administrative body by less than the full body in other situations, it did not lack the words to do so expressly. Cf. National Labor Relations Board, 29 U.S.C. 153(b); Interstate Commerce Commission, 49 U.S.C. 17(1), Federal Power Commission, 16 U.S.C. 792. 19 We do not desire to overstate our agreement with petitioners in this matter, and therefore we have stated that respondent's position is not without support. As already noted, the Atlantic Refining and Frischer cases, supra, directly support that position, and Drath, supra, may be said to do so inferentially. It might also be argued, although respondent has not done so, that the express permission of Congress to the NL RB and the ICC to delegate its authority to panels, and congressional acquiescence in the FTC quorum rule for a long period reflects congressional approval of such a policy of expediting the work of administrative bodies. On the other hand, it is difficult to believe that Congress conceived of the five-member FTC with its politically balanced make-up, permitting two of its members to speak for the Commission, and failed to specifically provide enabling legislation. 20 Respondent puts forth an additional argument, which we believe merits consideration: that 'the necessity of administrative agencies fashioning their own procedural rules as well as their authority to do so has long been recognized by the courts. See Federal Communications Commission v. Schreiber, 381 U.S. 279, 85 S.Ct. 1459, 1467, 14 L.Ed.2d 383 (1965), and cases cited therein.' While we agree with the general proposition stated by respondents, we are not assured that it controls the point in dispute here. The Schreiber case, for example, dealt with the interpretation of section 4(j) of the Commissions Act of 1934, as amended, 47 U.S.C. 154(j). That legislative action expressly granted to the FCC a measure of autonomy in determining its own procedures. Not only is such a specific grant of power lacking in the Federal Trade Commission Act, but the type of 'procedural rules' referred to in Schreiber were not of the same nature as the quorum requirement here in dispute. The Schreiber case, and a number of cases cited therein, particularly Wallace Corporation v. N.L.R.B., 323 U.S. 248, 65 S.Ct. 238, 89 L.Ed. 216 (1944), Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 63 S.Ct. 339, 87 L.Ed. 424 (1943), and F.C.C. v. Pottsville Broadcasting Co., 309 U.S. 134, 60 S.Ct. 437, 84 L.Ed. 656 (1940), do, as respondent states, refer to the broad powers of administrative bodies in determining their own procedural rules. But in each of these cases the power of the administrative body to do so is premised on its expertise in dealing with one particular specific industry which it was designed to regulate. We do not quarrel with the propriety of administratively determined procedures in such cases, but do not believe that that same principle is applicable in this case where the problem relates to the interpretation of the FTC's enabling legislation. We do not think it proper for this court to amend the Federal Trade Commission Act nor to permit it to be amended by a Commission rule, in the absence of a stronger showing of congressional intent than has been made here, and in the presence of express provisions in the enabling legislation creating other agencies (such as the NLRB and ICC) to accomplish the result sought. 21 In light of the Commission's adherence to its 'majority of a quorum' rule for such an extended period, we do not believe that the proper remedy would be to simply set-aside or deny enforcement of its section 2(c) order. Rather, we remand the section 2(c) violation to the Commission for further hearings to determine whether a majority of the Commission desire to enter such an order. We express no doubt as to the validity of the Commission's practice of conducting hearings before less than the full membership. We say only that an order of the Commission must be supported by three members in order to constitute an enforceable order of the FTC. Two of five is too few. 22 For the above reasons, we will remand, and await a further determination by the FTC before considering the facts and law relating to the alleged section 2(c) violations. 23 Petitioners assert that the order regarding the section 2(d) violation should also be denied enforcement because Commissioner Elman concurred in the result, but did not enumerate the grounds for his concurrence, nor the conclusions or findings upon which he based his concurrence, and that consequently 'the Commission has provided no 'statement of * * * findings and conclusions' nor 'reasons or basis therefor' as required by Section 8(b) of the Administrative Procedure Act, 5 U.S.C. 1007(b).' We cannot agree. We approve the reasoning of the three judge district court in Chicago, B. & Q.R. Co. v. United States, 60 F.Supp. 580 (E.D.Ky.1945) where the court was faced with a similar contention in reviewing a freight rate order of the ICC. While petitioner argues that no grounds to support his concurrence can be taken from Commissioner Elman's simple statement following his section 2(c) dissent that 'With respect to the other issues in the present case, I concur in the result' (Record, p. 114, n. 13), we believe it more reasonable to assume that his statement constituted a substantial adoption of Chairman Dixon's opinion for the Commission as to the 2(d) violations. As stated by the court in Chicago, B. & Q.R. Co., supra, 'We interpret the statement by the fifth Commissioner that he 'concurs in the result' of both reports filed in this case to mean that, while he does not assent to all the comments or observations made therein, he is, nevertheless, sufficiently in accord with the rationale of them to enable him to agree * * *.' 60 F.Supp. at 583. 24 II-- Promotional Allowances. 25 All three Commissioners who participated in the Flotill proceedings agreed that Flotill had violated section 2(d) in two particulars. First, by not making available to Stop & Shop in 1956 and 1957 the same promotional allowance which it made to Elm Farm Foods, a competitor of Stop & Shop in the Boston area, and second, by not making available any similar promotional allowance to customers who competed in the Boston area but who made their purchases in the 'California Street' market and shipped the goods to Boston rather than buying through brokers in Boston as Elm Farm Foods and Stop & Shop did. 26 Petitioners attack the first section 2 (d) charge by asserting that Stop & Shop, which did not receive the allowance in 1957, had received such an allowance in 1956 and did not consider the availability of a promotional allowance from Flotill in determining whether to promote Flotill items, and that Flotill was not obligated to make a futile gesture by paying a promotional allowance where there was no consideration and when the payment of such allowance did not result in the increased promotion of its products. 27 Petitioners attack the findings supporting the second 2(d) violation by asserting (a) that it had no obligation to pay equivalent allowances for promotion in a local area to customers who choose to purchase in different markets thousands of miles apart; (b) that it had no way of knowing the ultimate destination of the goods purchased in the California Street market and hence is not chargeable with knowledge that the goods would be sold in competition with those sold by Flotill to Elm Farm Foods and Stop & Shop; (c) that in any event the allegedly 'disfavored' purchasers were not 'direct customers' of Flotill in Boston and thus Flotill was under no obligation to pay them a promotional allowance equivalent to the one paid all customers buying through its Boston broker to promote Flotill products in Boston; (d) that the Commission erred in including Food Center Wholesale Grocers, Inc., in the coverage of the cease and desist order in reliance on the Commission's holding in Fred Meyer, Dkt. No. 7492 (March 29, 1963),3 without reversing the hearing examiner's decision excluding Food Center Wholesale Grocers, Inc. from consideration as a 'disfavored' competing customer, and finally (e) that Commission counsel failed to sustain the burden of proving that customers who did not receive the promotional allowance were in competition with customers who did receive such allowances. 28 First, as to the discrimination between Elm Farm Foods and Stop & Shop in 1956 and 1957, we find substantial evidence on the record as a whole that an offer of a promotional allowance to Stop & Shop would not have been a 'futile gesture,' as petitioners contend, and that petitioners have not complied with and in fact have misconstrued the provision in the Federal Trade Commission Guides for Allowances and Service, 1 Trade Reg. Rep. 3980, that a seller make a specific offer of a promotional allowance to meet the 'availability' standard of section 2(d).4 Accordingly, we believe that this portion of the 2(d) order is entitled to enforcement. 29 Second, the Commission's findings that Flotill knew or should have known that the goods sold to the four 'disfavored' customers were intended for sale by the purchasers in the Boston area is supported by substantial evidence. The record shows that though these sales were negotiated in San Francisco, all were billed and shipped by Flotill to the retailers in the Boston area, and the testimony of Albert S. Heiser indicates that Flotill knew that it was making sales to the 'disfavored' four in the Boston area. Furthermore, we agree with Chairman Dixon's contention that petitioners were under an obligation to determine whether customers in fact compete, and that 'If it were otherwise, sellers could avoid their obligations under the statute simply by closing their eyes to the obvious.' (R. 89.) Nor can we agree with petitioners' contention that Commission counsel failed to sustain the burden of proving that customers who did not receive the promotional allowance were in competition with customers who did. While we tend to believe that the hearing examiner's determination that 'The competitive retail grocery market represented by the Boston area, as used herein, may be loosely defined to include an area within a radius of approximately 25 to 50 miles of the center of Boston,' was a little too 'loose' to be of much value, the record contains substantial evidence regarding the number and location of the retailers involved, and credible testimony from the grocery buyers of the firms involved, to establish that the six firms were in competition with one another in the Boston area. Further, in defining the requirements of the competitive market definition which must be made to show a violation of section 2(d), we adhere to the statement of Judge Hamley in Tri-Valley Packing Association v. F.T.C., 329 F.2d 694, 708 (9th Cir. 1964) that 'In our opinion, where a direct customer of a seller, operating solely on a particular functional level such as wholesaling or retailing, receives a promotional allowance not made available to another direct customer operating solely on the same functional level, it is unnecessary to trace the seller's goods of like grade and quality to the shelves of competing outlets of the two in order to establish competition.' 30 We find the treatment of Food Center Wholesale Grocers, Inc., more troubling. After pointing out that the hearing examiner dismissed the charge that Food Center Wholesale should also be viewed as a 'disfavored customer,' Chairman Dixon went on to state: 31 'As a practical matter we see no real need to resolve the factual and legal questions here presented. The Fred Meyer decision places these respondents, no less than any other interstate sellers, on notice that the Commission considers wholesalers whose customers compete with direct buying retailers to be in competition in the distribution of goods with the direct buying retailers. Thus, to comply with the order to cease and desist to be entered herein, the respondents must henceforth consider Food Center and all similarly situated wholesaler customers as customers within the scope and meaning of Section 2(d). Since we have not reviewed the hearing examiner's findings and conclusions on this point (Findings 105 through 110), they will not be adopted as part of the Commission's decision.' (R. 92-93.) 32 We note that the Fred Meyer decision is now before this court for review (Fred Meyer, Inc. v. F.T.C., 9 Cir., 359 F.2d 351), that petitioners contend that earlier decisions of this court hold squarely against the Commission's decision in Fred Meyer (Cf. Tri-Valley Packing Association v. F.T.C., supra, 329 F.2d pp. 709-710; Alhambra Motor Parts v. F.T.C., 309 F.2d 213 (9th Cir. 1962)), and that the Commission did not even review the findings regarding Food Center. In light of these facts we consider it improper to include Food Center and other wholesale customers within the scope of the cease and desist order, for, though Chairman Dixon is correct in stating that petitioners have the same notice of the Commission's position as all other sellers as a result of the Fred Meyer decision, not all other sellers are subject to contempt proceedings for violation of that order as Flotill would be if Food Center and other wholesalers were included in the cease and desist order without the hearing examiner's findings on the point even having been reviewed. Although the remedial order is broadly framed and does not make reference to specific customers, we think it best to make clear that on the record in this case, the prohibition shall not be understood to extend to Food Center and other wholesalers. 33 III-- Scope of the Order. 34 Petitioners direct two attacks against the drafting of the final order of the Commission. First, that it must be limited to the corporation and not extend to the named officers of the corporation, and second, that the order must be limited in scope and definitive in its terms. 35 In regard to the first ground of attack on the order, we note that the hearing examiner dismissed the complaint as to the Flotill executives in their individual capacities, finding that the corporate organization was stable and not a sham, and that 'There is no showing and no suggestion of any special circumstances which would indicate a likelihood that the individual respondents would cause an evasion of any order which may be entered herein against the corporation.' (R. 19.) In framing the order to include the individual petitioners, Chairman Dixon relied on no other fact than that the three individuals owned and controlled the corporation. He concluded: 'Under such circumstances, when the corporation is merely the alter ego of individuals, we have generally felt that an order against the individuals is necessary.' (R. 95.) 36 We find that the Commission has abused the discretion granted it in framing the order to include the individual petitioners. The rather cavalier use of the 'alter ego' doctrine finds no support in the record, and the order points to no evidence to challenge the findings of the hearing examiner that the corporate entity has ever been used in such a way as to justify treating it as the 'alter ego' of its owners. We agree with petitioners that naming them individually in the order is tantamount to a finding on the evidence that they have personally violated, or can be expected to violate, the Clayton Act. We have not been shown the evidence in the record, if any there be, which supports such a conclusion. Accordingly, the Commission order to be enforced should not refer to the petitioners in their individual capacities. Authority for such deletion is to be found in Coro, Inc. v. F.T.C., 338 F.2d 149 (1st Cir. 1964) and Rayex Corp. v. F.T.C., 317 F.2d 290 (2d Cir. 1963). 37 Petitioners' attack on the scope and particularity of the balance of the final order is largely without merit. A great deal of discretion has been vested in the FTC as to how best to remedy industry abuses, and the Commission is not limited to prohibiting merely the precise acts which have already occurred. Jacob Siegel Co. v. F.T.C., 327 U.S. 608, 66 S.Ct. 758, 90 L.Ed. 888 (1946); F.T.C. v. Henry Broch & Co., 368 U.S. 360, 82 S.Ct. 431, 7 L.Ed.2d 353 (1962). Accordingly, the rest of the language of the order is held proper. 38 Enforcement of the order of the Federal Trade Commission is ordered to the extent that the order relates to the section 2(d) violations, with the reference to petitioners in their individual capacities deleted. Enforcement of the order as it relates to the section 2(c) violations is denied. The matter is remanded to the FTC for further proceedings to determine whether a majority of the Commission join in the section 2(c) findings. 39 On Petition to Review and Set Aside an Order of the Federal Trade Commission PER CURIAM: 40 The court en banc takes the case solely for the purpose of deciding 'When is a majority a majority?'. 41 (The amendments ordered by the Court have been incorporated into the report.) 42 CHAMBERS, JERTBERG, KOELSCH and DUNIWAY, Circuit Judges, concur in the opinion of BARNES, Circuit Judge, as so modified. 43 MERRILL, BROWNING and ELY, Circuit Judges, concur with HAMLEY, Circuit Judge, in his dissent. HAMLEY, Circuit Judge (dissenting in part): 44 I dissent from that part of the majority opinion which holds that at least three members of respondent Commission must affirmatively vote for an order, and since this requirement was not met with regard to the section 2(c) violation, that part of the proceedings must be remanded. 45 I think it is too late in the day to raise this question. The Commission rule (16 C.F.R. 1.7) providing that a majority of the members of the Commission constitutes a quorum for the transaction of business, has been in effect for forty years. The reasonable construction of that rule is that a majority of the quorum would be sufficient to render a decision. It has been so construed by the Commission for a very long time. Congress has not seen fit to negate that construction by enacting legislation expressly prohibiting the Commission from acting through a majority of a three-member quorum. 46 I concur in the remainder of the majority opinion. 1 That rule states: 'A majority of the members of the Commission constitutes a quorum for the transaction of business.' 16 C.F.R. 1.7 2 We note the reference in the Act is singular and not plural. Suppose there were plural vacancies? Would respondent contend that if there were four vacancies one member could act? 3 That order held that the Commission considers wholesalers whose customers compete with direct buying retailers to be in competition in the distribution of goods with the direct buying retailers 4 Section 2(d), 15 U.S.C. 13(d): '(d) Payment for services or facilities for processing or sale It shall be unlawful for any person engaged in commerce to pay or contract for the payment of anything of value to or for the benefit of a customer of such person in the course of such commerce as compensation or in consideration for any services or facilities furnished by or through such customer in connection with the processing, handling, sale, or offering for sale of any products or commodities manufactured, sold, or offered for sale by such person, unless such payment or consideration is available on proportionally equal terms to all other customers competing in the distribution of such products or commodities.'	{ "pile_set_name": "FreeLaw" }
493 F.Supp. 942 (1980) Frosinia DRAKATOS, Administratrix of the Estate of Gerasimus Drakatos, Deceased v. R. B. DENISON, INC. and Bendix-Skagit Corporation. Civ. No. H78-601. United States District Court, D. Connecticut. July 9, 1980. 943 Stephen C. Embry, O'Brien, Shafner, Bartinik, Stuart & Kelly, Groton, Conn., for plaintiff. Sharon R. Burger, Day, Berry & Howard, Hartford, Conn., for defendant Bendix-Skagit Corp. RULING ON MOTION TO FILE AN AMENDED COMPLAINT JOSÉ A. CABRANES, District Judge: Plaintiff in this wrongful death action seeks permission to file a second amended complaint alleging jurisdiction under the 944 Death on High Seas by Wrongful Act statute ("the Act"), 46 U.S.C. § 761 et seq. Defendant Bendix-Skagit Corporation ("Skagit") opposes the motion on the grounds that (1) the relation-back doctrine of Fed.R.Civ.P. 15(c) does not apply when the original pleading was itself not timely filed; (2) plaintiff's rights in admiralty have been extinguished through lapse of time; and (3) the amendment would cause Skagit undue prejudice. For the reasons set out below, permission to file the second amended complaint is granted. I. This action involves the death on October 25, 1977 of United States serviceman Gerasimus Drakatos on the deck of the USS George C. Marshall, which at the time was docked at Rota, Spain. Plaintiff is administratrix of the decedent's estate. She alleges that Drakatos was killed when struck by planks dropped by a crane in operation on a neighboring vessel, the USS Canopus. The crane was manufactured by defendant Skagit. In her original complaint, filed in this court on November 8, 1978, plaintiff predicated federal jurisdiction solely on diversity of citizenship. The complaint asserted claims against Skagit based on negligence, strict liability in tort and breach of warranty. In its answer, Skagit contended, inter alia, that the claims were time-barred under the applicable Connecticut statutes of limitation.[1] On November 12, 1979, plaintiff filed her first amended complaint. The complaint reiterated the strict liability and breach of warranty claims against Skagit, but significantly narrowed the scope of the negligence count. Stricken from that count were allegations of defective design, manufacture, inspection and sale, leaving only the charge that Skagit failed to provide adequate warning about the crane's operational hazards. Plaintiff now concedes that her initial claims based on strict liability and breach of warranty, as well as the deleted portions of the original negligence count, were all time-barred under Connecticut statutes of limitations.[2] She seeks to restate these claims in her proposed second amended complaint under the aegis of the Act. Thus the proposed amendment states admiralty claims based on strict liability, breach of warranty and negligence in design, manufacture, inspection and sale. It 945 also repeats the common law claim based on alleged failure to warn.[3] Plaintiff acknowledges that the admiralty claims, if filed now as an original complaint, would be time-barred under the two-year statute of limitations of the Act, 46 U.S.C. § 763. The issue before the court is whether under Fed.R.Civ.P. 15(c) the claims may relate back to the date of plaintiff's initial complaint, in which case they would not be time-barred.[4] II. Rule 15(c) provides in pertinent part:[5] Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. There is no question that the admiralty claims advanced in plaintiff's second amended complaint "arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Like the original claims, the new counts seek damages for the death of Gerasimus Drakatos aboard the USS George C. Marshall, allege that his death resulted from the defective functioning of a Navy crane and charge Skagit with liability as the crane's designer, manufacturer and distributor. The old claims and the new assert the same legal theories: negligence, breach of warranty and strict tort liability. Indeed, the language of the old claims and the new is virtually identical; the only significant distinction is that the claims are now grounded in admiralty, rather than in the common law. Skagit contends that the proposed amendment cannot relate back to the date of the original complaint because the original complaint itself lacked legal substance. Skagit points out that plaintiff's original claims against Skagit were entirely time-barred under Connecticut law except for the negligence claim based on a continuing duty to warn, a claim which Skagit asserts is "specious" and "no more than colorable." Defendant's Memorandum of Law at 6, 8. Skagit argues that the original complaint was effectively null and void ab initio and is therefore insufficient for the purpose of relating back; at most, Skagit suggests, the amended pleadings should be permitted to relate back only insofar as they assert claims based on a continuing duty to warn. This argument fundamentally misconceives the liberal purpose and operation of Rule 15(c). To satisfy the requirements of the relation-back rule, an amendment need only spring from the same core event or transaction as that set out in the original complaint. There is no need for the original complaint to have made out a colorable or valid cause of action. Thus amendment under Rule 15(c) is freely granted to cure a defective statement of jurisdiction or to replace an inadequate legal theory. For example, in Tankrederiet Gefion A/S v. United States, 241 F.Supp. 83 (E.D.Mich.1964), plaintiff's original complaint under the Federal Tort Claims Act 946 was dismissed for failure to state a claim. Plaintiff was allowed to amend its complaint to allege jurisdiction under the Suits in Admiralty Act and to have the amended pleading relate back to the date of the original complaint. See also Goss v. Revlon, 548 F.2d 405, 407 (2d Cir. 1976), cert. denied, 434 U.S. 968, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977) (change of jurisdictional basis, under Rule 15(c), from Title VII to 42 U.S.C. § 1981) (dictum); Burnstein v. Columbia Broadcasting System, Inc., 291 F.2d 8 (7th Cir. 1961) (permitting amendment curing defective allegation of diversity jurisdiction, made after running of statute of limitations, to relate back to filing of complaint); MacGowan v. Barber, 127 F.2d 458, 459-60 (2d Cir. 1942) (amendment curing defective personal jurisdiction). See generally 3 Moore's Federal Practice ¶ 15.15[3] (2d ed. 1979); 6 C. Wright and A. Miller, Federal Practice and Procedure § 1497 (1971). Plaintiff is not precluded from relating her amended pleading back to her initial complaint because her original claims were time-barred or allegedly insubstantial. Cf. Marbury Management, Inc. v. Kohn, 629 F.2d 705 at 712, (2d Cir. 1980) ("Generally a complaint that gives full notice of the circumstances giving rise to the plaintiff's claim for relief need not also correctly plead the legal theory or theories and statutory basis supporting the claims"); New York State Waterways Association v. Diamond, 469 F.2d 419, 421 (2d Cir. 1972). Skagit next argues that plaintiff's amended admiralty claims cannot relate back because the statute of limitations of the Act is "substantive," rather than "procedural," in nature. Skagit asserts that the running of the Act's two-year limitations period serves not merely to time-bar, but actually to extinguish, the plaintiff's cause of action. Once extinguished, Skagit argues, the cause of action cannot be revived through invocation of the relation-back doctrine. In support of the contention that the plaintiff's cause of action under the Act is no longer viable, Skagit relies on dictum in In re Agwi Navigation Co., 89 F.2d 11, 12 (2d Cir. 1937), in which the court declared that the limitations period of the Act "is not merely a limitation of the remedy, but is a condition upon the right itself." See also Batkiewicz v. Seas Shipping Co., 54 F.Supp. 789 (S.D.N.Y.1944). The vitality of the Agwi dictum is doubtful, however. The dictum was based on language in The Harrisburg, 119 U.S. 199, 214, 7 S.Ct. 140, 147, 30 L.Ed. 358 (1886), which was itself expressly rejected by the Supreme Court in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). In Renner v. Rockwell International Corp., 587 F.2d 1030 (9th Cir. 1978), (per curiam) the Ninth Circuit concluded that the foundations of the Agwi dictum had been undercut by Moragne and by an earlier Supreme Court case, Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 234, 79 S.Ct. 760, 762, 3 L.Ed.2d 770 (1959); the court held that the limitations period of the Act is a procedural constraint which may be tolled for example, by fraudulent concealment of the cause of action. It is unnecessary, however, for this court at this time to pass judgment on the survival or viability of the Agwi dictum, however dubious the "substantive"/"procedural" distinction may be. I conclude that plaintiff's amended pleading may relate back to the filing of the initial complaint regardless of whether the Act's limitations period is viewed as a "procedural" or a "substantive" condition. Rule 15(c) is not a tolling device. It does not operate to suspend the running of a statute of limitations pending the filing of an amendment. Rather, by "relating" the amendment back to the date of the original pleading, the rule renders irrelevant any subsequent running of the limitations clock. The amendment is deemed to have been asserted at the time of the original complaint; whether or not the statute of limitations has elapsed since that time is immaterial.[6] Plaintiff's position is supported by a series of decisions in which courts have permitted 947 the amendment of complaints to sound in admiralty despite the running of the admiralty statute of limitations. See, e.g., Higginbotham v. Mobil Oil Corp., 436 F.2d 8, 11 (5th Cir. 1970); Beeler v. United States, 338 F.2d 687 (3d Cir. 1964); Tankrederiet Gefion A/S v. United States, supra; cf. Liberty Mutual Insurance Co. v. United States, 183 F.Supp. 944, 945 (E.D.N.Y.1960), aff'd, 290 F.2d 257 (2d Cir. 1961). Skagit's final argument is that it will be unduly prejudiced if plaintiff is allowed to amend her complaint. The potential prejudice asserted by Skagit, however, is not sufficiently weighty to justify denial of plaintiff's proposed amendment. Skagit contends, first, that it would be "unfair" to allow plaintiff to cure her time-barred common law claims by shifting them to admiralty.[7] This surely is not the sort of prejudice for which leave to amend should be denied; indeed, as noted above, one of the primary purposes of Rule 15 is to give plaintiffs a chance to cure jurisdictionally defective complaints. See Poloron Products, Inc. v. Lybrand Ross Bros. & Montgomery, 72 F.R.D. 556, 561 (S.D.N.Y.1976); Applied Data Processing, Inc. v. Burroughs Corp., 58 F.R.D. 149, 151 (D.Conn.1973) (Newman, J.); 6 C. Wright and A. Miller, supra, § 1487 at 431. Skagit's second claim of prejudice involves an alleged violation of its right to jury trial. Skagit argues that under Fed.R. Civ.P. 9(h) and 38(e), petitioner's admiralty claims are triable only to the court, not to a jury. To grant plaintiff leave to file the proposed amendment, asserts Skagit, would therefore abrogate Skagit's right to a jury trial on all issues in this case, a right which attached when plaintiff in her initial complaint demanded jury trial. Arguments similar to Skagit's prevailed in Johnson v. Penrod Drilling Co., 469 F.2d 897 (5th Cir. 1972), cert. denied, 423 U.S. 839, 96 S.Ct. 69, 46 L.Ed.2d 58 (1975), and Banks v. Hanover Steamship Corp., 43 F.R.D. 374 (D.Md.1967). In each case, plaintiff was denied permission to amend his complaint to sound in admiralty because such an amendment would deprive the defendant of a jury trial. In each case, however, this holding was premised on a finding that the sole purpose of the proposed amendment was to avoid trial by jury. Johnson, supra, 469 F.2d at 902; Banks, supra, 43 F.R.D. at 380. There has been no showing that plaintiff's motivation in this case was solely to deprive Skagit of a jury trial. Indeed, it is clear that plaintiff's intent was otherwise; the proposed amendment, as Skagit itself contends, is an attempt by plaintiff to press claims which otherwise would be time-barred under state law. The proposed amendment does not, moreover, deprive Skagit of a jury trial. Although an action brought solely under admiralty jurisdiction must be tried to a court rather than to a jury, Fed.R. Civ.P. 9(h) and 38(e), admiralty claims may be tried to a jury when linked to a civil claim with an independent basis for federal 948 jurisdiction. Bartholomew v. Universe Tankships, Inc., 263 F.2d 437, 443-47 (2d Cir. 1959); Mattes v. National Hellenic American Line, S.A., 427 F.Supp. 619, 628 (S.D.N.Y.1977); Parsell v. Shell Oil Co., 421 F.Supp. 1275, 1276 (D.Conn.1976) (Newman, J.), aff'd mem. sub nom. East End Yacht Club v. Shell Oil Co., 573 F.2d 1289 (2d Cir. 1977); cf. Fitzgerald v. United States Lines Co., 374 U.S. 16, 83 S.Ct. 1646, 10 L.Ed.2d 720 (1963). In this case, plaintiff asserts against Skagit a common law negligence claim (the alleged failure to warn) with federal jurisdiction based on diversity of citizenship. This claim arises out of the same circumstances as the admiralty counts, and therefore all may be tried together to a jury. Skagit may secure a jury trial on all claims against it by making demand for a jury within 10 days of the filing of plaintiff's amended complaint. Fed.R.Civ.P. 38(b); 9 C. Wright and A. Miller, supra, § 2320 at 94-96.[8] For the foregoing reasons, plaintiff is granted leave to file her second amended complaint. It is so ordered. NOTES [1] Because federal jurisdiction over the original claims was founded upon diversity of citizenship, the limitations period for those claims were those that would have been applied by the courts of this state. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In suits with multistate aspects, Connecticut courts (including a federal court sitting in Connecticut) apply Connecticut statutes of limitations. Ricciuti v. Voltarc Tubes, Inc., 277 F.2d 809, 810 (2d Cir. 1960); Mizell v. Welch, 245 F.Supp. 143, 144 (D.Conn.1965); Thomas Iron Co. v. Ensign-Bickford Co., 131 Conn. 665, 668, 42 A.2d 145, 146 (1945). [2] At the time this action was commenced, the relevant statutes of limitations were Conn.Gen. Stat. § 42a-2-725(2) (breach of warranty: four years from date of delivery); Conn.Gen.Stat. § 52-555 (wrongful death: two years from date of injury and three years from wrongful act or omission); Conn.Gen.Stat. § 52-277a(a) (transferred to § 52-577a in 1977, and amended in 1979) (strict tort liability: three years from date of injury and three years from negligent act or omission); and Conn.Gen.Stat. § 52-584 (negligence: two years from date of injury and three years from negligent act or omission). The crane in question was sold and delivered by Skagit in August 1965, more than 13 years before the filing of this lawsuit. Plaintiff's original claims based on breach of warranty and strict tort liability were therefore time-barred. Insofar as they alleged negligent design, manufacture, inspection and sale of the crane, plaintiff's original claims in negligence and wrongful death were also time-barred; under Connecticut law, the statute of limitations on such claims begins to run on the date of the charged act of negligence (i.e., the crane's design, manufacture, inspection or sale), rather than on the date of injury. See Boains v. Lasar Manufacturing Co., 330 F.Supp. 1134, 1135-36 (D.Conn.1971); Prokolkin v. General Motors Corp., 170 Conn. 289, 294-97, 365 A.2d 1180, 1182-86 (1976); Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170, 127 A.2d 814 (1956). [3] Connecticut courts have held that an alleged failure to warn of a product's potential dangers is an "act or omission" which continues to the time of injury; the statute of limitations on the claim therefore begins to run on the date of injury, rather than on the date of the product's sale. Prokolkin v. General Motors Corp., supra, 170 Conn. at 298, 365 A.2d at 1185; Handler v. Remington Arms Co., 144 Conn. 316, 321, 130 A.2d 793, 795 (1957). Because the injury asserted in this case occurred within three years of the bringing of the lawsuit, plaintiff's claim based on a continuing duty to warn is not time-barred under Conn.Gen.Stat. § 52-584 (negligence) or Conn.Gen.Stat. § 52-555 (wrongful death). See also Boains v. Lasar Manufacturing Co., supra, 330 F.Supp. at 1136. [4] In contrast to the Connecticut limitations statutes for wrongful death and negligence, see note 2, supra, the Act's statute of limitations does not begin to run until the date of the alleged injury. Abbott v. United States, 207 F.Supp. 468, 471-2 (S.D.N.Y.1962); Williams v. Moran, Proctor, Mueser & Rutledge, 205 F.Supp. 208, 216-18 (S.D.N.Y.1962). [5] Fed.R.Civ.P. 9(h) expressly provides that the principles of Rule 15 govern the amendment of a pleading to add (or withdraw) a statement identifying a claim as one in admiralty. [6] Rule 15(c) is based on a theory of constructive notice. So long as the amendment arises from the core circumstances asserted in the original complaint, the defendant is considered to have had fair notice of the amendment since the filing of the complaint. For the purposes of a statute of limitations, therefore, the original filing date becomes the only relevant event. See Tiller v. Atlantic Coast Line R.R. Co., 323 U.S. 574, 580-81, 65 S.Ct. 421, 424, 89 L.Ed. 465 (1945); Michelsen v. Penney, 135 F.2d 409, 416-17 (2d Cir. 1943); Zagurski v. American Tobacco Co., 44 F.R.D. 440, 442-44 (D.Conn. 1967) (Blumenfeld, J.); 3 Moore's Federal Practice ¶ 15.15[2] at 190-91 (2d ed. 1979); 6 C. Wright and A. Miller, Federal Practice and Procedure § 1497 at 495-99 (1971). These considerations apply whether the statute of limitations is "substantive" or "procedural" in nature. [7] An argument similar to defendant's was rejected by Judge Blumenfeld in Zagurski v. American Tobacco Co., supra. Plaintiff in that case sought to amend his complaint (which claimed breach of express warranty and implied warranty) under Rule 15(c) to allege that defendant knew that its product was inherently dangerous and that it failed to issue adequate warnings about the dangerous condition. Defendant argued that to permit the amendment would be unduly prejudicial and unfair. Judge Blumenfeld wrote: "The defendant has had notice from the beginning that the plaintiff is trying to enforce a claim for damages sustained for smoking the cigarettes it manufactured and marketed. It is not unreasonable to require it to anticipate all theories of recovery and prepare its defense accordingly." 44 F.R.D. at 443. See also Tiller v. Atlantic Coast Line R.R. Co., supra, 323 U.S. at 580-81, 65 S.Ct. at 424. [8] Although it did not originally demand a jury trial in this case, Skagit cannot be deemed to have waived its right to jury. Skagit was entitled to rely on plaintiff's original request for jury trial on all counts; once plaintiff requested trial by jury, there was no need for Skagit to make a similar demand. See Collins v. Government of Virgin Islands, 366 F.2d 279, 284 (3d Cir. 1966), cert. denied, 386 U.S. 958, 87 S.Ct. 1026, 18 L.Ed.2d 105 (1967); 5 Moore's Federal Practice ¶ 38.45 (2d ed. 1979).	{ "pile_set_name": "FreeLaw" }
792 S.W.2d 106 (1990) Ralph Antonio COURET, Appellant, v. The STATE of Texas, Appellee. No. 987-89. Court of Criminal Appeals of Texas, En Banc. June 27, 1990. John H. Hagler, on appeal only, Dallas, for appellant. John Vance, Dist. Atty., and Teresa Tolle, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for State. Before the court en banc. OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW PER CURIAM. A jury convicted appellant of burglary of a building. After finding that appellant had once before been convicted of a felony, 107 the jury assessed punishment at confinement for forty (40) years. The Court of Appeals affirmed the conviction. State v. Couret, No. 05-88-00668-CR (Tex.App. Dallas, delivered April 19, 1989). We granted appellant's petition for discretionary review to examine the Court of Appeals' determination that admission of a hypodermic needle found in appellant's possession at the time of his arrest was proper. We borrow liberally from the Court of Appeals' rendition of the facts. On December 27, 1987, at 6:00 a.m., two Dallas police officers responded to a silent burglar alarm call at a warehouse. The officers found that a back door of the warehouse had been pried open. When backup officers arrived, the police entered the warehouse. Appellant was found hiding behind a pile of wood. The officers arrested him and searched him. The officers found a hypodermic needle in appellant's pocket. Later, they also found a crowbar and a screwdriver inside the building, which the warehouse manager testified were not property of the warehouse. A soft drink machine inside the warehouse was damaged. During trial appellant objected to testimony regarding the hypodermic needle as "going into any kind of extraneous things." The State responded that this information was "res gestae of this arrest.... It's an offense contemporaneous with this arrest." The trial court overruled the objection. The Court of Appeals relied upon Maddox v. State, 682 S.W.2d 563 (Tex.Cr.App. 1985), and upheld the admission of the testimony as showing the context of the criminal offense because the arrest was contemporaneous with the commission of the offense. The general rule is that an accused is entitled to be tried for the offense for which he is charged and not for some collateral crime or for being a criminal generally. Maynard v. State, 685 S.W.2d 60 (Tex.Cr.App.1985), and cases cited therein. Exceptions to this rule allow extraneous matters to be admitted if the extraneous matter is relevant to a material issue and the relevancy value outweighs the prejudicial potential. See Morgan v. State, 692 S.W.2d 877 (Tex.Cr.App.1985), Williams v. State, 662 S.W.2d 344 (Tex.Cr.App.1983), and Albrecht v. State, 486 S.W.2d 97 (Tex. Cr.App.1972). A related rule that has often been stated by this Court is that the State is entitled to show the circumstances surrounding an arrest. Maddox, supra; Hernandez v. State, 484 S.W.2d 754 (Tex. Cr.App.1972). However, this rule is restricted by the same test as any extraneous matter, that is, the evidence must be relevant to a material issue in the case and the probative value must outweigh the prejudicial value. Therefore, to simply state that something is admissible merely because it is a circumstance of the arrest is too broad a statement. In Hernandez, this Court stated the rule and added an illustrative footnote, noting that because the defendant in Hernandez was charged and convicted of unlawful possession of a narcotic drug, the recovery of a stolen television during the search and arrest of the defendant at the time of the commission of the offense was inadmissible since it did not relate to proving that the defendant possessed heroin. Hernandez, 484 S.W.2d at 755, n. 2. Similarly, in Powell v. State, 478 S.W.2d 95 (Tex.Cr.App.1972) a defendant was arrested for theft, committed the day before the arrest. After stating the general rule barring the admission of extraneous offenses, but noting the exception for "context of the offense," we held that an officer's testimony concerning the appearance of fresh needle tracks on the defendant's arm at the time of arrest was inadmissible. The State's theory that these tracks showed motive for the theft because appellant needed money to support his narcotic habit was too speculative. Cf. Riley v. State, 168 Tex.Crim. 417, 328 S.W.2d 306 (1959) in which a defendant took drugs and hypodermic needles in a burglary. In Cunningham v. State, 500 S.W.2d 820 (Tex.Cr.App.1973), the defendant was charged and convicted of robbery by assault. The robbers had used pistols in the commission of the offense. The defendant 108 was arrested a short time after the robbery and, in addition to the pistols, a shot-gun was recovered. This Court cited and quoted from Hernandez and held that admission of the shot-gun was error because it had no connection to the robbery. See also Stanley v. State, 606 S.W.2d 918 (Tex.Cr. App.1980) and Maynard, supra. But cf. Ross v. State, 169 Tex.Crim. 313, 334 S.W.2d 174 (1960), decided before Hernandez. In Maddox, relied upon by the Court of Appeals, an undercover officer bought methamphetamine from the defendant who was sitting in his truck and who handed the contraband to a cohort to give to the officer. The defendant was immediately arrested and a rifle was seized from the floorboard of the pickup truck in which he had been seated. This Court held that the rifle was admissible because it "was shown to have been directly connected with, and contemporaneous to, and inseparable from the arrest of the appellant." This language, taken by itself, flies in the face of Hernandez and the general relevancy requirement for extraneous matters. However, although the majority in Maddox does not so state, the arguable implication from the facts and from the concurring opinion is that the rifle was admissible to show the context of the offense because during the drug transaction the defendant possessed a weapon, whether the weapon was for protection or threat or security during the offense. Where possession of a weapon is involved when an offense is committed, such fact is usually relevant as a circumstance of the offense because arguably the weapon is intended by the defendant to be used, exhibited, or simply possessed for protection or threat during the offense. To interpret the statement in Maddox literally would mean that anything recovered during an arrest would be admissible, regardless of its lack of connection to the charged offense. For example, if the defendant in Maddox possessed pornographic magazines when he was arrested, they would be admissible in a prosecution for delivery of methamphetamine. This is certainly not permissible under the law governing admission of extraneous matters. See Hernandez, 484 S.W.2d at 755, n. 2. When an arrest is made during or immediately after the commission of an offense, the "context of the offense" rationale usually permits admission of matters pertaining to the arrest, including a defendant's acts and possessions, because such matters set the stage for the events of the offense and aid the jury's comprehension of the whole criminal transaction. See Maddox, 682 S.W.2d at 566 (concurring opinion, Clinton, J.). But, those extraneous matters must still meet the extraneous offense test, which includes that they be relevant to the offense. See generally, Tx.R. Crim.Evid. art. IV. In the instant case, appellant was arrested during the commission of a burglary of a building. Extraneous matters which occurred during this arrest which were relevant to place the offense in a proper setting and to show the jury the whole transaction would certainly be admissible to show the context of the offense. But, possession of a hypodermic needle does not meet this test. There is no suggestion or indication that appellant burglarized the warehouse to obtain money or property to support a drug habit. Cf. Riley, supra, and Powell, supra. Despite the broad language in Maddox the mere fact that possession of the hypodermic needle was contemporaneous with the arrest does not permit admission. Since there is nothing to show any relevance to the context of the offense or to any other issue in the case, the evidence of appellant's possession of the hypodermic needle should not have been admitted. Having determined that evidence of appellant's possession of the hypodermic needle should not have been admitted, we reverse the judgment of the Court of Appeals and remand this case to the Court of Appeals to decide whether such evidence was harmful to appellant. See Tex.R.App.Pro. 81(b)(2).	{ "pile_set_name": "FreeLaw" }
Filed 11/24/14 CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE STEPHENS & STEPHENS XII, LLC, Plaintiff and Appellant, A135938; A136740 v. FIREMAN'S FUND INSURANCE CO., et (City and County of San Francisco al., Super. Ct. No. CGC-10-502891) Defendants and Respondents. Fireman’s Fund Insurance Co. issued an insurance policy covering loss from property damage, including rent, on a building owned by plaintiff Stephens & Stephens XII, LLC (Stephens XII). Three days after the policy became effective, Stephens XII discovered the property had sustained serious damage from burglars who stripped it of all electrical and other conductive materials. Stephens XII sought reimbursement for the damage from Fireman’s Fund, but Fireman’s Fund delayed resolving the claim. Stephens XII then brought this suit. The policy provided two different measures for reimbursing covered damages. Stephens XII could recover either the full cost of repairing the damages, so long the repairs were actually made, or the depreciated value of the damaged property. As of the date of trial, Stephens XII had not repaired the damage. The jury nevertheless awarded Stephens XII the full cost of repairing it. In addition, the jury awarded Stephens XII lost business income on a theory not authorized by the policy, but it declined to award lost rent, which was authorized by the policy. The trial court granted Fireman’s Fund * Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part DISCUSSION, A.2.B., C. 1 judgment notwithstanding the verdict (JNOV), finding that neither of the awards was permitted under the policy. We reverse. Although we agree with the trial court that Stephens XII is not entitled to an immediate award for the costs of repairing the damage, we conclude that it is entitled to a conditional judgment awarding these costs if the repairs are actually made. We also uphold the award for lost business income because it is properly construed as an award for compensable lost rent. Finally, we conclude that there are insufficient grounds to proceed with a new trial. BACKGROUND Stephens XII filed this suit against Fireman’s Fund, American Insurance Company, and Factory Mutual Insurance Company,1 alleging causes of action for breach of contract and breach of the covenant of good faith and fair dealing. The operative complaint alleged that Stephens XII purchased a liability insurance policy from Fireman’s Fund for a commercial property in January 2007. Property-damage coverage was later added and became effective on June 28. On July 1, Stephens XII discovered that burglars had caused more than $2 million in damage to the property. Stephens XII notified Fireman’s Fund of the property damage, but the insurance company failed to pay for it. A. Fireman’s Fund’s Liability. Fireman’s Fund was found liable to Stephens XII on both causes of action after a jury trial. The factual findings underlying its liability are not challenged in this appeal, but we review them briefly to provide context for the appellate claims. Stephens XII is a limited liability company formed for the purpose of buying and operating the property, a very large industrial warehouse located in Richmond, California. Stephens XII, in turn, is managed by D.R. Stephens & Company, a “property 1 Stephens XII’s claims against Factory Mutual were settled and are not involved in this appeal. American is a Fireman’s Fund subsidiary, and we will refer to them jointly as “Fireman’s Fund” because any distinction between them is immaterial for purposes of this appeal. 2 management company” that manages some 40 real properties.2 When Stephens XII purchased the property in 2005, it was being used as a distribution center by a tenant, Navistar International Transportation Corporation (Navistar). In January 2007, Stephens & Company, Stephens XII, and more than 30 other, presumably related, entities became insured under a Fireman’s Fund commercial insurance policy. Stephens XII, however, did not arrange for property-damage coverage on the property because Navistar already carried it. After Navistar vacated the property on May 31, 2007, Stephens XII realized it needed property-damage coverage and, through its insurance broker, contacted Fireman’s Fund to secure it. The coverage was added, and it became effective on June 28. The property was burglarized sometime after June 8, when the property was inspected and found sound. Burglary hardly begins to describe the nature of the crime. Virtually all conductive material was stripped from the building and taken away. An electrician who examined the damage said “[t]he copper theft was the most complete job I’ve ever seen.” There was water damage throughout; walls were damaged; fire- protection equipment was rendered inoperable; and virtually all electrical components had been taken away. The estimated cost of repair exceeded $1 million. The theft appears to have stopped on or about July 1, after a police officer on routine patrol spotted a door ajar, investigated, and detained two men who said they were collecting metal inside the building. Within days of discovering the damage, Stephens notified Fireman’s Fund. Although Fireman’s Fund eventually paid Stephens XII for emergency repairs, it neither accepted nor denied coverage for the loss. From virtually the beginning of its investigation, Fireman’s Fund was concerned that the damage was too extensive to have 2 The precise legal relationship between Stephens XII and Stephens & Co. is not clear from the testimony at trial. It appears that Stephens & Co. organized the purchase of the property by a group of investors, who presumably became the members of Stephens XII, the entity owning the property. Donald Stephens, the founder of Stephens & Co., was among the investors in Stephens XII and was involved in management decisions concerning the property. 3 occurred in the brief period of the policy’s coverage. Fireman’s Fund ultimately denied coverage, but not until February 2012—nearly five years after the incident and barely a month before trial—on grounds that Stephens XII had concealed and misrepresented material information during the insurance investigation. Trial began the next month. In a special verdict, the jury concluded all of the damage occurred while the policy was in effect, rejected Fireman’s Fund’s defenses of concealment and misrepresentation, and found for Stephens XII on its claims for breach of contract and breach of the covenant of good faith and fair dealing. B. The Damages. The issues raised on appeal all relate to the jury’s award of damages. Under the breach of contract claim, the jury awarded $2,100,293 for the “Replacement Cost” of the damage to the property and $2,135,936 in lost “Business Income.” Under the claim for breach of the covenant of good faith and fair dealing, the jury denied damages for costs of repair and lost profits, but it awarded $436,896 in what was characterized as “lost rents.” As we will describe further below, the trial court concluded that the terms of the policy did not support the jury’s awards, and it entered JNOV for Fireman’s Fund. 1. Replacement or Repair Cost. Under the heading “Valuation,” the policy provides two alternative means for determining the amount Fireman’s Fund is required to pay for property damage. Fireman’s Fund must initially value the damages according to their “Replacement Cost,” meaning the expenditure required to replace the damaged property with “new property of comparable material and quality.” Significantly, however, Fireman’s Fund is not required to pay replacement cost “until the lost or damaged property is actually repaired or replaced and unless the repairs or replacement are made as soon as reasonably possible after the loss or damage.” We shall refer to this provision requiring the repairs to be made before full replacement cost is to be paid as the policy’s repair requirement. When Fireman’s Fund’s obligation to pay full replacement cost is triggered, Fireman’s Fund is 4 only required to pay “[t]he amount [the insured] actually spend[s] that is necessary to repair or replace the lost or damaged property.” 3 3 The full text of the relevant section of the policy is as follows: “K. Valuation “1. Replacement Cost “If a loss occurs: “a. We will determine the value of the lost or damaged property at Replacement Cost as of the time of the loss or damage, except as provided below. Replacement cost means the cost to replace with new property of comparable material and quality and used for the same purpose without deduction for depreciation. “b. You may make a claim for loss or damage covered by this insurance on an Actual Cash Value basis instead of a Replacement Cost Basis. In the event you elect to have loss or damage settled on an Actual Cash Value basis, you may still make a claim for the additional coverage which Replacement Cost provides if you notify us of your intent to do so within 180 days after the loss or damage. “c. We will not pay on a Replacement Cost basis for any loss or damage until the lost or damaged property is actually repaired or replaced and unless the repairs or replacement are made as soon as reasonably possible after the loss or damage. “d. We will not pay more for loss or damage on a Replacement Cost basis, including loss caused by the enforcement of an ordinance or law, than the least of the following: “(1) The Limit of Insurance applicable to the lost or damaged property; “(2) The cost to replace the lost or damaged property with other new property of comparable material and quality and used for the same purpose; or “(3) The amount you actually spend that is necessary to repair or replace the lost or damaged property. “e. You may voluntarily elect to rebuild on another site provided it does not increase the amount of loss or damage which we would otherwise pay to rebuild at your current site. But we will not pay for the cost of the land.” 5 As an alternative to seeking replacement cost, the insured may claim “Actual Cash Value,” which is defined as the actual, depreciated value of the damaged property.4 As the policy acknowledges, the actual cash value might be “significantly less” than the replacement value. If an insured makes a claim for actual cash value, it may still repair the damage and claim the additional amount necessary to equal the replacement cost, so long as the insured notifies Fireman’s Fund of its “intent to [make a claim for the additional costs] within 180 days after the loss or damage.” These provisions are apparently common in property-damage insurance policies. They were explained succinctly in D&S Realty v. Markel Ins. Co. (2012) 284 Neb. 1 [816 N.W.2d 1] (D&S Realty), and we quote at length from that decision. “Standard casualty protection for residential and commercial property insures the property only to the extent of its actual cash value. Actual cash value is the value of the property in its depreciated condition. The purpose of actual cash value coverage is indemnification. It is to make the insured whole, but never to benefit the insured because the loss occurred. “Most standard indemnity policies allow the insurer to choose to pay the lesser of actual cash value or the cost of repairing or replacing the damaged property. Thus, where the cost to repair or replace is greater than the actual cash value, the insured, not the insurer, is responsible for the cash difference necessary to replace the old property with new property. “Replacement cost insurance is optional additional coverage that may be purchased to insure against the hazard that the improvements will cost more than the actual cash value and that the insured cannot afford to pay the difference. In essence, replacement cost coverage insures against the expected depreciation of the property. Unlike standard indemnity, replacement cost coverage places the insured in a better position than he or she was in before the loss. ‘Any purported windfall to an insured who purchases replacement cost insurance is precisely what the insured contracted to receive 4 An endorsement to the policy defines actual cash value as “the amount it would cost to repair or replace Covered Property, at the time of loss or damage, with material of like kind and quality, subject to a deduction for deterioration, depreciation and obsolescence.” 6 in the event of a loss.’ Replacement cost coverage is, accordingly, more expensive than standard indemnification coverage. “But because replacement cost coverage places the insured in a better position than before the loss, there is a moral hazard that the insured will intentionally destroy the insured property in order to gain from the loss. For this reason, most replacement cost policies require actual repair or replacement of the damaged property as a condition precedent to recovery under the replacement cost rider. The repair/replace condition generally requires . . . that the repair or replacement occur ‘as soon as reasonably possible after the loss,’ or a similar time constraint. “If the insured has contracted for replacement cost coverage, the insured will normally be entitled under the policy to an immediate payment representing the actual cash value of the loss, which can be used as seed money to start the repairs. Depending on the policy, the acceptance of this actual-cash-value payment may trigger a more limited time constraint for completion of the repairs. . . . If the insured repairs or replaces the property within the time period stated in the policy, the insured will then be entitled to an additional payment for the amount by which the cost of the repair or replacement exceeded the actual cash value payment.” (D&S Realty, supra, 816 N.W.2d at pp. 14-16, fns. omitted.) According to a company adjuster who testified at the trial here, Fireman’s Fund handles property-damage claims consistent with the process described in D&S Realty, supra, 816 N.W.2d 1. “On a typical basis, the way the losses are handled is that you would . . . reach an agreed scope and cost of repairs, and from that amount you would basically take away what’s called depreciation. . . . And [Fireman’s Fund] would issue the actual cash value . . . payment up front. From the time that that payment is issued, the insured has 180 days to basically show that they have completed or near completion of the actual repairs, and then they can come back and receive up to the amount of held back depreciation.” That is not what happened here. During the three years between the burglary and the initiation of this lawsuit, the parties engaged in an extended series of ultimately 7 fruitless discussions about reimbursement for the damage. During the course of the discussions, it appears never to have been suggested by either party that Stephens XII seek an actual cost value payment, thereby providing it the “seed money” to start repairs. (D&S Realty, supra, 816 N.W.2d at p. 16.) As a Stephens XII witness involved in the negotiations acknowledged, Stephens XII sought the replacement cost of the damage, even though it had taken no steps to make the repairs. Fireman’s Fund, in turn, never accepted coverage for the loss. At the time of trial, few repairs had been made, beyond the emergency ones for which Stephens XII had been reimbursed by Fireman’s Fund. At trial, Stephens XII presented no evidence of the actual cash value of the damaged property and expressly disclaimed any intent to seek recovery under this measure.5 As a result, no provision was made for actual cost value damages in the special verdict form. Rather, Stephens XII sought exclusively replacement cost damages, taking the position that it was excused from complying with the repair requirement as a result of Fireman’s Fund’s denial of coverage. In the special verdict, the jury found that Fireman’s Fund “fail[ed] to make payments required by the policy, which prevented Stephens [XII] from repairing the damage to the Property.” Although it found that Stephens XII had not repaired the property, it also determined that Stephens XII had performed its material duties under the policy. The jury valued the replacement cost at $2,100,293. Fireman’s Fund moved for JNOV, contending Stephens XII was not entitled to replacement cost as a matter of law because Stephens XII had not satisfied the precondition of the repair requirement. Stephens XII argued that the jury had concluded Fireman’s Fund’s failure to pay the actual cost value prevented and excused Stephens XII from the repair requirement. 5 During the jury instructions conference, the trial court confirmed with Stephens XII’s counsel, “it’s my understanding that the plaintiff’s right now firmly on the record without any equivocation that they are not asking for actual cash value in this case.” Counsel responded, “No, we are not asking for actual cash value.” 8 The trial court granted the motion. It found that Stephens XII was required to complete the repairs before it was entitled to receive replacement cost. It also found that Stephens XII’s claim that it was excused from the repair requirement was unsupported by the language of the policy. As the court reasoned, Stephens XII was permitted to claim either actual cost value or replacement value, and Fireman’s Fund’s obligation to pay did not arise until a claim was made. The court held that although Stephens XII “plainly sought insurance proceeds from [Fireman’s Fund],” it never made a claim for actual cost value prior to trial and disclaimed the recovery of actual cost value at trial. The court declined to find that the payment of actual cost value was a condition precedent to Stephens XII’s obligation to repair in order to receive replacement cost, noting the right to replacement cost is independent of the right to actual cost value under the policy, and the “availability of these independent avenues to compensation counters the interpretation that proceeding down one of those avenues is a condition to the steps involved in prosecuting the other avenue.” 2. Lost Business Income. An endorsement to the policy provided, “[Fireman’s Fund] will pay for the actual loss of Business Income and Rental Value which you sustain due to the necessary suspension of operations during the period of restoration. The suspension must be caused by direct physical loss or damage at the premises, . . . caused by or resulting from a covered cause of loss.” For purposes of the provision, “Operations” was defined as “your business activities occurring at the described premises and the tenantability of the described premises.” “Rental Value” was defined as “[t]he total anticipated rental income from tenant occupancy of the premises . . . as furnished and equipped by you.” Stephens XII provided evidence of two types of damages under this provision and asked the jury to award one or the other, but not both. First, Stephens XII sought, as lost business income, lost profits from a deal to sell the property in March 2008 that fell through. An expert witness for Stephens XII testified that the damages associated with this failed real property sale amounted to over $10 million. Alternatively, Stephens XII sought the equivalent of nearly five years’ rent for the property, which had remained 9 vacant between the time of the burglary and the trial. The damages expert assumed the property would have been rented on a “triple net” basis at a rental value of $.30 per square foot per month, beginning December 1, 2007.6 Based on 242,720 square feet, the total lost rent to the time of trial was $3,589,110. During cross-examination, the expert acknowledged that the rent proposal on which he based his estimate actually provided for monthly rent of $.20 per square foot when calculated on a triple net basis. Although the expert assumed that the property could have been repaired and rented within six months, Stephens XII’s attorney suggested to the jury that it would be “reasonable” for it to find that it would have taken a full year to rent the property, given the time needed for repair and marketing. The special verdict form included a series of questions relating to both lost business income and lost rent. The jury found that Stephens XII had suffered lost business income under the policy and awarded $2,135,936. In a section of the special verdict form labeled, “COVERED LOSS OF RENTAL VALUE,” the jury appears initially to have found that Stephens XII suffered “an actual loss of ‘Rental Value’ ” but scratched out its “yes” response to this finding and changed it to “no.” It accordingly awarded no damages for loss of rental value under the breach of contract claim. The jury also awarded bad faith damages of $436,896, which it inserted in a blank labeled “lost rents.” In its JNOV motion, Fireman’s Fund argued that income lost from the failed real estate sale did not constitute lost “business income” under the policy as a matter of law. Stephens XII countered by arguing that the award of business income should be interpreted as lost rents. It pointed out that the $2,135,936 awarded by the jury was exactly equal to 44 months of rent, calculated on the basis of $.20 per square foot. An award of 44 months of rent would assume the property was rented from July 2008, one year after the damage occurred, as urged by Stephens XII’s attorney, through March 6 Under a triple net lease, a common commercial arrangement, “the renter pays all operating expenses and the owner gets a net check.” 10 2012, the month of trial. Stephens XII suggested that the jury viewed the lost rents to be lost business income because the company was in the business of renting property, and two company employees had equated lost rents and lost business income during their testimony. In granting JNOV, the trial court concluded Stephens XII could not have suffered lost business income because it did not conduct any business at the property, as required by the policy. The court found the verdict to be “unambiguous” in not awarding lost rents, and it rejected Stephens XII’s theory that the jury conflated business income and lost rents. In addition, the court overturned the jury’s award of bad faith damages because no compensatory damages had been properly awarded. C. The New Trial Motion. When it filed its motion for JNOV, Fireman’s Fund also filed a motion for a new trial, arguing not only that the jury’s award of damages was erroneous as a matter of law but also that its factual findings were against the weight of the evidence. The trial court initially denied the motion as moot in light of its grant of JNOV. At the request of Fireman’s Fund, the court reconsidered and granted a new trial in a subsequent order ruling, “The motion for a new trial is granted, to be effective only if my ruling on the motion JNOV is vacated or reversed [on appeal]. [Citation.] Specifically, for the reasons stated in my [written decision granting JNOV], I find that there was an insufficiency of the evidence to support the award of damages, that the decision was against the law, and the verdict was against the weight of the evidence.” At oral argument on Stephens XII’s postverdict motion to amend the complaint, Stephens XII’s counsel sought clarification of the scope of the court’s order on the motion for a new trial. Counsel noted that the court’s reasons for granting the motion “deal with the complaint only, and not cross-complaint, and I just want to make sure that the new trial is granted only with respect to those issues.”7 The court responded, “when I 7 The existence of a cross-complaint is news to this court, since neither party included such a document in its appendix. It is unclear what claims were alleged in the cross- complaint, although Stephens XII’s counsel spoke of a “qui tam action.” 11 say we’re going to have a new trial, we would have to . . . give Fireman’s Fund the opportunity to again try to have a new trial on all of those legal and factual issues [of the cross-complaint]. . . . So we would, in fact, be retrying all of those issues. We would just start from the top.” In a written order, entered the same day, the court reaffirmed this ruling, noting, “if there is to be a new trial then, depending on the direction from the Court of Appeal, all the issues including all affirmative defenses would be retried.” Finally, in September 2012, the trial court entered an order amending the judgment nunc pro tunc to award certain costs of suit to Fireman’s Fund and denying costs to Stephens XII. Stephens XII initially appealed the trial court’s orders granting JNOV and a new trial, and the judgment entered on those orders. It later filed a second notice of appeal addressed to the court’s amendment of the judgment to award costs. The appeals were consolidated by our order of May 21, 2013. DISCUSSION A. The JNOV on the Breach of Contract Cause Cannot Be Sustained. “ ‘ “The trial court’s power to grant a motion for JNOV is the same as its power to grant a directed verdict. [Citation.] The court must accept as true the evidence supporting the jury’s verdict, disregarding all conflicting evidence and indulging in every legitimate inference that may be drawn in support of the judgment. The court may grant the motion only if there is no substantial evidence to support the verdict. [Citations.] On appeal from the denial of a motion for JNOV, we determine whether there is any substantial evidence, contradicted or uncontradicted, supporting the jury’s verdict. [Citation.]” ’ ” (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1237.) Where, however, the trial court’s grant of JNOV is based on an issue of law—here, the interpretation of an insurance policy—our review is de novo. (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1138; Cardio Diagnostic Imaging, Inc. v. Farmers Ins. Exchange (2014) 212 Cal.App.4th 69, 73 [interpretation of insurance policy is an issue of law].) 12 We conclude that the trial court’s grant of JNOV cannot be sustained under these standards. As we shall explain, although Stephens XII is not entitled to an immediate award for the costs of repairing the damage, it is entitled to a conditional judgment awarding these costs if the repairs are actually made. And, as we shall further explain, the jury’s award for lost business income is properly construed as an award for lost rent. 1. Stephens XII Is Entitled to a Conditional Judgment Awarding It Replacement Cost if It Repairs the Damaged Property. The trial court properly interpreted the policy’s terms, and Stephens XII does not seriously contend otherwise. Under these terms, Stephens XII could claim either actual cost value or replacement cost, but it was entitled to receive replacement cost only if it actually repaired the damage. As the court observed in granting JNOV, there was no dispute that Stephens XII did not repair the property and was ineligible to receive replacement cost under the literal terms of the policy. While the parties dispute whether the court properly interpreted the policy as requiring an affirmative claim for actual cost value reimbursement, Stephens XII disclaimed any intent to recover actual cost value at trial and presented no evidence of this measure of damages. Instead of arguing that the trial court misinterpreted the policy’s terms, Stephens XII instead argues that it was excused from complying with the repair requirement under various doctrines. We therefore turn to consider these arguments. a. Prevention. Stephens XII first argues that it was excused from complying with the repair requirement because it was prevented from repairing the damage by Fireman’s Fund’s failure to accept coverage. As the doctrine of prevention was articulated in Jacobs v. Tenneco West, Inc. (1986) 186 Cal.App.3d 1413, 1417, “ ‘Where a party’s breach by non-performance contributes materially to the non-occurrence of a condition of one of his duties, the non-occurrence is excused.’ [Citation.]” quoting the Restatement (Second) of Contracts, section 245. “ ‘Although it is implicit in the rule that the condition has not occurred, it is not necessary to show that it would have occurred but for the lack of cooperation. It is only required that the breach have contributed materially to the non- 13 occurrence. Nevertheless, if it can be shown that the condition would not have occurred regardless of the lack of cooperation, the failure of performance did not contribute materially to its non-occurrence and the rule does not apply.’ ” (Ibid.) More recently, City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455 (City of Hollister) reached a similar result through application of the doctrine of estoppel. (Id. at pp. 491- 492.) No reported California case has addressed the application of the prevention doctrine in the context of the type of repair requirement at issue here, but several decisions from other jurisdictions have. Courts have largely, but not uniformly, excused the insured from repairing damaged property when the insurer failed to pay on the claim or hindered or prevented the repair. (See Pollock v. Fire Ins. Exchange (1988) 167 Mich. App. 415 [423 N.W.2d 234, 236-237], Bailey v. Farmers Union Co-op. Ins. Co. (Neb.App. 1992) 498 N.W.2d 591, 598-599, Ward v. Merrimack Mut. Fire Ins. Co. (2000) 332 N.J. Super. 515 [753 A.2d 1214, 1219-1221], and Rockford Mut. Ins. Co. v. Pirtle (Ind.App. 2009) 911 N.E.2d 60, 66-67.)8 On the other hand, Florida courts have not excused the insured from repairing damaged property under similar circumstances.9 Two decisions, D&S Realty, supra, 816 N.W.2d at pages 16-17 and Smith v. Michigan Basic Property Ins. Assn. (1992) [441 Mich. 181] 490 N.W.2d 864, 868 (Smith), found a middle ground. Both concluded that an insurer’s failure to pay on a claim or other hindrance excused the policy’s procedural requirements, such as time restrictions, but did not entirely excuse the insured from its underlying obligation to repair the property. They held that the insured was entitled to a judgment requiring the insurer to pay actual cost value immediately and to pay replacement costs conditionally on the insured’s completion of repairs promptly from the date of the judgment. (Smith, at 8 In addition, Conrad Brothers v. John Deere Ins. Co. (Iowa 2001) 640 N.W.2d 231 (Conrad Brothers) discussed prevention doctrine but ultimately reached the same result under the doctrine of repudiation. (Id. at p. 242.) 9 We mention cases cited by the parties. Additional cases are discussed in Conrad Brothers, supra, 640 N.W.2d at page 240, and Ward, supra, 753 A.2d at page 1218. 14 p. 866.) In effect, the courts granted specific performance of the insurance policy, requiring the insurer to make good on its contractual obligation to pay full replacement cost only upon the insured’s satisfaction of the condition precedent of repairing the property. The rationale for this approach was explained in D&S Realty, partly by referring to the decision in Smith, supra, 490 N.W.2d 1: “In [Smith], the Michigan Supreme Court held that the excusal of the insureds’ performance of the repair/replace condition was only temporary. [¶] . . . [¶] The insurer in Smith had, in good faith, denied the insureds’ claim after fire destroyed their home, believing that the insureds deliberately set the fire. When it appeared that the home would not be repaired, the city demolished what was left of the structure, and the insureds had not replaced it. . . . [¶] The . . . Supreme Court [pointed out] that [in such a situation] ‘ “a bank would be chary to lend money on the basis of an unlitigated law suit in which the defendant and its vast resources intend to present several defenses to payment.” ’ Thus, the insureds ‘could not be expected to repair, rebuild, or replace while this litigation was pending.” However, once litigation has determined the insureds are entitled to coverage, the insurer’s defense to coverage ‘no longer stands in the way of lender-assisted financing of repair, rebuilding, or replacement.’ [¶] Although the insured’s house in Smith had been demolished by the time the policy dispute was decided, the policy allowed the insured to rebuild in a different location from the site of the loss. Accordingly, the Michigan Supreme Court concluded that the insureds’ ‘interest in obtaining payment of replacement cost can be protected without estopping the insurer from requiring actual repair, rebuilding, or replacement.’ The court remanded with directions that the judgment award the insureds actual cash value and require an additional payment by the insurer when and if the insureds actually repaired, rebuilt, or replaced their home. [¶] . . . [¶] There are courts which hold that the good faith denial of liability under the policy absolutely and permanently excuses or waives the insured’s obligation to perform the repair/replace condition. But we agree with the reasoning in Smith. The respective interests of parties acting in good faith can, in most cases, be adequately protected by excusing the 15 performance of the repair/replace condition only for such time as it appears the insurer will not honor its obligations under the policy. Where the insured can still conduct the repairs/replacements and be reimbursed by the insurer, then the good faith denial of liability should not operate to give the insured a benefit it did not contract for.” (D&S Realty, supra, 816 N.W.2d at pp. 16-18, fns. omitted.) We are persuaded by this reasoning and adopt it. When an insurer’s decision to decline coverage materially hinders an insured from repairing damaged property, procedural obstacles to obtaining the replacement-cost value should be excused. If coverage is ultimately resolved in favor of the insured, the insured should remain eligible to receive replacement cost, but only so long as the insured complies with other applicable policy terms, such as a repair requirement. In other words, a coverage dispute should not give the insured a benefit under the policy it never had in the absence of the dispute—such as the right to receive replacement cost without actually repairing the damage.10 Here, Fireman’s Fund’s delayed resolution and denial of the claim materially hindered Stephens XII’s ability to plan for the property. As a result, Stephens XII should be excused from the requirement that the damage be repaired “as soon as reasonably possible after the loss or damage.” Had Stephens XII sought damages based on actual cost value and proved them at trial, it would have been entitled to an immediate award of such damages. When Stephens expressly disclaimed recovery of actual cost value damages, it waived an award based on this measure. In any event, such an award would lack an evidentiary basis because no evidence of actual cost value damages was presented 10 We recognize that both D&S Realty, supra, 816 N.W.2d 1 and Smith, supra, 490 N.W. 2d 864 limited their holdings to coverage disputes conducted in good faith, while Fireman’s Fund was found to have acted in bad faith. The finding of bad faith subjected Fireman’s Fund to tort remedies, including punitive damages (Jordan v. Allstate Ins. Co. (2007) 148 Cal.App.4th 1062, 1073), but Stephens XII has provided us with no California authority for depriving an insurance company of its contractual rights under the policy because it failed promptly to pay a property-damage claim in an amount calculated under a measure disclaimed by the insured. 16 at trial.11 Stephens XII nonetheless remains entitled to a judgment awarding replacement cost consistent with the repair requirement if it actually completes the repairs “as soon as reasonably possible” after the judgment becomes final.12 Fireman’s Fund argues that Stephens XII is not entitled to an award of replacement cost because completion of the repairs is a condition precedent to the right to receive them.13 We are persuaded our decision properly addresses this concern. Stephens XII’s failure to satisfy the condition precedent precluded its immediate recovery of replacement cost, but it does not follow that the failure deprived Stephens XII of the right to litigate about replacement cost—that is, to prove its entitlement to reimbursement of replacement cost conditioned upon satisfaction of the condition precedent. 11 In this connection, Stephens XII contends the trial court erred in denying its oral request, made during argument on Fireman’s Fund’s motion for a directed verdict, to reopen the evidence to permit proof of actual cost value. We find no abuse of discretion by the trial court in denying the request. (See Estate of Young (2008) 160 Cal.App.4th 62, 91 [trial courts have broad discretion in ruling on motion to reopen].) Stephens XII presumably knew that proof of actual cost value would be required if the company expected to recover it. The failure to submit such proof appears to have been a tactical decision, rather than an oversight. In any event, Stephens XII subsequently waived any recovery of actual cost value when its attorney unequivocally informed the court, “No, we are not asking for actual cash value.” 12 We asked the parties for supplemental briefing on the propriety of a conditional judgment. In this supplemental briefing, both parties argue that such a judgment would be improper because Stephens XII recently sold the property. We do not agree. Even if cognizable evidence of a sale were before us, which it is not, we would find it to be immaterial. The policy’s repair requirement is not extinguished simply because Stephens XII may have rendered itself unable to satisfy it (and thereby ineligible to recover replacement cost) by selling the property. Nor would a sale moot the issue as Fireman’s Fund contends. Regardless of any sale, the validity of the JNOV and the form of judgment remain live issues between the parties, and entry of a conditional judgment in favor of Stephens XII may affect other relief available to the parties, such as costs. Accordingly, we deny Fireman’s Fund’s request for judicial notice of documentation relating to the sale, filed September 8, 2014. 13 “ ‘[A] “condition precedent” is “either an act of a party that must be performed or an uncertain event that must happen before the contractual right accrues or the contractual duty arises.” ’ ” (Barroso v. Ocwen Loan Servicing, LLC (2012) 208 Cal.App.4th 1001, 1009.) 17 We recognize that “[g]enerally, a party’s failure to perform a condition precedent will preclude an action for breach of contract.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1192.) But here, Stephens XII’s repair of the property is not a condition precedent to Fireman’s Fund’s liability under the policy. Instead, Fireman’s Fund’s duty to reimburse Stephens XII arose as soon as a claim was filed. At that point, Fireman’s Fund was liable to pay actual cost value. Repairing the damaged property was a condition precedent only for the additional obligation to pay the difference between actual cost value and replacement cost. Fireman’s Fund argues that Stephens XII failed to prove the coverage dispute hindered or prevented it from repairing the property. The jury found otherwise, and that finding was supported by substantial evidence. While there was significant evidence that Stephens XII had debated whether to repair, subdivide, or demolish the property, there was also significant evidence that Fireman’s Fund’s refusal to commit to coverage made it difficult for Stephens XII to know what to do with the property. Donald Stephens testified that the company had essentially exhausted its capital in maintaining the property and needed a coverage commitment from Fireman’s Fund to proceed. We are satisfied that the uncertainty created by Fireman’s Fund’s failure to accept coverage sufficiently hindered Stephens XII’s ability to repair the property to satisfy the prevention doctrine.14 The judgment must accommodate an additional limitation on Stephens XII’s ability to recover replacement cost. Stephens XII submitted proof of likely replacement cost and received a monetary award of those costs from the jury. The policy, however, limits Fireman’s Fund’s obligation to “[t]he amount [the insured] actually spend[s] that is necessary to repair or replace the lost or damaged property.” (Italics added.) Just as we 14 We also find no basis for Fireman’s Fund’s claim that Stephens XII waived its argument by not presenting evidence or seeking appropriate jury instructions. The general issue of Stephens XII’s entitlement to replacement cost had been an issue throughout the litigation, both sides presented evidence and examined witnesses with the issue in mind, and a special verdict question related to the issue. 18 find no basis for excusing Stephens XII’s obligation to repair, we find no basis for awarding Stephens XII a specific amount of replacement cost before it makes the actual repairs. Instead, Stephens XII is entitled to a judgment declaring its right to receive reimbursement for repair costs, if and when the repairs have actually been performed in a timely manner, and in an amount equal to Stephens XII’s actual expenditures for them. b. Waiver. Stephens XII also argues that Fireman’s Fund waived its right to insist on compliance with the repair requirement because it failed to “assert” such an insistence in various communications with Stephens XII. We are not persuaded. In the insurance context, “[c]ase law is clear that ‘ “[w]aiver is the intentional relinquishment of a known right after knowledge of the facts.” [Citations.] The burden . . . is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation, and “doubtful cases will be decided against a waiver” [citation].’ [Citations.] The waiver may be either express, based on the words of the waiving party, or implied, based on conduct indicating an intent to relinquish the right. [¶] . . . California courts have applied the general rule that waiver requires the insurer to intentionally relinquish its right to deny coverage and that a denial of coverage on one ground does not, absent clear and convincing evidence to suggest otherwise, impliedly waive grounds not stated in the denial.” (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31) “Whether a waiver has occurred depends solely on the intention of the waiving party. [Citation.] An intention to waive a limitations provision is not evinced by the failure to raise that point in a letter denying a claim.” (Velasquez v. Truck Ins. Exchange (1991) 1 Cal.App.4th 712, 722.) Here, there is no evidence, much less evidence that is clear and convincing, that Fireman’s Fund intentionally relinquished its right to insist on compliance with the repair requirement. Stephens XII cites no express waiver by Fireman’s Fund, and the various instances of omission cited by Stephens XII do not establish an intentional relinquishment of rights. Stephens XII points out, for example, that Fireman’s Fund did not calculate and pay the claim on the basis of actual cost value, as required by its 19 standard procedure. But this action can be explained by Stephens XII’s failure to make a claim for actual cost value. Similarly, while Fireman’s Fund obtained estimates on the basis of replacement cost, there is no reason to infer that by doing so it intended to abandon its rights under the repair requirement. Stephens XII provides no persuasive evidence of an intent by Fireman’s Fund to excuse compliance with the repair requirement.15 c. Estoppel. Stephens XII also contends Fireman’s Fund should be prevented from relying on the repair requirement under the doctrine of estoppel because it failed to advise Stephens XII of the requirement. Again, we disagree. “ ‘A valid claim of equitable estoppel consists of the following elements: (a) a representation or concealment of material facts (b) made with knowledge, actual or virtual, of the facts (c) to a party ignorant, actually and permissibly, of the truth (d) with the intention, actual or virtual, that the ignorant party act on it, and (e) that party was induced to act on it.’ ” (Transport Ins. Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1013.) The requirement of a representation or concealment is not strictly enforced; mere silence may qualify if, under the circumstances, the party to be estopped was under a duty to speak to avoid a misunderstanding. (Spray, Gould & Bowers v. Associated Internat. Ins. Co. (1999) 71 Cal.App.4th 1260, 1268.) Other, more general formulations have been proposed (see City of Hollister, supra,165 Cal.App.4th at p. 488), but all formulations require that the conduct of the party to be estopped induced action on the part of the complaining party. “Such causation is essential to estoppel.” (Id., at p. 487.) Stephens XII argues that Fireman’s Fund should be estopped from denying coverage because it failed to discuss or disclose the policy provisions. But Stephens XII 15 The primary decision cited by Stephens XII in support of its argument, Prudential-LMI Com. Insurance v. Superior Court (1990) 51 Cal.3d 674, merely recognizes that an insurer may waive the statute of limitations. (Id. at pp. 689-690.) Beyond recognizing the general principle of waiver, the decision is of little persuasive force here since it did not attempt to apply the principle to the circumstances before the court. (Id. at p. 690.) 20 points to no evidence suggesting that any nondisclosure was the cause of its failure either to make a claim for actual cost value or to make the required repairs. We have no reason to infer that Stephens XII was uninformed about its options under the policy. It is a sophisticated professional owner of real estate; the policy’s language is clear and unambiguous; and the company was advised by an insurance broker in its dealings with Fireman’s Fund. In short, substantial evidence was not presented demonstrating that Stephens XII was unaware of the repair requirement due to any nondisclosure on the part of Fireman’s Fund.16 d. Prejudice. Stephens XII cites cases holding that an insurer may not assert defenses based on an insured’s breach of a policy condition unless the insurer was substantially prejudiced. (Campbell v. Allstate Ins. Co. (1963) 60 Cal.2d 303, 305.) The doctrine is ordinarily applied to “procedural” provisions, such as timely notice requirements, rather than substantive provisions, like a repair obligation. (E.g., Shell Oil Co. v. Winterthur Swiss Ins. Co. (1993) 12 Cal.App.4th 715, 763.) It is inapplicable here for two reasons. First, by failing to pay for repairs or make a claim for actual cost value, Stephens XII did not breach the terms of the policy; it simply failed to satisfy a condition precedent (the repair requirement) to Fireman’s Fund’s obligation to pay replacement cost. Second, there would be no way to know until after the payment was made whether Fireman’s Fund would be prejudiced by being required to pay replacement cost before the damages were actually repaired. If Stephens XII made the repairs, there would have been no prejudice; but if Stephens XII simply pocketed the money or used it to subdivide or demolish the 16 Indeed, Fireman’s Fund at trial sought to prove that Stephens XII understood and appreciated the policy provisions but was precluded from doing so by Stephens XII’s objection. Fireman’s Fund attempted to introduce evidence of similar insurance claims filed by Stephens & Co. entities under the policy that would have demonstrated the company’s awareness of the actual cash value option. Stephens XII moved to exclude the evidence, arguing the other insurance claims were irrelevant. The trial court granted the motion, concluding Stephens XII’s “state of mind” was not relevant to the disputed material issues. 21 property, as testimony suggested it might, Fireman’s Fund would have been prejudiced by having to pay replacement cost when only actual cost value was required. Accordingly, we cannot say Fireman’s Fund was not prejudiced by Stephens XII’s conduct. e. Repudiation. Stephens XII’s final argument is that Fireman’s Fund’s denial of coverage should be treated as a repudiation of the policy. But this argument misapplies the doctrine of repudiation. Repudiation of a contract, also known as “anticipatory breach,” occurs when a party announces an intention not to perform prior to the time due for performance. (Taylor v. Johnston (1975) 15 Cal.3d 130, 137-138; Rest. 2d of Contracts, § 253, com. (a), p. 286.) Fireman’s Fund’s denial of coverage, coming after the occurrence of the damage for which indemnity was sought, was not a repudiation but instead an ordinary breach by nonperformance. 2. The Jury’s Award for Lost Business Income Is Properly Construed as a Compensable Award for Lost Rent. The trial court correctly ruled that Stephens XII was not entitled to be indemnified for lost business income as a result of the March 2008 failed real estate sale since the policy only indemnified loss arising from lost business conducted on the property. Stephens XII does not argue otherwise, but instead argues that the court misinterpreted the special verdict. We agree. As we shall explain, the totality of circumstances surrounding the special verdict leads us to conclude that the jury’s business income verdict is properly construed as an award of lost rent during the period of the coverage dispute and litigation. Because reimbursement for such loss is expressly provided under the policy, we conclude that the award must stand. “When no objection is made that a special verdict is ambiguous or incomplete before the jury is discharged, ‘it falls to “the trial judge to interpret the verdict from its language considered in connection with the pleadings, evidence and instructions.” [Citations.] Where the trial judge does not interpret the verdict or interprets it erroneously, an appellate court will interpret the verdict if it is possible to give a correct 22 interpretation.’ ” (Orthopedic Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 542.) We are not bound by the trial court’s interpretation of the special verdict. (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 325.) When interpreting a special verdict, “reference may be made to the pleadings, the evidence and the court’s instructions. [Citations.] . . . ‘In determining the sufficiency of the verdict the entire record should be searched and all the parts interpreted together, so that if possible a deficiency in one place may be cured by what appears in another.’ [Citation.] Accordingly, it is the rule that all reasonable inferences will be indulged on appeal to support, rather than defeat, a jury’s verdict.” (Fransen v. Washington (1964) 229 Cal.App.2d 570, 574.) “ ‘A verdict should be interpreted so as to uphold it and to give it the effect intended by the jury, as well as one consistent with the law and the evidence.’ ” (All-West Design, Inc. v. Boozer (1986) 183 Cal.App.3d 1212, 1223.) The trial court found the special verdict to be “unambiguous” presumably because the verdict awarded Stephens XII damages for lost business income and denied damages for lost rents. While we acknowledge that the special verdict was not ambiguous on its face, “ ‘[a]n ambiguity can be patent, arising from the face of the writing, or latent, based on extrinsic evidence.’ ” (Claxton v. Waters (2004) 34 Cal.4th 367, 381.) “ ‘Even if a contract appears unambiguous on its face, a latent ambiguity may be exposed by extrinsic evidence which reveals more than one possible meaning to which the language of the contract is yet reasonably susceptible.’ ” (E.g., Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 391.) While, as Dore suggests, the issue of latent ambiguities arises most often in the interpretation of contracts, latent ambiguity is a potential characteristic of all writings, including special verdict forms. (See Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 456, fn. 2 (Woodcock) [recognizing that a special verdict can be latently ambiguous].) The special verdict here contains such a latent ambiguity. Most telling is the amount of damages awarded. The amount of damages awarded for lost business income, $2,135,936, bears no apparent relationship to the damages sought by Stephens XII under its theory of lost business income as a result of the failed real estate sale. Stephens XII’s 23 damages expert testified that the company lost about $10 million as a result of the failed sale. That figure was premised on a series of assumptions from the specifics of the sale transaction, and none of them gives rise to a plausible calculation of damages approximating $2 million, let alone to the precise figure found by the jury. In other words, the award of $2,135,936 is simply inexplicable under the theory of lost business income urged by Stephens XII at trial. On the other hand, the award bears a striking correlation to Stephens XII’s theory of lost rent. The damages expert testified that Stephens XII was entitled to lost rent calculated at a monthly value of $.30 per square foot. On cross-examination, he admitted that the proposal on which he based his testimony actually called for monthly rent at a rate of $.20 per square foot. In closing argument, Stephens XII’s attorney told the jury that a reasonable amount of time for the company to have rented the property would have been one year after the loss, which was 44 months prior to trial. To the dollar, the jury’s award of $2,135,936 equals 44 months of rent calculated at a rate of $.20 per square foot. The correspondence is too exact to be coincidental. “Where, as here, a jury’s verdict precisely matches an expert’s testimony, logic and common sense tells us that the jury accepted the expert’s analysis and calculations.” (Orthopedic Systems, Inc. v. Schlein, supra, 202 Cal.App.4th at p. 543.) Because this aspect of the expert’s testimony concerned lost rent, rather than lost business income, the jury’s monetary award indicates that it accepted the expert’s testimony with respect to lost rent, rather than lost business income. Stephens XII provides a plausible explanation for the jury’s classification of lost rent as lost business income. As two witnessed testified at trial, Stephens XII is in the business of leasing property. To the company, lost rent is equivalent to lost business income, at least if the term “business income” is considered colloquially, rather than as defined by the policy. We conclude that the jury disregarded Stephens XII’s “lost sale” theory of business income damages and instead awarded 44 months of lost rent. Stephens XII argues that the award was for lost rent that should be considered under the circumstances to be an award for covered lost business income, and Fireman’s 24 Fund argues that it should not. But we find the issue irrelevant. It is clear the jury intended to award lost rents to Stephens XII, and lost rents are allowable under the policy. It does not matter whether these lost rents could also have qualified as lost business income. The special verdict must be interpreted as awarding Stephens XII damages of $2,135,936 for lost rent on the breach of contract cause of action. This interpretation is consistent with our obligation to uphold the verdict if possible. (All-West Design, Inc. v, Boozer, supra,183 Cal.App.3d at p. 1223.) Reversal of an ambiguous special verdict is “required” only “[i]f the verdict is hopelessly ambiguous.” (Woodcock, supra, 69 Cal.2d at p. 457.) The special verdict here is far from hopelessly ambiguous. Fireman’s Fund also argues that Stephens XII failed to offer solid evidence establishing lost rents, characterizing its evidence as “speculative at best.” On the contrary, the expert testimony presented by Stephens XII was based on a proposal for rent entered into by arm’s-length parties. There is no reason to think that the property, which had been leased in the past, could not have been rented had it been repaired. While it may have taken Stephens XII longer than a year to find a tenant, there is nothing unreasonable about the jury’s allowance of one year, which was based on the expert’s testimony. In short, we find nothing in the award to be improperly speculative. At oral argument, counsel for Fireman’s Fund argued that the trial court’s ruling granting a new trial precludes us from upholding an award of lost rents because the court, sitting as a 13th juror, found no evidence to support such an award. This argument misconstrues the new trial order. While it is true the order found “an insufficiency of the evidence to support the award of damages,” the ruling must be read in context. The order was based on the same reasoning as the court’s grant of JNOV. The JNOV order, in turn, reasoned that the award of business income damages was not supported by the evidence because Stephens XII had not presented evidence of recoverable lost business income. The JNOV order had no occasion to consider the sufficiency of the evidence to support an award of lost rents since it found that no such award had been made. 25 B. The JNOV on the Breach of Covenant Cause Cannot Be Sustained. The trial court’s only basis for vacating the jury’s award of damages on the cause of action for breach of the covenant of good faith and fair dealing was its reversal of the jury’s awards on the breach of contract cause of action. Fireman’s Fund has provided this court with no argument for affirming the trial court’s grant of JNOV on the breach of covenant cause other than the one accepted by the trial court. We must therefore reverse the trial court’s grant of JNOV on the breach-of-covenant cause because we have reversed that court’s JNOV on the breach of contract cause.17 C. The Conditional Grant of a New Trial Cannot Be Sustained. The grant of a new trial, and our review of it, is governed by strict statutory standards. As explained by the Supreme Court in Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, “The authority of a trial court in this state to grant a new trial is established and circumscribed by statute. [Citations.] [Code of Civil Procedure s]ection 657 sets out seven grounds for such a motion: (1) ‘Irregularity in the proceedings’; (2) ‘Misconduct of the jury’; (3) ‘Accident or surprise’; (4) ‘Newly discovered evidence’; (5) ‘Excessive or inadequate damages’; (6) ‘Insufficiency of the evidence’; and (7) ‘Error in law.’ “Before 1965, section 657 only required the trial court to specify whether it was granting the new trial motion on the ground of insufficiency of the evidence. [Citation.] Amendments enacted in 1965 (modified slightly in 1967) require the trial court to state not only the ground upon which the motion is granted but also the reasons for granting the motion on that ground. Section 657 now provides: ‘When a new trial is granted, on 17 We are satisfied that the damages awarded for the breach of the covenant of good faith does not duplicate the damages awarded for breach of contract. Although both awards cover lost rent, they can be understood to apply to different time periods. As discussed above, the breach of contract award appears to cover the period through the time of trial. When calculated at the same rate, the damages awarded for the breach of the covenant of good faith constitute exactly nine months of rent, which can be understood to cover an additional period of vacancy following trial while the property is repaired and marketed. This would be consistent with the closing argument of counsel for Stephens XII, who sought bad faith damages in connection with a “period of restoration.” 26 all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the court’s reason or reasons for granting the new trial upon each ground stated. [¶] . . . [¶] . . . [I]f the motion is granted [the order] must state the ground or grounds relied upon by the court, and may contain the specification of reasons. If an order granting such motion does not contain such specification of reasons, the court must, within 10 days after filing such order, prepare, sign and file such specification of reasons in writing with the clerk. . . .’ “As [the Supreme Court] explained in Mercer v. Perez (1968) 68 Cal.2d 104, the first case to construe the amended statute, ‘it is apparent that in the context of this statute the words “ground” and “reason” have different meanings.’ [Citation.] The word ‘ground’ refers to any of the seven grounds listed in section 657. [Citation.] A statement of grounds that reasonably approximates the statutory language is sufficient. [Citations.] The statement of ‘reasons,’ on the other hand, should be specific enough to facilitate appellate review and avoid any need for the appellate court to rely on inference or speculation. [Citations.] “Finally, section 657 provides: ‘On appeal from an order granting a new trial the order shall be affirmed if it should have been granted upon any ground stated in the motion, whether or not specified in the order or specification of reasons. . . .’ There are two exceptions: Orders may not be affirmed on the ground of insufficiency of the evidence or on the ground of excessive or inadequate damages unless that ground is specified in the order. . . . “California courts have consistently required strict compliance with section 657. Its requirement that the statement of reasons be filed no later than 10 days after the order granting a new trial is jurisdictional, and a statement of reasons filed more than 10 days after the order is ineffective. [Citations.] Substantial compliance with the statute is not sufficient. [Citations.] The statement of reasons must refer to evidence, not ultimate facts. [Citation.] And the appellate court cannot remand the case to permit the trial court to correct an insufficient statement of reasons.” (Oakland Raiders v. National Football League, supra, at pp. 633-635.) 27 We ordinarily review a motion for a new trial for abuse of discretion, but if the grant of a new trial is premised on an issue of law, de novo review is appropriate. (Twedt v. Franklin (2003) 109 Cal.App.4th 413, 417.) As noted above, the trial court’s order granting Fireman’s Fund a new trial was “to be effective only if [the] ruling on the motion JNOV is vacated or reversed [on appeal].” The court specified three grounds, “insufficiency of the evidence to support the award of damages, that the decision was against the law, and the verdict was against the weight of the evidence.” Its statement of reasons was brief: “for the reasons stated in my [written decision granting JNOV].”18 Our review is circumscribed by this ruling.19 The order purports to grant a new trial for the same reasons that the JNOV was granted. Thus, the concerns with the JNOV apply equally to the grant of a new trial. In granting a new trial on the jury’s award of replacement cost, the trial court reasoned that Stephens XII was not entitled to recover replacement cost as a matter of law because there was no evidence it had complied with the repair requirement. Although couched in terms of insufficiency of the evidence, this ruling was an interpretation of the terms of the policy. As we have discussed at length, however, Stephens XII is entitled to entry of a conditional judgment awarding replacement cost. Accordingly, the court’s reasoning provides no basis for granting a new trial on this issue. Fireman’s Fund made a forceful case in its motion for a new trial that the jury’s finding that all of the property damage occurred on or after June 28 was not supported by the evidence. But this was not an argument made in connection with the motion for JNOV. Insufficiency of the evidence cannot be used as a ground for affirming the grant of a new trial when it was not relied upon by the trial court. (§ 657; Sanchez-Corea v. 18 Fireman’s Fund acknowledges that the trial court “granted the new trial order for the same reasons it granted JNOV” even though Fireman’s Fund had moved for a new trial on the additional ground that “the weight of the evidence went against the verdict.” 19 Although the trial court later expanded on its ruling in the order denying Stephens XII’s posttrial motion to amend the complaint, because that ruling was issued more than 10 days after the order granting the new trial motion it is “ineffective” and cannot be considered. (Oakland Raiders v National Football League, supra, 41 Cal. 4th at p. 634.) 28 Bank of America (1985) 38 Cal.3d 892, 905.) While the trial court cited insufficiency of the evidence as one ground for granting a new trial, the scope of our review on that ground is circumscribed by the trial court’s statement of reasons. By limiting its reasons to those involved in the JNOV motion, the court made clear that it did not intend a finding of insufficiency of the evidence as to the underlying coverage liability. Allowing appellate review of the underlying coverage liability under these circumstances would render the restrictions under section 657 meaningless. (See Resort Video, Ltd. v. Laser Video, Inc. (1995) 35 Cal.App.4th 1679, 1695 [for specification of reasons to adequately support appellate review on ground of insufficiency of the evidence, some discussion of evidence is required].)20 Similarly, the trial court’s ruling on the jury’s award of lost business income was that Stephens XII failed to present evidence of any damages recoverable as lost business income. Again, although phrased in terms of insufficiency of the evidence, this ruling constituted an interpretation of the contract. Because the court made no finding that an award of lost rents was unsupported by evidence of their amount or for other reasons, we find no other basis to affirm the grant of a new trial as to the award of lost business income. The order granting a new trial must therefore be vacated. Finally, in the conclusions of its opening and reply briefs, Stephens XII asks us to direct the trial court to enter an award of attorney fees under Brandt v. Superior Court (1985) 37 Cal.3d 813. We decline to do so. Any request for attorney fees must be directed to the trial court in the first instance. DISPOSITION The trial court’s order granting judgment notwithstanding the verdict and judgment is reversed, and its orders granting a new trial and awarding costs of suit to Fireman’s Fund are vacated. The matter is remanded to the trial court for further 20 In addition, the burden was on Fireman’s Fund to raise grounds for supporting the court’s new trial order. (Sanchez-Corea v. Bank of America, supra, 38 Cal.3d at p. 906.) In its respondents’ brief, Fireman’s Fund argues only those issues raised by the trial court in the JNOV order as grounds for affirmance of the new trial order. 29 proceedings consistent with this decision. The parties shall bear their own costs on appeal. 30 _________________________ Humes, P. J. We concur: _________________________ Dondero, J. _________________________ Banke, J. Stephens & Stephens XII v. Fireman’s Fund (A135938; A136740) 31 Trial Court: San Francisco County Superior Court Trial Judge: Honorable Curtis E.A. Karnow Counsel for Appellant: Daniel Upton Smith; Valerie T. McGinty; Nina Grigoryevna Shapirsteyn Counsel for Amicus Curiae United Policyholder on behalf of Appellant: Sharon Joellen Arkin Counsel for Respondent: Rex S. Heinke; Reginald D. Steer; Ashley Brooke Vinson; Teresa W. Ghali; Danielle Crockett 32	{ "pile_set_name": "FreeLaw" }
543 U.S. 1112 LAWSv.UNITED STATES. No. 04-6900. Supreme Court of United States. January 24, 2005. 1 C. A. 5th Cir. Reported below: 102 Fed. Appx. 878; Motions of petitioners for leave to proceed in forma pauperis granted. Certiorari granted, judgments vacated, and cases remanded for further consideration in light of United States v. Booker, ante, p. 220.	{ "pile_set_name": "FreeLaw" }
377 F.2d 528 NATIONAL LABOR RELATIONS BOARD, Petitioner,v.LOCALS 138, 138A, 138B, INTERNATIONAL UNION OF OPERATINGENGINEERS, AFL-CIO, Respondents. Nos. 423-426, Dockets 30901-30904. United States Court of Appeals Second Circuit. Argued April 19, 1967.Decided May 1, 1967. Charles N. Steele, N.L.R.B., Washington, D.C. (Arnold Ordman, gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel and Solomon I. Hirsh, Washington. D.C., on the brief), for petitioner. Harry H. Kutner, Mineola, N.Y., for respondents. Before LUMBARD, Chief Judge, and KAUFMAN and HAYS, Circuit Judges. LUMBARD, Chief Judge: 1 The sole question raised by the petition of the National Labor Relations Board for enforcement of its order of July 15, 1965 directing the respondents, Locals 138, 138A, and 138B, International Union of Operating Engineers, AFL-CIO, to cease and desist from strikes and other conduct designed to compel assignment of the operation of plaster mixing and pumping machines to employees represented by respondents, rather than to employees represented by Plasterers' Helpers Local 759, International Hod Carriers, Building and Common Laborers of America, AFL-CIO, is whether the order should be limited to employees of two plastering contractors, or should include employees of other employers. We find that the record justifies the order issued by the Board, and we grant the petition for enforcement. 2 The respondents do not dispute the propriety of earlier proceedings under 10(k) of the National Labor Relations Act, 61 Stat. 146 (1947), 29 U.S.C. 160(k), which resulted in the Board's decision that the operation of plaster mixing and pumping machines should be assigned to employees represented by Local 759, and that respondents were not entitled to force or require the two contractors, Cafasso Lathing & Plastering, Inc. and Cuddihy & Huebner, Inc., to assign the work to respondents' members. 149 N.L.R.B. 156 (1964). When respondents refused to comply with the Board's decision, the Board issued a complaint charging that they had violated 8(b)(4)(i) and (ii)(D) of the Act, 73 Stat. 542 (1959), 29 U.S.C. 158(b)(4)(i) and (ii)(D), and the parties stipulated to submit the case to the Board on the testimony which had been adduced at a hearing in the United States District Court for the Eastern District of New York under 10(l) of the Act,1 61 Stat. 146 (1947), as amended, 29 U.S.C. 160(l), the record of the 10(k) hearing, and the pleadings. 3 The Board found that respondents had violated 8(b)(4)(ii)(D) by threatening Cafasso at Amityville, Suffolk County, new York, and Cuddihy at Stony Brook in Suffolk County with picketing and work stoppages unless an operating engineer was hired to operate the machines. Cuddihy was persuaded by its general contractor to halt operation of the machines, and its employees delivered wet plaster manually for ten or twelve days. Cafasso refused to yield, causing respondents to picket the project for about two weeks, during which various employees walked off the job; this picketing, the Board found, violated 8(b)(4) (i)(D). Finding that 'the record also shows that the type of work in dispute has been a continuing source of controversy between the (respondents) and plastering contractors other than Cafasso and Cuddihy in the Long Island area, within the (respondents') geographical jurisdiction,' the Board issued an order which respondents seek to limit by excising the italicized words: 4 '(Respondents shall) cease and desist from engaging in, or inducing or encouraging individuals employed by Cafasso Lathing & Plastering, Inc., Stewart M. Muller Construction Co., Inc. (the general contractor at Amityville), or any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on materials, or to perform any service; and from threatening, coercing, or restraining the aforesaid employers, Cuddihy & Huebner, Inc., Rosoff-Foster (the general contractor at Stony Brook), or any other person; where an object in either case is to force or require Cafasso, Cuddihy, or any other person to assign the operation of plaster mixing machines and plaster pumps used for piping and propelling wet plaster to employees represented by (respondents), rather than to employees represented by Plasterers' Helpers Local 759, International Hod Carriers, Building and Common Laborers of America, AFL-CIO.' 153 N.L.R.B. 1470, 1474 (1965). 5 Cuddihy's president testified that he had received 'numerous requests' to employ respondents' members to run the plaster machines. The president of a third plastering concern swore that respondents had sought 'many times' to have an operating engineer assigned to the machines, and that once his foreman had agreed and an operating engineer had received a day's pay for doing nothing. Thus the record amply supports the Board's finding that this work dispute has been a continuing source of controversy in the Long Island area; and since the jurisdiction of Local 759 comprises Nassau, Suffolk, and Queens Counties, the order is effectively limited to that area. 6 Respondents contend that this finding does not support the Board's order, because there was no finding that they engaged in threats or coercive action against any employers other than Cafasso and Cuddihy. But the Board was justified in anticipating from the history of this dispute that respondents might nevertheless engage in such unfair labor practices against other employers in the future. In such a case, an order which covers other employers and their employees in the area of the dispute is appropriate. E.g., N.L.R.B. v. Milk Drivers & Dairy Employees Local Union No. 584, 341 F.2d 29 (2 Cir.), cert. denied, 382 U.S. 816, 86 S.Ct. 39, 15 L.Ed.2d 64 (1965); N.L.R.B. v. International Union of Operating Engineers, 317 F.2d 638 (8 Cir. 1963). Compare Communications Workers of America v. N.L.R.B., 362 U.S. 479, 80 S.Ct. 838, 4 L.Ed.2d 896 (1960). Respondents also argue that one of the grounds for the Board's award of the work in dispute to employees represented by Local 759 was the fact that respondents had no contract with the plastering contractors granting them the work, and that the Board's order prevents respondents from obtaining any such contracts in the future. But the order does not bar respondents from requesting such a contract; it only prevents them from seeking to compel plastering contractors to give them by contract what the Board determined they were not entitled to absent contract. 7 Enforcement granted. 1 After the hearing, the district court issued an injunction against coercive actions by respondents in connection with this work dispute pending the Board's determination of the unfair labor practice charges	{ "pile_set_name": "FreeLaw" }
204 S.W.3d 364 (2006) Sherry M. HUBER, a Minor Child by her Next Friend, Brianna R. BOOTHE and Brianna R. Boothe, Individually, Appellants, v. Brian HUBER, Respondent. No. WD 66417. Missouri Court of Appeals, Western District. October 31, 2006. 366 Steven D. Wolcott, Liberty, MO, for appellants. Brent L. Winterberg, Kansas City, MO, for respondent. Before JOSEPH M. ELLIS, Presiding Judge, ROBERT G. ULRICH, Judge and RONALD R. HOLLIGER, Judge. JOSEPH M. ELLIS, Judge. Boothe appeals from a judgment entered in the Circuit Court of Clay County in a paternity suit granting joint legal and physical custody of her daughter, S.H., to her and the child's father, Brian Huber. In the petition and at trial, Boothe made allegations that Huber had sexually abused S.H. After finding that there was no credible evidence that Huber had ever abused S.H., the court entered a parenting plan granting the parents joint legal and physical custody of S.H. For the following reasons, we affirm that judgment. Boothe and Huber lived together off and on for a period of about ten years. During that time, Boothe and Huber had a daughter, S.H., who was born on May 4, 2000. The couple separated for the final time in June 2002. Subsequently, Boothe filed a petition seeking a declaration of paternity and sole custody of S.H. Huber filed a counter-motion seeking joint custody. The case was tried before a family court commissioner in May 2004. After the commissioner made his findings and recommendations, Judge Welsh, the circuit's presiding judge, handed down the circuit court's judgment on September 1, 2004. The court determined that Huber was S.H.'s biological father, that the couple should have joint legal and physical custody of S.H., and that Huber should pay child support to Boothe. On November 1, 2005, this court reversed the trial court's judgment on appeal because the court did not make any findings related to the sexual abuse allegations that had been raised by Boothe and did not detail the relevant factors that supported a determination that the custody arrangement adopted by the court was in the best interest of the child. Huber ex rel. Boothe v. Huber, 174 S.W.3d 712, 716-17 (Mo.App. W.D.2005) ("Huber I"). The case was remanded to the trial court to "make the required written findings in 367 compliance with section 452.375.6, and take such other action as deemed appropriate." Id. at 717. On remand, on November 30, 2005, Judge Welsh, entered findings to be incorporated in the prior judgment of September 1, 2004, in order to comply with the dictates of this court's opinion. The court found that there was no credible evidence that Huber had ever abused S.H. and that there was no evidence of a pattern of domestic abuse. The court further stated that "[t]he custody plan ordered by the court is in the best interest of the child and best protects the child and mother from any further threat of harm as it establishes the rights and duties of the parents concerning the child and puts to rest the allegations of sexual abuse." The court found that the custody order adopted by the court would promote frequent, continuing, and meaningful relationships with both parents and maximize the interaction of the child with both parents. Boothe brings two points on appeal from that judgment. Our standard of review in a paternity action is governed, as in any court-tried case, by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). L.T.C. ex rel. Collins v. Reed, 168 S.W.3d 142, 145 (Mo. App. S.D.2005). Accordingly, "we will affirm the trial court's judgment unless it is unsupported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law." Sewell-Davis v. Franklin, 174 S.W.3d 58, 59 (Mo.App. W.D.2005). In her first point, Boothe contends that Judge Welsh lacked jurisdiction to enter a judgment in this case. In order to explain and support this contention, Boothe has included in the legal file one page of the docket sheet in the case covering the period from November 16, 2004, to April 18, 2005, and a copy of a notice to the attorneys of record dated November 16, 2004, notifying them of two specific docket entries. The latter document reflects that on November 15, 2004, the commissioner who heard the case recused himself and on November 16, 2004, "Cause assigned to Div. 5, Hon. K.E. Davis." The November 16, 2004 entry also appears on the docket sheet, although the recusal information does not. In addition, the docket sheet reflects that Boothe had filed a Motion to Amend Order for Clerical Mistake on November 30, 2004, and also contains a handwritten entry on December 21, 2004, that is barely legible but appears to state "Nunc Pro Tunc Order is entered." Based on these documents in the record,[1] Boothe asserts that the case was transferred from Judge Welsh to Judge Davis on November 16, 2004, and was never reassigned back to Judge Welsh. Boothe therefore reasons that Judge Welsh could not assume jurisdiction on remand over a case that had been assigned to Judge Davis. The point is wholly devoid of merit and undeserving of the extended discussion that follows. We first note that the purported recusal of the commissioner and assignment of Judge Davis occurred well after the notice of appeal was filed and the case was pending in this court. Therefore, it is unclear what, if any, need existed for the commissioner to recuse at that late date since his participation ended when he made his findings and recommendations that resulted in Judge Welsh's entry of judgment on September 1, 2004. Similarly, there is a serious question as to what, if any, authority the circuit court had 368 to transfer the case to Judge Davis at that late date. The case was no longer pending in the circuit court of Clay County but rather was pending on appeal in this court. "[A]s a general rule, `upon filing of a notice of appeal, a trial court loses almost all jurisdiction over a case.'" State ex rel. Delgado v. Merrell, 86 S.W.3d 468, 470 (Mo.App. S.D.2002) (quoting State ex rel. Stickelber v. Nixon, 54 S.W.3d 219, 223 (Mo.App. W.D.2001)). "`The remaining jurisdiction of a trial court is sharply constrained, with few exceptions.'" Id. at 470-71 (quoting State ex rel. Stickelber, 54 S.W.3d at 223). "`When the terms of mandate remand the cause to the subordinate tribunal, the effect is to revest jurisdiction in that court to take the acts directed.'" Lombardo v. Lombardo, 120 S.W.3d 232, 243 (Mo.App. W.D.2003) (quoting Moore v. Beck, 730 S.W.2d 538, 540-41 (Mo. banc 1987)). Beyond those issues, there is then the concern over what authority the circuit court had to enter a nunc pro tunc order without leave of this court while the appeal was pending. Rule 74.06(a) provides: Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected with leave of the appellate court. (emphasis added). There is nothing in the record before this court indicating that anyone ever sought leave of this court to enter a nunc pro tunc order, much less that such request was granted. Furthermore, there is nothing in this record or in our opinion in Huber I that even suggests that the purported recusal, assignment of Judge Davis, and Nunc Pro Tunc Order were ever brought to the attention of this court during the pendency of that appeal. Moreover, even if we assume arguendo, that the recusal, assignment, and Order were all authorized by law and properly handled, the record in this case is so incomplete and inadequate as to make it impossible for this court to decide the issue Boothe argues. As noted, the docket sheet contained in the legal file ends on April 18, 2005, while our opinion in Huber I wasn't handed down until November 5, 2005, and the circuit court's subsequent findings that it incorporated into its September 1, 2004 judgment were entered on November 30, 2005. To illustrate, Judge Welsh as Presiding Judge of the circuit could have reassigned the case to himself at some point after April 18, 2005, and it would not appear in the record before us. "Rule 81.12(a) provides that the record on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented." Citibank (South Dakota) N.A. v. Edwards, 147 S.W.3d 810, 811 (Mo.App. W.D.2004) (internal quotation omitted). "It is the duty of an appellant to furnish a record containing all the evidence necessary for the appellate court to determine the questions on appeal." McAllister v. McAllister, 101 S.W.3d 287, 292-93 (Mo. App. E.D.2003). Where, as here, the record does not contain all information and documents necessary for this Court to determine an issue presented on appeal, review by this court is impossible, and the claim of error must be dismissed. Edwards, 147 S.W.3d at 811; In re Marriage of Weinshenker, 177 S.W.3d 859, 862 (Mo. App. E.D.2005). And finally, this Court's mandate remanded the case "to the Circuit Court of Clay County for further proceedings in conformity with the opinion of this Court." Judge Welsh was the presiding judge of 369 the Circuit Court of Clay County and, as such, had the general authority to assign judges to hear cases under § 478.240.2.[2] Likewise, Judge Welsh was the judge that entered the judgment that was reversed by this Court on appeal. Judge Welsh clearly had the authority to handle the case himself on remand and did not act in excess of his jurisdiction in entering the findings required by this court's opinion. Point denied. In her second point, Boothe contends that the trial court abused its discretion in finding that the evidence that Huber abused S.H. was not credible and that the trial court's award of custody, therefore, was not in the best interest of S.H. Boothe claims that "substantial and compelling evidence was presented on behalf of the Appellant that the child had been inappropriately touched by the Respondent."[3] "We must affirm the decision of the trial court in a custody dispute unless it is against the weight of the evidence, there is no substantial evidence to support it, or it erroneously declares or applies the law." State ex rel. State of Kansas Soc. & Rehabilitation Servs. v. R.L.P., 157 S.W.3d 268, 276 (Mo.App. S.D.2005). "The trial court is afforded broad discretion in awarding child custody, and we will affirm its decision unless we are firmly convinced that the welfare of the child requires a different disposition." Sewell-Davis, 174 S.W.3d at 59. "Furthermore, greater deference is given to the trial court's determination in child custody proceedings than in any other type of case." Arrington v. Hampton, 153 S.W.3d 925, 927 (Mo.App. W.D.2005). "We defer to the trial court's superior ability to assess the credibility of witnesses and view all facts and reasonable inferences in a light most favorable to its decision." Dunkle v. Dunkle, 158 S.W.3d 823, 832-33 (Mo.App. E.D.2005). "We presume that the court awarded custody in accordance with the children's best interests after reviewing all of the evidence and we will reverse its decision only if we are firmly convinced that the welfare and best interests of the children require otherwise." Id. at 833. "We do not reweigh the evidence, even if the evidence could have supported another conclusion." Id. We initially note that Boothe has failed to file on appeal any of the sixteen exhibits that were offered and received into evidence by the trial court. Included in those exhibits were the reports and records of the various experts opining as to whether the allegations of abuse were substantiated. Without the inclusion of those exhibits in the record on appeal, it is impossible for this court to properly assess whether the trial court's finding was sufficiently supported by the record or against the weight of the evidence. *370 As noted supra, "Rule 81.12(a) provides that the record on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented." Edwards, 147 S.W.3d at 811 (internal quotation omitted). "It is the duty of an appellant to furnish a record containing all the evidence necessary for the appellate court to determine the questions on appeal." McAllister, 101 S.W.3d at 292-93. Where, as here, the record does not contain the evidence necessary for this Court to determine an issue presented on appeal, review by this court is impossible, and the claim of error must be dismissed. Edwards, 147 S.W.3d at 811; In re Marriage of Weinshenker, 177 S.W.3d at 862. Moreover, having gratuitously reviewed the transcript of the proceedings below, we find that the trial court's findings were supported by sufficient evidence and were not against the weight of the evidence. The primary thrust of Boothe's argument is that she produced evidence that would have supported a finding that Huber had abused S.H. and that the trial court should have accepted that evidence as credible. As noted supra, under our standard of review, we are obligated to defer to the trial court's assessment of credibility and will not reweigh the evidence. Dunkle, 158 S.W.3d at 832-33. On the record before us, we are simply not convinced that the welfare of the child requires a different disposition. Point denied. The judgment is affirmed. All concur. NOTES [1] Neither the original judgment nor the judgment nunc pro tunc is included in the legal file. A copy of the judgment nunc pro tunc has been attached as an appendix to Appellant's brief but does not appear anywhere in the record on appeal. [2] Section 478.240.2 provides that "the presiding judge of the circuit court shall have general administrative authority over all judicial personnel and court officials in the circuit, including the authority to assign any judicial or court personnel anywhere in the circuit, and shall have the authority to assign judges to hear such cases or classes of cases as the presiding judge may designate, and to assign judges to divisions." [3] In arguing this point, Boothe attempts to raise issues not included in her point relied on or remotely related thereto. At one point, she contends that the trial court should have conducted an evidentiary hearing because of the amount of time between the trial court's original judgment and this Court's remand. She later claims that the findings entered by Judge Welsh were not sufficient to comply with the dictates of this Court's prior opinion. "An appellate court need not consider issues raised in the argument portion of a brief that are not raised in the point relied on." Alberswerth v. Alberswerth, 184 S.W.3d 81, 96 (Mo. App. W.D.2006).	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 19-1266 NIKOLE MARIE HUNTER; ANDREW BENEDICT WEBER, Plaintiffs - Appellants, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant - Appellee. Appeal from the United States District Court for the District of South Carolina, at Anderson. Timothy M. Cain, District Judge. (8:16-cv-03138-TMC) Submitted: September 11, 2019 Decided: September 27, 2019 Before HARRIS and RUSHING, Circuit Judges, and TRAXLER, Senior Circuit Judge. Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. Nikole Marie Hunter; Andrew Benedict Weber, Appellants Pro Se. David L. Moore, Jr., TURNER, PADGET, GRAHAM & LANEY, PA, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Nikole Marie Hunter and Andrew Benedict Weber appeal the district court’s order granting Appellee’s motion for summary judgment on their civil action arising out of an insurance dispute. Because the amended complaint did not allege any redressable injury suffered by Weber, we conclude that Weber lacked standing in the district court. See Hollingsworth v. Perry, 570 U.S. 693, 704 (2013). Thus, although we grant Appellants’ application to proceed in forma pauperis, we vacate the district court’s order as to Weber and remand with instructions to dismiss this part of the amended complaint for lack of jurisdiction. Id. at 715. Turning to Hunter, we have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s order as to Hunter. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED 2	{ "pile_set_name": "FreeLaw" }
180 Ill. App.3d 885 (1989) 536 N.E.2d 1008 ILLINOIS-IOWA BLACKTOP, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Odell Beck, Appellee). No. 3-87-0101WC. Illinois Appellate Court Third District (Industrial Commission Division). Opinion filed April 7, 1989. 886 William R. Stengel, Jr., of Coyle, Gilman & Stengel, of Rock Island, for appellant. John H. Westensee, of Braud, Warner, Neppl & Westensee, of Rock Island, for appellee. Stevenson, Rusin & Friedman, of Chicago, for amicus curiae Illinois Manufacturers' Association. Robert B. Maher, of Chicago, for amicus curiae Illinois Construction Industry Committee. Arthur C. Chapman, of Chapman & Roin, of Chicago, for amicus curiae Illinois Mechanical Specialty Contractors Association. Judgment affirmed. PRESIDING JUSTICE BARRY delivered the opinion of the court: The arbitrator found that the petitioner, Odell Beck, a 51-year-old construction worker, was illiterate with a third-grade education and was totally and permanently disabled by back, hip and leg injuries suffered when he fell from a stationary truck. He found that the petitioner's average weekly wage was $511.95 and that he was entitled to receive $341.30 per week. The Industrial Commission (Commission) affirmed the arbitrator's findings and the circuit court confirmed the Commission's decision. The respondent, Illinois-Iowa Blacktop, Inc., appealed to this court. On April 21, 1988, we entered an opinion affirming the circuit court. We subsequently granted the respondent's petition for rehearing. We further allowed the Illinois Manufacturers' Association to file a brief amicus curiae in the rehearing, and we allowed the Illinois Mechanical Specialty Contractors Association and the Illinois Construction Industry Committee to adopt the amicus curiae brief. The amicus limited its presentation to the issue of the average weekly 887 wage. Having considered the arguments advanced on rehearing, we find as follows. One of the respondent's two issues on appeal is whether the Commission's determination that the petitioner was permanently totally disabled was against the manifest weight of the evidence. The evidence regarding the total permanent disability issue showed that on September 30, 1982, the petitioner was working for the respondent shoveling asphalt from the back of a stationary truck. The tailgate on which he stood suddenly gave way, causing him to fall approximately four feet, injuring his back, left hip and left leg. The petitioner subsequently consulted several doctors and engaged in physical therapy under their care. On December 30, 1982, Dr. D'Angelo, an osteopathic physician, pronounced the petitioner fit to return to light-duty work requiring no repetitive bending, stooping, or lifting of objects greater than 20 pounds. The respondent had no work available within these restrictions at the beginning of the 1983 work season. On July 28, 1983, Dr. D'Angelo released the petitioner, who had undergone further physical therapy, to return to work without restrictions. For the next couple of days, the petitioner operated a jackhammer for the respondent. He felt "something coming loose" in his back, which then became stiff and painful. The petitioner also tried working as a flagman for the respondent, but was unable to remain standing for long periods. He then discontinued working and has not worked since August of 1983. Surgeon Myron B. Stachniw saw the petitioner and diagnosed him as suffering from herniated discs. On November 11, 1983, Dr. Stachniw performed a chemonucleolysis with chymopapain on the petitioner's L4-L5 and L5-S1 discs. Secondarily, he diagnosed that the petitioner suffered from hypertension. The medical evidence in the record consistently showed that the petitioner could perform only light work. Dr. Stachniw opined that the petitioner could do some sweeping and cleaning and could lift 20 pounds maximum. He could not sit or stand for a prolonged period, or perform any jobs requiring frequent bending or stooping. Dr. F. Dale Wilson stated that the petitioner could walk six or seven blocks; could sit one-half hour; could stand 10 to 15 minutes; should avoid bending or twisting and use care in turning; should avoid jolts or jars to his spine; and should not lift more than 10 to 15 pounds. Given these restrictions, the experts uniformly doubted the petitioner's ability to find work. Since 1965, the 53-year-old petitioner had worked exclusively for the respondent, performing only unskilled, 888 manual labor. His formal education ended in the third grade and he could not read or write. Dr. Robert Chesser questioned how realistic a retraining program would be. Dr. Wilson agreed, adding that it was unlikely the petitioner would ever be gainfully employed again. G. Brian Paprocki, a vocational consultant hired by the petitioner, concluded that the petitioner had sustained a 100% industrial disability, in that there existed no realistic chance of the petitioner's finding a job given his occupational abilities and his medical restrictions. The respondent had no suitable work available for the petitioner. No rehabilitation offer was made by the respondent. The petitioner has not sought work elsewhere. The evidence regarding the petitioner's average weekly wage showed that each year the respondent employed the petitioner generally from April through December. The arbitrator found that the petitioner worked exclusively for the respondent for a period in excess of 15 years. During the "off" months, the petitioner collected unemployment compensation. He was not required to reapply each year for his construction job, but merely reported for work when called at the beginning of the season. During the 52 weeks prior to his accident, the petitioner worked 20 weeks, earning $10,060.03 in regular wages. During this period, he also worked an additional 103.5 hours of overtime. The petitioner notes that if those 103.5 hours of overtime were calculated at his regular hourly wage, rather than at his higher overtime hourly wage, they would add $1,335.01 to his yearly earnings. His unemployment compensation rate was $154 per week. 1, 2 A person is totally disabled when he cannot perform any services except those for which no reasonably stable labor market exists. (E.R. Moore Co. v. Industrial Comm'n (1978), 71 Ill.2d 353, 376 N.E.2d 206.) In determining whether an employee can perform any useful services, his age, training, education and experience must be taken into account. Unless he is obviously unemployable or unless he presents medical evidence to support a claim of total disability, a claimant has the burden of proving that no employment is available for a person in his circumstances. (Valley Mould & Iron Co. v. Industrial Comm'n (1981), 84 Ill.2d 538, 419 N.E.2d 1159.) However, once the claimant establishes that he falls into the "odd-lot" category of persons who are not altogether incapacitated but are so handicapped that they will not be employed regularly in any well-known branch of the labor market, the burden shifts to the employer to show that some kind of suitable work is regularly and continuously 889 available to the claimant. 84 Ill.2d 538, 419 N.E.2d 1159. In the instant case, the record contains substantial evidence that the petitioner is unemployable. Given his work restrictions, minimal education, and few job skills and age, Drs. Chesser and Wilson indicated that any attempts at rehabilitation would probably be fruitless. Dr. Wilson opined that it was unlikely the petitioner would ever be gainfully employed again. Vocational consultant Paprocki testified that the petitioner had sustained a 100% industrial disability, in that there was no realistic chance of his finding a job. 3 Based on this evidence, we find that the petitioner met his initial burden of proof under Valley Mould. There was no evidence to suggest that some kind of suitable work was available to the petitioner. Accordingly, we find that the Commission's determination that the petitioner was permanently totally disabled was not against the manifest weight of the evidence. The respondent's second issue on appeal is that the Commission and the trial court erred in determining that the petitioner's average weekly wage was $511.95. Section 10 of the Workers' Compensation Act (the Act) (Ill. Rev. Stat. 1981, ch. 48, par. 138.10) provides in pertinent part: "The basis for computing the compensation provided for in Sections 7 and 8 of the Act shall be as follows: The compensation shall be computed on the basis of the `Average weekly wage' which shall mean the actual earnings of the employee in the employment in which he was working at the time of the injury during the period of 52 weeks ending with the last day of the employee's last full pay period immediately preceding the date of injury, illness or disablement excluding overtime, and bonus divided by 52; but if the injured employee lost 5 or more calendar days during such period, whether or not in the same week, then the earnings for the remainder of such 52 weeks shall be divided by the number of weeks and parts thereof remaining after the time so lost has been deducted." (Emphasis added.) Ill. Rev. Stat. 1981, ch. 48, par. 138.10. In the instant case, the petitioner "lost five or more calendar days during such period," and, as we read the record, we find that the petitioner was in fact underpaid during the 52 weeks preceding his injury. Accordingly, the arbitrator, as approved by the Commission and the circuit court, used the hourly wage he was supposed to have been paid under his contract, from time to time, calculated what he should have earned during the preceding 52 weeks based 890 upon the number of nonovertime hours he worked, and divided the total by the 20 weeks he actually worked to arrive at an average weekly wage of $511.95. The respondent and the amicus curiae argue that the Commission should have divided the petitioner's actual (nonovertime) earnings during the preceding 52 weeks by 52. In support of their position, the respondent and the amicus note that calculating by deducting lost time from the average weekly wage denominator, while paying workers' compensation benefits the year round, gives the petitioner a compensation award greater than the income he earned while working. The respondent and the amicus contend that such a result provides an unacceptable windfall to injured workers, citing cases under prior section 10 of the Act. (Hasler v. Industrial Comm'n (1983), 97 Ill.2d 46, 454 N.E.2d 307; Cardiff v. Industrial Comm'n (1984), 128 Ill. App.3d 52, 470 N.E.2d 1091.) The respondent and the amicus further argue that one cannot lose what one never had. Accordingly, they conclude that section 10's current provision for deducting lost days from the average weekly wage calculation applies only when the worker reasonably expected to work on the days he missed. The current version of section 10 took effect September 15, 1980. Prior to that time, section 10 provided in relevant part: "The basis for computing the compensation provided for in Sections 7 and 8 of the Act shall be as follows: (a) The compensation shall be computed on the basis of the annual earnings which the injured person received as salary, wages or earnings if in the employment of the same employer continuously during the year next preceding the injury. * * (e) As to [the] employees in employment in which it is the custom to operate for a part of the whole number of working days in each year, such number, if the annual earnings are not otherwise determinable, shall be used instead of 300 as a basis for computing the annual earnings, provided the minimum number of days which shall be so used for the basis of the year's work shall be not less than 200." Ill. Rev. Stat. 1979, ch. 48, pars. 138.10(a), (e). In the Hasler and Cardiff cases, which were decided under the old section 10, the employees worked year round whenever their employers had work for them, Hasler performing both interior and exterior work as a painter and wallpaper hanger and Cardiff as a less-than-40-hour-per-week factory employee. Both employees sought to 891 be classified as "seasonal" workers under section 10(e), so that the denominator used in calculating their average weekly wages would be lower, giving them a higher average weekly wage under the Act. In each case, however, the court determined the employees were employed part time and calculated the average weekly wage under section 10(a). In so doing, the Illinois Supreme Court noted that, under section 10(e), claimant Hasler would receive an award nearly six times greater than her actual earnings. Similarly, the Cardiff court noted that, under section 10(e), the claimant would receive an award nearly 10 times greater than her average weekly wage. Both courts stated that the purpose of the Act is to compensate, or "make whole," an injured employee, not to provide a windfall. Having reexamined Hasler and Cardiff, we find that, while the principle against awarding windfalls was an important factor in both decisions, it was not the key factor. The primary factor in each case was the court's finding that the two "on-call" employees were not intermittent employees under section 10(e), but were "continuously employed" so as to come under section 10(a). The respondent and the amicus here attempt to equate the "on-call" employment situations in Hasler and Cardiff with the seasonal construction employee facts in the instant case. 4 The current version of section 10 appears to be a response by the legislature to Hasler and Cardiff. The new, simplified version of section 10 plainly states that in all cases where the employee lost five or more days of work during the 52 weeks prior to the injury, the lost time (to the extent not due to the fault of the employee) should be deducted from the wage calculation denominator. It is axiomatic that where the language of the statute is certain and unambiguous, the only legitimate function of the court is to enforce the law as enacted by the legislature. Certain Taxpayers v. Sheahen (1970), 45 Ill.2d 75, 256 N.E.2d 758. Examination of the legislative history of the current section 10 shows that it resulted from negotiations and compromise between business and labor interests. Senator DeAngelis, speaking to the Conference Committee Report on the subject bill, said: "Thank you, Mr. President. Senator Bruce, you did a fantastic job explaining a bill that you were not handed too long ago. I wish we'd have had you from the beginning, but thanks for coming aboard. I obviously stand in support of this bill, and whatever happens to it, I do want to indicate up front that I want to thank all the members of the General Assembly, and 892 particularly the hard work of the staffs on both sides for the unique response to a serious economic issue. I think what we have done, today, up to this point is a step forward for improving the image of Illinois not caring and I hope we can continue on a bi-partisan basis to continue to resolve the economic problems of Illinois. I urge your favorable support on this bill." (81st Ill. Gen. Assem., Senate Proceedings, July 1, 1980, at 42.) Representative Donovan, the house sponsor of House Bill 3250, said: "Thank you. Mr. Speaker, Ladies and Gentlemen of the House, House Bill 3250 as amended by the Senate and as revised in Conference Committee provides for a comprehensive reform in Illinois Worker's Compensation System. The terms of the Bill have been agreed by Members of both parties. And from all indications, both management and labor have agreed to the provisions. Mr. Speaker, I move for the concurrence with the First Conference Committee Report * * ." (81st Ill. Gen. Assem., House Proceedings, July 1, 1980, at 255-56.) The Conference Committee Report was overwhelmingly adopted by both Houses. In drafting section 10 in a manner acceptable to the competing interests, the legislature obviously chose to dictate its own rates and calculation methods and departed from the revised model act issued by the Council of State Governments. Accordingly, the respondent's and the amicus' reliance on the model act in interpreting section 10 is unpersuasive. In examining the legislative intent of section 10, we find that Senator Bruce, while explaining the Conference Committee Report on the subject bill in the Senate, said: "Page forty-one, redefines the average weekly wage, so that a part-time employee is not paid on a full forty-hour week, but only receives compensation[-]if he works ten hours, he gets two-thirds of this ten-hour actual earnings." (81st Ill. Gen. Assem., Senate Proceedings, July 1, 1980, at 22.) Clearly, Senator Bruce's statement concerns only part-time employees who are regularly not paid on a full 40-hour week basis, but are paid for a regular number of hours less than 40. As shown by his statement, if an employee actually worked 10 hours, the workers' compensation rate would be two-thirds of the 10-hour earnings. However, this has no effect on construction workers. The special considerations accorded construction and seasonal 893 workers due to the unique nature of their work have long been recognized in Illinois. Thus, old section 10(e) deducted "off time" from the wage calculation denominator, but paid workers' compensation benefits the year round. Senator Bruce obviously indicated no change by reciting the created limitation on benefits to be for part-time workers who work less than 40 hours per week. It is worth noting that the instant petitioner would have qualified as a seasonal worker under old section 10(e). See Rambert v. Industrial Comm'n (1985), 133 Ill. App.3d 895, 477 N.E.2d 1364; Reynolds v. Industrial Comm'n (1986), 151 Ill. App.3d 695, 502 N.E.2d 1178. Further, we observe that the redesigning of the current section 10 resulted in a provision which both benefits and disadvantages both business and labor. For instance, under section 10, overtime wages, bonuses and unemployment compensation are not considered in calculating average weekly wages, even though as a practical matter they account for a significant part of many seasonal workers' annual incomes, which benefit the employer. Offsetting those deductions is the instant lost-time deduction, which allows the Industrial Commission to calculate average weekly wages using a denominator of only those weeks actually worked, to the benefit of the employee. "Lost time" is synonymous with "off time," unless caused by the employee as aforesaid, or the phrase has no purpose. While it must be assumed that the legislature does not intend to reward idleness and penalize good energetic employees, we note that as a practical matter, under our interpretation of section 10, the petitioner's compensation benefits will be more than his actual total income in the preceding year, but only slightly so. In this case the petitioner earned about $10,000 in regular wages, plus about $1,300 for overtime and received about $5,000 in unemployment benefits. We further consider that some construction workers might be injured during the first week of employment and others work most of the 52 weeks per year; that as far as weather is concerned, the construction season is longer in Carbondale than in Chicago; and that of course modern methods have lengthened construction seasons. In any event, the slight windfall in this case is more than offset by the petitioner's inability to ever work again, and, even under the former section 10, the principle against windfalls was not absolute. The former section 10(e) provided a windfall for seasonal workers by deducting lost time from the wage calculation denominator, but workers' compensation benefits were paid the year around, as we have heretofore indicated. Lastly, we also note that the respondent's and the amicus' arguments 894 that the award discourages rehabilitation are not relevant. The petitioner was found to be totally and permanently disabled and rehabilitation was not advanced as an issue in the case. Regardless, the need or opportunity for rehabilitation is a decision to be justified by medical and other expert authorities. Here, there was no offer of rehabilitation. 5 Based on the plain language of the statute and its history, we find that the arbitrator, the Commission and the trial court correctly determined the petitioner's average weekly wage. Due to the petitioner's failure to file a cross-appeal, we will not consider the issue he raises regarding his compensation. National Football League Properties, Inc. v. Dallas Cap & Emblem Manufacturing, Inc. (1975), 26 Ill. App.3d 820, 327 N.E.2d 247. The judgment of the circuit court of Rock Island County is affirmed. Affirmed. McNAMARA, WOODWARD, and CALVO, JJ., concur. JUSTICE McCULLOUGH, specially concurring: I agree with the result, but not the reasons therefor. Section 10 provides four methods to determine the average weekly wage. The first method determines the "actual earnings" of an employee who works 52 weeks prior to the injury date, with no lost time. The second part of this same sentence applies to the same employee who but for lost days would have his average weekly wage determined pursuant to the first method. If he loses five or more calendar days during the 52-week period, whether or not in the same week, the time lost must be deducted and the earnings for the remainder of such 52 weeks shall be divided by the number of weeks and parts thereof remaining after the time lost has been deducted. The above methods are included in one sentence and the average weekly wage definitions apply to the full-time employee. The next sentence in section 10 provides a third method to compute "weekly average wage." Where the employment prior to the injury extended over a period of less than 52 weeks, you divide the earnings by the weeks or parts thereof during which the employee actually earned wages. I submit that the "average weekly wage" of an employee determined 895 pursuant to the first three methods would be the same. There would be a slight difference for the employee who lost less than five days, i.e., one to four days. The next sentence provides a fourth alternative and applies to employees: (1) recently employed; (2) whose employment is of a casual nature; (3) with special terms of employment. The weekly wage of this employee is determined by determining the wages earned by an employee "in the same grade," employed at the same work, for each of 52 weeks for the "same number of hours per week," for the same employer. This section appears to be legislative response to the supreme court's decision in Vaught v. Industrial Comm'n (1972), 52 Ill.2d 158. This method is to be used only when "it is impractical to compute the average weekly wages" by application of the three other alternatives. It can be argued as impractical from a financial burden standpoint of the employer to apply the first three methods. The third method does fit the facts of this case. The employment extended over a period of less than 52 weeks prior to the injury. That the employee historically worked for many years for the same employer does not require a different result. As stated in Larson: "[T]he purpose of the wage calculation is not to arrive at some theoretical concept of loss of earning capacity; rather it is to make a realistic judgment on what the claimant's future loss is in the light of all the factors that are known." 2 A. Larson, Workmen's Compensation Law § 60.21(c), at 10-667 (1987). As stated above, the average weekly wage in this case should be determined by the third method. The employment extended over a period of less than 52 weeks prior to the injury. The time lost is deducted and the earnings of the "period" (the time of employment) are "divided by the number of weeks and parts thereof remaining after the time lost has been deducted."	{ "pile_set_name": "FreeLaw" }
19 B.R. 462 (1982) In re PRICE CHOPPER SUPERMARKETS, INC., Debtor. Bankruptcy No. 81-01837-M. United States Bankruptcy Court, S.D. California. April 14, 1982. 463 Frederick Martin, Jr. (argued), Perry T. Christison, Christison & Martin, San Diego, Cal., for trustee. Barrett J. Foerster (argued), Olins, Foerster & Siegel, San Diego, Cal., for Union. MEMORANDUM OPINION REGARDING REJECTION OF COLLECTIVE BARGAINING AGREEMENT JAMES W. MEYERS, Bankruptcy Judge. I FACTS On June 16, 1981, the debtor, Price Chopper Supermarkets, Inc., filed for protection under Chapter 11 of the United States Bankruptcy Code ("Code").[1] The debtor then operated two discount supermarkets in San Diego County, employing members of Local 1222 of the Retail Clerks International Union, AFL-CIO ("union"). On June 22, 1981, in an effort to reduce operating expenses, Mr. Bernard Rivkin, the debtor's secretary-treasurer, sent a mailgram to the union informing it that the debtor, as debtor-in-possession, had decided to "cancel" the collective bargaining agreement ("agreement"), that they were operating under. On July 31, 1981, the debtor filed a formal application to reject the agreement. Thereafter, on August 14, 1981, the debtor gave notice to the union that a hearing would be held before this Court on August 28, 1981, concerning the application to reject. On August 28, 1981, the debtor converted this case to a Chapter 7 proceeding pursuant to 11 U.S.C. § 1112. The union and the debtor stipulated that the hearing on the motion to reject the agreement would be continued. On September 2, 1981, Mr. Ralph O. Boldt was appointed to serve as the bankruptcy trustee, charged with liquidating this estate. Thereafter, the parties submitted memorandums of law on the questions presented. The matter was finally heard before this Court on January 29, 1982. This memorandum opinion is filed to announce this Court's rulings on the application. II DISCUSSION The trustee argues that the debtor's decision to reject the agreement be upheld by this Court and an order be issued recognizing that this rejection occurred as of June 22, 1981, the date on which Mr. Rivkin sent the mailgram notifying the union of the debtor's unilateral decision to reject the agreement. In this, the trustee suggests that, under the Code, the standard governing the rejection of collective bargaining agreements should be the same as that applied to motions to reject other executory contracts. Further, the trustee urges this Court to declare that any amounts due to the union for work performed during these proceedings should be accorded fourth priority treatment under Section 507(a)(4). 11 U.S.C. § 507(a)(4) (Priorities). Naturally, the union contests each of these points. The union claims that a motion to reject a collective bargaining agreement should be considered under the special rules that had developed to consider such motions under the Bankruptcy Act ("Act"), the predecessor statute to the Code. The union also argues that even if rejected, the agreement would remain fully in effect until the filing of a formal court order. As to the nature of any claim the union, or its members, may have for any work performed since the Chapter 11 petition was filed, the union urges this Court to accord such claims the highest level of priority under Section 507. It is generally understood that the Code empowers bankruptcy courts to allow a debtor-in-possession to reject disadvantageous 464 executory contracts. Becker, The Bankruptcy Law's Effect on Collective Bargaining Agreements, 81 Col.L.Rev. 391, 393 (1981) ("Becker"). In corporate reorganizations under the Act, a debtor-in-possession was vested with all the powers of a Chapter X trustee. Section 188 of the Act. A Chapter X trustee, in turn, was accorded the same powers as a bankruptcy trustee in a liquidation case, except where inconsistent with provisions of Chapter X. See Section 187 of the Act; Wolf v. Weinstein, 372 U.S. 633, 649, 83 S.Ct. 969, 979, 10 L.Ed.2d 33 (1963); Gochenour v. Cleveland Terminals Bldg. Co., 118 F.2d 89, 93 (6th Cir. 1941). Under the Code, the source of the powers of a debtor-in-possession are not so easily tracked. Section 1107(a) acts to give a debtor-in-possession all the rights and powers of a Chapter 11 trustee. 124 Cong.Rec. 32405 (1978). See In re Munsey Corp., 10 B.R. 864, 866 (E.Pa.1981). Now, reference to Section 1106(a), which details the duties of a Chapter 11 trustee, reveals that such a trustee is not given all the powers of a liquidation trustee elected under Chapter 7. Instead, a Chapter 11 trustee is given six specific reorganization duties[2] and incorporates, by reference to Section 704, five duties of a trustee in a liquidation case. See 5 Collier on Bankruptcy, ¶ 1106.01[3] at 1106-9 (15th ed.) ("15th ed."). None of the powers specified would appear, on their face, to include actions dealing with the assumption or rejection of executory contracts. It appears that this power is derived from Section 103, which makes clear that the provisions of the first three chapters of the Code apply equally in Chapter 11 and Chapter 7 cases. H.R.Rep.No.595, 95th Cong., 1st Sess. 404 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787. The effect of this provision is to make Section 365, which is the Code section dealing with executory contracts, applicable to reorganization cases. This is confirmed by the language of Section 365 itself, which refers to actions to assume or reject executory contracts by a Chapter 11 trustee. 11 U.S.C. § 365(d)(2). See In re Alexander, 670 F.2d 885 (9th Cir., 1982) (Chapter 13 case). Under Section 365(a), a "trustee, subject to the court's approval, may assume or reject any executory contract or unexpired lease of the debtor." 11 U.S.C. § 365(a). This provision was enacted, pursuant to the grant of power ceded to Congress under the U.S. Constitution, allowing the enactment of laws, under the Bankruptcy Clause, which impair the obligations of contract. See Railway Labor Executives' Assn. v. Gibbons, ___ U.S. ___, ___, 102 S.Ct. 1169, 1174, 71 L.Ed.2d 335 (1982). Here, the debtor-in-possession made application to reject a collective bargaining agreement. This runs counter to the well established federal labor policy, expressed in both statutes and judicial decisions, strongly favoring collective bargaining and the specific enforcement of collective bargaining agreements. Carpenters Local Union No. 2746 v. Turney Wood Products, Inc., 289 F.Supp. 143, 148 (W.Ark.1968); Designers' Guild of Ladies' Apparel, Local 30, Intern. Ladies Garment Workers' Union v. Hers Apparel Industries, Inc., 1 B.C.D. 753, 755 (S.D.N.Y.1975). Under the National Labor Relations Act, an employer's unilateral termination of a collective bargaining agreement constitutes an unfair labor practice. Note, The Labor-Bankruptcy Conflict: Rejection of a Debtor's Collective Bargaining Agreement, 80 Mich.L.Rev. 134, 136 (Nov.1981) ("Note"). Other courts have allowed debtors-in-possession to reject collective bargaining agreements, but scrutinize such proposed rejections more closely than rejections of other types of executory contracts. Id.[3] The rationale behind these 465 decisions, which face the problem of accommodating the conflicting provisions of the labor and bankruptcy laws, is that these decisions: have given full effect to the reorganization provisions of the bankruptcy law whenever they were necessary to guarantee the continued existence of a debtor in possession on the ground that the liquidation of a business, with its attendant loss of jobs, does not promote the purposes of the labor laws. Rigid enforcement of the bankruptcy laws, however, may subvert the policies of the labor laws. Consequently, courts have generally implemented the bankruptcy provisions in a manner that gives effect to the underlying purposes of the labor laws to the greatest extent possible. Becker, supra, 81 Col.L.Rev. at 395. Under the Act, the courts were directed to move cautiously in allowing rejection of collective bargaining agreements. Truck Drivers Local U. No. 807 v. Bohack Corp., 541 F.2d 312, 320 (2d Cir. 1976). In the leading authority, the Second Circuit Court of Appeals said that the bankruptcy courts should take into consideration the interests of the employees as well as the possible benefit to the debtor, with rejection only being allowed after a balancing of the equities on both sides and should not be allowed simply because rejection would tend to improve the financial condition of the debtor. Shopmen's Loc. U. No. 455, Etc. v. Kevin Steel Prod., Inc., supra, 519 F.2d at 706-07. See 2 Colliers, 15th ed., supra, ¶ 365.03 at 365-16, 17; Local Joint Executive Bd., Etc. v. Hotel Circle, Inc., 613 F.2d 210, 213-4 (9th Cir. 1980). Several courts have adopted the two-step approach announced in Kevin Steel in cases filed under the Code. See In re Brada Miller Freight Systems, Inc., supra, 16 B.R. at 1014, 8 B.C.D. at 836; Matter of David A. Rosow, Inc., 9 B.R. 190, 191 (Bkrtcy., Conn. 1981). The Second Circuit appears to have based its decision in Kevin Steel on its conclusion that the debtor-in-possession is the successor to the pre-bankruptcy company, and as such, is not bound by the preexisting labor agreement, but is required to bargain with union representatives. 519 F.2d at 704. See Matter of Allied Supermarkets, Inc., 6 B.R. 968, 974 (D.C., E.D. Mich.1980). This new entity theory has been criticized for it creates the paradoxical situation that the debtor in possession is cast as a new employer, apparently not bound by preexisting executory contracts and yet, it must make an appropriate showing to reject such agreements, including satisfying the higher standard imposed when dealing with applications to reject collective bargaining contracts. See Matter of Ryan Company, Inc., 4 B.C.D. 64, 65 (Conn.1978); Note, supra, 80 Mich.L.Rev. at 148.[4] It appears that Kevin Steel reached the correct result, but it was unnecessary to base its conclusion on the doubtful concept of declaring the debtor-in-possession a successor entity. Instead, the same result could be achieved by recognizing that the bankruptcy courts, acting as a court of equity, have wide discretion on applications to assume or reject executory contracts. See King v. Baer, 482 F.2d 552, 557 (10th Cir. 1973) (Chapter X case under Act). Contrast, In re Alexander, supra, 670 F.2d 888, 889 (Court has no discretion to bar rejection of executory contract where action is part of confirmed Chapter 13 plan). Given the competing interests found in the conflict between federal labor law and the Code, it would require the courts to exercise this discretion in much the same manner as found in Kevin Steel and those cases which have followed that authority. In providing a higher standard for judging applications to reject collective bargaining agreements, we recognized the realities of the situation. 466 The premature rejection of such a contract, without just cause, may result in retaliatory strikes by affected workers. See Hughes, supra, 54 Am.Bankr.L.J. at 86. This possibility will surely act to limit such applications to the foolhardy and the desperate. See Shopmen's Loc. U. No. 455, Etc. v. Kevin Steel Prod., Inc., supra 519 F.2d at 703; Truck Drivers Local U. No. 807 v. Bohack Corp., supra, 541 F.2d at 318. Thus, in all but the most extreme cases, the debtors-in-possession, or Chapter 11 trustees, should be required to move cautiously and bargain in good faith with their unions, in an attempt to foster a cooperative attitude in working towards a successful reorganization. This attempt at renegotiation should occur before coming before the court to achieve a unilateral rejection.[5] Obviously, in cases where the survival of the business itself is at stake, the urgent need to reject will require immediate action. In such cases, the required bargaining process will, by necessity, be kept to a minimum. Here, of course, the debtor-in-possession apparently made no attempt to renegotiate the collective bargaining agreement. Instead, it attempted a unilateral rejection and the trustee now urges this Court to approve that action, retroactively, as of June 22, 1981. The parties appear to agree with the general principle that under Section 365 of the Code, the decision to assume, or reject, an executory contract is "subject to the court's approval." 11 U.S.C. § 365(a). See 2 Collier, 15th ed., supra, ¶ 365.03 at 365-13, 21-22. However, they disagree on the manner and timing of the court's supervision in this area. In this, we must draw a distinction between cases in Chapter 7 and those in Chapter 11. In Chapter 7 cases, the trustee is charged to collect, and reduce to money, the property of the estate and to expeditiously close the estate. 11 U.S.C. § 704(1). Given these objectives, and the limited resources available to provide adequate assurance to cure defaults, provide compensation and assure future performance, as required under Section 365(b)(1), most executory contracts will be rejected by Chapter 7 trustees. See In re Childs Co., 64 F.Supp. 282, 286 (S.N.Y. 1944). If Chapter 7 trustees had to present these numerous determinations to reject such contracts to the courts, it would undoubtedly create a considerable administrative burden. Congress apparently recognized this potential problem in enacting Section 365(d)(1), which vests the decision regarding rejection of executory contracts solely in the Chapter 7 trustee, for a sixtyday period. In re Standard Furniture Co., 3 B.R. 527, 530, 6 B.C.D. 270, 272 (Bkrtcy., S.Cal.1980).[6]See 13 Collier on Bankruptcy, ¶ 607.06[2] at 6-93 (14th ed.). If the Chapter 7 trustee does not indicate an intention to assume the contract during the sixty-day period, then the contract is automatically deemed rejected. 11 U.S.C. § 365(d)(1). However, given the possible drain on the estate in assuming an executory contract, assumptions must be formally presented to the court for approval. In this, as long as the Chapter 7 trustee has acted within the sixty-day limitation imposed by Section 365(d)(1), then the court may act outside that time. See In re Avery Arnold Const., Inc., 11 B.R. 34, 35 (Bkrtcy., S.Fla.1981). In Chapter 11 cases, the Code has not established any time frame within which a debtor-in-possession, or Chapter 11 trustee, must act in regard to executory contracts.[7] Since there is no automatic assumption 467 or rejection in a Chapter 11 proceeding, then any action must be presented for court approval. See 2 Collier, 15th ed., supra, ¶ 365.03 at 365-13, 21-22. This is in accord with the prior practice under the Act. See Loc. Joint Exec. Bd., AFL-CIO v. Hotel Circle, Inc., 419 F.Supp. 778, 787-89 (S.Cal.1976), aff'd, 613 F.2d at 216. This requirement of court review of the contemplated action is particularly apropos when dealing with collective bargaining agreements. For in these cases the courts must be satisfied, under the balancing test stated above, that the interests of the employees, as well as the interests of the debtor, have been fully considered before allowing rejection. The parties have expressed great concern over the effective date to be ascribed to any rejection of the contract. In this, their anxiety is misplaced, for the Code provides the directions necessary to handle the rejection of executory contracts. Where the contract has not been previously assumed, under Section 365(g)(1) rejection is treated as a breach of the contract occurring immediately before the date of the filing of the petition. 11 U.S.C. § 365(g)(1). See In re Record Co., Inc., 8 B.R. 57, 60 (Bkrtcy., S.Ind.1981); In re LaBonte, 13 B.R. 887, 893 (Bkrtcy., Kan.1981).[8] Any claim for damages stemming from the rejection is treated under Section 502(g) as a pre-petition claim. 11 U.S.C. § 502(g). See 3 Collier, 15th ed., supra, ¶ 502.07 at 502-87, 88. Of course, an entity which provides services during the reorganization period is entitled to compensation based on the fair market value of the services provided to the estate. See 11 U.S.C. § 503; Becker, supra, 81 Col.L.Rev. at 393; In re Standard Furniture Co., supra, 3 B.R. at 530, 6 B.C.D. at 271; Matter of Schatz Federal Bearings Co., Inc., 5 B.R. 549, 553, 556, 6 B.C.D. 749, 752-53 (Bkrtcy., S.N.Y.1980) (Collective Bargaining Agreement assumed in Chapter 11 proceeding). Here, the Chapter 11 proceeding was converted to a Chapter 7 case. Thereafter, the trustee made clear his decision to reject the subject contract and, of course, the sixty days designated in Section 365(d)(1) have long since passed. The collective bargaining agreement is, therefore, deemed as rejected immediately before June 16, 1981.[9] For any services provided during the reorganization, the employees, here, are entitled to fair compensation. If they have not been fairly treated, or if any benefits they earned remain unpaid, then they may have a claim against the estate which would be accorded first priority treatment under Section 507(a)(1), as a cost of administration. 11 U.S.C. § 507(a)(1). See Becker, supra, 81 Col.L.Rev. at 394; In re Capital Service, 136 F.Supp. 430, 438 (S.Cal.1955) (Carter, J.). However, administrative expenses incurred in the Chapter 7 case, after the conversion from Chapter 11, will have priority over any costs of administration attributed to the Chapter 11 reorganization proceeding. 11 U.S.C. § 726(b). See 1A Bkr-L.Ed. Summary: Administration, supra, § 6:193 at 300; 4 Bkr-L.Ed., Code Commentary and Analysis: Collection and Distribution, § 32:27 at 40-41. III CONCLUSIONS 1. In a Chapter 11 case, the rejection of an executory contract requires approval by the court under 11 U.S.C. § 365(a). 2. When dealing with a collective bargaining agreement, the court should take into consideration the interests of the employees, as well as those of the debtor before allowing rejection. 468 3. After conversion to a Chapter 7 case, the trustee has sole discretion regarding the rejection of executory contracts and all such contracts are deemed rejected if the trustee does not act within sixty days of the conversion. 11 U.S.C. § 365(d)(1). 4. Here, the agreement was rejected in the Chapter 7 proceedings. 5. The agreement is deemed rejected immediately before June 16, 1981, the date the petition in this case was filed. 11 U.S.C. §§ 365(g)(1), 502(g). 6. Any claim for unpaid benefits accruing during the reorganization will be entitled to priority under 11 U.S.C. § 507(a)(1). 7. The payment of the costs of administration of the liquidation proceeding, under Chapter 7, will receive priority over any unpaid administrative expenses incurred under the Chapter 11 reorganization effort. 11 U.S.C. § 726(b). This opinion will constitute findings of fact and conclusions of law under Bankruptcy Rule 752. NOTES [1] The Code, or Bankruptcy Reform Act of 1978, became effective on October 1, 1979, and governs all cases filed after that date. See Central Trust Co. v. Official Creditors' Comm., ___ U.S. ___, 102 S.Ct. 695, 70 L.Ed.2d 542 (1982). [2] Not all of these are required duties of a debtor-in-possession. See 11 U.S.C. § 1107(a). [3] See Shopmen's Loc. U. No. 455, Etc. v. Kevin Steel Prod., Inc., 519 F.2d 698 (2d Cir. 1975); In re Overseas National Airways, Inc., 238 F.Supp. 359 (E.D.N.Y.1965); Matter of Alan Wood Steel Co., 449 F.Supp. 165 (E.Pa.1978); In re Brada Miller Freight Systems, Inc., 16 B.R. 1002, 8 B.C.D. 727 (D.C., N.D.Ala.1981); Matter of Allied Technology, Inc., 8 B.R. 366 (Bkrtcy., S.Ohio 1980) (Code case); Hughes, "Wavering Between the Profit and the Loss": Operating a Business During Reorganization Under Chapter 11 of the New Bankruptcy Code, 54 Am.Bankr.L.J. 45, 84 (Winter 1980) ("Hughes"). [4] In an Act case, our own Ninth Circuit Court of Appeals found the successorship analogy to be helpful, but did not address "whether the bankruptcy court should apply a stricter standard for authorizing the rejection of collective bargaining agreements. . . ." Local Joint Executive Bd, Etc. v. Hotel Circle, supra, 613 F.2d at 213-14 n. 2. [5] Where the employees are represented by collective bargaining representatives, the debtor-in-possession should give reasonable notice of its proposed terms and needs, and then negotiate in good faith, but the debtor-in-possession would not have to follow any procedures established under the applicable labor laws before making an application to reject in the bankruptcy court. See Brotherhood of Railway, Etc. v. REA Express, Inc., 523 F.2d 164, 171 (2d Cir. 1975). [6] See also Proposed Bankruptcy Rule 6006, suggested by the Advisory Committee on Bankruptcy Rules of the Judicial Conference of the United States in March of 1982. [7] Under Section 365(d)(2), these contracts may be assumed or rejected at any time before the confirmation of a plan of reorganization but, a party to the contract may petition the court to order that action be taken within a specified period of time. 11 U.S.C. § 365(d)(2). [8] This also is in accord with the practice under the Act. See Matter of J. Bain, Inc., 554 F.2d 255, 256 (5th Cir. 1977). [9] In cases where the contract had been previously assumed under court direction, the effective date will be either the date of rejection, or immediately prior to any conversion of the case, depending on the sequence of events. See 1A Bkr-L.Ed. Summary: Administration, § 6:193 at 299-300.	{ "pile_set_name": "FreeLaw" }
135 F.Supp. 304 (1955) ILLINOIS CENTRAL RAILROAD COMPANY, Plaintiff, v. MISSISSIPPI PUBLIC SERVICE COMMISSION, and Alton Massey, Ike Sanford, and Howard Little, as Members of and Constituting the Public Service Commission of the State of Mississippi; and J. P. Coleman, as Attorney General of the State of Mississippi, Defendants. Civ. A. No. 2220. United States District Court S. D. Mississippi, Jackson Division. October 27, 1955. 305 Byrd, Wise & Smith, Jackson, Miss., for plaintiff. J. P. Coleman, Atty. Gen. of the State of Mississippi, James T. Kendall, Sp. Asst. Atty. Gen. of the State of Mississippi, Jackson, Miss., for defendants. Before HOLMES, Circuit Judge, and MIZE and THOMAS, District Judges. HOLMES, Circuit Judge. This is a civil action of an equitable nature, in which the plaintiff seeks to enjoin the defendants from the enforcement of an order of the Mississippi Public Service Commission, dated October 18, 1950, which requires the plaintiff to continue its passenger service on trains between Gulfport and Jackson, Mississippi. A temporary injunction restraining the enforcement of said order has been granted by this court, and is now in effect. There has been prior litigation on this subject in the state courts, which culminated in a decision by the Supreme Court of Mississippi, reported in Illinois 306 Cent. R. Co. v. Mississippi Public Service Commission, Miss., 71 So.2d 176. Said court held that the plaintiff had a plain, adequate, and complete, remedy at law by appeal from the order of the Commission, and could not maintain a bill in chancery to restrain enforcement thereof. The same matter is now submitted to this court on the motion of defendants for a summary judgment. The answer of defendants denies the allegations of the complaint and sets up three affirmative defenses: first, res judicata; second, plaintiff had a plain, adequate, and complete, remedy at law; and, third, an insufficient showing by the plaintiff of threatened or impending irreparable injury of such an extraordinary nature as to warrant the exercise of this court's injunctive powers. As an exhibit to their answer, the defendants have filed a complete copy of all the pleadings, evidence, and other proceedings in the state court and before the Public Service Commission. The motion for summary judgment is submitted on these records, on affidavits, and on admissions made by the plaintiff in response to requests made by the defendants. We discern no substantial controversy as to the facts except that the defendants deny the plaintiff's allegations as to the loss of enormous sums of money sustained by it in the operation of its trains. The Supreme Court of Mississippi, in 71 So.2d 176, did not consider the suit on its merits but denied the plaintiff any relief; and affirmed the judgment dismissing the bill, on the ground that the plaintiff had a plain, adequate, and complete remedy at law in the state court by appeal to the state circuit court. There is no contention here by the defendants that the plaintiff did not exhaust its administrative remedies before resorting to the federal court. We quote the following from the brief of defendants on the motion for a summary judgment: "Therefore, our initial conclusion that an appeal to the Circuit Court from the order of the Public Service Commission would have been a judicial proceeding leads us to the conclusion that, after such an appeal, the railroad company could have removed the proceeding to the Federal District Court. We do not wish our position in this matter to be a matter of confusion or doubt. We have nowhere urged the proposition that this Court should not accept jurisdiction because the plaintiff has not exhausted its administrative remedies. As set forth above, we do not now take such a position." Among other authorities, the defendants rely upon Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 662, 91 L.Ed. 832, wherein the court was sharply divided, and in which the majority opinion said: "Of course, where resort is had to a federal court not on grounds of diversity of citizenship but because a federal right is claimed, the limitations upon the courts of a State do not control a federal court sitting in the state. Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, [90 L.Ed. 743]." In the case at bar, the plaintiff does not rely upon diversity of citizenship for federal jurisdiction, but solely upon the violation of a federal right. The complaint alleges that the order of the Commission, dated October 18, 1950, is contrary to and in violation of plaintiff's rights which are secured by the Fourteenth Amendment of the Constitution of the United States, and that the impending enforcement of said order constitutes the taking of plaintiff's property without due process of law. The citizenship of the parties does not appear upon the face of the complaint. It is true that the plaintiff did not appeal from the judgment of the Supreme Court of Mississippi or apply for certiorari, as it might have done; but there is no doctrine of exhaustion of judicial remedies. If a judgment of dismissal is rendered on jurisdictional grounds, the losing party may accept it; and, instead of seeking a review, may institute another action where one will not be met by the jurisdictional bar. Cf. Restatement, Judgments (1942), Sec. 49, pp. 307 193-195; Cook, The Logical & Legal Bases of the Conflict of Laws (1942) pp. 133-135. The equitable jurisdiction of the federal courts is defeated only by an adequate legal remedy available in said courts. It is not sufficient to defeat federal equity jurisdiction that there be a remedy at law, but the remedy at law must be plain, adequate, and complete; that is, it must be as complete and as efficient as the equitable remedy. In case of serious doubt as to the adequacy of the remedy at law, the federal courts resolve this doubt in favor of their jurisdiction in equity; and, as federal equity jurisdiction is defeated only by an adequate legal remedy available in the federal courts, it is not defeated by the existence of such a remedy at law which is available only in a state court. It has often been decided that the federal equity jurisdiction is vested in the courts of the United States by the Constitution, and Acts of Congress in execution thereof; and that such equity jurisdiction cannot be impaired or diminished by the statutes of the several states regulating the practice of their own courts. Boyce's Ex'rs v. Grundy, 3 Pet. 210, 7 L.Ed. 655; City of Walla Walla v. Walla Walla Water Co., 172 U.S. 1, 19 S.Ct. 77, 43 L.Ed. 341; Coler v. Board of Com'rs of Stanly County, C.C., 89 F. 257; United States Life Ins. Co., in City of New York v. Cable, 7 Cir., 98 F. 761; National Surety Co. v. State Bank, 8 Cir., 120 F. 593, 61 L.R.A. 394, Medina Cas. Federal Procedure, 27, 184; Williams v. Neely, 8 Cir., 134 F. 1, 69 L.R.A. 232; Rumbarger v. Yokum, C. C., 174 F. 55. The adequate remedy at law, which is the test of the equitable jurisdiction in the federal courts, is that existing when the Judiciary Act of 1789, 1 Stat. 73, was adopted unless subsequently changed by an act of Congress; so that, if no adequate remedy at law existed on that date, the jurisdiction in equity of a federal court cannot be defeated by a subsequent state statute creating an adequate remedy at law; nor can federal equity jurisdiction be narrowed by state statutes. Mississippi Mills v. Cohn, 150 U.S. 202, 14 S.Ct. 75, 37 L.Ed. 1052; Smyth v. Ames, 169 U.S. 466, 18 S.Ct. 418, 42 L.Ed. 819; Guffey v. Smith, 237 U.S. 101, 114, 35 S.Ct. 526, 529, 59 L. Ed. 856, Medina Cas. Federal Procedure, 72; Pusey & Jones Co. v. Hanssen, 261 U.S. 491, 498, 43 S.Ct. 454, 456, 67 L. Ed. 763, Medina Cas. Federal Procedure, 197; Schmidt v. West, C.C., 104 F. 272; Barrett v. Twin City Power Co., C. C., 118 F. 861. The one issue of fact in this case is with reference to the trains being operated at a loss; the two issues of law are, first, whether the plaintiff is under a contractual obligation to furnish the passenger service even at a loss, and second, if operated at a loss, whether the enforcement of the order would amount to a confiscation of the railroad's property. These are judicial issues, not administrative matters, in deciding which the Commission was exercising its quasi-judicial power. The Commission is an administrative agency in the executive department of the state government. The state statute, which allows appeals from its orders, makes a distinction between the scope of appellate power conferred on the state circuit courts in controversies wherein an administrative order is involved and those wherein the order appealed from is a judicial finding, Sec. 7699, Title 28, of the Mississippi Code of 1942. As to an administrative order, the court may affirm or reverse for further proceedings as justice may require; as to a judicial finding, the court shall review, affirm, reverse or modify the same and enter thereon such order or judgment as may be right and just. The order of October 18, 1950, was of the kind designated in the statute as a judicial finding. The same matter may start as an administrative proceeding and later develop into an action at law, which is what would have happened if there had been an appeal from the order to the state court, though the same issues would have been involved; and the issues in the case at bar are likewise the same. 308 Judicial power is the legal right, ability, and authority, to hear and decide a justiciable issue or controversy; such power is ordinarily vested in a court of justice. State of Rhode Island v. Commonwealth of Massachusetts, 12 Pet. 657, 738, 37 U.S. 657, 738, 9 L.Ed. 1233. In Mississippi, its highest court is firmly committed to the doctrine that non-judicial functions cannot constitutionally be conferred upon its courts. City of Meridian v. Davidson, 211 Miss. 683, 53 So.2d 48; Ritchie v. City of Brookhaven, 217 Miss. 860, 65 So.2d 436, 832; Dixie Greyhound Lines v. Mississippi Public Service Commission, 190 Miss. 704, 200 So. 579, 1 So.2d 489. In the federal courts, the exact nature of the proceeding must be analyzed to arrive at the correct conclusion, but ordinarily an administrative proceeding becomes judicial when transferred to a federal court, although not necessarily so. See Commissioners of Road Imp. Dist. No. 2 of Lafayette County, Ark. v. St. Louis Southwestern R. Co., 257 U.S. 547, 549, 42 S.Ct. 250, 66 L.Ed. 364; Bailey v. Berry, Miss., 71 So.2d 181; City of Hattiesburg v. First Nat. Bank of Hattiesburg, D.C., 8 F. Supp. 157. Also compare Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 225, 226, 29 S.Ct. 67, 53 L.Ed. 150, which involved a legislative question, to wit, a matter of rate-making. In Alabama Public Service Commission v. Southern Ry. Co., 341 U.S. 341, 71 S. Ct. 762, 95 L.Ed. 1002, assuming that the federal court had jurisdiction, the court held that the exercise thereof was a matter of sound equitable discretion, since adequate state-court review of an administrative order was available; but the court further held that equitable relief may be granted when the district court is convinced that the asserted federal right cannot be preserved except by granting the extraordinary relief of an injunction in the federal court, and that the usual rule of comity must govern the exercise of such equitable jurisdiction. Concurring in the result, Mr. Justice Frankfurter said: "The lack of merit in the plaintiff's case is so clear that it calls for dismissal of the complaint. * * * Jurisdiction over cases where there is diversity of citizenship was conferred by § 11 of the Judiciary Act of 1789. 1 Stat. 73, 78. In Meredith v. City of Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9, we held that in an equity case the District Court could not decline to exercise its jurisdiction merely because matters of State were involved." 341 U.S. 355, 71 S.Ct. 771. On the same page, the same Justice said: "In Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 391, 14 S.Ct. 1047, 1052, 38 L.Ed. 1014, we rejected the argument that suit could not be brought in the federal court to restrain the enforcement of a State agency order. The Court has consistently held to the view that it cannot overrule the determination of Congress as to whether federal courts should be allowed jurisdiction, concurrent with the State courts, even where the plaintiff seeks to restrain action of a State agency. Smyth v. Ames, 169 U.S. 466, 516, 18 S.Ct. 418, 422, 42 L.Ed. 819; Willcox v. Consolidated Gas Co., 212 U.S. 19, 40, 29 S.Ct. 192, 195, 53 L.Ed. 382; Bacon v. Rutland R. Co., 232 U.S. 134, 137, 34 S.Ct. 283, 284, 58 L.Ed. 538; Detroit & Mackinac R. Co. v. Michigan R. R. Comm., 235 U.S. 402, 35 S.Ct. 126, 59 L.Ed. 288; Oklahoma Natural Gas Co. v. Russell, 261 U.S. 290, 293, 43 S.Ct. 353, 354, 67 L.Ed. 659; Prendergast v. New York Telephone Co., 262 U.S. 43, 47, 43 S.Ct. 466, 468, 67 L.Ed. 853; Pacific Telephone & Telegraph Co. v. Kuykendall, 265 U.S. 196, 201, 44 S.Ct. 553, 555, 68 L.Ed. 975; Railroad & Warehouse Comm. of Minnesota v. Duluth St. R. Co., 273 U.S. 625, 628, 47 S.Ct. 489, 490, 71 L.Ed. 807; See Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 228, 29 S.Ct. 67, 70, 53 L.Ed. 150. These cases can be overruled. They cannot be explained away." The history of this litigation opens with a suit in the Chancery Court *309 of Hinds County, Mississippi, filed by the State on the relation of its Attorney General, in which a temporary injunction was granted, restraining the Illinois Central Railroad Company from discontinuing the operation of its two passenger trains between Jackson and Gulfport. This injunction remained in effect until after the matter was heard by the Public Service Commission, and until after the order of October 18, 1950, had been entered. On November 10, 1950, said injunction was dissolved because the question had been determined by the Public Service Commission. On November 15, 1950, the Railroad filed in the chancery court the suit first mentioned in this opinion, which is reported in 71 So.2d 176, which clearly would be res judicata except for the fact that the Supreme Court in its opinion held that neither it nor the chancery court had any jurisdiction to issue the injunction. If the chancery court had no jurisdiction, the Supreme Court had none except so to hold, which it did. For that reason, the action of the chancery court was affirmed. The trial court dismissed the bill on the merits; and the appellate court affirmed the dismissal on the ground that the trial court had no equitable jurisdiction. A plea of res judicata cannot be sustained if the court rendering the judgment was without jurisdiction to grant the relief sought. In Mississippi, under its Constitution, § 144 et seq., there are separate courts of law and equity; and the chancery court has full jurisdiction of all matters in equity. Sitting as a court of original equity jurisdiction, duty bound to exercise a sound judicial discretion, the crucial question before us is not one of federal jurisdiction but of comity, and the usual rule of comity does not apply here because there is no state court of equitable jurisdiction to which the plaintiff can go for equitable relief to protect its federal right against confiscation of its property. It is true that the plaintiff had a choice of remedies, one of which was by appeal to go into the state court, and possibly through it to the federal court; but it was not required to adopt that procedure. Railroad & Warehouse Comm. of Minnesota v. Duluth St. R. Co., 273 U.S. 625, 47 S.Ct. 489, 71 L.Ed. 807. In the lower court, the Chancellor also held that the plaintiff was not entitled to relief in equity because it had a plain, adequate, and complete remedy at law, which had been lost by its failure to appeal to the state circuit court. The final decree dismissed the bill with prejudice. We think, however, that the prejudicial effect of the decree only applies to the issue of the state court's jurisdiction in equity, because when jurisdiction of any case does not exist, the only function vested in the court is that of announcing the fact and dismissing the suit. Accordingly, the motion for summary judgment will be overruled.	{ "pile_set_name": "FreeLaw" }
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY STATE OF DELAWARE ) ) v. ) Cr. ID No. 090813580 ) EFRAIN RIVERA, ) ) Defendant. ) Date Submitted: April 8, 2015 Date Decided: July 9, 2015 MEMORANDUM OPINION Christopher S. Koyste, Esquire, Attorney for Defendant. Martin B. O’Connor, Deputy Attorney General, Department of Justice, Attorney for the State of Delaware. Rocanelli, J. I. PROCEDURAL HISTORY On May 18, 2010, a Superior Court jury found Defendant Efrain Rivera guilty of one count of Rape in the First Degree; one count of Rape in the Second Degree; one count of Menacing; one count of Assault in the Third Degree; two counts of Terroristic Threatening; and one count of Endangering the Welfare of a Child. Andrew J. Witherell, Esquire (“Trial Counsel”) represented Defendant at trial. On July 23, 2010, the Trial Court sentenced Defendant to eighteen (18) years at Level V, suspended after fifteen (15) years for three years at Level IV, suspended after six months for two years at Level III. On July 25, 2011, the Delaware Supreme Court affirmed Defendant’s conviction. 1 On October 22, 2012, Defendant filed a Motion for Appointment of Counsel to pursue postconviction relief. On December 11, 2012, the Court appointed Christopher S. Koyste, Esquire (“Rule 61 Counsel”). After motion practice regarding discovery, 2 Defendant filed the pending Motion for Postconviction Relief (“PCR Motion”). II. FACTS PRESENTED AT TRIAL SUPPORTING CONVICTION 1 Rivera v. State, 26 A.3d 214 (Del. 2011). 2 State v. Rivera, 2014 WL 2538678 (Del. Super. June 4, 2014). 1 On August 14, 2009, Defendant was at the residence of Juan Pacheco. Cariely Rosado, Pacheco’s niece, also lived at the residence with Rosado’s infant child. Defendant left the residence when Pacheco was going to bed. Rosado was asleep in her bedroom on the first floor, which Rosado shared with her infant child. Later, Defendant returned to the residence and entered Rosado’s bedroom. Defendant held a knife to Rosado’s throat and sexually assaulted Rosado while Rosado’s infant child was in the bed with Rosado. Defendant left the residence and Rosado ran upstairs to alert Pacheco, who then called the police. Rosado, Pacheco, and Defendant were all interviewed by the police following the report. In addition, Rosado was examined by a nurse who testified as a witness at trial. III. DEFENSE STRATEGY AT TRIAL Trial Counsel’s defense was to deny any relationship between Defendant and Rosado. This strategy was consistent with Defendant’s statements to the police when he was interviewed at the time of the criminal report. IV. DEFENDANT’S PCR MOTION THEORY OF AN AFFAIR-DEFENSE The central gravamen of Defendant’s PCR Motion claims that Defendant and Rosado were having a consensual affair and that Trial Counsel was ineffective for failing to present evidence consistent with this defense theory. However, as discussed in connection with each of the claims, presentation of such a defense was 2 inconsistent with the evidence to the contrary and there was no evidence to support an affair-defense other than Defendant’s own testimony. The testimony of Rosado, the testimony of the nurse who examined Rosado after the assault, and other physical evidence supported a finding that the sexual intercourse was not consensual. Other than Defendant’s own proffered testimony, there is no evidence to support the version of events offered by Defendant in his PCR Motion. For example, Defendant now claims that on the night of the assault he and Rosado had a fight and that Rosado made up the rape when Pacheco heard the argument in order to hide their affair. However, Pacheco testified that he only woke up when Rosado went upstairs to tell him about the rape. 3 At no point did Pacheco testify that he heard an argument between Defendant and Rosado. Moreover, Defendant has not presented any support for his recent claim that he even told Trial Counsel before the trial about the claimed affair.4 As discussed below, even if Defendant had raised with Trial Counsel an affair-defense at the time of trial, it was professionally reasonable to reject an affair-defense as a trial strategy. V. ASSERTED GROUNDS FOR POSTCONVICTION RELIEF 3 Trial Tr. at 55, May 11, 2010. 4 Trial Counsel’s affidavit does not suggest that Defendant ever informed Trial Counsel of his alleged affair with Rosado. See Trial Counsel Aff., Oct. 20, 2014. 3 Defendant asserts six grounds for relief in his PCR Motion: (1) ineffective assistance of Trial Counsel in failing to appeal the Trial Court’s ruling that Rosado’s Section 3507 statement was admissible; (2) ineffective assistance of Trial Counsel for failing to properly advise Defendant of his right to testify; (3) ineffective assistance of Trial Counsel for failing to adequately cross examine Pacheco; (4) ineffective assistance of Trial Counsel for failing to investigate the contents of Defendant’s cell phone; (5) multiple Brady violations including (a) that the State failed to disclose information in relation to Pacheco and a Wilmington Police Officer involved in the police interviews and (b) that the State failed to disclose information regarding any deal between Rosado and the State; and (6) cumulative due process error undermining Defendant’s right to a fair trial. VI. PROCEDURAL BARS TO POSTCONVICTION RELIEF Before addressing the merits of a motion for postconviction relief, this Court must consider the procedural requirements of Rule 61(i). 5 Rule 61(i)(1) requires a motion for postconviction relief be filed within one year after the judgment of conviction is final. The Supreme Court affirmed Defendant’s conviction and sentence on July 25, 2011. Defendant did not seek appointment of counsel to pursue postconviction relief until October 22, 2012, after the one-year time limit under Rule 61(i)(1) had already lapsed. Even assigning the filing date to 5 Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991). 4 Defendant’s first inquiry, Defendant’s PCR Motion does not satisfy the procedural time bar of Rule 61(i)(1) and, therefore, his claims are time-barred. In order to avoid the procedural time bar of Rule 61(i)(1), Defendant must satisfy the requirements of Rule 61(i)(5), which was amended on June 4, 2014. Pursuant to the pre-amendment version of Rule 61(i)(5), procedural bars to relief “shall not apply to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, or fairness of the proceedings leading to the judgment of conviction.” 6 The June 4, 2014 amendments to Rule 61 eliminated this constitutionally based fundamental fairness exception.7 Pursuant to the post-amendment version of Rule 61(i)(5), procedural bars “shall not apply either to a claim that the court lacked jurisdiction or to a claim that satisfies the pleading requirements of subparagraphs (2)(i) or (2)(ii) of subdivision (d) of this rule.” 8 Defendant’s PCR Motion does not qualify for the Rule 61(i)(5) exception to the procedural bars under the pre-amendment 9 or post-amendment 10 version of 6 Super. Ct. Crim. R. 61(i)(5) (pre-June 4, 2014 amendment). 7 See Gibbs v. State, 2015 WL 3843378, at *2 n.23 (Del. June 18, 2015) (discussing Rule 61(d)(2)). 8 Super. Ct. Crim. R. 61(i)(5). 9 Defendant’s PCR Motion does not satisfy the fundamental fairness exception, which is a narrow exception applied in limited circumstances. Younger v. State, 580 A.2d 552, 555 (Del. 1990). 10 Defendant’s PCR Motion does not claim that the court lacked jurisdiction nor does it “plead with particularity that new evidence exists that creates a strong inference that the movant is actually innocent[;]” or “plead with particularity a claim that a new rule of constitutional law, 5 Rule 61. Nevertheless, even if Defendant’s PCR Motion was procedurally sound, Defendant’s claims fail on the merits for the reasons that follow. VII. DEFENDANT’S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL Defendant raises four claims of ineffective assistance of counsel. 11 Claims of ineffective assistance of counsel are governed by the two-prong Strickland test.12 The movant must demonstrate (1) that counsel’s representation fell below an objective standard of reasonableness, 13 and (2) that counsel’s errors prejudiced defendant.14 In considering the first prong, there is a strong presumption that counsel’s actions were professionally reasonable.15 Additionally, judicial scrutiny should be highly deferential to counsel’s decisions on trial strategy. 16 In considering the second prong, the movant must show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 17 Failure to prove either prong renders the claim insufficient.18 made retroactive . . . [and] appli[cable] to the movant’s case and renders the conviction . . . invalid.” Super Ct. Crim. Rule 61(d)(2)(i), (ii). 11 Defendant’s claims of ineffective assistance of counsel are not subject to the procedural bar of Rule 61(i)(3) because ineffective claims are meant to be raised in the postconviction setting. See Duross v. State, 494 A.2d 1265, 1267 (Del. 1985). 12 Strickland v. Washington, 466 U.S. 668 (1984). 13 Id. at 688. 14 Id. at 694. 15 Id. at 688. 16 Id. at 689. 17 Id. at 694. 18 Id. at 700. 6 A. Failure to Appeal the Admission of Rosado’s Section 3507 Statement Defendant claims that Trial Counsel was ineffective for not appealing the admission of Rosado’s statement to the police into evidence at trial. The admission of Rosado’s statement is governed by Section 3507 of Title 11 which provides that “the voluntary out-of-court prior statement of a witness who is present and subject to cross examination may be used as affirmative evidence with substantive independent testimonial value.” 19 Proper admission of a voluntary out- of-court statement under Section 3507 requires the declarant to testify as to the events and the truthfulness of the statement on direct examination. 20 Defendant argues that Rosado’s statement was improperly admitted because Rosado never testified as to its truthfulness. Further, despite objecting at the time, Defendant argues that Trial Counsel was ineffective for not appealing the improper admission. Defendant’s claim does not satisfy the first prong of Strickland because Defendant cannot overcome the strong presumption that Trial Counsel’s actions were professionally reasonable. Contrary to the claim in Defendant’s PCR Motion, Trial Counsel made an effort to exploit Rosado’s statement during cross- examination as a method of challenging Rosado’s credibility and to address 19 11 Del. C. § 3507(a). 20 See Wyche v. State, 113 A.3d 162, 165 (Del. 2015) (discussing the voluntariness of § 3507 statements); Ray v. State, 587 A.2d 439, 443 (Del. 1991) (requiring the declarant of the § 3507 statement testify as to the truthfulness of the statement). 7 inconsistencies between Rosado’s statement and her testimony at trial.21 Additionally, during cross-examination Rosado stated, “I’m going to try and keep [to] the truth as much as possible and say everything I thought that happened that day.” 22 Therefore, despite Trial Counsel’s initial objection to the admission of Rosado’s statement, Rosado did testify as to the truthfulness of events discussed in her statement. Once Rosado testified about the events and the truthfulness of her statement, it was reasonable for Trial Counsel to conclude that the Section 3507 violation was one of form and not substance or that it was more technical in nature. The Delaware Supreme Court has held that such technical violations do not overcome the presumption of professional reasonableness. 23 Therefore, the Court finds that Trial Counsel’s decision not to appeal the admission of Rosado’s statement into evidence was reasonable under the prevailing professional norms. 24 21 Trial Tr. at 44–45, May 12, 2010. 22 Id. at 30. 23 See Hoskins v. State, 102 A.3d 724, 735 (Del. 2014) (stating that the awkward phrasing of the § 3507 foundation was “insufficient grounds…to overcome the presumption of trial counsel’s reasonableness.”); Jackson v. State, 643 A.2d 1360 (Del. 1994) (finding that the “technical non- compliance with the foundational requirements” was harmless). 24 See e.g., Turner v. State, 5 A.3d 612, 616–17 (Del. 2010) (providing that § 3507 statements “must be offered into evidence no later than at the conclusion of direct examination of the declarant” to avoid placing “any strategic burden on the non-offering party.”) (quoting Smith v. State, 669 A.2d 1, 8 (Del. 1995)). In Turner, the State did not offer the declarant’s Section 3507 statement into evidence until defense counsel began cross-examination without objection from defense counsel. The Turner Court concluded that, despite trial counsel’s failure to object, the defendant could not establish a claim of ineffective assistance of counsel because defense counsel had asked only four questions on cross-examination before the State offered the statement into evidence and, therefore, defense counsel was not subject to strategic burden. Id. 8 Moreover, even assuming that Trial Counsel’s performance did fall below a reasonable professional standard, Defendant is unable to demonstrate prejudice. Defendant argues that the admission of Rosado’s statement was prejudicial because Rosado offered evidence of penetration, which Rosado did not state in her trial testimony. However, Defendant’s argument ignores the testimony by other witnesses who presented evidence of penetration at trial. First, the nurse who examined Rosado after the assault testified at trial that Rosado told the nurse during the physical examination that there had been penetration during the rape.25 Second, DNA evidence from a vaginal swab of Rosado provided evidence of penetration; specifically, that Defendant had ejaculated inside Rosado. 26 Thus, the record included evidence of penetration even without Rosado’s statement during her police interview. Accordingly, the admission of Rosado’s statement did not prejudice Defendant. Defendant cannot satisfy either prong of Strickland and, therefore, his claim of ineffective assistance of counsel must be denied. Here, however, the State admitted Rosado’s statement into evidence in a timely manner despite the fact that Rosado testified as to the truthfulness of her statement on cross-examination. Even if Trial Counsel did appeal the admission of Rosado’s statement, the error would not mandate reversal under the plain error standard of review. See Smith, 669 A.2d at 8 (concluding that under the plain error standard of review—an error so clearly prejudicial that it jeopardizes the defendant’s right to a fair trial—the improper introduction of a § 3507 did not deprive the defendant of a fair trial). Therefore, because Rosado did testify as to truthfulness, albeit on cross-examination, the Court is satisfied that Trial Counsel’s decision not to appeal the admission of Rosado’s statement was reasonable. 25 Trial Tr. at 14, May 13, 2010. 26 Trial Tr. at 83–86, May 12, 2010. 9 B. Failure to Seek Suppression of Defendant’s Statement to Police Which Defendant Claims Undermined His Right to Decide Whether to Testify Defendant argues that Trial Counsel was ineffective because Trial Counsel did not move to suppress Defendant’s statement to the police. Defendant contends that Trial Counsel should have moved to suppress Defendant’s statement because it was involuntary in violation of the Fourteenth Amendment. 27 Furthermore, Defendant argues that suppression of his prior incriminating statement would have allowed Defendant to decide to testify at trial without worrying that the State would use his statement against him on cross-examination. Specifically, Defendant claims that he would have testified that he and Rosado were having a consensual affair and that Rosado fabricated the rape in order to prevent Pacheco from discovering the affair. Defendant cannot satisfy the second prong of Strickland. 28 Even if Defendant had testified about an affair, it is likely that such testimony would have hurt Defendant, not helped him, because his testimony about an affair was inconsistent with the weight of the evidence to the contrary. Moreover, had 27 See Spano v. New York, 360 U.S. 315 (1959); Colorado v. Connelly, 479 U.S. 157 (1986). 28 See Hoskins, 102 A.3d at 730 (“‘In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.’”) (quoting Strickland, 466 U.S. at 697). 10 Defendant testified he would have been subjected to cross-examination, including his criminal history (albeit limited to arrests for driving under the influence) and the State would have exploited the inconsistencies between Defendant’s testimony and the testimony, and prior consistent statements, of Pacheco and Rosado as well as the testimony of the nurse who examined Rosado, all of which would have contradicted Defendant’s claimed affair-defense. It was therefore reasonable for Trial Counsel to have concerns about how the jury would have perceived Defendant’s credibility. Accordingly, Defendant cannot satisfy the prejudice prong of Strickland and, therefore, his claim of ineffective assistance of counsel must be denied.29 Because the Court finds no prejudice, the Court will not address whether Trial Counsel’s decision not to file a motion to suppress Defendant’s statement to the police was objectively reasonable under the prevailing professional norms. C. Failure to Adequately Cross Examine Pacheco Defendant argues that Trial Counsel was ineffective for failing to use statements Pacheco made during his police interview to impeach Pacheco on cross- examination. Pacheco’s police interview was conducted in Spanish with an officer serving as an interpreter (“Interpreting Officer”) for the English-speaking 29 See Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”). 11 detective. In Pacheco’s voluntary statement to the police—not in response to a question—Pacheco offered that Defendant entered the residence through a window that Defendant first broke and then opened.30 Pacheco made this statement in Spanish and it was not translated by the Interpreting Officer at the time of the interview or included in the police report prepared by the English-speaking officer. Defendant contends that the absence of any broken window at the residence supports the theory that Rosado let Defendant inside the residence as part of their affair and that Pacheco made up the story about the broken window to help Rosado cover up the affair. However, there was no inconsistency to exploit on cross-examination because Pacheco—in response to police questioning—stated that he had locked all of the windows and doors before going to bed. 31 Defendant argues that Trial Counsel should have used Pacheco’s statement about the broken window to impeach Pacheco because Pacheco was the only person to ever mention a broken window and no police officer testified regarding a broken window at the residence. Pacheco testified at trial that he saw a window open after he came downstairs. 32 Pacheco’s prior statement did not contradict Pacheco’s testimony at trial. Although Pacheco did not say that the window was broken, and no other testimony 30 Pacheco Tr. Police Interview at 5, Aug. 15, 2009. 31 Id. 32 Trial Tr. at 55, May 11, 2010. 12 was offered to that effect, Pacheco’s testimony was reasonably consistent with his previous statement. Accordingly, Defendant’s reliance on Moore v. Secretary Pennsylvania Department of Corrections 33 is misplaced. In Moore, the Third Circuit held “Counsel’s failure to introduce evidence that contradicts a key witness’s trial testimony is patently unreasonable.”34 Here, however, Pacheco’s prior statement was not a contradiction. Defendant’s claim does not satisfy the first prong of Strickland because Defendant has not demonstrated that Trial Counsel’s performance fell below an objective standard of reasonableness. Moreover, even assuming that Trial Counsel was ineffective in failing to translate Pacheco’s statement into English, Defendant cannot demonstrate prejudice. Defendant is unable to demonstrate that, but for Trial Counsel’s error the outcome of the proceedings would have been different. Defendant argues that Pacheco’s statement contained exculpatory information because, if there was no broken window, it is likely that Rosado let Defendant into the residence in connection with the affair Defendant claims they were having. However, Pacheco did testify at trial that he saw a window open after he came downstairs. Therefore, it would not have changed the outcome of the trial even if Trial Counsel had cross-examined Pacheco on the statement he previously made 33 457 Fed.Appx. 170 (3d Cir. 2014). 34 Id. at 182. 13 about a broken window, which was not included in the police report and was not a central focus of the State’s case against Defendant. Defendant cannot satisfy either prong of Strickland and, therefore, his claim of ineffective assistance of counsel must be denied. D. Failure to Investigate Contents of Defendant’s Cell Phone Defendant claims that Trial Counsel was ineffective for failing to investigate the contents of Defendant’s cell phone, which the Wilmington Police Department seized following Defendant’s arrest. Defendant argues that reviewing the phone would have provided evidence that Defendant and Rosado were having an affair, which would have helped to impeach Rosado’s testimony at trial. Defendant cannot establish that Trial Counsel’s performance fell below an objective standard of reasonableness. Strickland provides that “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” 35 Strickland further states that decisions not to investigate are assessed for “reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.”36 During Defendant’s police interview, Defendant consistently denied having any sort of relationship with Rosado. This denial is inconsistent with Defendant’s recently purported defense of an affair. As discussed above, Trial Counsel’s 35 Strickland, 466 U.S. at 691. 36 Id. 14 decision not to focus on an affair-defense was a sound trial strategy and was professionally reasonable. Trial Counsel reasonably concluded that investigating the contents of Defendant’s cell phone would have been fruitless to the defense strategy, which did not include any mention of an affair. Therefore, consistent with Strickland, Trial Counsel made a professionally reasonable strategic decision that investigation into the contents of Defendant’s cell phone was unnecessary. Trial Counsel’s decision, being reasonable under the circumstances, is entitled to deference by the Court. Even if Defendant established that Trial Counsel’s performance fell below an objective standard of reasonableness, Defendant is unable to establish prejudice as a result because Defendant would still need to overcome the inconsistencies between his purported defense of an affair and his statements made immediately following the incident that he had no relationship whatsoever with Rosado. Any evidence from Defendant’s cell phone would also be inconsistent with the testimony of other witnesses, including Rosado and the nurse who examined her. Defendant cannot establish “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”37 37 Id. at 694. 15 Defendant cannot satisfy either prong of Strickland and, therefore, his claim of ineffective assistance of counsel must be denied. 16 VIII. DEFENDANT’S CLAIMS OF BRADY VIOLATIONS Defendant’s PCR Motion argues that the State committed multiple Brady violations during the trial that warrant reversal of his conviction.38 The United States Supreme Court held in Brady v. Maryland,39 that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 40 In U.S. v. Bagley, the United States Supreme Court further held that the State has an affirmative duty to produce favorable evidence regardless of whether or not it is requested by the defense.41 The Bagley Court held that favorable evidence must be disclosed where “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” 42 Additionally, the prosecutor has a duty to seek out “any favorable evidence known to the others acting on the government's behalf in the case, including the police.” 43 38 The Court will examine Defendant’s claims of Brady violations because Brady violations undermine the core principles of a fair proceeding. See Jackson v. State, 770 A.2d 506, 515–16 (Del. 2001). 39 373 U.S. 83 (1963). 40 Id. at 87. 41 United States v. Bagley, 473 U.S. 667, 682 (1985). 42 Id. 43 Kyles v. Whitley, 514 U.S. 419, 437 (1995). 17 The Court must conduct a three-prong analysis to determine if a Brady violation occurred: “(1) evidence exists that is favorable to the accused, because it is either exculpatory or impeaching; (2) that evidence is suppressed by the State; and (3) its suppression prejudices the defendant.”44 A. Alleged Failure by State to Disclose Broken Window Statement by Pacheco to Wilmington Police Defendant argues that information relating to Pacheco’s statement concerning a broken window at the residence during his police interview, and the identity of a Wilmington Police Officer conducting the interview, were suppressed in violation of Defendant’s rights under Brady and that he was prejudiced as a result. During Pacheco’s police interview, Pacheco made the unsolicited statement that Defendant broke a window to enter the residence, but the identity of the Interpreting Officer—who failed to translate Pacheco’s broken window statement—is unknown.45 Defendant contends that information regarding Pacheco’s claim of a broken window, including the identity of the Interpreting Officer and the Interpreting Officer’s notes or reports were Brady information because it was favorable in impeaching Pacheco’s testimony at trial. Defendant further contends that this information was suppressed by the prosecution and that 44 Starling v. State, 882 A.2d 747, 756 (Del. 2005) (internal citations omitted). 45 Pacheco Tr. Police Interview at 5, Aug. 15, 2009. 18 Defendant was prejudiced because the information would have impeached Pacheco and supported Defendant’s purported defense that Rosado let Defendant into the residence in connection with their ongoing affair. Defendant has not established a Brady violation because the information is neither exculpatory nor impeaching. As discussed in relation to Defendant’s ineffective assistance of counsel claims, Pacheco’s testimony was reasonably consistent with Pacheco’s statement to the police and with the testimony of the other witnesses. Pacheco testified at trial that a window was open when he came downstairs. There was no other report of a broken window and no other mention of a broken window aside from the unsolicited statement made by Pacheco during his police interview. A broken window was not a central part of the State’s case against Defendant and was not inconsistent with the trial testimony of Pacheco. Presentation of Pacheco’s prior statement would not have affected the outcome of the trial. Even assuming that the unsolicited statement about a broken window was Brady information, Defendant cannot establish that the statement was suppressed by the State. Trial Counsel had access to Pacheco’s police interview as a result of discovery. Therefore, Trial Counsel had an actual recording of the interview with the Wilmington Police Officer during which the statement about the broken window was made. The statement was made available to Defendant. 19 Accordingly, the Court finds that there was no Brady violation regarding Pacheco’s broken window statement. B. Alleged Failure by State to Disclose “Deal” between Rosado and the State Regarding Rosado’s Probation Defendant argues that the State committed a Brady violation in suppressing information concerning any express or implied “deal” between the State and Rosado that Trial Counsel could have used to impeach Rosado’s testimony at trial. During the trial, Rosado was on probation for possession with intent to deliver a controlled substance. Rosado was discharged from probation some time after Defendant’s trial after completing all the special conditions of her probation and for Rosado’s overall compliance while on probation. Defendant contends that the special conditions of Rosado’s probation are unknown; that one of these special conditions could have been her agreeing to testify against Defendant in exchange for less time on probation; and that an evidentiary hearing is needed to uncover evidence of any explicit or implied deal between the State and Rosado. The Court finds no Brady violation. Defendant has not provided any evidence that there was any deal between the State and Rosado. Further, as the State notes, there is no evidence of an agreement in the record. Regardless of the State’s concession that an evidentiary hearing would discern whether or not Rosado had an implied understanding that her probation would be shorter as a 20 result of her testimony, the Court finds Defendant has not provided sufficient evidence to support his claim of an agreement to testify that warrants a hearing. Accordingly, the Court finds that there was no Brady violation regarding an alleged deal between the State and Rosado regarding Rosado’s probation. C. Cumulative Brady Violation Defendant argues that the cumulative impact of the multiple instances of suppressed information result in a Brady violation. However, Defendant’s claims do not establish that the State suppressed any evidence, Brady or otherwise. Accordingly, because Defendant has not established that even a single Brady violation occurred, the Court finds that no cumulative Brady violation has occurred. IX. DEFENDANT’S CLAIM OF CUMULATIVE ERROR Defendant argues that the cumulative impact of the ineffective assistance of counsel and Brady violations violated his due process rights and warrants reversal of his conviction. The applicable decisional law provides that the cumulative result of errors at trial may result in plain error requiring reversal even where the individual errors standing alone would not. 46 The Court finds that Defendant has not established any of his claims of ineffective assistance of counsel or Brady 46 Wright v. State, 405 A.2d 685, 690 (Del. 1979). 21 violations. Because Defendant has not established any individual errors, there can be no cumulative error denying Defendant due process. X. CONCLUSION This Court finds Defendant’s postconviction claims are time-barred and without merit. Defendant has not established that Trial Counsel was ineffective. Additionally, Defendant has not established that any Brady violation occurred. NOW, THEREFORE, this 9th day of July, 2015, Defendant Efrain Rivera’s Motion for Postconviction Relief is hereby DENIED. IT IS SO ORDERED. Andrea L. Rocanelli ____________________________________ The Honorable Andrea L. Rocanelli 22	{ "pile_set_name": "FreeLaw" }
309 F.2d 777 Austris A. WIHTOL, doing business as Kalmin, Mohr & Apsit, and Austris A. Wihtol and Elly L. Wihtol, doing business as The Kama Co., Appellants,v.Nelson E. CROW, First Methodist Church of Clarinda, Iowa, and Clarinda, Iowa, School District, Appellees. No. 16963. United States Court of Appeals Eighth Circuit. November 27, 1962. Rehearing Denied January 5, 1963. Melville V. Nimmer, Los Angeles, Cal., for appellants. Richard G. Langdon and David W. Belin, Des Moines, Iowa, for appellee Clarinda, Iowa, School District. Richard G. Davidson, Clarinda, Iowa, William C. Hemphill, of Stipe, Davidson & Hemphill, Clarinda, Iowa, on the brief, for appellees Nelson E. Crow and First Methodist Church of Clarinda, Iowa. Before SANBORN and BLACKMUN, Circuit Judges, and REGISTER, District Judge. SANBORN, Circuit Judge. 1 The appellants were the plaintiffs in an action for injunctive relief and damages against the defendants (appellees) for the alleged infringement of copyrights covering a musical composition consisting of a song or hymn entitled "My God and I." From a judgment dismissing the complaint and awarding the defendants costs and attorneys' fees (199 F.Supp. 682), the plaintiffs have appealed. 2 The song in suit was composed by Austris A. Wihtol, who, under his trade name, obtained a copyright for the song ("English text and choral arrangement"). It was first published in the United States August 15, 1935, and duly registered in the United States Copyright Office on September 11, 1935. Wihtol later produced a version of the song "arranged for solo voice with new piano score, with new text added * ." This version was first published March 1, 1944, and registered in the Copyright Office on September 30, 1944, by Wihtol and his wife, doing business as The Kama Co. 3 According to the plaintiff Wihtol's evidence, the song has achieved a worldwide distribution, and has produced some $25,000 annually from royalties. It has been performed largely in churches and schools. Wihtol depends upon the income from the song for his support. Part of the income is derived from granting licenses for the making of special arrangements of the song. 4 The defendant Nelson E. Crow was the head of the Vocal Department of the Junior College and High School of the Clarinda, Iowa, School District, during the school year 1958-59. He has a Degree of Master of Music Education. He was employed by the School District and was paid a salary for his services in supervising its choral music activities. He selected what was to be sung by the choral groups of the School and supplied the members of such groups with printed copies of the music to be sung. Crow, during this same period, was also the Choir Director of the First Methodist Church of Clarinda, and its organist. He received compensation from it for his services. His duties as Director included the selecting of choral music for the choir and the furnishing of printed copies of the music to its members. 5 In November of 1958, Crow, without the permission of the plaintiffs, copied the song "My God and I," incorporating it in a new arrangement made by him. He had found the copyrighted version of the song as published and sold by the plaintiffs — of which the School had acquired some 25 copies — unsuitable for choir use. About 48 copies of his new arrangement, adapted for such use, were produced by him upon one of the School's duplicating machines. The new arrangement of the song was performed once by the High School choir of 84 voices at one of the regular monthly School chapel services, and was performed at church services on one Sunday by the much smaller choir of the First Methodist Church. Crow had furnished the choirs with copies of his new arrangement. The copies contained the words "arranged Nelson E. Crow," and made no reference to Wihtol. 6 In June of 1959, Crow wrote The Kama Co., advising of the new arrangement he had made of the song, and stating that he had "ad libbed a choral humming introduction of four measures" but otherwise had left the score in its original context and had omitted no part of the solo version. In his letter he suggested that The Kama Co. might be interested in his arrangement, and said: " * * I will attempt to get the score ready for your perusal next fall — if you are interested." In response to his letter, The Kama Co. requested that copies of his arrangement of the song be forwarded for inspection. Receiving no reply to this request, Wihtol went to Clarinda, Iowa. Crow was not there. Wihtol discussed the matter of infringement with Mrs. Crow. Wihtol gathered the impression that there was to be no peaceful solution of the controversy, and returned to Los Angeles. 7 Under date of July 28, 1959, The Kama Co. wrote Crow as follows: 8 "Dear Mr. Crowe: 9 "We regret that you did not comply with our request of sending immediately a copy of your score for inspection. Not hearing from you, it was necessary to make investigation, thereby involving expense which could have been avoided and which also impairs the friendly and co-operative atmosphere that should exist between publishers and music users. The plain fact is that you are guilty of Copyright infringement and subject to assessments and penalties that the law imposes on infringers. 10 "For the preservation of good will for the sake of any future dealings that may come about, we will ask you to comply with the easiest terms possible. 11 "The copyright law permits us to ask a Statutory Fee, of not more than 5,000 dollars and not less than 250 dollars. For the present, we will be satisfied with the minimum of 250 dollars and will allow you 90 days from this date, for compliance. 12 "For the present, we will not institute a criminal complaint for Willful Infringement (maximum penalty — one year in jail and 1,000 dollar fine) because we wish to let you off as easily as possible. 13 "For the sake of a peaceful and pleasant settlement, please have all of the copies you made delivered to our office in California immediately. The copies are so made that other people can be involved too and very seriously. 14 "If this matter is amicably settled, in all likelihood, we may have an interesting offer for you for the future. 15 "Very truly yours, "THE KAMA CO., "P. O. Box 301, "Glendale, Calif., "/s/ L. ENGELHART." 16 On September 1, 1959, Crow forwarded to The Kama Co. 44 copies of the arrangement he had made of the copyrighted song, which were all the copies he had. The instant action was brought on January 15, 1960. 17 The defendants, in their separate answers to the complaint of the plaintiffs, denied any infringement of the copyrights in suit. The School District denied that Crow, in doing what he had done with the copyrighted song, was its agent and was acting within the scope of his authority as alleged in the complaint. It asserted that, if he was such an agent, the District was not liable for damages, since he was acting in a governmental capacity. The Church, in its answer, denied that the acts of Crow, complained of, were done as its agent. 18 The District Court, in disposing of this troublesome case growing out of the unfortunate but unintentional and seemingly harmless mistake of Nelson E. Crow, determined: (1) that there had been no infringement, but only a "fair use" by him of the copyrighted song; (2) that if there was infringement, it was of the 1935 copyright only, and not of both copyrights; (3) that the Clarinda, Iowa, School District could not, in any event, be held liable for infringement of the plaintiffs' copyrights; (4) that, because of the offensive intimation contained in the letter of July 28, 1959, from The Kama Co. to Crow that he was, or might be, subject to criminal prosecution, the defendants should each be awarded an attorney's fee of $500 against the plaintiffs. This Court is now called upon to review these rulings. 19 Section 1 of the Copyright Act, 17 U. S.C. § 1 et seq., gives to a copyright proprietor the "exclusive right": 20 "(a) To print, reprint, publish, copy, and vend the copyrighted work; 21 * * * * * * 22 "(e) To perform the copyrighted work publicly for profit if it be a musical composition; and for the purpose of public performance for profit, and for the purposes set forth in subsection (a) hereof, to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced: * * ." 23 Obviously the plaintiffs had the exclusive right to copy their copyrighted song, and obviously Nelson E. Crow had no right whatever to copy it. The fact that his copying was done without intent to infringe would be of no help to him,1 as the trial court recognized, if the copying constituted an infringement. 24 The trial court, however, was of the opinion that innocent intent had a bearing on the question of fair use, and ruled that Crow did nothing more than make a fair, noninfringing use of the copyrighted song in suit. 25 Whatever may be the breadth of the doctrine of "fair use," it is not conceivable to us that the copying of all, or substantially all, of a copyrighted song can be held to be a "fair use" merely because the infringer had no intent to infringe. In Bradbury v. Columbia Broadcasting System, Inc., 9 Cir., 287 F.2d 478, the court, in considering the doctrine of "fair use" of a copyrighted production, said (page 485): 26 "To constitute an invasion of copyright it is not necessary that the whole of a work should be copied, nor even a large portion of it in form or substance, but that, if so much is taken that the value of the original is sensibly diminished, or the labors of the original author are substantially, to an injurious extent, appropriated by another, that is sufficient to constitute an infringement. The test of infringement is whether the work is recognizable by an ordinary observer as having been taken from the copyrighted source. Slight differences and variations will not serve as a defense. The means of expressing an idea is subject to copyright protection and where one uses his own method or way of expressing his idea, as Bradbury has done, such adornment constitutes a protectible work. Universal Pictures Co. v. Harold Lloyd Corporation, 9 Cir., 162 F.2d 354, 361, 363." 27 Compare Benny v. Loew's Incorporated, 9 Cir., 239 F.2d 532, 536; and note what the Seventh Circuit Court of Appeals held to be an infringement of Wihtol's song, in Wihtol v. Wells, 231 F.2d 550. It must be kept in mind that the applicable law is purely statutory and that the Copyright Act has little elasticity or flexibility. 28 The copying of the plaintiffs' song by Crow was, in our opinion, an infringement of the plaintiffs' copyrights in suit. The District Court thought only one of the copyrights was involved in the alleged infringement. The plaintiffs contend that both of their copyrights were infringed. If so, Crow would be liable for two infringements. 29 In L. A. Westermann Co. v. Dispatch Printing Co., 249 U.S. 100, 105, 39 S. Ct. 194, 195, 63 L.Ed. 499, the court said: 30 " * * Each copyright is treated as a distinct entity, and the infringement of it as a distinct wrong to be redressed through the enforcement of this liability. Infringement of several copyrights is not put on the same level with infringement of one. On the contrary, the plain import of the statute is that this liability attaches in respect of each copyright that is infringed. Here six were infringed, each covering a different illustration. Thus there were at least six cases of infringement in the sense of the statute." 31 Crow's new arrangement of the song included the music and lyrics of the 1935 version as copyrighted. The arrangement also included the plaintiffs' 1944 copyrighted version, which contained changes in the music and an addition to the lyrics of the 1935 version. Under the Copyright Act, 17 U.S.C. § 7,2 each version of the song is covered by a separate valid copyright. 32 From a practical standpoint, it would seem that Crow, who copied only one song, should be held liable for only one infringement. We have, however, reluctantly concluded that, under the language of the Copyright Act, his copying must be held to have infringed both of the copyrights of the plaintiffs. 33 Whether the School District can be subjected to liability for the copyright infringement by Crow is a debatable question. A suit against the State of Iowa, for the infringement of a copyright, clearly could not be maintained, because of the Eleventh Amendment to the Constitution of the United States, which reads: 34 "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." 35 In Ex parte In re State of New York, 256 U.S. 490, 497-500, 41 S.Ct. 588, 65 L.Ed. 1057, it was held that a state could not be sued without its consent, even in admiralty. The court said (page 500, 41 S.Ct. page 590): 36 "As to what is to be deemed a suit against a State, the early suggestion that the inhibition might be confined to those in which the State was a party to the record (Osborn v. United States Bank, 9 Wheat. 738, 846, 850, 857 [6 L.Ed. 204]) has long since been abandoned, and it is now established that the question is to be determined not by the mere names of the titular parties but by the essential nature and effect of the proceeding, as it appears from the entire record. Louisiana v. Jumel, 107 U.S. 711, 719, 720, 723, 727-728 [2 S.Ct. 128, 27 L.Ed. 448]; Hagood v. Southern, 117 U.S. 52, 67 [6 S.Ct. 608, 29 L.Ed. 805], et seq.; In re Ayers, 123 U.S. 443, 487-492 [8 S. Ct. 164, 31 L.Ed. 216]; Pennoyer v. McConnaughy, 140 U.S. 1, 10 [11 S.Ct. 699, 35 L.Ed. 363], et seq.; Smith v. Reeves, 178 U.S. 436, 438-440 [20 S.Ct. 919, 44 L.Ed. 1140]; Murray v. Wilson Distilling Co., 213 U.S. 151, 168-170 [29 S.Ct. 458, 53 L.Ed. 742]; Lankford v. Platte Iron Works Co., 235 U.S. 461, 469 [35 S. Ct. 173, 59 L.Ed. 316]." 37 The Clarinda School District is an instrumentality of the State of Iowa, constituting a part of its educational system and engaged in performing a state governmental function under state law and at state expense.3 The plaintiffs are seeking to obtain a judgment against the School District for damages payable out of public funds. That, we think, they cannot do.4 The trial court was, we think, without jurisdiction to entertain this action as against the School District. 38 On behalf of the First Methodist Church, it is argued that it cannot be held liable for the acts of Nelson E. Crow in copying the song in suit; that: "Although not proven either way it appears most probable that the Defendant Crow was an independent contractor. He was paid for his services periodically but furnished most of his own tools and materials." It seems to us that the only inference that reasonably can be drawn from the evidence is that in selecting and arranging the song in suit for use by the Church choir, Crow was engaged in the course and scope of his employment by the Church. 39 The allowance of $500 attorney's fees to each defendant was not justified, and of course would not have been made if the trial court had found infringement, since, under 17 U.S.C. § 116, attorney's fees may be allowed, in the discretion of the court, only to the prevailing party. The objectionable paragraph in the letter of The Kama Co. to Crow with respect to criminal prosecution for infringement, and the testimony of Wihtol, in his direct examination at the trial, relative to the circumstances under which his song was composed, which testimony the defendants assail as perjury, would not justify the judgment against the plaintiffs or the allowance of attorneys' fees to the defendants. The testimony was not perjury since it related to an immaterial matter, as the trial judge stated in his findings. Whatever may be thought of Wihtol, the song in suit is a copyrighted production, which the plaintiffs can protect and defend against all infringements, intentional or otherwise. 40 The discretion to award damages for copyright infringement is that of the trial court, not of this Court. In lieu of actual damages, the damages allowed may be such "as to the court shall appear to be just," but must be within statutory limits (17 U.S.C. § 101).5 The discretion respecting allowance of attorney's fees to the prevailing party is also that of the trial court. 41 We hold: (1) that, under the evidence and the Copyright Act, Crow is an infringer of both of the copyrights in suit; (2) that the Church, as his employer, is jointly liable with him under the doctrine of respondeat superior; (3) that the School District is entitled to a dismissal, for want of jurisdiction, of the action as against it. 42 Damages, within the statutory limits, must be allowed by the trial court, which must also determine the question of whether any attorneys' fees shall be added to costs. While it seems highly improbable that, under the circumstances, there is the slightest danger of any of the defendants ever again copying or using the plaintiffs' song, the plaintiffs, no doubt, have the right to have their plea for an injunction considered and ruled upon by the trial court. 43 The judgment appealed from is reversed, and the case is remanded to the District Court for further proceedings not inconsistent with this opinion. Notes: 1 Johns & Johns Printing Co. v. Paull-Pioneer Music Corporation, 8 Cir., 102 F. 2d 282, 283; Sheldon v. Metro-Goldwyn Pictures Corporation, 2 Cir., 81 F.2d 49, 54, certiorari denied, 298 U.S. 669, 56 S.Ct. 835, 80 L.Ed. 1392; Khan v. Leo Feist, Inc., D.C.S.D.N.Y., 70 F.Supp. 450, 459, affirmed C.C.A.2, 165 F.2d 188; Advertisers Exchange, Inc. v. Hinkley, W.D. Mo., 101 F.Supp. 801, 805, affirmed C.A. 8, 199 F.2d 313 2 "§ 7. Compilations or abridgements, adaptations, arrangements, dramatizations, translations, or other versions of works in the public domain or of copyrighted works when produced with the consent of the proprietor of the copyright in such works, or works republished with new matter, shall be regarded as new works subject to copyright under the provisions of this title; but the publication of any such new works shall not affect the force or validity of any subsisting copyright upon the matter employed or any part thereof, or be construed to imply an exclusive right to such use of the original works, or to secure or extend copyright in such original works." 3 Larsen v. Independent School Dist. of Kane Tp., Council Bluffs, 223 Iowa 691, 272 N.W. 632, 635-638; Ford v. Independent School Dist. of Shenandoah, 223 Iowa 795, 273 N.W. 870, 872 4 See and compare, O'Neill v. Early, 4 Cir., 208 F.2d 286, 288-289; De Levay v. Richmond County School Board, 4 Cir., 284 F.2d 340; Oklahoma Real Estate Commission v. National Business and Property Exchange, Inc., 10 Cir., 229 F. 2d 205, 206-207; Broward County, Fla. v. Wickman, 5 Cir., 195 F.2d 614; J. Ray McDermott & Co., Inc. v. Department of Highways, State of Louisiana, 5 Cir., 267 F.2d 317; Kraft Foods Co. v. Walther Dairy Products (D.C.W.D. Wis.), 118 F.Supp. 1, 24 5 L. A. Westermann Co. v. Dispatch Printing Co., 249 U.S. 100, 106-107, 39 S.Ct. 194, 63 L.Ed. 499; Jewell-LaSalle Realty Co. v. Buck, 283 U.S. 202, 51 S.Ct. 407, 75 L.Ed. 978; and the cases cited in Edwin H. Morris & Company, Inc. v. Burton (D.C.E.D.La.), 201 F.Supp. 36, at page 39	{ "pile_set_name": "FreeLaw" }
Opinion issued October 11, 2012. In The Court of Appeals For The First District of Texas ———————————— NO. 01-12-00858-CR ——————————— IN RE JASON T. PEGUES, Relator Original Proceeding on Petition for Writ of Mandamus MEMORANDUM OPINION1 Jason T. Pegues has filed a pro se petition for writ of mandamus, requesting that we compel the trial court to credit relator for time served in a juvenile detention facility pending the trial of the underlying case. We deny the petition. 1 Relator has identified the underlying case as State v. Jason Tyrone Pegues, No. 26,185, in the 240th District Court of Fort Bend County, Texas, the Honorable Thomas R. Culver, III, presiding. PER CURIAM Panel consists of Justices Keyes, Massengale, and Brown. Do not publish. TEX. R. APP. P. 47.2(b). 2	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 19-6305 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERIC HAMMONS ALLEN, JR., Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, Senior District Judge. (4:02-cr-00750-TLW-2; 4:16-cv-01569-TLW) Submitted: August 30, 2019 Decided: September 13, 2019 Before NIEMEYER and QUATTLEBAUM, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Eric Hammons Allen, Jr., Appellant Pro Se. Carrie Fisher Sherard, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Eric Hammons Allen, Jr., seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. See Buck v. Davis, 137 S. Ct. 759, 773-74 (2017). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack v. McDaniel, 529 U.S. 473, 484 (2000). We have independently reviewed the record and conclude that Allen has not made the requisite showing. * Accordingly, we deny a certificate of appealability and dismiss the appeal. We deny Allen’s motion for appointment of counsel. We dispense with oral * After the district court entered its judgment, the Supreme Court decided United States v. Davis, 139 S. Ct. 2319 (2019). In Davis, the Supreme Court held that the residual clause of the definition of crime of violence in 18 U.S.C. § 924(c)(3)(B) (2012) is unconstitutionally vague. Davis, 139 S. Ct. at 2336; accord United States v. Simms, 914 F.3d 229, 232 (4th Cir. 2019) (en banc), petition for cert. docketed, 87 U.S.L.W. 3427 (U.S. Apr. 24, 2019) (No. 18-1338). However, we recently held that Hobbs Act robbery qualifies as a crime of violence under the force clause in 18 U.S.C. § 924(c)(3)(A), which remains intact after Davis. See United States v. Mathis, F.3d , No. 16-4633, 2019 WL 3437626, at *16 (4th Cir. July 31, 2019). 2 argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3	{ "pile_set_name": "FreeLaw" }
913 F.2d 824 17 Fed.R.Serv.3d 1083 G.J.B. & ASSOCIATES, INC., a Florida Corporation; Glenn J.Beadle; Ruth Beadle, on their own behalf, and as to thecauses of action asserted on behalf of Brown EducationalCorporation, for its use and benefit on a derivative basis;Albert O. Roy; Mark V. Berland; Robert J. Quinn; WinstonChurchill; W.B. Pearson; Ann L. Giordano; Harlan L.Berland; Darrell J. Lundgren; and C.C. Pollen Company, Plaintiffs,v.John D. SINGLETON; Kenneth H. Reiserer; BeckettPartnership; Johnny Brown; Brown Educational Corporation;Richard Brooke; John Does 1 Through 20; Betty Brown, alsoknown as "Boots"; Ann Margolis, Special Administrator ofthe Estate of Harry Margolis; and John D. Singleton, doingbusiness as Singleton & Reiserer, Defendants.Earl D. MILLS; W. Wayne Mills; and Robert F. Bourk, Appellees,v.John A. CLARO, Movant-Appellant. No. 88-2249. United States Court of Appeals,Tenth Circuit. Sept. 5, 1990. John A. Claro, pro se, David Morse and Jay D. Adkisson on the brief, Claro & Johnston, Oklahoma City, Okl., for movant-appellant. No appearance for appellees. Before LOGAN, SETH and BALDOCK, Circuit Judges.* BALDOCK, Circuit Judge. 1 Movant-appellant John Claro, an attorney, challenges the district court's sua sponte imposition of sanctions upon him for violating Fed.R.Civ.P. 11 & 16(f) during trial of a legal malpractice action. Reviewing the district court's determination under an abuse of discretion standard, Cooter & Gell v. Hartmarx Corp., --- U.S. ----, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990) (Rule 11 standard); Ikerd v. Lacy, 852 F.2d 1256, 1258 (10th Cir.1988) (Rule 16(f) standard), we sustain the Rule 16(f) sanction as lawfully imposed, but vacate the Rule 11 sanction for want of procedural due process.1 I. 2 On direct examination, Claro was questioning his client, plaintiff Glenn Beadle, about a critical meeting with the defendant tax attorneys. Claro asked Beadle if he had taken any notes during the meeting and whether the notes would refresh Beadle's recollection of the meeting. Rec. vol. VIII at 73. When Beadle answered "yes," to both inquiries, defendants' respective counsel objected because they had not received a copy of the notes and were unaware of their existence, despite four years of litigation and a notice of deposition duces tecum requesting Beadle to provide "[a]ny and all documents and/or evidence" in support of his allegations. Id. at 73-74. Claro's response to the court was three-fold: (1) the defendants did not request the notes, (2) the notes were not exhibits to be submitted into evidence, and (3) the notes were "absolute just hen-scratching." Id. at 76-77. The district court found that Claro should have produced the notes to defense counsel pursuant to their discovery request once Beadle located the notes and Claro knew the notes would be used at trial. Id. at 79-80.2 3 The district court permitted Claro to continue his examination of Beadle without the notes for the remainder of the day. At day's end, however, the court found that Claro had failed to comply with (1) the court's pretrial scheduling orders and (2) his continuing duty to produce requested discovery documents. Id. at 97. The court directed Claro to give defense counsel an opportunity to depose Beadle based on the notes. The court, which earlier had sanctioned Claro in related litigation for similar misconduct, Roy v. American Professional Mktg., Inc., 117 F.R.D. 687, 690-91 (W.D.Okla.1987), further ordered him to pay all fees and costs associated with Beadle's deposition in lieu of striking Beadle's testimony. Id. at 98-99.3 The following day, the district court entered a written order reprimanding Claro for his conduct. Rec. vol. I at doc. 439. A copy of the order was disseminated to all federal judicial officers in the Western District of Oklahoma. 4 Thereafter, Claro filed a motion under Fed.R.Civ.P. 60(b)(1) & (6) to vacate the district court's order, asserting that the court (1) denied him notice and hearing, and (2) lacked any pretrial or discovery orders to support a reprimand. Rec. vol. I at doc. 455. At the motion hearing, the district court read to Claro the language of its April 20, 1988 pretrial standing order requiring "plaintiffs to identify the specific exhibits to be introduced or discussed in connection with the direct examination of each witness." Rec. vol. XII at 6-7 (emphasis in original). The court reminded Claro that this language was incorporated into its standing order as a direct result of complaints the court received concerning Claro's trial tactics in the Roy case. Id. at 6, 17-19. The district court rejected as "patently frivolous" Claro's argument that the notes were not "exhibits" within the meaning of the court's standing order. Id. at 36. At the conclusion of the hearing, the court entered detailed findings into the record and sanctioned Claro $185 for his failure to reveal the notes to opposing counsel prior to Beadle's direct examination. Id. at 35-40. The court then imposed an additional $185 sanction upon Claro for filing a "frivolous" motion to vacate. Id. at 39. The $370 sanction represented four hours of opposing counsel's billable time. Lastly, the district court admonished Claro that it would report any future misconduct to disciplinary authorities. Id. at 40. That same day, the court entered a minute order imposing the cost of Beadle's deposition upon Claro as well. Rec. vol. I at doc. 484.II. 5 Initially, we express concern over our jurisdiction to consider Claro's appeal although the issue has not been raised. See Fed.R.Civ.P. 12(h)(3) ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.") (emphasis added). Claro filed his notice of appeal within thirty days after the district court's order ruling on his motion to vacate and setting the amount of his fine, see Fed.R.App.P. 4(a)(1), but before the district court's denial of his client Beadle's motion for judgment notwithstanding the verdict under Fed.R.Civ.P. 59(e). See Fed.R.App.P. 4(a)(4) (notice of appeal filed before disposition of Rule 59(e) motion ineffective). Thus, we have jurisdiction over Claro's appeal only if an order imposing sanctions against an attorney currently of record represents a "final decision" under 28 U.S.C. Sec. 1291 or comes within an exception to the Sec. 1291 finality requirement. Otherwise, Claro's notice of appeal was prematurely filed. A. 6 Under 28 U.S.C. Sec. 1291, circuit courts "have jurisdiction of appeals from all final decisions of the district courts...." The Supreme Court has described a final decision as generally "one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). To date, only the Ninth Circuit has held that an order imposing sanctions upon counsel currently of record is final and appealable under Sec. 1291 when imposed. E.g., Mesirow v. Pepperidge Farm, Inc., 703 F.2d 339, 345 (9th Cir.), cert. denied, 464 U.S. 820, 104 S.Ct. 83, 78 L.Ed.2d 93 (1983). In contrast, a number of circuits have held that a sanction order against present counsel is not a final decision within the meaning of Sec. 1291 because an adjudication on the merits of the underlying controversy has yet to occur. E.g., DeSisto College, Inc. v. Line, 888 F.2d 755, 761-62 (11th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2219, 109 L.Ed.2d 544 (1990); In re Licht & Semonoff, 796 F.2d 564, 569-70 (1st Cir.1986); Frazier v. Cast, 771 F.2d 259, 261 (7th Cir.1985). 7 Without undue analysis, we join the majority of circuit courts that have addressed the issue and hold that a sanction order against an attorney currently of record is not a final decision for purposes of a Sec. 1291 appeal where the underlying controversy remains unresolved. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373-75, 101 S.Ct. 669, 672-74, 66 L.Ed.2d 571 (1981) (general requirement of Sec. 1291 is that all appeals await final judgment on the merits). At the time of the district court's sanction order, Claro was actively representing a party to the litigation. Consequently, Claro had a continuing interest in and connection to the litigation. We cannot consider the sanction order, which resulted from Claro's failure to disclose notes relating to the substance of his client's malpractice claims against defendants, as wholly separate from the merits of the case. B. 8 Despite their general agreement on the interlocutory nature of a sanction order against counsel of record, the circuit courts are sharply divided on the question of whether such an order is immediately appealable as an exception to the "final decision" rule under the collateral order doctrine first announced in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).4 "To come within the 'small class' of decisions excepted from the final-judgment rule by Cohen, 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) (emphasis added). The Second, Seventh and Eleventh Circuits have held that an order imposing sanctions upon an attorney is immediately appealable under the Cohen doctrine. Cheng v. GAF Corp., 713 F.2d 886, 889-90 (2d Cir.1983) (Sec. 1927 sanctions); Frazier, 771 F.2d at 262 (Rule 11 sanctions); DeSisto College, 888 F.2d at 762-63 (Rule 11 sanctions). In denying an immediate appeal of attorney sanctions, however, the First, Third and Fifth Circuits have relied on the third requisite of the Cohen doctrine to hold that postponing the appeal would not cause the sanctioned party irreparable harm. In re Licht & Semonoff, 796 F.2d 564, 570-73 (1st Cir.1986) (Rule 26(g) sanctions); Eastern Maico Distrib., Inc. v. Maico-Fahrzeugfabrik, 658 F.2d 944, 948-49 (3d Cir.1981) (Rule 37(a)(4) sanctions); Click v. Abilene Nat'l Bank, 822 F.2d 544, 545 (5th Cir.1987) (Rule 11 sanctions). 9 Since Cohen, the Supreme Court has attempted to define when an order is "effectively unreviewable on appeal from a final judgment." In United States v. Ryan, 402 U.S. 530, 533, 91 S.Ct. 1580, 1582, 29 L.Ed.2d 85 (1971), the Court indicated an appeal of a collateral order is permissible only when the "denial of immediate review would render impossible any review whatsoever of an individual's claims...." And in United States v. MacDonald, 435 U.S. 850, 860, 98 S.Ct. 1547, 1552-53, 56 L.Ed.2d 18 (1978), the Supreme Court described the third requirement of Cohen as involving "an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial." Given this definite language, we agree with Judge Timbers assessment: 10 [Supreme Court decisions] clearly indicate that the effectively unreviewable requirement imposes a heavy burden on a party seeking review of an interlocutory collateral order. Clearly the Supreme Court, when using language such as rendering any review "impossible" or "destroying" a party's right to appeal, did not contemplate that a court of appeals would find the collateral order doctrine apposite when the prospect of a party losing his right to appeal from a collateral order after entry of final judgment is mere speculation--and especially when it is more probable that no injury will occur if an appeal is postponed until after entry of judgment in the underlying action. 11 Cheng, 713 F.2d at 894-95 (Timbers, J., dissenting); accord In re Licht & Semonoff, 796 F.2d at 571. 12 The closest we have come to addressing the issue is our decision in D & H Marketers, Inc. v. Freedom Oil & Gas, Inc., 744 F.2d 1443 (10th Cir.1984) (en banc). In that case, we recognized that Cohen and its progeny would not permit us to establish a broad rule permitting interlocutory appeals of sanction orders; accordingly, we held that a district court's sanction order defaulting some but not all the parties to the lawsuit was not appealable until termination of the entire matter. The en banc court noted: "Attorneys and parties will be fully aware that they must bear the burden of sanctions to the conclusion of the case and appeal on the merits of the fully adjudicated case...." Id. at 1446 (emphasis added).5 13 Mindful of Supreme Court precedent and our language in D & H Marketers, we join the First, Third and Fifth Circuits and hold that a sanction order against counsel currently of record is not appealable under the Cohen collateral order exception to the final judgment rule.6 Instead, counsel must await the conclusion of the underlying lawsuit and then appeal under Sec. 1291. We reject any notion that an attorney risks losing the right to appeal if the parties settle or elect not to appeal from the final judgment. Contra DeSisto, 888 F.2d at 763; Frazier, 771 F.2d at 262; Cheng, 713 F.2d at 890. In Dietrich Corp. v. King Resources Co., 596 F.2d 422, 423-24 (10th Cir.1979), we held that a legal consultant to lead counsel in the case could appeal the district court's fee determination: "Obviously under all the circumstances [the consultant] is an aggrieved party and his property interest can be protected only by recognizing this as one of those extraordinary cases where a nonparty may be allowed to appeal." With Dietrich as controlling precedent, we see nothing to prohibit an attorney of record from appealing a sanction order when the main case concludes. Such an appeal is best heard after final judgment since the appellate court will likely need to review the record as a whole to determine the propriety of sanctions. In re Licht & Semonoff, 796 F.2d at 572. This is especially true where, as here, the sanctions arise from a discovery dispute over the relevance of certain documents to the case. 14 Like the Third Circuit in Eastern Maico, 658 F.2d at 949, we also are concerned about the possibility of delay if an attorney may appeal immediately the imposition of sanctions. Indeed, it would be ironic to allow an appeal from a sanction order, inevitably delaying lower court proceedings, when that order may have resulted from tactics that already unjustifiably delayed the proceedings. While we are aware that a sanction order may have some affect on the attorney-client relationship, Thomas E. Hoar, Inc. v. Sara Lee Corp., 882 F.2d 682, 686 (2d Cir.1989), this possibility alone is not enough to make the order "effectively unreviewable" at a later time. An attorney's obligation is to serve the client's interests at all times ethically. See Evans v. Jeff D., 475 U.S. 717, 727-28, 106 S.Ct. 1531, 1537-38, 89 L.Ed.2d 747 (1986). C. 15 Applying our holding to the instant case would result in the dismissal of Claro's appeal as prematurely filed. Whether our holding should apply to this appeal, however, depends upon three factors first enunciated in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971): Before applying a decision nonretroactively, we must consider whether (1) the decision establishes a new principle of law the resolution of which was not clearly foreshadowed, (2) the decision's purpose would be retarded by its retroactive application, and (3) the decision's retroactive application would produce inequitable results. Accord American Trucking Assoc., Inc. v. Smith, --- U.S. ----, 110 S.Ct. 2323, 2331, 110 L.Ed.2d 148 (1990) (plurality). As we noted in Jackson v. City of Bloomfield, 731 F.2d 652, 654 (10th Cir.1984) (en banc): "This 'approach has consistently been utilized where ... aspects of the timeliness of a claim are at issue.' " (quoting Occhino v. United States, 686 F.2d 1302, 1308 n. 7 (8th Cir.1982)). 16 Our holding that a sanction order against an attorney presently of record is not immediately appealable undoubtedly establishes a new principle of law in this circuit which was not clearly foreshadowed by prior decisions. The sharp split between the circuit courts as to the Cohen doctrine's applicability and the absence of any binding circuit precedent made our holding difficult, if not impossible, to foretell. Consequently, to apply our holding retroactively would be inequitable. The malpractice action underlying Claro's appeal has long since reached final judgment in the district court and has recently been affirmed on the merits in this court. G.J.B. & Assoc., Inc. v. Singleton, Nos. 88-2571 & 88-2640, unpub. order. (10th Cir. Aug. 3, 1990). If we dismiss Claro's appeal for want of jurisdiction, he will be remediless for the time has passed to file a new notice of appeal from the final judgment. While the aim of our holding--to effectuate the purposes of the final judgment rule--would not be hampered by its retroactive application, the small benefit we would gain by applying our holding retroactively does not outweigh the inequity which would result from such a determination. Accordingly, we conclude that our holding should not apply retroactively, and now turn to the merits of Claro's appeal. III. 17 The due process clause of the fifth amendment, U.S. Const. amend. V, requires that an attorney facing sanctions in federal court be given notice and an opportunity to be heard before final judgment. White v. General Motors Corp., 908 F.2d 675, 686 (10th Cir.1990). The process due, however, depends upon the severity of the considered sanctions: "The due process concerns posed by an outright dismissal are plainly greater than those presented by assessing counsel fees against lawyers." Roadway Express, Inc. v. Piper, 447 U.S. 752, 767 n. 14, 100 S.Ct. 2455, 2464 n. 14, 65 L.Ed.2d 488 (1980), superceded by 28 U.S.C. Sec. 1927 (as amended Sept. 12, 1980). Likewise, the process due if a district court threatens to strike testimony is more substantial than that required for the imposition of attorneys' fees and costs related to a deposition, the latter being a relatively moderate sanction. See In re Sanction of Baker, 744 F.2d 1438, 1441 (10th Cir.1984), cert. denied, 471 U.S. 1014, 105 S.Ct. 2016, 85 L.Ed.2d 299 (1985) ($350 sanction considered modest); see also rec. vol. VIII at 98-99. Yet prior to imposing fees and costs upon an attorney for whatever reason, the district court should provide the attorney with an opportunity to fully brief the issue. An oral or evidentiary hearing, however, is not required. Braley v. Campbell, 832 F.2d 1504, 1514-15 (10th Cir.1987) (en banc); compare Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1466 (10th Cir.1988) (due process does not require separate oral hearings on whether monetary sanctions are warranted and the amount to be imposed). If the district court ultimately imposes sanctions, detailed findings are necessary to identify the objectionable conduct and provide for meaningful appellate review. Braley, 832 F.2d at 1513. A. 18 Cognizant of the fundamental nature of due process demands, we have no choice but to set aside that portion of the district court's order imposing Fed.R.Civ.P. 11 sanctions upon Claro for filing a "frivolous" motion to vacate the sanctions relating to his nondisclosure of pertinent documents. Claro was given neither notice that the court was considering Rule 11 sanctions, nor an opportunity to respond either before or after their imposition. At the conclusion of the hearing on the motion to vacate, the district court simply imposed an additional $185 sanction on Claro sua sponte.7 The district court's error in failing to provide Claro any due process whatsoever in relation to the Rule 11 sanctions constitutes an abuse of discretion. Cooter & Gell, 110 S.Ct. at 2459 (district court's legal errors in imposing sanctions constitute an abuse of discretion). On remand, the district court must provide Claro with the required process if the court wishes to reconsider Rule 11 sanctions against Claro in view of this opinion. B. 19 The district court's Fed.R.Civ.P. 16(f) sanctions against Claro require a more involved analysis. Rule 16(f) provides:If a party or a party's attorney fails to obey a scheduling or pretrial order ... the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just.... In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust. 20 The purpose of this provision is two-fold: (1) to insure efficient case management and disposition and (2) to compensate opposing parties for the inconvenience and expense resulting from an adversary's noncompliance with these objectives. In re Sanction of Baker, 744 F.2d at 1440-41. Thus, under Rule 16(f), "neither contumacious attitude nor chronic failure is a necessary threshold to the imposition of sanctions." Id. at 1440. 1. 21 Claro's argument that he did not violate a court order is meritless. The notes from his client Beadle's meeting with the defendants quite properly could be deemed "exhibits" under the district court's pretrial standing order requiring the identification of exhibits "to be introduced or discussed" during the direct examination of witnesses. See supra, slip op. at 826-827. The district court surely knows more about the meaning of its own orders than we do, and we are not prepared to second guess its construction. See Missouri v. Jenkins, --- U.S. ----, 110 S.Ct. 1651, 1662, 109 L.Ed.2d 31 (1990) (accepting Eighth Circuit's interpretation of its own order). Counsel appearing before the district court are duty-bound to know the practice of the district court. This is especially true of Claro, who should have been most cautious following the district court's imposition of sanctions against him in the related Roy case. See 117 F.R.D. at 687, 690-91. 22 Arguably, Claro also had a duty to disclose the notes under his continuing duty to supplement discovery as provided in Fed.R.Civ.P. 26(e)(2)(B). A party has a duty to amend a prior response to a request for discovery "if the party obtains information upon the basis of which ... the party knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment." Although defense counsel had requested all documents pertaining to the complaint's allegations, Claro declined to surrender voluntarily the notes. Claro's assertion that because the notes were used only to refresh his client's memory, he had no duty to reveal the notes is ridiculous. Admittedly, Fed.R.Evid. 612 requires only that such writings be produced at the hearing. But nothing in the rule suggests that an attorney may conceal the writings until ready to spring them on the court and opposing counsel in the midst of a witness' direct examination. Under Claro's interpretation of Rule 612, writings used to refresh a witness' memory would be discoverable only upon the objection of opposing counsel at trial. 2. 23 Following objection at trial, the district court immediately gave Claro an opportunity to justify why his client's notes had not been provided to defense counsel prior to Beadle's direct examination. See generally rec. vol. VIII at 73-80. Claro had no adequate response. See supra, op. at 825. At that time, the court did not refer to any impending sanctions against Claro. The court, however, returned to the subject at the end of the day, (1) finding Claro in violation of court orders, (2) indicating Claro would be responsible for the fees and costs of Beadle's deposition based on the notes and (3) asking Claro twice whether he had any comments to make. See generally rec. vol. VIII at 94-101. We believe the district court's actions in imposing Rule 16(f) sanctions upon Claro sufficient to comport with due process given the sanctions' moderate nature. See Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972) (procedural protections required by due process vary with circumstances). Albeit rudimentary, Claro was provided with minimally adequate notice and opportunity to be heard under the circumstances. Rule 16(f) bound the district court to impose the expenses incurred due to Claro's noncompliance with the rule upon Claro unless the court found that his noncompliance was "substantially justified." 24 Lest there be any doubt as to the sufficiency of this process, we conclude that the district court's subsequent hearing on Claro's motion to vacate, at which the court set the amount of sanctions based on opposing counsel's affidavits, was sufficient to cure the defect, if any, in the process Claro previously received. Braley, 832 F.2d at 1504; see also United States Postal Serv. v. National Assoc. of Letter Carriers, 847 F.2d 775, 778 (11th Cir.1988) ("Cases have consistently held that a violation of procedural due process may be waived or cured."). Claro's brief in support of his motion to vacate fully addressed the issue of Rule 16(f) sanctions, and the district court's hearing provided Claro with an additional opportunity to persuade the court why Rule 16(f) sanctions were unwarranted. 25 AFFIRMED IN PART, VACATED IN PART and REMANDED. * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause therefore is ordered submitted without oral argument 1 As a preliminary matter, before us is Claro's motion to supplement the record on appeal with the deposition testimony of his client, Glenn Beadle, taken on April 15 and June 3, 1988. Beadle's June 3 testimony is already part of the record by way of an addendum to Claro's appellate brief. See Fed.R.App.P. 30 (directing appellant to submit appendix to briefs containing, among other things, parts of the record to which parties wish to direct attention of the court). Our review of the record reveals that Beadle's April 15 testimony would not materially assist us in resolving this appeal. Accordingly, the motion is denied 2 The district court admonished Claro: THE COURT: All right. They're [the notes] clearly, clearly documents that should have been produced earlier. They're notes that go directly to the issue in this case. And this--all I can say is this is just so typical of what I expected from the plaintiff in this case.... Mr. Claro, please don't pull any more stunts like this during this trial. These notes--any competent lawyer knew these notes were going to be an issue. And for you to spring these notes on opposing counsel in the middle of the direct examination of your client in this case is absolutely ridiculous.... Boy, I'll tell you, I sure would hate to try a lawsuit against you, because there's a new surprise every day. Every day there's a new surprise. You know, how would you like it if they started springing this kind of stuff on you in the middle of trial? This is not the way to try a lawsuit. I don't care whether you had them [the notes] at the time of this [defendants' discovery request] or not, you had a duty, an ethical duty, to continue to comply with this request. Jiminy Christmas. Rec. vol. VIII at 78-79. 3 The district court lectured Claro a second time: THE COURT: Mr. Claro, I don't want to have this happen in my courtroom again. This is just black letter, basic, fundamental trial practice. It's just as simple and clear as a bell. If your client finds notes that involve a meeting that involves advice from the two people that are on trial in this case, you can't hide them. You can't sit on them. You can't play trial by ambush. You have to produce them to the other side.... You have an ethical duty as a lawyer to do that. You're under the order of the Court to do that with respect to all requests for admission and requests for production of documents.... Now do you have any quarrel with anything I've said? MR. CLARO: No sir.... Rec. vol. VIII at 94-96. 4 From the inception of the Federal Judiciary Act of 1789, Congress has deemed it appropriate that, with certain exceptions, appellate review should await a final judgment of the trial court, and has restricted appellate jurisdiction accordingly. The Cohen doctrine is, of course, a judge-made exception to the final judgment rule. The statutory exceptions to the rule, inapplicable in this instance, are found in 28 U.S.C. Sec. 1292 (providing for appeal of certain interlocutory orders by right and others at the discretion of both trial and appellate courts), 28 U.S.C. Sec. 1651 (federal courts may issue all writs necessary and appropriate in aid of their jurisdiction), and Fed.R.Civ.P. 54 (in actions involving multiple claims or parties, trial court may direct entry of final judgment as to fewer than all claims or parties) 5 In D & H Marketers, we limited our earlier decision in Ohio v. Arthur Anderson & Co., 570 F.2d 1370 (10th Cir.), cert. denied, 439 U.S. 833, 99 S.Ct. 114, 58 L.Ed.2d 129 (1978), to its facts. In Ohio, we held that a sanction order against a party was immediately appealable under Cohen. We later explained that in Ohio we were concerned with a sanction order which if complied with may have put the sanctioned party in violation of foreign law. If the sanction had been erroneously imposed and left until the conclusion of the case, we might have been unable to ameliorate the consequences on a later appeal resulting in irreparable harm to the appellant. D & H Marketers, 744 F.2d at 1446 6 We express no opinion on the appealability of sanctions against a nonparty or an attorney no longer involved in the case 7 The district court's discussion on the frivolity of Claro's motion to vacate was indeed brief: "I'm going to require that the sanctions be paid forthwith in the amount of $185. I'm going to add to that an additional hour of counsels' time in responding to what I consider to be a frivolous motion for reconsideration and for attending the hearing. So the total sanction to be imposed in this case will be [$370]." Rec. vol. XII at 39.	{ "pile_set_name": "FreeLaw" }
[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT Sept. 28, 2009 No. 08-15498 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________ D. C. Docket No. 06-00472-CR-T-17-TGW UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MIGUEL A. RENDON, a.k.a. Coco, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida _________________________ (September 28, 2009) Before BLACK, MARCUS and ANDERSON, Circuit Judges. PER CURIAM: Miguel A. Rendon appeals his conviction for conspiracy to distribute cocaine, methamphetamine, and marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Rendon asserts the district court abused its discretion when it (1) admitted out-of-court statements by co-conspirators under Federal Rule of Evidence 801(d)(2)(E) because those statements were not in furtherance of the conspiracy, and (2) admitted testimony regarding a suicidal gesture Rendon made during an interview with law enforcement because its probative value was substantially outweighed by the danger of unfair prejudice. We address each issue in turn, and affirm Rendon’s conviction. I. Out-of-court statements offered in evidence to prove the truth of the matter asserted are generally inadmissible as hearsay. Fed. R. Evid. 801(c), 802. An out- of-court statement, however, is not hearsay if it is offered against a party and is “a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.” Fed. R. Evid. 801(d)(2)(E). As a prerequisite to the admission of a co-conspirator’s statement, the Government, as the proponent, “must prove by a preponderance of the evidence that (1) a conspiracy existed, (2) the conspiracy included the declarant and the defendant against whom the statement is offered, and (3) the statement was made during the course of and in furtherance of the 2 conspiracy.” United States v. Underwood, 446 F.3d 1340, 1345–46 (11th Cir. 2006). We apply “a liberal standard in determining whether a statement is made in furtherance of a conspiracy. The statement need not be necessary to the conspiracy, but must only further the interests of the conspiracy in some way.” United States v. Miles, 290 F.3d 1341, 1351 (11th Cir. 2002) (internal citation and quotation marks omitted). “[I]f the statement could have been intended to affect future dealings between the parties, then the statement is in furtherance of the conspiracy.” United States v. Caraza, 843 F.2d 432, 436 (11th Cir. 1988) (internal quotation marks omitted). In general, the out-of-court statements made by co-conspirators Jose Ibarra and Pedro Medina-Villegas to other co-conspirators communicated Rendon’s role in the conspiracy. These communications helped maintain good working relations among the co-conspirators and therefore furthered the conspiracy. Id. For example, Medina-Villegas’s statement to his daughter about Rendon’s drug customers could have reassured her of Rendon’s role in the conspiracy, and his statements to his son about a loan from Rendon, or to his daughter about Rendon’s demand for money for an erroneously delivered package, could have provided guidance about how those co-conspirators should deal with Rendon, reducing the risk of a confrontation that would derail the conspiracy. Likewise, Medina- 3 Villegas’s statements to co-conspirator Jose Luis Sandoval-Ochoa about the amount of marijuana Medina-Villegas received and unloaded at Rendon’s property could have been a tool to encourage Sandoval-Ochoa to take a larger role in the conspiracy (which he eventually did). Finally, although not made to maintain good working relations among the co-conspirators, Medina-Villegas’s statement to a buyer about where the marijuana was grown furthered the conspiracy by helping influence the buyer to pay a higher price. Given the liberal standard for determining when a statement furthers the conspiracy, we conclude the district court did not err1 by admitting the statements because they maintained the functioning of the conspiracy. Miles, 290 F.3d at 1351. II. Under the Federal Rules of Evidence, all relevant evidence is admissible. Fed. R. Evid. 402. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R. Evid. 401. Nonetheless, relevant evidence may be excluded if “its probative value is 1 The parties dispute the appropriate standard of review as to the challenged evidentiary rulings in this case. Because we conclude there was no error as to either issue on appeal, the standard of review is not outcome determinative, and we need not determine whether we review the district court’s rulings for abuse of discretion or plain error. 4 substantially outweighed by the danger of unfair prejudice.” Fed. R. Evid. 403. “The term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.” Old Chief v. United States, 117 S. Ct. 644, 650 (1997). Rule 403, however, is “an extraordinary remedy which the district court should invoke sparingly, and [t]he balance . . . should be struck in favor of admissibility.” United States v. Tinoco, 304 F.3d 1088, 1120 (11th Cir. 2002) (internal quotation marks omitted; alternation in original). “In reviewing issues under Rule 403, we look at the evidence in a light most favorable to its admission, maximizing its probative value and minimizing its undue prejudicial impact.” Id. (internal quotation marks omitted). “The major function of Rule 403 is limited to excluding matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.” United States v. Cross, 928 F.2d 1030, 1048 (11th Cir. 1991) (internal quotation marks omitted). In this case, the testimony regarding Rendon’s suicidal gesture to a law enforcement officer had probative value because the gesture suggested Rendon wanted to avoid explaining incriminating evidence, which indicated he did not have an exculpatory explanation. This probative value was not substantially 5 outweighed by the danger of unfair prejudice, see Fed. R. Evid. 403, and thus the district court did not err in admitting the testimony regarding Rendon’s suicidal gesture. Accordingly, we affirm Rendon’s conviction. AFFIRMED. 6	{ "pile_set_name": "FreeLaw" }
FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit TENTH CIRCUIT December 9, 2013 Elisabeth A. Shumaker Clerk of Court ABRAHAM HAGOS, Petitioner - Appellant, v. No. 13-1124 (D.C. No. 1:12-CV-00678-REB) ROGER WERHOLTZ, Interim Executive (D. Colo.) Director, Colorado Department of Corrections; JAMES FALK, Warden, Sterling Correction Facility; JOHN SUTHERS, Attorney General of the State of Colorado, Respondents – Appellees. ORDER DENYING CERTIFICATE OF APPEALABILITY Before HARTZ, O'BRIEN, and GORSUCH, Circuit Judges. Abraham Hagos, a Colorado state prisoner proceeding in forma pauperis, wants to appeal from the denial of his 28 U.S.C. § 2254 habeas petition.1 The district court also denied a Certificate of Appealability (COA). Because Hagos has not “made a substantial 1 Hagos is not pro se; he had counsel representing him in the district court and counsel continues to represent him on appeal. showing of the denial of a constitutional right,” see 28 U.S.C. § 2253(c)(2), we too deny a COA. This case involves a “murder for hire” scheme. A search of an apartment leased by Jimmy Roberts revealed drugs, a large amount of cash, and a 9-millimeter semi- automatic pistol. Roberts told the police the money, gun, and most of the drugs found at the apartment belonged to Hagos. The state of Colorado brought felony drug charges against Hagos; Roberts testified against Hagos at the preliminary hearing. Hagos decided Roberts had to be killed. With the assistance of Matt Conner, Hagos hired Kosal So to kill Roberts for $20,000—$10,000 to be paid up-front with the remaining $10,000 to be paid after Roberts was killed. Hagos paid So $10,000 and provided him a gun to be used to kill Roberts. So hired Samnang Prim and Phetsomphone Chanthaphom (Ley) to help him. Prim and Ley’s initial attempt to kill Roberts was unsuccessful. Three days later, however, Prim shot and killed Roberts. Hagos paid So the remaining $10,000, half of which So paid to Prim. Conner and So eventually admitted their parts in the murder and agreed to testify against Hagos. Prim also confessed to his involvement in the scheme. Hagos was charged with first degree murder, attempted murder, conspiracy to commit first degree murder and two counts of witness retaliation. He was appointed counsel from the Office of State Public Defender (PD) but the PD was eventually -2- disqualified due to a conflict of interest.2 New counsel was appointed. After the trial court decided to admit some of the evidence from the search of Robert’s apartment as res gestae,3 Hagos filed a motion to suppress the evidence; he claimed the affidavit submitted by the police in support of the warrant was insufficient to establish probable cause to search. The trial court denied the motion without conducting an evidentiary hearing and ruled the drug, money, and gun evidence was admissible res gestae evidence, i.e., it provided context as to why Hagos wanted Roberts killed—to prevent him from testifying in the drug case against Hagos. At trial, Prim asserted his Fifth Amendment right not to testify. Over Hagos’s objection, Prim’s confession was admitted through the testimony of one of the detectives who took the confession. The jury found Hagos guilty of all charges. He was sentenced to life imprisonment without parole. 2 During pretrial proceedings, the PD learned the State had a witness who proposed to testify about Hagos’s jailhouse confession to him. The PD interviewed the witness’s wife to determine whether she could impeach him. The wife alleged the PD had threatened her during the interview. While the PD denied the accusations, the trial court determined the PD had created a conflict of interest—if the State called the witness to testify and Hagos called the wife to impeach him, then the State could cross-examine the wife concerning her motivations for testifying, including that she was allegedly threatened by the PD. If so, Hagos would want to call the PD as a witness to rebut her testimony. Because Hagos refused to waive his right to call the wife, the trial court disqualified the PD. 3 “An uncharged act is admissible as res gestae . . . if it was inextricably intertwined with the charged crime such that a witness’s testimony would have been confusing and incomplete without mention of the prior act. Evidence of other crimes should not be suppressed when those facts come in as res gestae—as part and parcel of the proof of the offense charged in the indictment.” United States v. Ford, 613 F.3d 1263, 1267 (10th Cir. 2010) (citations and quotations omitted). -3- Hagos appealed. Relevant here, he argued: (1) his Sixth Amendment right to confrontation was violated by admitting Prim’s confession; (2) his motion to suppress should have been granted; and (3) the PD should not have been disqualified from representing him. He also argued the cumulative effect of the trial errors deprived him of a fair trial. The Colorado Court of Appeals rejected Hagos’ arguments. See People v. Hagos, 250 P.3d 596 (Colo. App. 2009). First, based on the State’s concession it assumed Prim’s confession was improperly admitted in violation of the Sixth Amendment Confrontation Clause. Id. at 621. It decided, however, the error was harmless because the detective’s testimony summarizing Prim’s confession was cumulative to the testimony of one of Prim’s fellow gang members, Srey Mony, who testified Prim told him he shot Roberts. Id. at 621, 624. And Mony’s testimony was, in turn, corroborated by “the extensive and detailed” testimony of So. Id. at 621. It also noted Prim’s confession had not implicated Hagos because Prim had been solicited and paid by So and had no personal contact with Hagos. Id. Second, while it had “significant doubt” whether the affidavit supporting the search warrant for Roberts’s apartment established the crucial link between the illegal activity and the apartment to be searched, as required to establish probable cause under Colorado law, it nevertheless concluded the evidence was admissible under the good faith exception to the exclusionary rule. Id. at 618. Third, it decided there was no abuse of discretion in disqualifying counsel. Id. at 608-11. It said an indigent defendant, like Hagos, does not have a Sixth Amendment right to counsel of his choice. Id. at 608. However, under Colorado law, a defendant is entitled to continued and effective -4- representation by court-appointed counsel unless there is basis for termination such as a conflict or a potential for conflict. Id. It decided the trial court had properly determined there was a potential for conflict in that the PD could have been called as a witness by Hagos. Id. at 609-10. Finally, it rejected Hagos’s cumulative error argument. Id. at 625. The Colorado Supreme Court and the United States Supreme Court denied certiorari review. See Hagos v. Colo., 131 S. Ct. 1701 (2011); Hagos v. People, No. 10SC192, 2010 WL 3529276 (Colo. Sept. 13, 2010). Dissatisfied, Hagos filed this § 2254 petition presenting the same arguments raised in his direct appeal. The judge denied relief. He determined that while Hagos’s confrontation rights may have been violated, any violation was harmless under the factors set forth in Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986),4 namely, (1) So and Connor’s testimony was the critical evidence against Hagos because they testified to their interactions with Hagos, explained why Hagos wanted Roberts killed, and discussed their roles in carrying out Hagos’s directives to kill Roberts; while Prim pulled the trigger, he had no contact with Hagos; (2) Prim’s confession was cumulative of inculpatory statements made by Prim and introduced through So and Mony; (3) there was plentiful evidence corroborating Prim’s confession, including Hagos’s own admissions as testified to by a number of witnesses; and (4) Prim’s confession did not have a substantial and 4 Those factors are: (1) “the importance of the witness’[s] testimony in the prosecution’s case”; (2) “whether the testimony was cumulative”; (3) “the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points”; (4) “the extent of actual cross-examination”; and (5) “the overall strength of the prosecution’s case.” Van Arsdall, 475 U.S. at 684. -5- injurious effect on the outcome of the trial because “[e]vidence that Hagos threatened Roberts’[s] life [was] abundant in the record and so [was] the evidence that he facilitated and paid for his murder.” (R. Vol. 1 at 626.) As to the admissibility of the evidence obtained from the search of Roberts’s apartment, the judge determined the state trial court viewed Hagos’s claim not as one arising under the Fourth Amendment but rather as one of the admissibility of evidence— a state law issue not cognizable under § 2254 unless the evidentiary rulings rendered the trial so unfair as to constitute a denial of a constitutional right. Moore v. Marr, 254 F.3d 1235, 1246 (10th Cir. 2001). The judge concluded the admission of the evidence as res gestae was reasonable because it was linked in time and circumstances with the charged crimes and was necessary for a full and complete understanding of the events surrounding Roberts’s murder. Nevertheless, viewing the claim as one arising under the Fourth Amendment and assuming (1) Hagos had not been afforded a full and fair hearing in state court on the claim,5 and (2) the affidavit did not establish probable cause, the judge decided the good faith exception of United States v. Leon, 468 U.S. 897 (1984) applied because the affidavit was neither bare bones nor devoid of facts rendering an officer’s reliance on it unreasonable. 5 See Stone v. Powell, 428 U.S. 465, 494 (1976) (“[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that the evidence obtained in an unconstitutional search or seizure was introduced at his trial.”). -6- With regard to the disqualification of counsel, the judge determined Hagos had failed to identify any clearly established federal law violated by the state court—the cases he cited merely held a defendant’s waiver of his right to counsel and election to proceed pro se must be knowing and voluntary. But there was no waiver; Hagos refused to waive a conflict and the trial court disqualified his counsel of choice and appointed new counsel. Even assuming, arguendo, Hagos had a constitutional right to counsel of his choice, the judge said the trial court’s decision to disqualify the PD due to a potential conflict was neither arbitrary nor unreasonable. See Wheat v. United States, 486 U.S. 153, 159 (1988) (stating “the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.”); United States v. Collins, 920 F.2d 619, 625 (10th Cir. 1990) (stating “a defendant's right to retain counsel of his choice is not absolute and may not be insisted upon in a manner that will obstruct an orderly procedure in courts of justice, and deprive such courts of the exercise of their inherent powers to control the same.”) (quotations omitted). Finally, the judge rejected Hagos’s cumulative error claim. A COA is a jurisdictional prerequisite to our review of a petition for a writ of habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, an applicant must demonstrate “that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were -7- adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). In evaluating whether an applicant has satisfied this burden, we undertake “a preliminary, though not definitive, consideration of the [legal] framework” applicable to each of his claims. Miller-El, 537 U.S. at 338. In a cogent order the district judge thoroughly and correctly addressed and resolved the issues raised by Hagos. As no jurist of reason could reasonably debate the correctness of the district court’s decision, we DENY the request for a COA and DISMISS this matter. Hagos’s motion to supplement and correct the state court record is DENIED. Entered by the Court: Terrence L. O’Brien United States Circuit Judge -8-	{ "pile_set_name": "FreeLaw" }
725 F.2d 127 Dana M. WOJTKOWSKI, Plaintiff, Appellant,v.Richard K. CADE, et al., Defendants, Appellees. No. 83-1612. United States Court of Appeals,First Circuit. Argued Dec. 7, 1983.Decided Jan. 13, 1984.Rehearing and Rehearing En Banc Denied Feb. 1, 1984. Louis Kerlinsky, with whom Louis Kerlinsky, P.C., Springfield, Mass., was on brief, for plaintiff, appellant. Kevin B. Coyle, East Longmeadow, Mass., for defendants, appellees. Before CAMPBELL, Chief Judge, COFFIN and BOWNES, Circuit Judges. LEVIN H. CAMPBELL, Chief Judge. 1 In this appeal, Wojtkowski takes exception to the amount of the attorney's fee which the district court awarded to him after his successful prosecution of a civil rights action. 42 U.S.C. Sec. 1988. Besides contending that the fee is inadequate, he also asserts that the district court improperly denied prejudgment interest both on the damages and on the fee. We affirm. 2 Wojtkowski sued the town of Montague, Massachusetts, its police chief and three police officers for $200,000 compensatory damages based on an incident involving his arrest and detention. The district court directed verdicts on the claims against the town and the police chief, but sent to the jury the claims that the three police officers had violated plaintiff's right to due process and had committed state law torts including assault, battery, malicious prosecution and false imprisonment. The jury found for Wojtkowski in the total amount of $6,000. Of this, $5,000 was charged to one defendant, $500 each to the other two. 3 After entry of judgment, Wojtkowski sought prejudgment interest on the damages pursuant to Mass.Gen.Laws ch. 231, Sec. 6B. The district court rejected this request, relying on the federal rule that assessment of prejudgment interest is a matter for the jury. Furtado v. Bishop, 604 F.2d 80, 98 (1st Cir.1979) (Furtado I ), cert. denied, 444 U.S. 1035, 100 S.Ct. 710, 62 L.Ed.2d 672 (1980) (section 1983 case); Robinson v. Pocahontas, Inc., 477 F.2d 1048, 1053 (1st Cir.1973). As plaintiff had not raised the issue prior to submission of the case to the jury, the court ruled that the claim was now foreclosed. 4 Wojtkowski also sought costs, an attorney's fee, and prejudgment interest on the fee, in the total sum of $19,259.10. The court allowed costs of $135 and a fee of $3,870 but denied prejudgment interest with respect to the fee. I. Prejudgment Interest 5 Appellant argues that in denying prejudgment interest on damages the district court incorrectly relied upon Furtado I, 604 F.2d at 98, and Robinson, 477 F.2d at 1053, since those cases involved purely federal claims. As his case puts forward both federal and pendent state claims, he asserts that the matter of prejudgment interest is governed by a Massachusetts statute, Mass.Gen.Law ch. 231, Sec. 6B, which requires the clerk to add prejudgment interest to the amount of damages awarded in personal injury cases. Plaintiff finds support for this position in Moore-McCormack Lines v. Amirault, 202 F.2d 893, 895-96 (1st Cir.1953), in which this court suggested that in a "typical diversity case" a district court, applying Massachusetts substantive law, would be required to add prejudgment interest to a damages award, as such interest "may be regarded as part of the substance of the claim sued upon." 6 However, plaintiff has not sued here in diversity, nor could he. Federal jurisdiction is based on his assertion of a federal civil rights claim. 28 U.S.C. Secs. 1331, 1343. To be sure, plaintiff asserted pendent state claims, and perhaps, although we do not decide the point, he would have been entitled to collect prejudgment interest on these under the Massachusetts statute had the jury returned separate verdicts. But here all claims, both federal and state, were sent to the jury together, resulting in a general verdict. We cannot tell to what extent, if any, the jury's awards of damages against the three officers were based on the state law claims. In such circumstances, the district court was right to follow the federal rule concerning prejudgment interest, and the court properly construed that rule as requiring the denial of interest here where the matter had not been presented to the jury. 7 Wojtkowski's claim that he was entitled to prejudgment interest on the amount allowed by the court as an attorney's fee under section 1988 has even less force. Section 1988 does not refer to interest, nor has our attention been drawn to any federal statute that calls for prejudgment interest in this particular context. The cases Wojtkowski cites are inapposite. Harkless v. Sweeny Independent School District, 466 F.Supp. 457, 465, 472 (S.D.Tex.1978), relates only to interest on prejudgment expenses. Gates v. Collier, 616 F.2d 1268 (5th Cir.1980), indicates merely that the district court may assess postjudgment interest on a fee award where there has been an unwarranted delay in payment. See also Gabriele v. Southworth, 712 F.2d 1505, 1508 n. 1 (1st Cir.1983), aff'g Brule v. Southworth, 552 F.Supp. 1157, 1168 (D.R.I.1982) (Pettine, J.); Spain v. Mountanos, 690 F.2d 742, 747-48 (9th Cir.1982); cf. Furtado v. Bishop, 635 F.2d 915, 920 (1st Cir.1980) (Furtado II ) ("delay in payment" may be factor in adjusting the lodestar amount). One case, not cited by plaintiff, which deals with prejudgment interest on attorneys' fees holds that "[g]enerally, no prejudgment interest should be paid ...." Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir.1983). 8 We are also unpersuaded by appellant's invocation of Mass.Gen.Laws ch. 231, Sec. 6B. That statute authorizes a court to assess interest on the amount of damages; it says nothing about attorneys' fees. The district court did not err in denying appellant's request for prejudgment interest on his attorney's fee award. II. Attorney's Fee 9 We have reviewed appellant's challenge to the district court's determination of the attorney's fee and find no "error of law or abuse of discretion." Furtado II, 635 F.2d at 920. 10 The court was not obligated, as appellant asserts, to adopt the rate and hours claimed by his attorney, merely because the defendants failed to oppose his fee request or challenge his attorney's affidavit. We read 42 U.S.C. Sec. 1988 (under which the court "in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs") to confer both responsibility and authority upon the court to control the reasonableness of the fee. A party's failure to oppose a fee does not divest the court of power to determine what is a reasonable fee and to allow only that amount. The court, moreover, may bring to bear its knowledge and experience concerning both the cost of attorneys in its market area and the time demands of the particular case. If the time and fee claimed by the prevailing party are out of line, the court may "shave" either or both. Miles v. Sampson, 675 F.2d 5, 9 (1st Cir.1982). 11 Here the district court determined that 60 hours were "reasonably expended on the lawsuit," not the 112.5 hours demanded. Although this is a substantial decrease in hours, we cannot say that it is wrong. The district court "has intimate knowledge of the services rendered" and the actual demands of the case as tried. McManama v. Lukhard, 616 F.2d 727, 729 (4th Cir.1980). The reductions here were designed to delete charges for work performed on unsuccessful claims against the town and police chief as well as "duplicative" effort, a term we have previously interpreted as "implying ... little value." Miles v. Sampson, 675 F.2d at 8. 12 The claims against the town of Montague and its police chief rested on legal theories distinct from those upon which appellant prevailed. The town and chief were said to be liable not because they were in any sense directly involved in the conduct giving rise to the damages award, but because they allegedly provided inadequate training and slack supervision. These claims involved novel and difficult legal issues not present in the claims against the officers. The Supreme Court has recently upheld the rule of this Circuit that "[w]here plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claims should be excluded in considering the amount of a reasonable fee." Hensley v. Eckerhart, --- U.S. ----, 103 S.Ct. 1933, 1943, 76 L.Ed.2d 40 (1983); see also Miles v. Sampson, 675 F.2d at 8. 13 Appellant argues that the court excluded too many hours for this reason. The affidavit submitted by appellant's attorney, however, did not show how much of the time he spent on prevailing issues. We have repeatedly warned that 14 we would not view with sympathy any claim that a district court abused its discretion in awarding unreasonably low attorney's fees in a suit in which plaintiffs were only partially successful if counsel's records do not provide a proper basis for determining how much time was spent on particular claims. 15 Nadeau v. Helgemoe, 581 F.2d 275, 279 (1st Cir.1978); see also Miles v. Sampson, 675 F.2d at 8. The affidavit here was little more than a tally of hours and tasks relative to the case as a whole. Attorneys who anticipate requesting their fees from the court would be well advised to maintain detailed, contemporaneous time records that will enable a later determination of the amount of time spent on particular issues. Cf. Ramos v. Lamm, 713 F.2d at 553 (requiring lawyers seeking a fee award under 42 U.S.C. Sec. 1988 to maintain "meticulous, contemporaneous time records"); New York Association for Retarded Children v. Carey, 711 F.2d 1136, 1147-48 (2d Cir.1983) (announcing "for the future" that "contemporaneous time records are a prerequisite for attorney's fees in this circuit"); National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1327 (D.C.Cir.1982) (warning that "[a]ttorneys who anticipate making a fee application must maintain contemporaneous, complete and standardized time records"). 16 Appellant also objects to the court's assignment of $75 per hour for core legal work and $40 per hour for other work as "reasonable hourly rate[s]" in the lodestar calculation instead of his attorney's asserted rate of "about" $125 per hour for all services. The district court acted within its authority in distinguishing hourly rates based upon the type of work performed. King v. Greenblatt, 560 F.2d 1024, 1027 (1st Cir.1977); Wuori v. Concannon, 551 F.Supp. 185, 195 (D.Me.1982) (Gignoux, J.) (the fact that certain services were actually "performed by an attorney should not affect the rate"). The court was entitled to draw on its own knowledge of attorneys' fees in the Springfield, Massachusetts area, where it regularly sits, in arriving at reasonable hourly rates for the lodestar calculation.1 Nothing provided by appellant establishes clear error in this regard. 17 Appellant complains that the court erred by not upwardly adjusting the lodestar amount to reflect the difficulties plaintiffs' attorneys encounter in obtaining favorable verdicts in police brutality cases. However, this was a matter for the informed discretion of the district court, which was in a better position than ourselves to judge the difficulties likely encountered in the context of this case. 18 The nearly $4,000 granted below was substantially more than the $2,500 to which appellant's attorney would have been entitled under a contingency fee agreement executed at the outset of the case. While a contingency agreement is not controlling under section 1988--it being altogether possible that actual damages are small but the constitutional violation complained of egregious--still the size of the recovery is one factor, among many, to be weighed. Here appellant sought only compensatory, not punitive, damages and the court found that the damages awarded were fair in light of the evidence. It is thus of some relevance that the fee was equivalent to almost two-thirds of that recovery. 19 Where, as here, it appears that the district court carefully weighed the correct factors and arrived at a result within a supportable range, we will not interfere. King v. Greenblatt, 560 F.2d 1024, 1028 (1st Cir.1977). 20 Affirmed. 1 Attorneys may, of course, inform the court's analysis by providing evidence of their customary billing rates and of prevailing rates in the community. See, e.g., Ramos v. Lamm, 713 F.2d at 555; cf. National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d at 1324-27 (requiring an applicant for fees to "provide specific evidence of the prevailing community rate for the type of work for which he seeks an award")	{ "pile_set_name": "FreeLaw" }
901 F.2d 21 UNITED STATES of America, Plaintiff-Appellee,v.Hazeline WALKER, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Charles HARRISON, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Minnie Ann WATSON, Defendant-Appellant. Nos. 89-5062 to 89-5064. United States Court of Appeals,Fourth Circuit. Argued Nov. 3, 1989.Decided March 28, 1990. George Vernon Laughrun, III, Goodman, Carr, Nixon & Laughrun, Charles Guy Monnett, III, Jeffrey S. Rupe, Charlotte, N.C., for defendants-appellants. Carl Horn, III, Chief Asst. U.S. Atty., Charlotte, N.C. (Thomas J. Ashcraft, U.S. Atty., on brief), for plaintiff-appellee. Before RUSSELL and WILKINSON, Circuit Judges, and WARD, Senior United States District Judge for the Middle District of North Carolina, sitting by designation. PER CURIAM: 1 Hazeline Walker, Charles Harrison, and Minnie Ann Watson were convicted upon pleas of guilty of conspiracy to operate an illegal gambling business in violation of 18 U.S.C. Secs. 371 and 1955. Harrison also pled guilty to tax evasion under 26 U.S.C. Secs. 7201, 7262, and 7272. Defendants were sentenced under the Federal Sentencing Guidelines,* Walker and Watson at the low end of the applicable range (10 months), and Harrison at the middle of the applicable range (13 months). On appeal, each defendant contends that the district court improperly applied the Guidelines at sentencing. As to each of the defendants, we affirm. 2 Defendants contend that the district judge erred in adopting the findings and conclusions contained in the presentence report without giving defendants advance notice of his tentative findings. The presentence reports each proposed a Guideline range of 10-16 months. Each defendant filed objections, Harrison on February 18, 1989, Watson on March 2, 1989, and Walker on March 9, 1989, arguing on various grounds that the proposed Guideline ranges were improper. The matters were set for sentencing on March 14, 1989. The court gave defendants no notice of its tentative findings before the sentencing hearings. However, the court provided an opportunity for defense counsel to be heard regarding their objections before the imposition of sentence in each case. None of the defendants offered to present supporting evidence. After hearing argument in each of the cases, the court denied defendants' objections and adopted the probation officer's findings as presented in the presentence report. Thereafter, defendants appealed, arguing that the district judge erred by denying their objections and by accepting the presentence report without apprising the defendants of his tentative findings. 3 Section 6A1.3 of the Sentencing Guidelines governs the resolution of disputed factors and provides as follows: 4 (a) When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor. In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy. 5 (b) The court shall resolve disputed sentencing factors in accordance with Rule 32(a)(1), Fed.R.Crim.P. (effective Nov. 2, 1987), notify the parties of its tentative findings and provide a reasonable opportunity for the submission of oral or written objections before imposition of sentence. 6 According to the commentary, the existence of a reasonable dispute as to any factor relevant to sentencing requires only that the sentencing court ensure that the parties have an adequate opportunity to present relevant information. The commentary continues by noting that "written statements of counsel or affidavits of witnesses may be adequate under many circumstances," and further notes that "an evidentiary hearing may sometimes be the only reliable way to resolve disputed issues." However, under the commentary it remains within the discretion of the court to determine the most appropriate procedure "in light of the nature of the dispute, its relevance to the sentencing determination, and applicable case law." The commentary concludes by stating that when "sentencing factors are the subject of reasonable dispute, the court should, where appropriate, notify the parties of its tentative findings and afford an opportunity for correction of oversight or error before sentence is imposed." 7 Under the facts of this case, we hold that the district judge's failure to notify the parties of his tentative findings prior to the sentencing hearing does not constitute reversible error. The Guidelines do not require tentative findings in all cases. In appropriate cases, tentative findings are intended to help facilitate resolution of factual objections before the sentencing hearing, if possible. See Guidelines Sec. 6A1.2 and Commentary. Although the better practice is to make tentative findings and notify the parties of those findings before the sentencing hearing, in the instant case the district judge's failure to make tentative findings did not prevent substantial compliance with Guideline Sec. 6A1.3(b). The district judge received defendants' objections in advance of the hearing, provided the parties an adequate opportunity to address those objections at the hearing and resolved the disputed factors in accordance with Rule 32(a)(1), Fed.R.Crim.P., before imposition of sentence. In fact, no defendant offered any evidence in support of the objections. Each relied on his own statements and arguments of counsel addressed to the court at the sentencing hearing. The district judge provided the parties an adequate opportunity to present information on the record regarding the disputed factors. Under the facts of this case, we conclude that the district judge's adoption of the presentence report's findings was not improper. Accordingly, the judgment of the district court is 8 AFFIRMED. * The Sentencing Reform Act of 1984, 18 U.S.C. Secs. 3551, et seq	{ "pile_set_name": "FreeLaw" }
51 So.3d 552 (2010) J. Robert BROWN, as Trustee under the Buckeye Road Trust Agreement dated April 15, 2005, Appellant, v. CHAMAX, LLC, a Florida limited liability company; Tom Chapman; Mark Schreiber; and Larry Maxwell, Appellees. No. 2D09-2931. District Court of Appeal of Florida, Second District. December 22, 2010. 554 John Marc Tamayo and Barbara W. Davis of Valenti Campbell Trohn Tamayo & Aranda, Lakeland, for Appellant. Joseph P. Mawhinney and Natasha S.W. Rieger of Clark, Campbell, Mawhinney & Lancaster, P.A., Lakeland, for Appellees. KELLY, Judge. J. Robert Brown, as Trustee under the Buckeye Road Trust Agreement, appeals a final judgment entered in favor of appellees Tom Chapman, Mark Schreiber, and Larry Maxwell after the trial court dismissed the Trust's fraud claims against them. We find merit in the Trust's argument that the trial court should have permitted it to amend its claims for fraudulent inducement and in its argument that the trial court erroneously concluded that its other fraud claims were barred by the economic loss rule. In early 2005, Lerian Investment Corporation entered into an agreement with Chamax, LLC, for the purchase of undeveloped land in Manatee County. The parties contemplated that Lerian or its successors or assigns would subdivide the property after obtaining the proper zoning for development of a residential community. During negotiations, Tom Chapman, a manager of Chamax, and Mark Schreiber, a vice-president of Chamax, told Lerian's owner and president, Richard Neff, that the purchase agreement provided Lerian parity of terms with the purchase agreement entered into by Ryland Homes, the purchaser of an adjacent parcel. After Lerian and Chamax entered into the purchase agreement, Neff created the Buckeye Road Trust to purchase and develop the property. Lerian then assigned the purchase agreement to the Trust. Neff was the Trustee when the Trust accepted the assignment. After failing to obtain the necessary zoning, the Trust terminated the purchase agreement. Chamax sued the Trust alleging that it had breached the purchase agreement, and the Trust filed a counterclaim. During discovery, the Trust obtained information that caused it to amend its counterclaim to add several fraud counts. Some of the counts alleged that the Trust had reimbursed Chamax for costs that Chapman, Schreiber, and Larry Maxwell, an owner and officer of Chamax, had represented were actual costs Chamax had incurred when in fact they were not. The other counts asserted claims that the Trust was fraudulently induced into accepting the assignment of the purchase agreement. Those counts allege that Chapman and Schreiber's representations regarding parity with Ryland were false, that they knew they were false, and that Neff relied on those representations not only in having Lerian enter into the purchase agreement, but also in having the Trust take the assignment of the agreement. The Trust alleges it would not have accepted the assignment had it known about the lack of parity. Chapman, Schreiber, and Maxwell moved to dismiss the fraud claims for failure to state a cause of action. Pertinent to this appeal, Chapman and Schreiber argued that the Trust's fraudulent inducement claims failed because the Trust did not allege and could never allege that Chapman and Schreiber intended to induce the Trust to rely on the representations regarding parity with Ryland. Chapman, Schreiber, and Maxwell argued the other fraud claims were barred by the economic loss rule. The trial court dismissed all the claims with prejudice concluding that the allegations in the fraud counts "do not show that the counter-plaintiff was assigned such claims or was the intended victim of the alleged fraud or had 555 any personal dealings with the counter-defendants." The trial court noted that in making its decision it was "aware of the allegation that Richard Neff was the President of Lerian Investment Corporation at the time it entered into the real estate contract with Chamax, and at the time the contract was assigned to Buckeye Road Trust he was a trustee." On appeal, the Trust argues that although Chapman and Schreiber made the alleged misrepresentation regarding parity to Lerian, it has nevertheless stated a cause of action for fraudulent inducement as to the Trust because Neff relied on the misrepresentation, not only in having Lerian enter into the purchase agreement, but also in having the Trust accept an assignment of the purchase agreement. To state a cause of action for fraudulent inducement, however, it is not enough to merely allege reliance. The complaint must allege that the representor intended that the misrepresentation would induce another to rely on it. Hillcrest Pac. Corp. v. Yamamura, 727 So.2d 1053 (Fla. 4th DCA 1999). The Trust has not alleged, nor has it claimed it could allege, that at the time they made the representation, Chapman and Schreiber intended to induce the Trust, which did not exist at the time, to rely on it. Although Neff eventually represented both Lerian and the Trust, the Trust has never alleged that at the time Chapman and Schreiber made the representations to Neff as president of Lerian, they knew he would later create the Trust and become its Trustee. Accordingly, we agree with the trial court that the Trust failed to state a cause of action for fraudulent inducement. Having concluded that the trial court properly dismissed those claims, we turn to the Trust's argument that the trial court should have given it another opportunity to amend those claims. At the hearing on the motion to dismiss, the Trust argued that if the court concluded that it had failed to state a cause of action, it should be allowed to amend the counterclaim to allege that Lerian had assigned its fraudulent inducement claim to the Trust. The Trust stated that Lerian could still assign its claim to the Trust, and thus, it could amend the counterclaim to reflect that assignment. The trial court's order dismissing the counterclaim with prejudice does not set forth the basis for the trial court's refusal to permit the amendment. This court's standard for reviewing a lower court's ruling on a motion to amend a complaint is an abuse of discretion. See Video Indep. Med. Examination, Inc. v. City of Weston, 792 So.2d 680, 681 (Fla. 4th DCA 2001). The "refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party; the privilege to amend has been abused; or amendment would be futile." Spradley v. Stick, 622 So.2d 610, 613 (Fla. 1st DCA 1993). Typically, leave to amend is freely granted. See, e.g., Highlands Cnty. Sch. Bd. v. K.D. Hedin Constr., Inc., 382 So.2d 90 (Fla. 2d DCA 1980); see also Fla. R. Civ. P. 1.190(a) ("Leave of court shall be given freely when justice so requires."). The appellees do not contest the Trust's claim that Lerian can still assign its fraudulent inducement claim to the Trust, and they have not asserted any other viable reason why an amendment alleging the assignment would be futile. Nor have they argued that the Trust has abused the privilege to amend or that they would be prejudiced by the amendment. Instead, they contend that the Trust should have obtained the assignment sooner. We disagree. *556 When the Trust filed its third amended counterclaim it alleged that Lerian had assigned its fraud claim when it assigned the purchase agreement to the Trust. Chapman and Schreiber countered that the language in the purchase agreement assignment, a copy of which was attached to the counterclaim, negated that allegation. Accordingly, at the hearing on the motion to dismiss, the Trust asked for an opportunity to accomplish the assignment and amend its counterclaim in the event the trial court agreed that the claim had not already been assigned. It was not until the trial court rejected this contention in the order dismissing the third amended counterclaim that the Trust knew that it needed to obtain an assignment to proceed with its claim. Accordingly, we conclude that the trial court abused its discretion when it refused to allow the Trust an opportunity to amend its counterclaim. The Trust also challenges the dismissal of its claims alleging that Chapman, Schreiber, and Maxwell misrepresented the amount of actual costs Chamax had incurred; costs which the Trust was contractually obligated to reimburse Chamax. The costs at issue were detailed in an amendment to the purchase agreement. The third amended counterclaim alleges that Chapman, Schreiber, and Maxwell knew that the costs specified in the amendment were not the actual costs Chamax had incurred and that the Trust would not have paid those amounts had it known they did not represent the actual costs incurred. On appeal, the appellees argue that dismissal of these fraud claims was proper because they are barred by the economic loss rule. We find no merit in this contention. Where a contract exists, a tort action will lie only for intentional or negligent acts that are independent from acts that breach the contract. HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So.2d 1238 (Fla.1996) (holding that where the fraud complained of relates to the performance of the contract the economic loss doctrine will limit the parties to their contractual remedies). The economic loss rule does not bar tort actions based on fraud if the fraud alleged does not relate to an act of performance under the contract but instead relates to a term in the agreement. Allen v. Stephan Co., 784 So.2d 456, 457 (Fla. 4th DCA 2000). Here, the alleged misrepresentations related to a term of the contract with Chamax, not to any performance Chamax owed under the contract. See, e.g., id. at 457-58. In addition, no contract with Schreiber, Maxwell, and Chapman exists; therefore, no breach of contract action could lie against them; rather, the action against them is for intentional or negligent acts independent of any contract. See HTP, 685 So.2d at 1239. Accordingly, we reverse the dismissal of the Trust's fraud claims against Schreiber, Maxwell, and Chapman. Reversed in part, affirmed in part, and remanded for further proceedings. VILLANTI and LaROSE, JJ., Concur.	{ "pile_set_name": "FreeLaw" }
548 Pa. 544 (1997) 699 A.2d 718 COMMONWEALTH of Pennsylvania, Appellee, v. Clarence A. AHLBORN, Appellant. Supreme Court of Pennsylvania. Submitted May 13, 1997. Decided August 19, 1997. 545 John D. Ceraso, Arnold, for Clarence A. Ahlborn. Christian Scherer, Pittsburgh, for the Com. 546 Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ. OPINION OF THE COURT FLAHERTY, Chief Justice. This is an appeal by allowance from an order of the Superior Court which affirmed an order of the Court of Common Pleas of Westmoreland County denying relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. At issue is whether one who has filed a PCRA petition while serving a sentence of imprisonment remains eligible for relief in the event that, prior to any final adjudication of the petition, he is released from custody. On May 4, 1990, the appellant, Clarence A. Ahlborn, pled guilty to three counts of driving under the influence (DUI) and one count of accident resulting in death or injury. Appellant was sentenced to forty-eight hours to twenty-three months on the first DUI count, a concurrent term of thirty days to twenty-three months on the second DUI count, a consecutive term of four to twenty-three months on the third DUI count, and a concurrent term of thirty days to twenty-three months on the accident resulting in death or injury count. On May 24, 1990, appellant filed a pro se motion to withdraw his guilty plea. A hearing on the motion was scheduled, but, for reasons not apparent on the record, the motion was never adjudicated. On December 9, 1993, appellant filed a pro se PCRA petition. Subsequently, counsel was appointed and an amended petition was filed on January 25, 1994. The petition alleged that appellant was misled as to the nature and consequences of his plea. It also alleged that he was never afforded a hearing on the motion to withdraw his plea. A PCRA hearing was scheduled for February 17, 1994. On February 14, 1994, however, appellant finished serving his sentence. He was unconditionally released from prison. The scheduled hearing was then continued, and, on June 8, 1994, the PCRA petition was dismissed on the ground that appellant was no longer eligible for relief. The court reasoned that relief is available only to persons still serving sentences of 547 imprisonment, probation, or parole. On appeal, the Superior Court affirmed en banc. We too affirm. Eligibility for relief under the PCRA is governed by 42 Pa.C.S. § 9543, which provides in pertinent part: (a) General rule. To be eligible for relief under this sub-chapter, the petitioner must plead and prove by a preponderance of the evidence all of the following: (1) That the petitioner has been convicted of a crime under the laws of this Commonwealth and is: (i) currently serving a sentence of imprisonment, probation or parole for the crime; (ii) awaiting execution of a sentence of death for the crime; or (iii) serving a sentence which must expire before the person may commence serving the disputed sentence. (Emphasis added). Appellant contends that this statutory provision requires only that he have been serving a sentence at the time when he filed his petition, and that it is of no consequence that he finished serving his sentence before there was an adjudication of whether relief was warranted.[] We do not agree. Appellant essentially construes the first sentence of the eligibility provision as though it began with the words, "To be eligible to file a petition . . .," rather than with the actual words, "To be eligible for relief. . . ." Such a construction constitutes an obvious departure from the language of the statute. The time of filing a petition is not the same as the time that a decision is rendered regarding eligibility for relief. Further, appellant's construction ignores the statute's requirement that a PCRA petitioner "plead and prove" that he "is currently serving a sentence. . . ." The statute clearly contemplates 548 that the petitioner will be serving a sentence at both the pleading and proof stages of the proceeding. It is well established that when the language of a statute is clear and unambiguous, it must be given effect in accordance with its plain and obvious meaning. Commonwealth v. Corporan, 531 Pa. 348, 351, 613 A.2d 530, 531 (1992); Commonwealth v. Kriston, 527 Pa. 90, 94, 588 A.2d 898, 899 (1991); Commonwealth v. Bursick, 526 Pa. 6, 10, 584 A.2d 291, 293 (1990); Commonwealth v. Bell, 512 Pa. 334, 339-40, 516 A.2d 1172, 1175 (1986); Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(b). Here, the denial of relief for a petitioner who has finished serving his sentence is required by the plain language of the statute. To be eligible for relief a petitioner must be currently serving a sentence of imprisonment, probation or parole. To grant relief at a time when appellant is not currently serving such a sentence would be to ignore the language of the statute. Appellant asserts that, despite having been released from custody, he will continue to suffer consequences of his convictions. Specifically, he cites a driver's license suspension and the possibility of future sentencing and recidivist enhancements. Appellant argues that, because convictions can result in ongoing consequences, the legislature would not have intended that review under the PCRA would be unobtainable. The search for legislative intent is at an end, however, where the language used by the legislature is clear. Commonwealth v. Bursick, 526 Pa. at 10, 584 A.2d at 293 ("We are constrained. . . to apply statutory language enacted by the legislature rather than speculate as to whether the legislative spirit or intent differs from what has been plainly expressed in the relevant statutes."); Commonwealth v. Bell, 512 Pa. at 339-40, 516 A.2d at 1175 (When the language of a statute is plain and clear, it is inappropriate to inquire further into legislative intent.). See also Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(b) ("When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit."). 549 We note that the predecessor to the PCRA, to wit, the Post-Conviction Hearing Act (PCHA), formerly 42 Pa.C.S. § 9541 et seq. (amended 1988), did not expressly allow for review of criminal convictions where the underlying sentences had been fully served. The PCHA specified that to be eligible for relief a petitioner must prove that he "is incarcerated in this Commonwealth under a sentence of death or imprisonment or on parole or probation." 42 Pa.C.S. § 9543(2) (amended 1988). We held that petitioners who did not meet this requirement, but who faced direct collateral civil or criminal consequences of their convictions, could nevertheless obtain review. In such cases, PCHA petitions were to be treated as petitions for common law writs of error coram nobis. Commonwealth v. Doria, 468 Pa. 534, 364 A.2d 322 (1976); Commonwealth v. Sheehan, 446 Pa. 35, 38-41, 285 A.2d 465, 467-68 (1971). Our rationale was as follows: The intent of the Act . . . was not to abolish the common law remedies of habeas corpus and coram nobis, but rather to promulgate an exclusive, well-defined procedure for the presentation of those grievances set forth in the Act by an aggrieved person who is under the duress of punishment, whether in prison or on parole or probation. All claims previously cognizable on a common law writ, in circumstances not covered by the terms of the Act, may still be litigated by means of the common law writ. Id. at 39, 285 A.2d at 467 (citations omitted). Unlike the PCHA, however, the PCRA contains express language which prevents a petition filed under the PCRA from being treated as a request for relief under the common law. The PCRA specifies that it is the sole means for obtaining collateral relief and that it supersedes common law remedies. Specifically, it provides: This subchapter provides for an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral relief. The action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that 550 exist when this subchapter takes effect, including habeas corpus and coram nobis. 42 Pa.C.S. § 9542 (emphasis added). Hence, the PCRA is the only collateral means by which appellant can challenge his conviction. Inasmuch as appellant is ineligible for relief because he is not currently serving a sentence, dismissal of the petition was proper. The Superior Court properly affirmed. Order affirmed. NOTES [] In cases where petitioners have filed for relief after their sentences have been completely served, relief has been uniformly denied on the basis of the statutory eligibility provision. Commonwealth v. Hayes, 408 Pa.Super. 68, 596 A.2d 195 (1991), appeal denied, 529 Pa. 646, 602 A.2d 856 (1992); Commonwealth v. Pierce, 397 Pa.Super. 126, 579 A.2d 963 (1990), appeal denied, 527 Pa. 609, 590 A.2d 296 (1991).	{ "pile_set_name": "FreeLaw" }
35 Mass. App. Ct. 175 (1993) 617 N.E.2d 1015 MICHAEL ANDRADE vs. AETNA LIFE & CASUALTY COMPANY. No. 91-P-996. Appeals Court of Massachusetts, Suffolk. January 19, 1993. August 23, 1993. Present: ARMSTRONG, JACOBS, & GREENBERG, JJ. George F. Leahy for the plaintiff. John P. Graceffa for the defendant. GREENBERG, J. Michael Andrade, an injured employee of a corporation that was insured by Aetna Life & Casualty Company (Aetna), sought coverage under the uninsured motorist provisions of the corporation's standard commercial automobile insurance policy. The Superior Court, upon cross motions for summary judgment, determined that Andrade was not an "insured" under the policy provisions because he could not be considered a relative living in the household of the named insured when the named insured is a corporation. 176 Judgment was entered for the defendant, and the plaintiff has appealed. The dispositive facts, as must be the case when summary judgment is granted, are undisputed. Kelleher v. American Mut. Ins. Co., 32 Mass. App. Ct. 501, 502 (1992), citing Community Natl. Bank v. Dawes, 369 Mass. 550, 556 (1976). Andrade was hurt while working for the family construction company, the named insured, Bill Andrade & Sons, Inc. As he walked across a road near his work site, he was struck by an oncoming motor vehicle. At the time of the accident, Andrade was staying at his parents' house which doubled as the corporation's principal place of business. Before a settlement of the resulting tort claim could be negotiated, the insurer of the vehicle which struck Andrade filed for insolvency. Andrade then submitted claims for uninsured benefits against five motor vehicle insurance policies issued by the defendant to various family members and to the family business; the one we consider listed only the corporation as the named insured. In compliance with G.L.c. 175, § 113L, the policy at issue provided uninsured motorist coverage and defined an insured as: "(1) the named insured stated in item 1 of the declarations (herein also referred to as the `principal named insured') and, while residents of the same household, the spouse of any such named insured and relatives of either; "(2) any other person while occupying an insured automobile; and "(3) any person, with respect to damages he is entitled to recover because of bodily injury to which this coverage applies sustained by an insured under (1) or (2) above." The burden is on the party seeking coverage to demonstrate that he qualifies as an "insured." Kelleher v. American Mut. Ins. Co., 32 Mass. App. Ct. at 504. Andrade does not argue that he should be considered an insured under category 177 two or three. It is undisputed that Andrade was not using an insured motor vehicle as a passenger or permissive user at the time of the accident. Instead, he contends that he is entitled, as a matter of law, to uninsured benefits under category one, as a relative of the named insured residing in the same household.[1] Specifically, he argues that the words "household" and "relative" as delineated in the policy are ambiguous when the named insured is a corporation. Since Andrade was an employee of the corporation, resided at the corporation's principal place of business, and was engaged in its business pursuits at the time of the accident, he urges us to construe the policy so as to consider him "a relative of the corporation who resided in its household." Otherwise, he contends, no one would be covered within this category when the named insured is a corporation. In effect, the plaintiff invites us to rewrite the policy, so as to enable him to obtain insurance coverage. Cf. Pinheiro v. Medical Malpractice Joint Underwriting Assn. of Mass., 406 Mass. 288, 292 (1989) (in stating that a clause on an insurance policy must be construed as written, the Supreme Judicial Court refused to substitute terms in the insurance policy for others requested by the defendant). Since we determine that no ambiguity exists, the invitation must be declined. Polzin v. Phoenix of Hartford Ins. Cos., 5 Ill. App.3d 84, 88 (1972). Meyer v. American Economy Ins. Co., 103 Or. App. 160, 163 (1990) (the fact that there is no coverage under one category when the policy is read to mean what it unambiguously says does not, in itself, create an ambiguity). In this context, the terms are unambiguous because they are not susceptible to any reasonable interpretation that would advance Andrade's cause. Ibid. See also Nicks v. Hartford Ins. Group, 291 So.2d 673, 674 (Fla. Dist. Ct. App. 1974) (no ambiguity exists in insurance policy issued to corporation and defining insured as the spouse of any such named insured and relatives of either, while living in the same household). Where no ambiguity exists, the insurance 178 policy is to be construed according to its ordinary meaning. Cardin v. Royal Ins. Co., 394 Mass. 450, 453 (1985). Kelleher v. American Mut. Ins. Co., 32 Mass. App. Ct. at 504. Although there may be many definitions which fit the terms "household" and "relative," none allows for Andrade's desired construction. In the context of automobile insurance, it has been recognized that "because modern society presents an almost infinite variety of possible domestic situations and living arrangements, the term `household member' can have no precise or inflexible meaning." Vaiarella v. Hanover Ins. Co., 409 Mass. 523, 526-527 (1991), and cases cited. Analysis of the meaning of this term, thus, proceeds on a case-by-case basis. Id. at 527. Even under this flexible construction, a corporation is not a "domestic situation" or a "living arrangement." It has long been settled in the Commonwealth that a corporation is separate and distinct from its owners. McAlevey v. Litch, 234 Mass. 440, 441 (1920). That the corporation's headquarters was also the family home has no bearing on determining whether the corporation itself can have a household. Likewise, "relative" has been defined as "a person connected with another by blood or affinity." Black's Law Dictionary 1289 (6th ed. 1990). See also Petition of the U.S., 418 F.2d 264, 270 (1st Cir.1969). It has been suggested that this definition is further limited in the context of automobile insurance to include only "consanguines." Petition of the U.S., supra at 271, and cases cited. Since a corporation is an artificial entity created by the law, Syrian Antiochean St. George Orthodox Church of Worcester v. Ghize, 258 Mass. 74, 80 (1927), it is incapable of having a relative or a household under even the broadest of definitions. That an automobile liability policy issued to a corporation as the "named insured" does not provide coverage to a relative living in the household of a corporation is in line with the majority of jurisdictions that have addressed this issue. See Testone v. Allstate Ins. Co., 165 Conn. 126, 130 (1973) (where corporation was named insured, plaintiff could not be deemed named insured or designated insured even while acting 179 in scope of his employment); Hogan v. Mayor & Aldermen of Savannah, 171 Ga. App. 671, 672 (1984) (where closely held corporation was "named insured," president, chairman of board, treasurer, general counsel and shareholder of corporation could not be deemed either named insured or a family member in relation thereto). See also Nicks v. Hartford Ins. Group, 291 So.2d 673 (Fla. Dist. Ct. App. 1974); Cutter v. Maine Bonding & Cas. Co, 133 N.H. 569 (1990); Giambri v. Government Employees Ins. Co., 170 N.J. Super. 140 (N.J. Super. Ct. Law Div. 1979), aff'd, 174 N.J. Super. 162 (N.J. Super. Ct. App. Div. 1980); Eveready Ins. Co. v. Schwartz, 54 A.D.2d 750 (N.Y. 1976); Meyer v. American Economy Ins. Co., 103 Or. App. at 160; Dixon v. Gunter, 636 S.W.2d 437 (Tenn. Ct. App. 1982); 12 Couch, Insurance § 45.276, at 599 (Rhodes rev.2d ed. 1981). Contrast King v. Nationwide Ins. Co., 35 Ohio St.3d 208 (1988). The Supreme Judicial Court's narrow holding in Thattil v. Dominican Sisters of the Presentation of the Blessed Virgin, Inc., 415 Mass. 381 (1993) (the plaintiff nun's identity, by virtue of her special relationship with her incorporated religious order, was merged with named insured corporation), is inapplicable to the facts of this case. In reaching its decision allowing Sister Thattil to recover under the underinsured provisions of the corporation's automobile policy, the court repeatedly noted the "unusual" and "unique" circumstances present in that case, including the fact that the Dominican Sisters was "not an ordinary business corporation." Id. at 389. We view Thattil as confined to its peculiar facts, and do not feel bound by its holding. Parenthetically, no evidence was presented below to indicate that the objectively reasonable expectations of the parties intended this policy to cover persons in Andrade's position. See Mitcheson v. Izdepski, 32 Mass. App. Ct. 903, 905-906 (1992) (court declines to hold that doctrine of "reasonable expectations" applies where no ambiguity exists). Cf. Hazen Paper Co. v. United States Fid. & Guar. Co., 407 Mass. *180 689, 700 (1990). We conclude that Andrade is not an "insured" under the first category of the policy. Our construction does not contravene the statutory language or legislative policy of G.L.c. 175, § 113L, the purpose of which is to protect the "named insured," Bill Andrade & Sons, Inc. Cardin v. Royal Ins. Co., 394 Mass. at 452. Nor does it run counter to the fact that it is preferable to give reasonable meaning to all the policy's provisions rather than to leave a part useless or inexplicable. Sherman v. Employers' Liab. Assur. Corp., 343 Mass. 354, 357 (1961), and cases cited. The corporation remains protected, and the uninsured motorist provision is not made a nullity by this interpretation, because the policy still covers "any other person while occupying an insured automobile." See Lundgren v. Vigilant Ins. Co., 391 N.W.2d 542, 544 (Minn. Ct. App. 1986), and cases cited. Andrade's situation plainly does not meet the requirements of the policy. Accordingly summary judgment was properly entered for the defendant. Judgment affirmed. NOTES [1] Andrade does not argue that we should "pierce the corporate veil" and consider him to be the "named insured" as part owner of the corporation.	{ "pile_set_name": "FreeLaw" }
238 S.W.2d 793 (1951) WENCK v. STATE. No. 25010. Court of Criminal Appeals of Texas. February 14, 1951. Rehearing Denied May 2, 1951. 794 Ben L. Parten, Frank A. Woods, Franklin, for appellant. Taylor & Dickens, Marlin, Bill Palmos, County Atty., Franklin, George P. Blackburn, State's Atty., of Austin, for the State. WOODLEY, Commissioner. The conviction is for murder, the jury having assessed the punishment at 30 years in the penitentiary. N. L. Miller, the deceased, was Chief of Police of the City of Hearne. Accompanied by Officer Knox Tidwell, the deceased went to the home of T. A. Luster near the outskirts of the City of Hearne in answer to a report of a disturbance there. Shortly after the officers arrived, deceased was killed as a result of a shotgun loaded with buckshot being fired through a window of the house. Soon Sheriff Reeves and others arrived, and shortly thereafter a second shot was fired from the house, and appellant was seen to come out of the house and on to a porch with a single barrel shotgun in her hands. After the officers had fired warning shots, she finally put the gun down and came to the fence where she was handcuffed. Sheriff Reeves testified: "She made a statement to me right after I took here and right after she came out of the house. She said she was mad and she was sorry it happened and it would not have happened if she was not mad at Mr. Luster, She said she asked him for a $1.00 to have her hair fixed and he would not give it to her and Mr. Luster told her he was going to call officer, and she said she would shoot anyone that come up and she was mad." The written confession of appellant was also introduced by the State reading in part as follows: "My name is Lucille Broack Wenck, and I live at 801 E. Bradford Street in Hearne, Robertson County, Texas. I am 21 years of age, having become 21 on the 4th day of July of this year, 1949. I am not married at this time, having gotten a divorce in about October of 1948. This afternoon, on the 6th day of October, 1949, I had a fush with Mr. Tom Luster, who I keep house for. I have a 32 caliber pistol and Mr. Luster hid the pistol. He would not tell me where it was and I go mad. I also wanted a Dollar to get my hair set and he would not give me the dollar. Later I decided to make a cake and went down to a small store that Mr. Miller owns and got some eggs and butter. I went out in yard later to chop some wood and a piece hit me in the head and put a knot on my head. Mr. Luster came outside and I had broken the radio aerial and he fixed it. I went in the house and when he came in the chouse I asked him for the pistol and 795 he wouldn't give it to me. I told him that he would be sorry. He said that he was going to call the law. I looked for the pistol and couldn't find it. I found a lock box that belonged to Mr. Luster and I thought that the pistol might be in it. I tried to open the box with a bobby pin, but couldn't get it open. It had the shot gun, which was a single shot 12 gauge shot gun, lying in a chair. When a car drove up in front of the house I ran to the chair and pick up the gun. I already had gone into Mr. Luster's room and got 5 shot gun shells out of the table drawer. These were Buckshot. I had them in my dress pocket. When the car drove up in front I picked up the gun and loaded it with one of the shells. I knew it was the police car when it drove up. I saw one officer get out of the car and walk up to the front porch. He then turned around and went back to the car. I then went into the front bed room on the house, which is my bed room and is on the west side of the house, facing the street where the police car was parked. There wasbed next to the street windows and I stood by the side of the bed and cocked the gun and fired at the police car. I knew there was an officer in uniform at the car and I shot at the car. I saw and officer on the ground by the side of the car and I fired the shot and I shook my head and said to myself "I shot one and I want shoot any one else." I later recognized Mr. N. L. "Slick" Miller lying on the ground and he did not move. I said to myself `I guess that he is dead.' After firing this first shot I unloaded the empty shell and put another good shell in the gun. I threw the empty hull on the bed. The window was down when I fired the first shot and I broke the window pane when the shot went through it. I walked into the bed room on the East side of the house which faces the street, and in which Mr. Tom Luster sleeps. I held up the shot gun a second time and fired through the window in that room toward the street. This shot also broke a window pane. "This shot was fired about 5 minutes after I fired the first shot. I then took out the empty hull and threw it on the floor in this same bed room. I then re-loaded the gun again. I heard Mr. Lucian Luster and some officers call to me to come out of the house, but I did not do it. I just stayed in the house. Later some shots were fired at the house and I was afraid that they would hit me, so I came out of the house. I went out the back door and I had the shot gun in my hand and I had it loaded and I had it cocked so that it would shoot. I did not shoot the gun again, but just sat it up next to the house when the officers told me to and went out to the officers. "I understand right from wrong and I know that it is wrong to shoot any one and I know that it is wrong to kill a person. I know that we have laws against killing people and that it you kill any one that you will be punished for it. "I went to the 5th grade in school and I am able to read and write. I write letters home and receive letters from home. "I was made to Mr. Tom Luster and I told him that if the laws came up that I was going to shoot and they came up and I did shoot. "I have read this statement and understand the contents of the same and it is my free and voluntary statement. I have not been abused, whipped, threatened or promised immunity from prosecution of the law by any one." Counsel appointed by the court interposed the defense of insanity, and supported such plea with testimony from expert and non-expert witnesses. Appellant was subject to convulsions due to her being afflicted with epilepsy. She was paralyzed in her right arm, wrist and hand, and the muscles of her right leg showed some form of weakness. It appears from all of the evidence that appellant was mentally subnormal. Her mental age was described by some of the witnesses as being from 8 to 10 years, and by others as from 10 to 12 years. The witnesses differed as to the extent of her mental impairment. Two doctors and several non-expert witnesses expressed the opinion that she was insane, that she did not know right from wrong, and did not know the nature and consequences of her act at the time of the killing. 796 Other non-expert witnesses expressed the opinion that she did know right from wrong, and though abnormal, had sufficient mentality to know that it was wrong to kill a man. The trial court submitted to the jury the fact question regarding appellant's mental condition, defining insanity and placing on appellant the burden of proving by a preponderance of the evidence that she was insane at the time of the killing. The jury rejected the plea of insanity by their verdict, and found appellant guilty of murder with malice. It is urged, however, that the verdict of the jury should be set aside as being contrary to the preponderance and great weight of the testimony. We are aware of no decision by this court wherein a reversal solely on this ground has been ordered, though similar contentions have been often urged. See 18 Tex.Jur. 464; Griffin v. State, Tex.Cr.App., 226 S.W.2d 869; Ross v. State, Tex.Cr. App., 220 S.W.2d 137; Cavanar v. State, 99 Tex.Cr.R., 446, 269 S.W. 1053; Murray v. State, 147 Tex.Cr.R. 474, 182 S.W.2d 475. Every person is presumed to be sane, and to have sufficient judgment and reason to be responsible for his acts until the contrary is established. To discharge appellant from such responsibility, it was necessary that she prove by a preponderance of the evidence that her intellect was so disordered that at the time of the killing, she did not know the nature and quality of the act she was doing, or if she did so know, that she was unable to distinguish between the right and the wrong of the particular act charged, that is, murder. See Ex parte McKenzie, 116 Tex.Cr.R. 144, 28 S.W.2d 133. Whether such degree of insanity exists is a question of fact to be determined by the jury. They alone are made the judges of the weight to be given to the testimony of the witnesses and to the opinions expressed by them. Bill of Exception No. 6 complains that the witness Cora Lee Jones was permitted to testify over appellant's objection that on October 6, 1949, the day of the killing, appellant knew it was wrong to kill a man. This bill was qualified by the trial court who certifies that the only ground of objection urged at the time the witness testified was that it was not shown that the witness was qualified to give such opinion. It is further certified in such qualifications that the objection "was overruled because the witness testified to observation of conduct of and conversation with the defendant on numerous occasions." Appellant did not except to the qualifications and is bound thereby. The statement of facts supports the court's finding that the witness showed herself to be qualified to express an opinion that appellant was sane. Before a layman may testify that a party is insane, he must give some act, omission or peculiarity upon which the opinion is formed, but no such predicate is required to make admissible his conclusion that a party is sane. See Walthall v. State, 144 Tex.Cr.R. 585, 165 S.W.2d 184. In Langhorn v. State, 105 Tex.Cr.R. 470, 289 S.W. 57, the ruled regarding the predicate for such non-expert opinions was discussed, and this court held that though no exact rule could be laid down, and the qualifications of the witness to express an opinion on a party's sanity or insanity must be left largely to the discretion of the trial court; that if a witness testifies to actual personal conversations with and observations of the party whose sanity is under investigation, he may be allowed to express his opinion. When a non-expert witness is allowed to express an opinion that the accused is sane, there seems no reason why he should not also be permitted to express an opinion that he knows right from wrong. See Stout v. State, 142 Tex.Cr.R. 537, 155 S.W.2d 374. The test as to knowledge of right and wrong applying to the offense for which appellant was on trial, we see no error in permitting the witness to express the opinion that appellant knew it was wrong to kill a man. 797 In Hale v. State, 121 Tex.Cr.R. 364, 51 S.W.2d 611, testimony of the sheriff and other officers who saw, talked with and observed the accused frequently between the time of the homicide and his trial to the effect that they were of the opinion that he was not insane and that he knew it was wrong to kill a man was held to have been properly received. What has been said regarding this bill disposes also of other similar bills relating to the testimony of other non-expert witnesses. Appellant complains of the overruling of his motion for continuance based upon the absence of the witness Jim Stewart, who it is averred would testify to certain acts and conduct of appellant upon the basis of which the witness would express the opinion that she was insane. At a prior setting of the case on January 31, 1950, appellant sought a continuance because of the absence of this witness and in response thereto, the trial was postponed until April 3, 1950, at which time the court overruled the present application for continuance. Under such facts, the application for continuance filed and overruled on April 3, 1950, was a second application for continuance. See Winfrey v. State, 122 Tex.Cr.R. 480, 55 S.W.2d 1046; Mullin v. State, 114 Tex.Cr.R. 225, 24 S.W.2d 423; Wheeler v. State, 118 Tex.Cr.R. 358, 42 S.W.2d 69. We are unable to agree that the trial court abused his discretion in overruling such second application because of the absence of this non-expert witness whose expected testimony would have been to the same effect as other lay witnesses who testified that appellant was in their opinion insane. Appellant insists that error is shown by his Bill of Exception No. 2 relating to the admission of the written statement of appellant. It is argued that it is "elementary" and "fundamental" that a person should not be permitted to testify or be called upon to express an opinion as to his or her own sanity. This bill concerns that part of said statement wherein she said "I understand right from wrong and I know that it is wrong to shoot anyone and I know that it is wrong to kill a person. I know that we have laws against killing people and that if you kill anyone that you will be punished for it." We are cited to no authority to the effect that such admission by appellant was improperly received. As the argument suggests, such statement might have little weight as evidence of the condition of the mind of appellant. But taken in connection with her full account of her acts and conduct, we see no error in admitting in evidence appellant's admission that she knew that such act in killing the deceased was wrong, and criminal. Exceptions were reserved to the overruling of certain objections to the court's charge. The trial court prepared his charge containing sixteen numbered paragraphs and furnished same to counsel for examination. Objections were filed to such charge numbered 1 to 28 inclusive which were overruled by the trial court "except as changed to meet the above objections." A corrected charge was then furnished counsel consisting of paragraphs numbered 1 to 14 inclusive, and 14a. Objections were filed to this draft of the charge numbered 1 to 10 inclusive, the first objection renewing by reference the former objections. These objections were filed bearing the following certificate of the trial judge: "Submitted and considered by the court and charge altered in several places to conform to above objections." The charge as given to the jury contains 13 numbered paragraphs, following which are several unnumbered instructions of an admonitory nature to which no further objections appear to have been made. Bill of Exception No. 12 sets forth that "it was understood and agreed that each of said objections would be considered as an objection to that part of the court's 798 charge to which it related when the court's charge was finally completed and read to the jury." It is further shown by this bill that exception was taken "to the action of the court in overruling such objections, and each of them which had not been cured." Appellant's original objections Nos. 20 to 23 inclusive were specifically directed to paragraph 14 of the court's charge. No such numbered paragraph appears in the charge as given, nor does the language appear in any unnumbered paragraph following paragraph 13 of the charge. From the brief of appellant, it is sought to apply such objections and exceptions to the language of numbered paragraph 12 of the charge. This court would not be authorized to apply the objections to other paragraphs of the charge to which no such objection was interposed. See Barkley v. State, 152 Tex.Cr.R. 376, 214 S.W.2d 287. In paragraph 11 of the charge, the jury was instructed as to the degree of mental impairment which would entitled appellant to an acquittal on the ground of insanity. Appellant objected to the last part of said paragraph of the charge reading as follows: " * * If, on the other hand, she was of sound mind, capable of reasoning and knowing the acts she was committing to be unlawful and wrong, and knowing the consequences of the act, and had the mental power to resist and refrain from evil, her plea of insanity would not avail her as a defense." The court did not err in thus stating the converse in connection with his explanation of appellant's defense of insanity. No question is raised as to the accuracy of the instruction both from the standpoint of appellant and of the state. The jury was entitled to as clear an explanation of the law as could be made, and the trial court appears to have endeavored to fully cover the difficult subject and to assist the jury in an understanding of the fact question to be passed upon by them. We are not impressed with the suggestion that undue emphasis was given to the burden case on appellant to prove her insanity by a preponderance of the evidence. Finding no error requiring a reversal and the evidence being deemed sufficient to support the jury's verdict, the judgment is affirmed. Opinion approved by the Court. On Appellant's Motion for Rehearing DAVIDSON, Commissioner. Appellant again presses upon us her contention that the evidence touching her insanity was such as requires us to overturn the contrary conclusion of the jury and hold that she was insane. This we are unwilling to do. While there is ample and sufficient evidence upon which the jury could have reached the conclusion that appellant was insane, there is also evidence sufficient to warrant the conclusion that she was sane at the time of the commission of the offense charged. Under such circumstances, the jury's findings will not be disturbed. In passing, it may be well to point out that in the cases of Ross v. State, 153 Tex. Cr.R. 312, 220 S.W.2d 137, and McGee v. State, Tex.Cr.App., 238 S.W.2d 707, not yet reported, each carrying the death penalty, the defense of insanity was strongly presented by the facts, and we there applied the same rule as here followed. Appellant again urges that the witness Cora Lee Jones should not have been permitted to testify that on October 6, 1949, the day of the killing, appellant knew it was wrong to kill a man. In connection with this contention, appellant argues that the witness had not seen the appellant or conversed with her for a period of six months prior to the time she fixed (October 6, 1949) as appellant's knowing that it was wrong to kill a man, and therefore a sufficient predicate was not shown to authorize the testimony. There is nothing in the bill of exception showing that appellant had not seen the *799 witness for the six-month period mentioned. As the objection appears in the bill, appellant was objecting to the witness expressing a general opinion that appellant knew it was wrong to kill a man. It was upon this theory that the matter was disposed of originally. The bill does not present for determination the question appellant now insists upon. The record has again been reviewed, and we remain convinced that reversible error is not reflected. The motion for rehearing is overruled. Opinion approved by the Court.	{ "pile_set_name": "FreeLaw" }
856 S.W.2d 453 (1993) Leonard WOODBERRY, Appellant, v. The STATE of Texas, Appellee. No. 07-92-0286-CR. Court of Appeals of Texas, Amarillo. April 16, 1993. Opinion Overruling Motion for Rehearing July 1, 1993. 454 Ron Hance, Lubbock, for appellant. Lubbock County Dist. Attorney's Office, Travis W. Ware, Michael West, Lubbock, for appellee. Before REYNOLDS, C.J., and BOYD and POFF, JJ. POFF, Justice. Appellant Leonard Woodberry appeals from a conviction of aggravated robbery. After appellant's motions to suppress were denied, he plead guilty to the offense and reserved the right to appeal the denial of his pre-trial motions. The court assessed punishment at seven years confinement in the Texas Department of Criminal Justice, Institutional Division and a $1,000 fine. Appellant challenges the trial court's denial of one of his motions to suppress in which he sought to exclude from evidence several items obtained in a search of his private room. In his first point of error, appellant contends that his arrest was illegal and that, therefore, the items obtained by police in their search of his room are fruits of the poisonous tree and inadmissible. In his second point of error, appellant argues that a search of his private room was not rendered permissible by a third party's consent. We will sustain point of error two, reverse the judgment of the trial court and remand the cause for a new trial. A brief recitation of the facts is necessary. At 9:39 p.m. on December 2, 1991, Officer Loyd Bullock of the Lubbock Police Department received a police radio dispatch that a robbery had just occurred at the Bolton Service Station located on the corner of 38th and Avenue Q in Lubbock. Bullock immediately drove to the area of 38th and Avenue P because the dispatcher had broadcast the fact that the robber was named David and lived in some apartments in that area. The robber was initially described as a black male wearing black sweats with something on his head covering his face. He was reportedly armed with a small black pistol. Bullock arrived in the area at 9:42 p.m. After driving around the area for about two minutes, Bullock stopped his car at the entrance to a parking lot located in the same block as the service station where the robbery occurred. Bullock testified that he stopped his car because he saw that a yellow Buick Regal was fixing to pull out of this drive area onto 38th Street. It had two black males in it. I was fixing to just go ahead and pull off. And at that time, Sergeant Sanders, which was at the crime scene, had started giving a description that there was two suspects instead of one.[1] He started giving a clothing description, so I started observing them. They was looking around. I couldn't tell if they was just extremely nervous or if they was just wanting to see what all was going on because there was police all over the area. But they started matching the clothing description, so I continued to watch them. Bullock testified that according to Sergeant Sanders' report, the two suspects were black. One was wearing gray sweats and 455 the other was wearing black sweats. When the two men pulled out of the parking lot, Bullock activated his blue and red emergency lights and pulled them over. Bullock then approached the vehicle along with Officer Scott Weems who was also in the area looking for suspects. Bullock noticed that the man in the passenger seat "had some quantity of currency bills sticking out from underneath his left leg and laying partially on the seat." He also observed that the passenger was spitting up phlegm and "was having an extremely hard time breathing, as if he had run quite a distance." Bullock testified that this led him to believe that the passenger had just been running in the cold (33 degree) weather. Bullock asked the men to wait in their car for "just a second" while he retreated slightly to receive an updated description of the robbers from Sergeant Sanders. Believing that he had stopped the robbers, Bullock suggested that the victim of the robbery be brought to where the suspects were stopped in order to identify them. Sergeant Sanders agreed to bring the victim to Bullock's location. Bullock then returned to the yellow Buick and asked the two occupants to step out. The two men obliged and a very short time later the robbery victim arrived. The victim, who had only seen one robber, identified the passenger of the vehicle, David Scott, as the person who had just robbed him. The police then placed both Scott and the driver of the vehicle under arrest. The driver of the vehicle was Leonard Woodberry, appellant in this case. Scott and appellant informed Officer Bullock and Sergeant Sanders that they both lived in a duplex at 1601 38th Street. While other police officers transported Scott and appellant to the police station, Bullock and Sanders proceeded to the duplex where they met Scott's wife at the door. The officers explained to Mrs. Scott what had happened and requested permission to "search the house for a pistol and any other evidence of the robbery." After telephoning her mother, Mrs. Scott consented to the search of the entire house by signing a consent-to-search form. Mrs. Scott informed the officers prior to their search that appellant lived in one bedroom of the duplex and that he paid a monthly rent for the room. Mrs. Scott also told the officers that she had access to clean and maintain appellant's room. The door to appellant's room was open when the officers arrived. Sergeant Sanders searched appellant's room while Officer Bullock searched the rest of the house. Although Bullock's search revealed nothing noteworthy, Sanders found a loaded .32 caliber Smith & Wesson revolver with black plastic grips placed haphazardly under the bed. Sanders also found a pair of white cotton socks underneath a pillow on the unmade bed. The socks were significant to Sanders because one of the suspects had been described by the robbery victim as having white socks on his hands. Sanders felt it was unusual for a pair of socks to be found under a pillow. Additionally, Sanders found a black sweatshirt in a chair just inside appellant's room. By virtue of his motion to suppress, appellant sought to exclude the gun, the socks and the shirt from evidence. The trial court denied appellant's motion. Our task is to review the propriety of the trial court's ruling. In his first point of error, appellant argues that his arrest was illegal and that, therefore, the items obtained in the search of his room are fruits of the poisonous tree and inadmissible. We find the arrest to have been legal but we need not expound upon this point for the legality of the arrest is of no moment in determining whether the trial court correctly denied appellant's motion to suppress. If, as the State contends, the arrest was constitutionally permissible, the police would still have had no right to search appellant's room without a warrant or without consent. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (search incident to arrest is limited to the arrestee's person and the area within his immediate control). Similarly, even if, arguendo, the arrest was in contravention of our state and federal constitutions, the police could still have obtained 456 consent to search appellant's room and such search would not have been a fruit of the poisonous tree. As explained in the seminal case of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the fruit-of-the-poisonous-tree doctrine excludes as direct evidence not only the direct products but also the indirect products of Fourth Amendment violations. However, evidence is not classified as a fruit requiring exclusion merely because it would not have been discovered "but for" the violation.[2] The Supreme Court has instructed that the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Id. at 488, 83 S.Ct. at 417. Voluntary consent to a search establishes that items obtained pursuant to such a search are not seized by exploitation of the illegal government action, but rather by means so attenuated from the illegal action as to dissipate the primary taint. United States v. Sheppard, 901 F.2d 1230, 1234 (5th Cir.1990); United States v. Fike, 449 F.2d 191, 193-94 (5th Cir.1971); State v. Fortier, 113 Ariz. 332, 553 P.2d 1206, 1209-10 (1976); People v. Sesslin, 68 Cal.2d 418, 67 Cal.Rptr. 409, 416, 439 P.2d 321, 328 (1968); State v. Kennedy, 290 Or. 493, 624 P.2d 99, 103-04 (1981). "Notwithstanding an illegal arrest, one of the recognized exceptions to the requirement of both a warrant and probable cause for a valid search is a search authorized by consent freely and voluntarily given." Myers v. State, 680 S.W.2d 825, 827 (Tex.App.-Amarillo 1984, pet. ref'd) (emphasis added). See also Juarez v. State, 758 S.W.2d 772, 776 (Tex.Crim. App.1988). The dispositive question before us in this appeal is whether the police received valid consent to search appellant's private room. Accordingly, we move on to a discussion of appellant's second point of error. It is well settled that a search violates no federal or state constitutional strictures if it is conducted pursuant to effective consent. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854, 860 (1973); Kolb v. State, 532 S.W.2d 87, 89 (Tex.Crim.App. 1976). It is equally well established that the burden is on the prosecution to show by clear and convincing evidence that the consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797, 802 (1968); Kolb v. State, 532 S.W.2d at 89. The question of whether a consent to search was voluntary is to be determined from the totality of all the circumstances. Kolb v. State, 532 S.W.2d at 90. In the instant case, appellant does not contend that the consent to search given by Mrs. Scott was anything other than freely and voluntarily given. Rather, appellant argues that Mrs. Scott "did not have authority to consent for [appellant] to the search of that portion of the residence devoted to his exclusive use." We agree. In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the constitutional validity of third-party consent searches was affirmed: [W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed authority over or other sufficient relationship to the premises or effects sought to be inspected. Id. at 171-72, 94 S.Ct. at 993 (emphasis added). In a footnote, the Court declared that the authority justifying third-party consent rests on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the coinhabitants 457 has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. Id. at 171 n. 7, 94 S.Ct. at 993 n. 7 (emphasis added). In the case at bar, the State has failed to show by clear and convincing evidence that Mrs. Scott possessed authority over appellant's room sufficient to consent to its search. Mrs. Scott had access to the room only for the purpose of cleaning. It can in no way be said that Mrs. Scott had joint access or control over appellant's room "for most purposes." The relationship between Mrs. Scott and appellant is analogous to the relationship between a hotel maid and a hotel occupant. "[W]hen a person engages a hotel room he undoubtedly gives implied or express permission to such persons as maids, janitors or repairmen to enter his room in the performance of their duties." Stoner v. California, 376 U.S. 483, 489, 84 S.Ct. 889, 11 L.Ed.2d 856, 861 (1964). However, the owner or manager of the hotel has no such permission to enter the room, and thus an owner or manager may not validly consent to the search of the guest's room. Id. at 487-89, 84 S.Ct. at 891-92. Similarly, a landlord has no authority to consent to a search of premises occupied by a tenant. Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961). Mrs. Scott stands in the same position as the hotel manager and the landlordshe had no authority to validly consent to a search of appellant's room. "[T]he rights protected by the Fourth Amendment are not to be eroded by strained applications of the law of agency or by unrealistic doctrines of `apparent authority.'" Stoner v. California, 376 U.S. at 488, 84 S.Ct. at 892. This record does not show that the search of appellant's private room was conducted pursuant to valid consent. The trial court erred in denying appellant's motion to suppress evidence obtained by the police in their unconstitutional search of appellant's room. Point of error two is sustained. The judgment of the trial court is reversed and the cause is remanded for a new trial. ON MOTION FOR REHEARING In its motion for rehearing, the State contends that we erred in holding that the trial court erred in denying appellant's motion to suppress. Additionally, the State contends that even if the court erred in denying the motion to suppress, the error was harmless. We have considered the State's motion and the appellant's reply and based on the following rationale, the motion will be overruled. On rehearing, the State argues we incorrectly concluded that Ms. Scott, the lady from whom appellant rented his room, had access to his room "only for the purpose of cleaning." The State contends there was evidence before the trial court that Ms. Scott had "complete access" to appellant's room. Under the State's reading of the record, the evidence of "complete access" refutes the appellant's evidence that Ms. Scott only entered his room to clean. Therefore, the State contends there was a conflict in the evidence and this Court should have accepted the trial court's finding that Ms. Scott was authorized to consent to the search of appellant's room. Thus, the State concludes, we erred in not affirming the granting of the motion to suppress. Once again, we read the record differently than does the State. We find no factual evidence from the State that Ms. Scott had "complete access" to appellant's room. In its motion for rehearing, the State concedes that even though Ms. Scott was free to enter appellant's room at any time, as a practical matter she only did so to clean. The State contends that Ms. Scott revealed these matters via Officer Bullock, one of the officers who conducted the search of appellant's room.[1] In answer to the State's inquiry, Officer Bullock testified: Q. "Okay. And did Ms. Moore (Scott) have complete access to that room?" A. "She advised us that she did." 458 This inquiry reveals the State was aware of the necessity for showing Ms. Scott's equal control of appellant's room. The answer however, fails to give a factual basis for the conclusion and opinion that Ms. Scott had "complete access" to appellant's room. We fail to find such a bare conclusion to be an evidentiary basis for a finding of control. A more revealing question and a response more evidentiary in nature was propounded to Officer Bullock by appellant's counsel: Q. "You did hear her (Ms. Scott) say to Officer Saunders that I have the right or I do go in and clean up the room occasionally, did she not?" A. "Yes sir." At the motion to suppress hearing, the appellant consistently denied that Ms. Scott had an equal right to use or occupy his room. While there was evidence Ms. Scott had access to clean appellant's room "when she got ready", such access can not be deemed to be an equal right or sufficient joint control to enable her to consent to a search of appellant's room. Having found the court erred in denying the motion to suppress, we address the State's contention that the error was harmless under Rule 81(b)(2) of the Texas Rules of Appellate Procedure. In its motion for rehearing, the State contends that even if the trial court erred in denying appellant's motion to suppress, such error was harmless. The State argues that the trial court's denial of appellant's motion to suppress was harmless because following the denial, appellant pleaded guilty to the offense charged. In compliance with Tex.Crim.Proc.Code Ann. art. 1.15 (Vernon Supp.1993), the State offered sufficient proof to support the plea by means of appellant's judicial confession. The State did not have to offer the evidence taken from appellant's room to show appellant's guilt. Therefore, the State contends that any error in denying appellant's motion to suppress the items taken from his room was harmless. We do not agree. As recognized in Morgan v. State, 688 S.W.2d 504 (Tex.Crim.App.1985), when a defendant's motion to suppress evidence is denied, his subsequent judicial confession is literally a fruit of the contested search or seizure. Id. at 507 n. 2. A judicial confession given after the denial of a motion to suppress will not bar an appellate court from reaching the merits of a defendant's claim that the denial was erroneous. Id. at 507. If the appellate court finds that the trial court erred in denying the defendant's motion to suppress, it must be determined whether the evidence sought to be suppressed "has somehow been `used' in securing the defendant's conviction." McKenna v. State, 780 S.W.2d 797, 799 (Tex.Crim.App.1989). If so, the erroneous denial is harmful error. In McKenna, the Court of Criminal Appeals noted that a trial court's denial of a defendant's motion to suppress evidence "undoubtedly contributes in some measure to the State's leverage in the plea bargaining process [because] the more relevant evidence [the defendant] knows [can] be marshalled against him, the more preferable would appear his option to relinquish constitutional rights of trial and confrontation in exchange for a favorable punishment recommendation." Id. at 799 (quoting Kraft v. State, 762 S.W.2d 612, 614 (Tex.Crim.App.1988)). In such a situation it may be presumed that the State has "used" the contested evidence to obtain the defendant's plea. Id. In the present case, the State obtained a ruling that the gun, socks, and sweatshirt appellant sought to suppress would be admissible at trial. We find that the trial court's ruling "undoubtedly contributed in some measure to the State's leverage in the plea bargaining process", id., and may well have contributed to appellant's decision to relinquish his rights and plead guilty. In our view, the evidence sought to be suppressed was "used" in obtaining appellant's confession. Accordingly, it can in no wise be said that the trial court's error in denying appellant's motion to suppress was harmless. See TEX.R.APP.P. 81(b)(2) ("If the appellate record in a criminal case reveals error in the proceedings below, the 459 appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or the punishment"). Finding that the court committed error in denying the motion to suppress and having found that the error was not harmless, we overrule the motion for rehearing. NOTES [1] A witness other than the victim had provided information that the actual robber was accompanied by another black male. [2] In this case, but for the arrest of appellant and Scott, the police would not have learned where appellant and Scott lived. Without such knowledge, the police obviously would not have known to go to their duplex and seek consent to search. [1] Ms. Scott did not testify on behalf of the State.	{ "pile_set_name": "FreeLaw" }
In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-573V (not to be published) ************************* ROGER GREEN, Executor, ESTATE * OF LINDA MAE GREEN, * * Special Master Corcoran * Petitioner, * Filed: April 23, 2018 * v. * * Decision by Stipulation; Damages; SECRETARY OF HEALTH * Influenza (“flu”) Vaccine; AND HUMAN SERVICES, * Transverse Myelitis (“TM”). * Respondent. * * ************************* Edward M. Kraus, Law Offices of Chicago Kent, Chicago, IL for Petitioner. Daniel Principato, U.S. Dep’t of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On April 27, 2017, Roger Green filed a petition on behalf of Linda Mae Green seeking compensation under the National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner alleges that Ms. Green suffered from transverse myelitis (“TM”), ultimately leading to quadriplegia, respiratory failure, stroke, and death, as a result of her September 3, 2015 influenza 1 Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the Court of Federal Claims’s website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This means the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa- 12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision in its present form will be available. Id. 2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”). (“flu”) vaccine. Petitioner further alleges that Ms. Green has experienced the residual effects of this condition for more than six months. Respondent denies that the flu vaccine caused Ms. Green’s TM or any other injury. Nonetheless both parties, while maintaining their above-stated positions, agreed in a stipulation (filed on April 20, 2018)3 that the issues before them could be settled, and that a decision should be entered awarding Petitioner compensation. I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation (as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein. The stipulation awards:  A lump sum of $410,000.00, in the form of a check payable to Petitioner. Stipulation ¶ 8. This amount represents compensation for all damages that would be available under Section 15(a) of the Act. I approve a Vaccine Program award in the requested amount set forth above to be made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the Court is directed to enter judgment herewith.4 IT IS SO ORDERED. /s/ Brian H. Corcoran Brian H. Corcoran Special Master 3 The Stipulation was initially misfiled as a Proffer. See ECF No. 21. 4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately) a notice renouncing their right to seek review. 2	{ "pile_set_name": "FreeLaw" }
500 F.2d 1401 U. S. ex rel. Foganv.Commonwealth of Pennsylvania 74-1152 UNITED STATES COURT OF APPEALS Third Circuit 7/31/74 1 E.D.Pa. FACATED AND REMANDED	{ "pile_set_name": "FreeLaw" }
NO. 12-11-00233-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS PATRICK DWAYNE PINKARD, § APPEAL FROM THE 114TH APPELLANT V. § JUDICIAL DISTRICT COURT THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS MEMORANDUM OPINION PER CURIAM Appellant pleaded guilty to credit card or debit card abuse, and the trial court assessed punishment at imprisonment for five years. We have received the trial court’s certification showing that Appellant waived his right to appeal. See Tex. R. App. P. 25.2(d). The certification is signed by Appellant and his counsel. Accordingly, the appeal is dismissed for want of jurisdiction. Opinion delivered August 10, 2011. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. (DO NOT PUBLISH)	{ "pile_set_name": "FreeLaw" }
219 F.2d 708 UNITED STATES of America, Appellant,v.Bennett GOLDBERG. No. 15232. United States Court of Appeals, Eighth Circuit. Jan. 6, 1955. Appeal from the United States District Court for the District of Minnesota. George E. MacKinnon, U.S. Atty., and Alex Dim, Asst. U.S. Atty., St. Paul, Minn., for appellant. Simon Meshbesher and Philip J. Stern, Minneapolis, Minn., for appellee. PER CURIAM. 1 Appeal from District Court, 123 F.Supp. 385, dismissed on stipulation of parties.	{ "pile_set_name": "FreeLaw" }
r . OR?*'EY GENERAL FTF,XAS ArmTIN. TICXAR 78711 October 19, 1972 Honorable Joe Resweber Opinion No.M-1240 County Attorney Harris County Courthouse Re: Whether vehicle license re- Houston, Texas 77002 ceipts are public records to be kept by the County Tax Assessor-Collector, and re- Dear Mr. Resweber: lated questions. In your recent opinion request, accompanied by an able brief, you asked two questions regarding the duties of the Harris County Tax Assessor-Collector in the handling and disposition of copies of vehicle license receipts issued by that office. Specifi- cally you asked: "1 . Is the County Tax Office required to keep these records, and if so, for what length of time? "2 . If these records are not required, but maintained for auditing purposes only, are they public records and is the county tax office re- quired to furnish information by telephone to per- sons seeking the ownership of automobiles?" In the case of Noqueria v. State, 59 S.W.2d 831 (Tex. Crim. 1933), the court cites many definitions of "record" and "public record", including the following: "'Record,' in its broadest sense is a memo- randum public or private, of what has been done, ordinarily applied to public records only, in which sense it is a written memorial made by a public officer." 11. . . the term 'record' is ordinarily ap- plied to public records only, in which sense a record is a written memorial made by a public official authorized by law to perform that function and intended to serve as something written, said, or done." -6071- Hon. Joe Resweber, page 2 (M-1240) The county tax assessor is a public official, elected under the authority of the Texas Constitution, Article VIII, Sections 14 and 16, by the people of his county. He is authorized to collect fees for and to issue vehicle license receipts under Articles 6675a-2, et seq.? Vernon’s Civil Statutes. Each copy of a vehicle license receipt he makes is “a written memorial made by a public official authorized by law to perform that function . . .” Harris County, like many counties crowded for space, has most of its public records on microfilm. Article 6574b Vernon’s Civil Statutes, provides for the photographic duplica- tion of public records and the destruction of the records. Section 4 of Article 6574b reads: “Sec. 4. Said photographic duplicates of all public records shall be placed in conveniently acces- sible files and provisions shall be made for pre- serving safekeeping, using, examining, exhibiting, projecting and enlarging the same whenever requested during regular office hours. Whenever photographic duplicates of public records are so made, certified and placed, the original public records may be, by order of the Commissioners Court of the county, or of the governing body of any political subdivision of Texas, destroyed or otherwise disposed of, pro- vided, however, that no original record shall be destroyed or otherwise disposed of unless or until the time for filing legal proceedings based on any such record shall have elapsed, and, in no event, shall any original public record be destroyed or otherwise disposed of until said public record is at least five (5) years old; and provided further, that notice of such proposed destruction or dis- position of original public records are, in his opinion, needed for the Texas State Library, they shall be transferred thereto in the manner provided in Article 5439, Revised Civil Statutes, 1925.” Attorney General’s Opinion W-793 (1960) has interpreted Section 4 as follows: “It is therefore the opinion of this De- partment that the provision in Article 6574b that no original records may be destroyed until the ‘time for filing legal proceedings based on -6072- Hon. Joe Resweber, page 3 (M- 1240) any such record shall have elapsed’ is not con- trolling in relation to this statute and that original public records, other than any deed record, deed of trust record, mechanic’s lien record or any minute book of any court, or any minute book of any political subdivision of Texas , may be destroyed according to Article 6574b! when the following conditions have been complied with: (1) when in the judgment of the Commissioners’ Court or other governing bodies a necessity exists; (2) when the records have been properly duplicated in a manner set out in said statute; (3) when said public records are five (5) years old; and (4) when notice of said destruction is given the State Librarian, and if such records are, in his opinion, not needed for the Texas State Library.” Thus the length of time the county tax office must keep the motor vehicle license receipts records is fives (5) years. Question two considers the furnishing of information by telephone to persons seeking the ownership of automobiles. The leading Casey repo~rted in Texas upon the subject of the rights of the citizens of a state to inspect the records of the state or county is Palacios, et al. v. Corbett, et al., 172 S.W. 777 (Tex.Civ.App.Ie San Antonio Court of Appeals applied the common law upon this subject as the law in Texas (Art. 1, V.C.S.). This case has been followed by this office in Attorney General’s Opinions O-854 (1939), O-2044 (194,0), and O-3591 (1941), which last opinion reads in part as follows: 11. . . if the reports or records are not confidential, but on the other hand are of a public nature, private citizens or their duly appointed representatives have a right to in- spect such of the records as they have an interest in. This right, of course, is subject to limita- tion imposed by the Legislature in enacting the subject laws. We do have instances in which the Legislature has specifically limited the authority to examine or copy records required of individuals, partnerships, or corporations, such as the records of the Texas Unemployment Compensation Commission.” -6073- Hon. Joe Resweber, page 4 (M-1240) In examining the statutes pertaining to motor vehicle license receipts, we find no provision making these records con- fidential or protecting them from examination or observation by interested persons. We do find in Article 6574b, Sec. 4, that examination of photographic duplicates of all public records "shall be . . . whenever requested during regular office hours . . . . It and as we have held in the above cited opinions, examina- tions must be made at reasonable hours and without interfering in the normal operation of the office. We find no authority requiring or empowering the county tax office to give any information over the telephone to anyone calling and requesting information on the ownership of automobiles. It would appear, however, that this information could be given at the discretion of the tax office as a matter of courtesy to the public. SUMMARY The county tax office's motor vehicle license receipt records are public records and must be pre- served for five years under the law. These records may be examined at the tax office during reasonable hours or regular office hours by interested per- sons. Information from these records requested by telephone can be given at the discretion of the tax office as a matter of courtesy to the public but the tax office is not required to provide this service. Ve truly yours, Prepared by Linda Neeley Assistant Attorney General APPROVED: OPINION COMMITTEE -6074- . , Hon. Joe Resweber, page 5 (M-1240) Kerns Taylor, Chairman W. E. Allen, Co-Chairman Ben Harrison Jim Swearingen Austin Bray James Hackney SAMUEL D. MCDANIEL Staff Legal Assistant ALFRED WALKER Executive Assistant NOLA WHITE First Assistant -6075-	{ "pile_set_name": "FreeLaw" }
141 S.W.3d 706 (2004) Kristin Terk BELT and Kimberly Terk Murphy as the Joint Independent Executrixes of the Estate of David B. Terk, Deceased, Appellants, v. OPPENHEIMER, BLEND, HARRISON & TATE, INC., Glen A. Yale, J. David Oppenheimer, and Kenneth M. Gindy, Appellees. No. 04-03-00832-CV. Court of Appeals of Texas, San Antonio. June 16, 2004. Barry Snell, Bayne, Snell & Krause, L.L.P., San Antonio, for appellants. David M. Winters, Texas RioGrandel Legal Aid, Inc., Mark J. Cannan, David Stephenson, Clemens & Spencer, P.C., San Antonio, for appellees. Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, and KAREN ANGELINI, Justice. OPINION CATHERINE STONE, Justice. This is a legal malpractice action brought by the independent executrixes of the estate of David Terk, deceased, against the law firm and attorneys who provided estate planning services to Terk during his lifetime. The trial court granted summary judgment in favor of the attorneys without stating the grounds for judgment. We hold that the independent executrixes of David Terk's estate have no cause of action against the attorneys due to a lack of privity; thus, we affirm the trial court's judgment. 707 BACKGROUND Kristin Terk Belt and Kimberly Terk Murphy (the "Terks") are the joint executrixes of the estate of their deceased father, David Terk. They brought this legal malpractice action against attorneys Glen Yale, David Oppenheimer, and Kenneth Gindy and their law firm Oppenheimer, Blend, Harrison, and Tate, Inc. (collectively "the Attorneys"), contending the firm negligently advised their father regarding his estate plan and negligently drafted their father's will. The Terks claim their father's estate incurred more than $1.5 million in additional estate taxes because of the Attorneys' negligent acts. The Attorneys moved for summary judgment, arguing the Terks' malpractice claim suffers a fatal defect the Terks were not in privity with the Attorneys and thus could not establish the duty requisite to a legal malpractice claim. The trial court granted the Attorneys' motion and the Terks appealed. STANDARD OF REVIEW We review a trial court's summary judgment ruling under a de novo standard of review. Valores Corporativos, S.A. de C.V. v. McLane Co., 945 S.W.2d 160, 162 (Tex.App.-San Antonio 1997, writ denied). We will uphold a traditional summary judgment only when there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Tex. Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240, 252 (Tex.2002). In reviewing a traditional motion for summary judgment, we resolve every doubt and indulge every reasonable inference in the nonmovant's favor. Id. All evidence favorable to the nonmovant will be taken as true. Id. DISCUSSION The Terks contend the trial court erred by granting the Attorneys' summary judgment motion because the court based its decision upon a case that was wrongly decided by this court, Estate of Arlitt v. Paterson, 995 S.W.2d 713 (Tex.App.-San Antonio 1999, pet. denied). In Estate of Arlitt, the personal representative of the estate of William Arlitt brought a legal malpractice claim against the attorneys who provided Arlitt estate planning services before his death. 995 S.W.2d at 717. The attorneys responsible for providing the estate planning services subsequently filed a motion for summary judgment, arguing the personal representative was not in privity with the attorneys and thus could not establish the duty requisite to a malpractice claim. Id. The trial court granted the attorneys' motion and we affirmed based on a lack of privity. Id. at 720. We reasoned that no malpractice cause of action accrued prior to Arlitt's death because the injuries to Arlitt's estate arose after Arlitt's death; consequently, there was no cause of action to which the estate could succeed. Id. We stated that "the only legal malpractice cause of action [one] might pursue in her capacity as personal representative is one that accrued in favor of the estate after [testator's] death." Id. Because we determined the summary judgment evidence conclusively established the attorneys did not represent the personal representative in her capacity as personal representative of Arlitt's estate, we concluded it was proper for the trial court to render judgment against the personal representative on the legal malpractice claim brought by her in her capacity as personal representative. Id. In our analysis in Estate of Arlitt we noted that Barcelo v. Elliott, 923 S.W.2d 575 (Tex.1996) required us to hold as we did. See id. In Barcelo, the supreme court considered the issue of whether an attorney who negligently drafts a will or trust agreement owes a duty of care to persons intended to benefit under the will 708 or trust, even though the attorney never represented the intended beneficiaries. Barcelo, 923 S.W.2d at 576. The court held that the attorney owed no duty to the beneficiaries because the attorney did not represent the beneficiaries. Id. The court reasoned that "the greater good is served by preserving a bright-line privity rule which denies a cause of action to all beneficiaries whom the attorney did not represent. This will ensure that attorneys may in all cases zealously represent their clients without the threat of suit from third parties compromising that representation." Id. at 578-79. Although Barcelo does not directly concern the issue of whether a personal representative of an estate can maintain a malpractice action against a testator's attorneys, we nevertheless determined the supreme court's rationale in that case applied to the personal representative issue before us in Estate of Arlitt. See Estate of Arlitt, 995 S.W.2d at 720. In the case at bar, the Terks have asked this court to reconsider our holding in Estate of Arlitt, urging us to adopt the holding of our sister court in Traver v. State Farm Mutual Auto. Insurance Co., 930 S.W.2d 862 (Tex.App.-Fort Worth 1996), rev'd on other grounds, 980 S.W.2d 625 (Tex.1998). In Traver, Mary Davidson was involved in an automobile accident with another driver. 930 S.W.2d at 865. The passenger of the other vehicle sued Davidson and was awarded $375,000 in damages by the jury. Id. at 865-66. Davidson died shortly after her trial. Id. at 866. The executor of Davidson's estate subsequently brought suit against Davidson's insurer, State Farm, alleging the attorney hired by the company to defend Davidson in the personal injury suit committed malpractice during the course of his representation. Id. at 870. The trial court granted summary judgment in State Farm's favor. Id. at 866. The executor of Davidson's estate appealed. Id. On appeal, State Farm argued that Davidson's negligence action did not survive because legal malpractice claims are not assignable. Id. at 871. The court of appeals, however, disagreed: We see no reason why an estate that has been injured or depleted by the wrong of another should not be compensated whether the injured party is living or not. Allowing a legal malpractice claim to survive the death of either the client or the attorney does not violate the sanctity of the attorney-client relationship or commercialize legal malpractice lawsuits. Id. Accordingly, the court held that a legal malpractice cause of action survives the death of either party and can be prosecuted by the client's estate representative. Id. Although the Terks believe that Traver is instructive on the issue before us, we cannot agree. Traver is factually distinguishable from the case at bar. The malpractice action in Traver accrued during the lifetime of the decedent, whereas the malpractice action in our case accrued after David Terk's death. See Estate of Arlitt, 995 S.W.2d at 720 (reasoning that no malpractice cause of action accrued prior to Arlitt's death because the injuries to Arlitt's estate arose after Arlitt's death). Moreover, the Traver court failed to reconcile its holding with that of the supreme court in Barcelo. Consequently, we are not compelled to overrule Estate of Arlitt based on our sister court's holding in Traver. We recognize that the Terks have also raised several policy arguments in support of their position; however, such arguments have been adversely answered by the supreme court in Barcelo. It is a tenet of our judicial system that we, as an intermediate appellate court, are bound by *709 pronouncements of the supreme court, even though we may entertain a contrary opinion. Because we are confined to follow the dictates of Barcelo in this instance, the Terks' sole issue is overruled. CONCLUSION The judgment of the trial court is affirmed.	{ "pile_set_name": "FreeLaw" }
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 11 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT PAUL SCHWARTZ, No. 17-17166 Plaintiff-Appellant, D.C. No. 4:14-cv-02013-JAS v. MEMORANDUM* OFELIA TATAD; et al., Defendants-Appellees. Appeal from the United States District Court for the District of Arizona James Alan Soto, District Judge, Presiding Argued and Submitted November 13, 2019 Pasadena, California Before: GRABER, BERZON, and CHRISTEN, Circuit Judges. Paul Schwartz appeals from the district court’s dismissal and grant of summary judgment on his claims under the Eighth Amendment that prison administrators and medical professionals were deliberately indifferent in treating serious illnesses he experienced while incarcerated. Estelle v. Gamble, 429 U.S. 97, 104–06 (1976). We affirm in part and reverse in part. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. We have jurisdiction over the appeal of the order dismissing four of the defendants—Kate Adkins, Ann Ash, Becky Clay, and Christopher Lamb. Schwartz designated the district court’s “order granting Summary Judgment and Judgment filed on September 26, 2017” as the subject of his appeal. The final judgment encompassed the district court’s earlier dismissal order. See Fed R. Civ. P. 54(b) (establishing that a district court must ordinarily enter final judgment only once for all parties). 2. The district court appropriately dismissed Schwartz’s claims against those four defendants without prejudice under 28 U.S.C. § 1915A. Although district courts must give pro se plaintiffs “the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted), Schwartz’s filings were too vague to state a plausible claim. As the dismissal was without prejudice, on remand Schwartz can seek leave to amend his claims against Clay and Lamb, the warden and associate warden of FCI Tucson. “Leave to amend should be granted if it appears at all possible that the plaintiff can correct the defect.” Lopez v. Smith, 203 F.3d 1122, 1130–31 (9th Cir. 2000) (en banc) (citation omitted). This principle has particular force for pro se plaintiffs. Id. There is at least some evidence in the record as developed after the district court dismissed the four defendants that Clay and Lamb “knew of the violations [alleged by Schwartz] and failed to act to prevent them.” Taylor v. List, 2 880 F.2d 1040, 1045 (9th Cir. 1989). In particular, Schwartz repeatedly emailed both Clay and Lamb to tell them that he was not receiving care. 3. We reverse the grant of summary judgment for Ofelia Tatad. Throughout much of Schwartz’s time at FCI Tucson, Tatad was Schwartz’s frontline care provider. Delays in providing treatment can constitute deliberate indifference where the delay causes suffering. See Wilhelm v. Rotman, 680 F.3d 1113, 1122–23, 1123 n.8 (9th Cir. 2012). According to Schwartz, Tatad repeatedly failed to record his visits to FCI Tucson’s clinic or refer him for further care, even though he reported—and was documented as having—serious symptoms, such as tachycardia and blood in his urine. As a result, viewing the current record most favorably to Schwartz, a jury could find that Tatad “den[ied], delay[ed] or intentionally interfere[d] with [Schwartz’s] medical treatment.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citation omitted). 4. The district court correctly granted summary judgment in favor of Thomas Longfellow, FCI Tucson’s medical director. Longfellow never treated Schwartz. To be responsible for an Eighth Amendment violation, Longfellow, like Clay and Lamb, had to “kn[o]w of the violations [Schwartz endured] and fail[] to act to prevent them.” Taylor, 880 F.2d at 1045. Although Longfellow periodically reviewed Schwartz’s care and signed off on certain procedures, there is no evidence that Longfellow ever knew of or deliberately disregarded any violations 3 of Schwartz’s constitutional rights. As chair of the Utilization Review Committee, Longfellow denied two requests for specialty consultations. But, rather than repeated denials of specialty care requests,1 see Snow v. McDaniel, 681 F.3d 978, 987, 989 (9th Cir. 2012), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc), these were isolated denials that, on their own, say nothing about Longfellow’s responsibility for any injurious delays in Schwartz’s treatment. AFFIRMED in part; REVERSED in part. 1 In fact, Schwartz saw one of the specialists a month after the initial request was denied. 4	{ "pile_set_name": "FreeLaw" }
285 F.2d 764 HENRY BROCH AND COMPANY, a copartnership consisting of Henry Broch and Oscar Adler, Petitioners,v.FEDERAL TRADE COMMISSION, Respondent. No. 12305. United States Court of Appeals Seventh Circuit. November 3, 1960. Frederick M. Rowe, Washington, D. C., Harold Orlinsky and Fred Herzog, Chicago, Ill., for petitioner. Alan B. Hobbes, Asst. Gen. Counsel, Federal Trade Commission, Washington, D. C., for respondent. Before HASTINGS, Chief Judge, and DUFFY and SCHNACKENBERG, Circuit Judges. PER CURIAM. 1 The court having considered the motion of Henry Broch and Company, petitioners, for leave to file a reply to respondent's answer, it is hereby ordered that said leave is hereby granted. 2 And the court having considered the motion of said petitioner to set aside or modify Commission order for reasons not considered in original opinion, respondent's answer thereto, and petitioners' reply to said answer, it is hereby ordered that petitioners' said motion be and the same is hereby denied. 3 On the Court's own motion it is hereby ordered that the order of the Commission is hereby amended and modified in the following respects: Strike from the order of the hearing examiner, appearing on pages 194 and 195 of the joint appendix herein, which was adopted as the decision of the Commission, in its final order shown on page 197 of said joint appendix, the following language: 4 "or any other seller principal," 5 "or to any other buyer," 6 "or any other seller principal," 7 "or to any other buyer," 8 It is further ordered that the order of the Commission, as so amended and modified, be affirmed, 261 F.2d 725.	{ "pile_set_name": "FreeLaw" }
442 F.2d 1176 Eugene E. WELLS, Plaintiff-Appellant,v.ORDER OF RAILWAY CONDUCTORS AND BRAKEMEN et al., Defendants-Appellees. No. 18463. United States Court of Appeals, Seventh Circuit. May 13, 1971. Harold A. Sanford, Jr., Eugene E. Wells, Antonow, Fink, Gunther & Epstein, Chicago, Ill., for appellant. Burke Williamson, Jack A. Williamson, Chicago, Ill., for appellees; Adams, Williamson & Turney, Chicago, Ill., of counsel. Before HASTINGS, Senior Circuit Judge, and KILEY and KERNER, Circuit Judges. HASTINGS, Senior Circuit Judge. 1 Plaintiff Wells, a discharged railway conductor, brought this action for damages in the United States District Court pursuant to the provisions of the Railway Labor Act, Title 45, U.S.C.A. § 151 et seq. The complaint charged the defendant labor organizations1 with failure to represent Wells fairly in the enforcement of a collective bargaining agreement and with neglect in the prosecution of his claim for reinstatement before the National Railroad Adjustment Board. In the alternative, he sought damages from defendant Chicago, Rock Island and Pacific Railroad Company for its allegedly wrongful discharge of him. 2 The railroad was dismissed as a party defendant by stipulation. Thereafter, plaintiff filed an amended complaint realleging the misconduct by the labor organizations and seeking damages against them. Defendants moved to dismiss the amended complaint. From an order granting such motion, D.C., 308 F. Supp. 397, plaintiff appeals. We affirm. 3 According to the alleged and stipulated facts, appellant Wells was employed as a conductor by the Chicago, Rock Island and Pacific Railroad Company until his discharge in October, 1964, for alleged rules infractions. Conductors employed by the railroad were, and had been since a certification election in 1959, represented for purposes of collective bargaining under the Railway Labor Act, supra, by the Brotherhood of Railroad Trainmen. Prior to the certification of the Brotherhood of Railroad Trainmen, the conductors were represented by the Order of Railway Conductors and Brakemen. 4 At the time of his discharge, Wells was an active member in good standing of Local # 106 of the Order of Railway Conductors and Brakemen which was affiliated with the Rock Island Lines Order of Railway Conductors and Brakemen General Committee of Adjustment and the national Order of Railway Conductors and Brakemen. As part of its free service to members, the ORCB undertook the prosecution of Wells' grievance of wrongful discharge against the railroad. After bargaining with the ORCB, the railroad refused to reinstate him on May 19, 1965.2 5 The ORCB then informed Wells that it would continue to prosecute his grievance by submitting it to the National Railroad Adjustment Board (NRAB). It failed to file his claim with the NRAB as promised within the time limit provisions of the collective bargaining agreement, one year. 6 In October, 1967, Wells retained private counsel who filed a claim with the NRAB for reinstatement, with back pay, to the employ of the railroad.3 Thereafter, he instituted this action against defendant unions. 7 The ORCB moved to dismiss appellant's amended complaint alleging that the court lacked jurisdiction over the subject matter, that the service of process was insufficient and that the complaint failed to state a claim upon which relief could be granted. In a well considered memorandum opinion, the district court held "that the ORCB as a minority union had no duty grounded in the Railway Labor Act to fairly represent its member in a grievance dispute" and ordered the complaint dismissed for want of jurisdiction over the subject matter. 8 Arguing from our recent recognition of the right under the Railway Labor Act of employees to be represented in their grievances by a minority union, McElroy v. Terminal Railroad Association, 7 Cir., 392 F.2d 966 (1968), cert. denied, Brotherhood of Locomotive Engineers v. McElroy, 393 U.S. 1015, 89 S. Ct. 610, 21 L.Ed.2d 559 (1969), appellant contends that a minority union owes members for whom it processes grievances the same duty of fair representation under the Act as does a majority union. If this contention is correct, a complaint alleging a breach of that duty invokes federal jurisdiction pursuant to Title 28 U.S.C.A. § 1337.4 9 It is well established that majority unions under the Railway Labor Act owe a statutory duty of fair representation to railway employees. In the leading case of Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944), the Supreme Court was confronted with an allegation that a majority union, purporting to act as the representative of the entire craft of firemen, notified the railroad and successfully bargained to amend an existing collective bargaining agreement to ultimately exclude all Negro firemen from the service. Likening the powers conferred upon the exclusive bargaining representative under the Act to those possessed by a legislative body and imposing "the duty to exercise fairly the power conferred upon it in behalf of all those for whom it acts, without hostile discrimination against them," id. at 203, 65 S.Ct. at 232, the Court held such allegations were sufficient to state a cause of action against the union.5 10 The Court extended the duty of fair representation to include not only the negotiation of collective bargaining agreements, but also the administration of such agreements in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The majority union therein allegedly refused to protect Negroes from wrongful discharge under the collective bargaining agreement although it undertook the prosecution of similar grievances for its white employees. The Court, noting that the Railway Labor Act had conferred great power and protection on majority unions and that individuals or small groups of employees could not possess the bargaining power of the majority in the presentation of grievances, held the allegations sufficient to state a federal cause of action. Id. at 47, 78 S.Ct. at 99.6 11 The rationale of such cases is that in order to shield employees from arbitrary acts of an exclusive bargaining agent statutorily clothed with broad authority and protection, there must be a concomitant statutory responsibility of fair representation to all employees subject to its power. Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 11 L. Ed.2d 370 (1964). As the Court stated in Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842 (1967): 12 "* * * [T]he 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." (Emphasis supplied.) 13 Thus, the duty of fair representation flows from the majority union's status as a statutorily recognized exclusive bargaining agent. 14 Appellant urges, however, that the recent decisions of McElroy v. Terminal Railroad Association, supra, and Brotherhood of Locomotive Engineers v. Denver & Rio Grande Western Railroad Co., 10 Cir., 411 F.2d 1115 (1969), establish that, insofar as grievances are concerned, a minority union has coextensive rights and authority with a majority union and, therefore, a coextensive duty. 15 In McElroy, supra, we relied on Elgin, Joliet and Eastern Railway Co. v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945), in holding that an employee may designate a minority union to represent him before the National Railway Adjustment Board. The Supreme Court in Burley, supra, determined that, absent an intention by Congress to nullify such rights, individual employees have the statutory right to present their grievances before the Board. We reasoned that the individual's right to be represented before the Board by his designee, a minority union, likewise, could not be nullified unless Congress clearly intended such consequences. Following our decision in McElroy, the Tenth Circuit held that an employee could also designate a minority union to establish with a carrier a Special Board of Adjustment pursuant to Title 45, U.S.C.A. § 153 (Second). Brotherhood of Locomotive Engineers v. Denver & Rio Grande Western Railroad Co., supra. 16 These cases do not suggest that an employee's designation of a minority union as his representative before the Board enlarges the union's authority or protection under the Act to the status enjoyed by majority unions. Rather, the minority union occupies the same status as any other agent, such as an attorney, that an employee may choose to represent him in grievance proceedings before the NRAB. 17 We conclude that a minority union designated by an employee to represent him in the prosecution of his grievance before the National Railroad Adjustment Board, and which undertakes such prosecution, owes no duty of fair representation stemming from the Railway Labor Act. Accordingly, since no other ground of jurisdiction has been asserted, the district court properly dismissed appellant's amended complaint. 18 From the view taken of this case, we find it unnecessary to consider appellees' other contentions. The order of dismissal of the district court will be affirmed. 19 Affirmed. Notes: 1 The labor organizations named as defendants were the Order of Railway Conductors and Brakemen, the Rock Island Lines Order of Railway Conductors and Brakemen, and Local #106 of the Order of Railway Conductors and Brakemen. Also named was the General Committee of Adjustment of the United Transportation Union, Rock Island Lines. The United Transportation Union succeeded the Order of Railway Conductors and Brakemen on January 1, 1969. Hereinafter, the above labor organizations will be referred to as the "ORCB" for convenience 2 Wells claims that the ORCB negotiated, contrary to his specific request, in a manner that would have denied him back pay 3 The railroad failed to file its answer to Wells' claim within the time allotted by the NRAB. It is asserted that in such cases it is customary for the Board to grant the relief sought by the claimant. Thus far the Board has failed to act. See, Chicago, Rock Island and Pacific Railroad Company v. National Mediation Board, 7 Cir., 435 F.2d 339 (1970) 4 Title 28, U.S.C.A. § 1337 provides: "The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies." 5 In a companion case, the Court found jurisdiction for such an action in nondiversity cases. Turstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210, 65 S.Ct. 235, 89 L. Ed. 187 (1944) 6 The courts have also recognized that the duty of fair representation extends to nonracial discriminations such as the refusal to press a nonmember's grievance. See, Hughes Tool Co. v. National Labor Relations Board, 5 Cir., 147 F.2d 69, 74 (1945)	{ "pile_set_name": "FreeLaw" }
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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. 09-16130 ELEVENTH CIRCUIT JUNE 22, 2010 Non-Argument Calendar JOHN LEY ________________________ CLERK D. C. Docket No. 09-00007-CR-A-N UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE A. GONZALEZ, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Alabama _________________________ (June 22, 2010) Before DUBINA, Chief Judge, CARNES and MARTIN, Circuit Judges. PER CURIAM: Appellant Jose Gonzalez appeals his convictions for conspiracy to distribute or possess with intent to distribute, and possession with intent to distribute, five or more kilograms of cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2. On appeal, he argues that the district court erred by denying his motion to suppress the cocaine seized from his truck. He contends that he did not commit a traffic violation by driving over the fog line, and therefore the police did not have probable cause to pull him over. He also contends that he never consented to the search of his truck. A district court’s denial of a motion to suppress evidence is a mixed question of law and fact, and we review rulings of law de novo and findings of fact for clear error, in the light most favorable to the prevailing party, which in this case is the government. United States v. Lindsey, 482 F.3d 1285, 1290 (11th Cir. 2007). We review issues raised for the first time on appeal for plain error. United States v. Mangaroo, 504 F.3d 1350, 1353 (11th Cir. 2007). We will only reverse when: (1) there is an error; (2) that is plain or obvious; (3) that affects the substantial rights of the defendant; and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. A valid appeal waiver is generally enforceable, and precludes a party from raising issues unless the claims are specifically excluded from the appeal waiver. See United States v. Frye, 402 F.3d 1123, 1129 (11th Cir. 2005); United States v. 2 Bascomb, 451 F.3d 1292, 1294 (11th Cir. 2006). Where the government does not seek to invoke an appeal waiver, but instead argues an issue on the merits, and where the application of the waiver is not outcome determinative, we may ignore the waiver and consider the issue on the merits. See United States v. Valnor, 451 F.3d 744, 745 n.1 (11th Cir. 2006) (involving sentencing issues). The Fourth Amendment of the U.S. Constitution provides that: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .” U.S. Const. amend. IV. A law enforcement official may stop a vehicle if there is probable cause to believe that the driver is violating a traffic law or regulation. United States v. Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998). Under Ala. Code § 32- 6-49.3(21)(b), a serious traffic violation includes “improper or erratic traffic lane changes.” Where objectively reasonable conditions permit a stop, “the officer’s motive in making the traffic stop does not invalidate what is otherwise objectively justifiable behavior under the Fourth Amendment.” United States v. Harris, 526 F.3d 1334, 1337 (11th Cir. 2008), cert. denied, 129 S. Ct. 569 (2008) (internal quotation marks omitted). We will accept the district court’s credibility determination of a witness “unless we are left with ‘the definite and firm conviction that a mistake has been committed.’” United States v. Chirinos, 112 3 F.3d 1089, 1102 (11th Cir. 1997) (internal quotation marks omitted). Based on our review of the record, we conclude that the district court did not clearly err in accepting the testimony of Corporal Dunn that Gonzalez drove his truck across the fog line and committed a traffic violation. Further, although a surveillance video on the police car does not clearly show that Gonzalez’s truck crossed the fog line, it does not contradict Dunn’s testimony that the truck did cross the fog line. Accordingly, the police had probable cause that Gonzalez committed a traffic violation, and thus were justified in pulling him over. Finally, although the appeal waiver bars Gonzalez from raising the consent issue on appeal, the government has only argued that the issue is waived because Gonzalez did not raise it in his initial motion to suppress. Because the government does not invoke the appeal waiver, we review the consent issue for plain error. We find no error because the record demonstrates that Dunn gave unrefuted testimony that he received consent to search the truck. For the above-stated reasons, we affirm Gonzalez’s conviction. AFFIRMED. 4	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION MAY 13 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT NATIVE VILLAGE OF POINT HOPE; No. 09-73942 ALASKA WILDERNESS LEAGUE; CENTER FOR BIOLOGICAL DIVERSITY; NATURAL RESOURCES DEFENSE COUNCIL; PACIFIC MEMORANDUM * ENVIRONMENT; RESISTING ENVIRONMENTAL DESTRUCTION ON INDIGENOUS LANDS, REDOIL; SIERRA CLUB; DEFENDERS OF WILDLIFE; NORTHERN ALASKA ENVIRONMENTAL CENTER; OCEANA, Petitioners, v. KEN SALAZAR, Secretary Of The Interior; MINERALS MANAGEMENT SERVICE, Respondents, STATE OF ALASKA; SHELL OFFSHORE INC., Respondents-Intervenors. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ALASKA ESKIMO WHALING No. 09-73944 COMMISSION; INUPIAT COMMUNITY OF THE ARCTIC SLOPE, Petitioners, SHELL OFFSHORE INC.; STATE OF ALASKA, Intervenors, v. KEN SALAZAR, Secretary Of The Interior; MINERALS MANAGEMENT SERVICE, Respondents. NATIVE VILLAGE OF POINT HOPE; No. 10-70166 ALASKA WILDERNESS LEAGUE; CENTER FOR BIOLOGICAL DIVERSITY; DEFENDERS OF WILDLIFE; NATURAL RESOURCES DEFENSE COUNCIL; NORTHERN ALASKA ENVIRONMENTAL CENTER; PACIFIC ENVIRONMENT; RESISTING ENVIRONMENTAL DESTRUCTION ON INDIGENOUS LANDS, REDOIL; SIERRA CLUB; OCEANA; NATIONAL AUDUBON SOCIETY, INC.; THE WILDERNESS SOCIETY, INC.; OCEAN CONSERVANCY, Petitioners, STATE OF ALASKA, Intervenor, SHELL GULF OF MEXICO INC., Intervenor, v. KEN SALAZAR, Secretary Of The Interior; MINERALS MANAGEMENT SERVICE, Respondents. ALASKA ESKIMO WHALING No. 10-70368 COMMISSION; INUPIAT COMMUNITY OF THE ARCTIC SLOPE, Petitioners, v. KEN SALAZAR, Secretary Of The Interior; MINERALS MANAGEMENT SERVICE, Respondents, SHELL GULF OF MEXICO INC., Respondent-Intervenor. On Petition for Review of a Final Agency Action Minerals Management Service Argued and Submitted May 6, 2010 Portland, Oregon Before: KOZINSKI, Chief Judge, BEA and IKUTA, Circuit Judges. In these expedited petitions for review, we consider the allegations of Native Village of Point Hope (NVPH) and Alaska Eskimo Whaling Commission (AEWC) (collectively, “petitioners”) that the Minerals Management Service (MMS) failed to discharge its obligations under the National Environmental Policy Act (NEPA) and the Outer Continental Shelf Lands Act (OCSLA) in approving Shell Offshore Inc. and Shell Gulf of Mexico Inc.’s (collectively, “Shell”) proposed Beaufort and Chukchi Sea Exploration Plans. According to the petitioners, there are multiple deficiencies in the two Environmental Assessments prepared by the MMS, as well as deficiencies in both of Shell’s proposed exploration plans. We have carefully reviewed the thousands of pages of record and considered each of the alleged deficiencies in context. Under our deferential standard of review, we conclude that, as to both exploration plans, the MMS has met its obligations under NEPA to take a “hard look at the consequences of its actions,” to “base[] its decision on a consideration of the relevant factors,” and to “provide[] a 4 convincing statement of reasons to explain why a project’s impacts are insignificant.” Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 730 (9th Cir. 2001) (alteration, citations, and internal quotation marks omitted). Based on our thorough review of the record, we also conclude that the MMS’s decision to approve Shell’s exploration plans under OCSLA was “supported by substantial evidence on the record considered as a whole.” 43 U.S.C. § 1349(c)(6). In addition, because petitioners failed to prove that the MMS “relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before [the MMS] or is so implausible that it could not be ascribed to a difference in view or product of agency expertise,” Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc) (internal quotation marks omitted), we conclude that the MMS did not act arbitrarily or capriciously. Accordingly, we deny the petitions and grant Shell’s motion to strike the petitioners’ extra-record declarations. Because of the expedited nature of this case, no motions to stay the mandate will be granted. DENIED. 5	{ "pile_set_name": "FreeLaw" }
275 Wis. 564 (1957) ESTATE OF BRADBURY: GORGES, Appellant, v. ANTHONY, Administrator, Respondent. Supreme Court of Wisconsin. April 8, 1957. May 7, 1957. For the appellant there was a brief by Lehner & Lehner of Princeton, and Earl F. Kileen of Wautoma, and oral argument by Philip Lehner, Sr. For the respondent there was a brief by R. E. Johnson of Waupaca, and oral argument by Mr. Johnson and by Mr. Gad Jones of Wautoma. MARTIN, C. J. Janette Bradbury died October 17, 1955, at the age of eighty-six years. Here estate consisted of a 39-acre tract of land in Waushara county. She also had, during 565 her lifetime, a life estate in 240 acres of land; the claimant, Irma Gorges, was remainderman. Claimant, a niece of the decedent, testified that from 1941 to 1945, while Janette Bradbury lived alone on her life-estate property about a quarter mile from the claimant's home, she made the decedent's meals, did her laundry, and stayed with her overnight; that in 1945 Miss Bradbury came to live with the claimant, occupying two separate rooms in the Gorges home; she remained there until her death. After Miss Bradbury's death Mrs. Gorges filed a petition for administration of her estate, stating in effect that the decedent owned no property except real estate of the probable value of $5,000 and that she left no debts. Thereafter Mrs. Gorges filed three claims against the estate: One for taxes paid by her on the life-estate property and tax certificates purchased by her on the land held in fee by decedent (allowed by the court); one for the reasonable value of the care of decedent by Mrs. Gorges and her husband (disallowed); and one for $5,000 on a note introduced in evidence as Exhibit G and reading as follows: "Apr. 18, 1955 "After my death I promise to pay my niece Irma Gorges the sum of $5,000 five thousand dollars for value received. "Janette Bradbury." It is not disputed that the note is in the handwriting of Irma Gorges and the signature is that of Janette Bradbury. In disallowing the last claim, it was the trial court's opinion that claimant failed to prove execution and delivery of the note. It was the testimony of Irma Gorges that Miss Bradbury had no money and that she was the only one of the relatives who ever did anything for her; that she wrote the note at the request of the decedent and placed it in the family Bible which she kept in the dresser in her own bedroom; that she 566 never told anyone about the note; that the Bible was accessible to and used by all the family, but was used most by Miss Bradbury, who was the most religious member of the family. Three other papers, the property of Miss Bradbury, were also kept in the Bible; these related to family history and information of interest to the decedent. Other than the self-serving testimony of the claimant, Mrs. Mildred Kohl was the only witness who testified with respect to the execution of the note. She testified that she made a number of friendly visits to the decedent, and Miss Bradbury told her she appreciated the care and kindness of Mrs. Gorges and her husband; that on one occasion in May of 1955, Miss Bradbury went to Irma's bedroom and brought out the note which she asked her to read, saying, "Mrs. Kohl, I have done what I wanted to do for a long time and I want to show it to you;" that Irma had been very good to her for years and she felt she owed her a big debt and she had made it right. At a hearing on March 23, 1956, claimant's counsel showed Mrs. Kohl Exhibit I, which was a typewritten carbon copy of the writing contained in Exhibit G. She was asked: "Q. I show you Exhibit I and ask you to read it and tell us whether that is a copy of the note that Janette Bradbury showed to you. A. No, it is not. That she was going to leave her $5,000 but there was a note of other writing on the note. It was in longhand you know. "Q. But this is the substance of the note? A. Yes, Exactly. "Q. Do you know what else was on the sheet? A. Well, just for her kindness and for doing things up on the place where she lived...." She gave the following testimony on cross-examination: "Q. So that we understand each other then, Mrs. Kohl, it is your testimony that the note would make mention of some 567 things that they had done in connection with the buildings and also did it make mention of the care that they had provided for her? A. Yes, that it did. "Q. And those were specifically mentioned in the note that you saw? A. Yes, I am sure that it did." The hearing was adjourned to April 12, 1956, at which time Mrs. Kohl testified as follows: "Q. I show you Exhibit G. Look that over carefully and I ask you is that the note that Janette Bradbury showed to you? A. That's the note. "Q. Are you sure of that? A. I am very sure." On cross-examination she admitted that Exhibit I was a copy of Exhibit G and stated that she was mistaken and confused on the occasion of her previous testimony because "there was so much going on there that day;" that she misunderstood the question put to her; that in recalling the occasion on which Miss Bradbury showed her the note she had thought the note recited some of the things that the decedent had said to her. In the opinion of the trial court, "The testimony of Mrs. Kohl which was produced in an effort to substantiate the execution of the note, was confused and, in the opinion of the court, does not meet the degree of proof required to substantiate execution." The credibility of the witness was for the trial court. Graham v. Zellers (1931), 205 Wis. 542, 238 N. W. 385; Estate of Evans (1946), 248 Wis. 456, 22 N. W. (2d) 497. Mrs. Kohl's testimony was contradictory and confused and the court was entitled to regard it as unreliable. As stated in Caballero v. Litchfield Wood-Working Co. (1956), 246 Minn. 124, 129, 74 N. W. (2d) 404, 408: "Clear, positive, direct, and undisputed testimony by an unimpeached witness, which is not in itself contradictory or improbable, cannot be rejected or disregarded by either court or jury, unless the evidence discloses facts and circumstances 568 which furnish a reasonable ground for so doing. Such testimony can be rejected only when doubt is cast upon its truthfulness by contradictory or discrediting facts or circumstances. The testimony of a witness may be disregarded if it contains inherent improbabilities or contradictions which, alone or in connection with other circumstances in evidence, furnish a reasonable ground for concluding that the testimony is not true." The trial court further stated that, "A review of the testimony does not reveal adequate proof of delivery of the note to the claimant, Irma Gorges." Appellant urges that the evidence shows the note was always in her possession, a fact that is prima facie evidence of delivery, citing Sheldon v. Blackman (1925), 188 Wis. 4, 205 N. W. 486. The evidence is that the note was kept in the Gorges family Bible along with other papers kept by the decedent. The Bible, though owned by the claimant and kept in her bedroom, was used by all the members of the family and, indeed, was most frequently used by Miss Bradbury, who had access to it at all times and permission to use it for as long as she desired. She could have removed the note from the Bible at any time; she could have destroyed it. But it remained in the Bible, along with other papers personal to Janette Bradbury which it is not claimed were given to Irma Gorges. The evidence gives rise to a number of inconsistencies and contradictions in the conduct of the claimant. Five thousand dollars is a rather large sum of money; it was, in fact, the amount of the total valuation she placed upon the estate. In her petition for administration she stated that the decedent left no debts; yet she obviously regarded the note as evidence of a debt. If, as she says, the note was given to pay her for care and services to Miss Bradbury, why the delay in presenting it to the court? And, again, if it was meant to be payment for care, why file a separate claim for *569 the reasonable value of such care? She maintains the note was in her possession at all times; then why the secrecy about it; why keep it in a place where others, and particularly the maker, had constant access to it? Considering all the circumstances which the evidence discloses, the trial court was entitled to conclude that delivery had not been adequately proved. By the Court.That part of the judgment appealed from is affirmed.	{ "pile_set_name": "FreeLaw" }
In The Court of Appeals Seventh District of Texas at Amarillo No. 07-13-00351-CR JACOB WESLEY FAUDI, APPELLANT V. THE STATE OF TEXAS, APPELLEE On Appeal from the 19th District Court McLennan County, Texas Trial Court No. 2011-2270-C1, Honorable Ralph T. Strother, Presiding October 8, 2015 MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Appellant Jacob Wesley Faudi appeals from his convictions by jury of one count of indecency with a child by contact1 and two counts of indecency with a child by exposure,2 and the resulting sentences of twenty, and ten, years of imprisonment, 1 TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2014). 2 TEX. PENAL CODE ANN. § 21.11(a)(2) (West 2014). respectively.3 Through one issue, appellant contends the trial court erred by excluding an exhibit he offered at trial. We will affirm. Background Appellant does not challenge the sufficiency of the evidence to support his convictions, so we will set forth only those facts necessary to his appellate issue. Via indictment, appellant was charged with four counts of indecency with a child, by contact and by exposure. During trial, the State abandoned one of the counts alleging indecency by contact. The six-year-old victim testified. The State also offered the testimony of an investigating police officer, the victim’s mother, and a forensic interviewer. The interviewer’s report also was admitted into evidence. Appellant also testified, adamantly denying he committed any of the acts alleged. He acknowledged he had known the victim’s father for “a long time” and had known the victim from the time she was a toddler. He also admitted he believed someone sexually abused the victim but denied he was the person who did so. During his case-in-chief, appellant sought admission of a thirteen-page investigative report created by the Texas Department of Family and Protective Services (“DFPS report”). The State objected on several grounds, including relevancy and hearsay. Appellant argued that the report was the “crux” of his case because it contained a statement that “[the victim] stated that she 3 The sentences for indecency by contact and one count of indecency by exposure are to be served concurrently. The ten-year sentence for the additional count of indecency by exposure is to begin when the concurrent sentences cease to operate. 2 has never been left in the care of Jacob Faudi.”4 Appellant contended the statement shows he was never alone with the victim, so it was not possible he engaged in the sexual conduct of which he was accused. After hearing argument from both counsel and the State, the court denied admission of the document. The trial continued, after which the jury found appellant guilty of one count of indecency with a child by contact and two counts of indecency with a child by exposure and assessed punishment for each. This appeal followed. Analysis On appeal, as he did at trial, appellant argues the DFPS report was properly admissible as a public record under Rule of Evidence 803(8). See TEX. R. EVID. 803(8).5 He contends on appeal that the exclusion of the DFPS report denied him the opportunity to present his case because his defensive theory was dependent on 4 This statement appears in the witness summary of the Department investigator’s face-to-face interview with the victim. The report states the victim “indicated that [she] does not have any contact with the person that hurt her when she [is] at her mom’s or dad’s house. She stated that she has never been left in the care of [appellant]. She stated that he was just staying the weekend with her dad because her dad is married to [appellant’s] sister.” 5 Rule 803(8) reads as follows: Public Records. --A record or statement of a public office if: (A) it sets out: (i) the office's activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) the opponent fails to demonstrate that the source of information or other circumstances indicate a lack of trustworthiness. 3 information contained within it. Without it, he argues, he was “denied his opportunity to examine [the investigator who created the report], to use the statements contained therein to impeach multiple witnesses, and to present the information, observations, and factual findings therein to the jury.” We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010) (citing Green v. State, 934 S.W.2d 92, 104 (Tex. Crim. App. 1996)). The trial court does not abuse its discretion unless its determination lies outside the zone of reasonable disagreement. Martinez, 327 S.W.3d at 736. We uphold the trial court's ruling if it was correct on any theory reasonably supported by the evidence and applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). After review of the record, we conclude the trial court did not abuse its discretion by excluding the report. We first reiterate that appellant testified at trial and denied the allegations against him. Several other witnesses also testified on his behalf. While the statement in the DFPS report might be seen as supportive of his denial he committed the offenses, we do not agree the record shows the statement was the “crux” of appellant’s case at trial. We next note appellant offered the entire thirteen-page DFPS report into evidence without explaining the specific purposes for which it was offered. While appellant asserts on appeal he needed the report in part for impeachment purposes, he did not voice that purpose to the trial court during discussion of its admissibility. The trial court thus did not abuse its discretion by denying admission of the report for its impeachment value. See Ramirez v. State, No. 14-06-00538-CR, 2007 Tex. App. LEXIS 4 5825, at 23-24 (Tex. App.—Houston [14th Dist.] July 26, 2007, pet. ref’d) (mem. op. not designated for publication) (similar analysis). Finally, the report included portions that the trial court could have determined to be inadmissible.6 As other courts have held in similar circumstances, the trial court was not obligated to sift through the entire report to separate the admissible evidence from the inadmissible. See August v. State, No. 02-04-00484-CR, 2006 Tex. App. LEXIS 3829, at 10 (Tex. App.—Fort Worth May 4, 2006, pet. ref’d) (mem. op., not designated for publication) (citing Sauceda v. State, 129 S.W.3d 116, 124 (Tex. Crim. App. 2004)). That is the obligation of the party offering the evidence. August, 2006 Tex. App. LEXIS at 10. Because appellant did not limit his offer to admissible portions of the report, the trial court did not err by excluding the entire report. Id.; see Weiss v. State, No. 02-07- 00390-CR, 2009 Tex. App. LEXIS 9453, at 26 (Tex. App.—Fort Worth Dec. 10, 2009), reh’g denied, No. 02-07-00390-CR, 2010 Tex. App. LEXIS 410 (Tex. App.—Fort Worth Jan. 14, 2010) (trial court did not err in excluding police report when appellant offered the report in its entirety and report contained statements that would have been subject to exclusion). 6 See Crane v. State, 786 S.W.2d 338, 354 (Tex. Crim. App. 1990) (holding that even if the tape itself were admissible under a hearsay exception, any statements made in that recording were subject to the hearsay rule); Trussell v. State, 585 S.W.2d 736, 739 (Tex. Crim. App. 1979) (finding that if the report were offered for its truth, and not just for impeachment purposes, then statements contained in the report were hearsay and inadmissible). 5 Conclusion We resolve appellant’s issue against him and affirm the judgment of the trial court. James T. Campbell Justice Do not publish. 6	{ "pile_set_name": "FreeLaw" }
993 P.2d 1043 (1999) 196 Ariz. 79 Reginald BEIJER, Petitioner, v. The Honorable Charles D. ADAMS, Judge of the Superior Court of the State of Arizona, In and For the COUNTY OF COCONINO, Respondent Judge. State of Arizona, Real Party in Interest. No. 1 CA-SA 98-0324. Court of Appeals of Arizona, Division 1, Department D. February 9, 1999. Review Denied November 30, 1999. 1044 Law Office of Lee Brooke Phillips, P.C. by Lee Brooke Phillips, Flagstaff, Attorney for Petitioner. Terence C. Hance, Coconino County Attorney by Jeffrey A. James, Deputy County Attorney, Flagstaff, Attorneys for Real Party in Interest. OPINION KLEINSCHMIDT, Judge. ¶ 1 The Defendant, Reginald Beijer, was stopped on an interstate highway for a traffic infraction, and a consensual search of his car revealed drugs in a hidden compartment in the trunk. During his trial for transportation of narcotic drugs for sale, evidence was admitted that the Defendant's conduct fit the pattern of a drug courier. The trial court granted the Defendant's request for a mistrial because the admission of such evidence is improper under State v. Lee, 191 Ariz. 542, 959 P.2d 799 (1998). After the mistrial was granted, the Defendant moved to bar retrial on the grounds that the State, by presenting drug courier profile evidence, had engaged in intentional misconduct. The trial court denied that motion, and the Defendant brought this special action to reverse that order. Following oral argument, we accepted jurisdiction and denied relief, stating that this opinion would follow. FACTS AND PROCEDURAL HISTORY ¶ 2 A detailed knowledge of the testimony of the arresting officer, how that testimony was elicited, and the sequence in which it was presented is necessary to an understanding of the case. Most of the improper testimony came in without any objection from the defense because defense counsel was unaware of the Lee decision until midway through the trial. ¶ 3 On direct examination by the prosecutor, the officer, a highway patrol officer, testified about his training and experience. Among other things, he said that one of his principal duties was drug interdiction and that he had attended an extensive training program called "Desert Snow" sponsored by the California Highway Patrol on how to recognize drug couriers. He said that the instructor discussed methods of concealment, how drugs flow throughout the United States, where they are stored, and what parts of the country they are transported to, and talked about conduct, like nervousness, that indicates that a crime is being committed. He also testified that he had attended two other drug interdiction conferences and that he now trains other officers in the subject. The officer also testified that, in the five years that he has been a highway patrol officer, he has made about thirty-five arrests for drug trafficking and has participated in about 120 other such arrests. ¶ 4 The officer testified that on a day in May 1998, he was on patrol on Interstate 40, east of Flagstaff, when he observed the Defendant make an unsafe lane change. He pulled the Defendant over, and when he approached the passenger's side of the Defendant's car, he noticed kind of, basically two separate things. I was noticing the driver'sthe way he was acting, and I was noticing things in the vehicle, both the things that we are trained to look for at drug interdiction. ¶ 5 He went on to say that the Defendant was extremely nervous and was shaking as he fumbled through his wallet. He also noticed that the Defendant's clothes were somewhat dirty and that there was a strong fragrant odor in the car. He observed a 1045 bottle of hair spray on the seat. The officer also noticed a number of snack wrappers on the floorboard on the right side of the car. The Defendant gave the officer a temporary California driver's license bearing the name Samuel Goretz with no photograph on it. The registration and title to the car were issued by the State of Tennessee to an Antonieta Rossi. ¶ 6 The officer testified that in the course of his career he has made as many as 8,000 traffic stops. He said that most people are nervous when they are first stopped, but that they calm down, especially after he begins to talk to them. He said that if such people are shaking, it was usually to a "small degree," but that the Defendant's shaking was extreme. ¶ 7 The officer asked the Defendant to step out of the car and as the Defendant complied, the officer noticed that his clothes were very dirty, as if they had been worn for quite a few days. He also noticed that the Defendant's hair was messy, although he smelled the odor of freshly-sprayed hairspray. The Defendant's nervous behavior continued, and he could not stand still; he was waving his arms around and kicking rocks by the roadside. This demeanor did not change when the Defendant was told that he was to receive just a warning ticket. In the officer's experience, this was unusual because most people relax when they realize they are not going to receive a citation. ¶ 8 The officer testified that he learned in drug interdiction training to engage the people he stops in conversation to see whether anything they say arouses his suspicion. In this case, the Defendant told him that he was going to visit his ex-wife in Tennessee to finish paying for the car he had bought from her and get a receipt. The officer testified that this explanation sounded suspicious to him because it was something that could be done through the mail. ¶ 9 At this point, the officer went back to his car to run a radio check on the vehicle. He said, I was building a suspicion in my mind and observing things and keeping track of them, and towards the end of the stop I decided that I did want to search the vehicle. Again, when I was sitting in the car, I was inspecting the documents. This added to my suspicion and helped reaffirm that I did want to search it. ¶ 10 The Defendant agreed to allow the officer to search his car, and when he signed the consent form he was shaking badly. The shaking was also obvious when the Defendant tried to unlock the trunk of the car. ¶ 11 During the course of the search, the officer found a California identification card bearing the Defendant's name, Reginald Beijer, and his photograph. Ultimately, the officer found a hidden compartment in the trunk that contained a large amount of cocaine. ¶ 12 On cross-examination, defense counsel asked some questions designed to suggest that the Defendant had behaved normally for a person who is stopped and questioned. On redirect, the officer testified that cocaine has a distinct odor but that he has never smelled it in a suspect's car because it is too well packaged; normally, what he smells is a masking agent. ¶ 13 The court then invited questions from the jury. The only objection defense counsel interposed to any of the questions was that they had already been answered. The jury asked about the value of the car the Defendant was driving and was told that it was $8,000. They asked whether the officer had, in his experience with drug interdiction, seen hair spray or similar items used to conceal the smell of drugs, and the officer responded that he had. The jury also asked why snacks and snack wrappers were suspicious, and the officer answered as follows: It's part of what leads to the big picture of a drug courier. How these are people who are transporting a car with contraband in it from point A to point B. They are not interested infor the most part they're not people who pull off of the road to go to a restaurant to eat because that you have sometimes millions of dollars of contraband in the car. They will stock up on snacks, get on the road, and head across country, eat on the way and usually drive straight through. When I start seeing a buildup of things like this in conjunction with other indicators I am looking at, it means something 1046 to me. By itselfsnack wrappers in and of itself, it really doesn't mean anything, but when you add to it into the big picture of things it does mean something to me. ¶ 14 The next day, and before the case went to the jury, defense counsel made a motion for a mistrial based on the recent decision of the supreme court in State v. Lee. He had first learned of Lee that morning in a conversation with a member of the public defender's staff. Lee, in broad terms, prohibits the prosecution from introducing "drug courier profile" evidence to prove that the defendant was trafficking in drugs. The prosecutor acknowledged that he had been aware of the holding in Lee, but he argued that Lee does not prohibit the State from presenting evidence of such things as a defendant's nervousness and the smell of hair spray. He also argued that the only drug courier profile evidence was admitted in response to the jury's question and said that he did not know whether he had a duty to object to that question but that he had not known what the officer's testimony was going to be. ¶ 15 After reviewing Lee, the trial court granted the Defendant's motion for a mistrial. The discussion that ensued reflected some confusion on the part of the judge and counsel as to the parameters of Lee. Subsequently, the Defendant's motion to bar a retrial was denied, and the time set for a new trial was vacated to allow the Defendant to bring this special action challenging that ruling. In the discussion that follows, we explain why a new trial is not barred, and we attempt to flesh out Lee with an explanation of how it governs the admissibility of the evidence produced in this case. THE CIRCUMSTANCES DO NOT BAR A RETRIAL ¶ 16 In Pool v. Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984), our supreme court clearly established that if a mistrial is granted as a result of conduct that the prosecutor knew or should have known would prejudice the defendant and that could not be cured short of a mistrial, the double jeopardy clause of the Arizona Constitution bars a retrial. The prosecutor must have intended to prejudice the defendant, or have acted with indifference to whether prejudice would result. Mere negligence, mistake, legal error, or insignificant impropriety on the part of the prosecutor is not enough to bar retrial. ¶ 17 To assess whether the prosecutor transgressed, and if so, to a degree that bars retrial, requires an analysis of Lee and how it bears on what happened in this case. In Lee, the defendant was arrested at the Phoenix airport when a search of his luggage revealed a substantial quantity of marijuana. Id. at 543, 959 P.2d at 800. At trial, the court admitted evidence relating to a drug courier profile, which the court described as an "`informal compilation of characteristics' or an `abstract of characteristics' typically displayed by persons trafficking in illegal drugs." Id. at 544, 959 P.2d at 801. The profile evidence included testimony about "source" cities and "demand" cities, testimony that drug traffickers preferred hard-sided suitcases, and testimony about the gender and age of the typical courier, the lack of identification on luggage, and the time of day of flights favored by traffickers. Id. at 545-46, 959 P.2d at 802-03. ¶ 18 The supreme court said that such evidence should not have been admitted. It pointed out that at trial, as opposed to a hearing on a motion to suppress, the reasons for the arresting officers' suspicions are not relevant, and said that it was error to admit any of this evidence as substantive proof of guilt because it "`creates too high a risk that a defendant will be convicted not for what he did but for what others are doing.'" Id. (quoting State v. Cifuentes, 171 Ariz. 257, 257, 830 P.2d 469, 469 (App.1991)). ¶ 19 In applying the rule of Lee to the facts of this case, it is clear that the most egregious single error came when the officer explicitly testified about "the big picture of the drug courier" in response to the jury's question as to why the presence of snack food wrappers made the officer suspicious. This error cannot be laid at the prosecutor's doorstep unless the prosecutor should have told the court not to allow the officer to answer the question. While the prosecutor, 1047 who was familiar with Lee, probably should have recognized the potential for danger in the question, he told the court that he did not know how the officer was going to answer the question. In denying the Defendant's motion to bar a new trial, the trial judge necessarily accepted the prosecutor's explanation, even though he did not expressly say so. See Lee Dev. Co. v. Papp, 166 Ariz. 471, 476, 803 P.2d 464, 469 (App.1990). We cannot say that this inherent finding was an abuse of discretion by the trial judge. ¶ 20 The officer's answer to the jury's question was not, however, the only evidence that violated the rule adopted by Lee. Some of the testimony, even though it did not expressly refer to drug couriers, was nonetheless objectionable because the State's heavy emphasis on the officer's training in interdiction, coupled with the testimony about the factors that made the officer suspicious, told the jury, in effect, that the Defendant fit the drug courier profile. None of the testimony about specialized training in drug interdiction should have been admitted. It was irrelevant and went a long way toward creating an impermissible inference. Nor should reference to why the officer's suspicion was aroused have been admitted. Lee expressly holds that such evidence is irrelevant. Id. at 545, 959 P.2d at 802. ¶ 21 None of the testimony about where drugs originate and where they are distributed should have been admitted. Lee expressly forbids the admission of such evidence. Id. ¶ 22 Evidence of a person's nervousness has generally been held to be admissible to show that the person is aware that he is engaging in unlawful conduct. See State v. Killean, 184 Ariz. 164, 170, 907 P.2d 550, 556 (App.1995), vacated on other grounds, 185 Ariz. 270, 915 P.2d 1225 (1996). In State v. Magner, 191 Ariz. 392, 956 P.2d 519 (App. 1998), another panel of this court, citing United States v. Fernandez, 18 F.3d 874 (10th Cir.1994), pointed out that courts must be wary of attaching too much significance to nervousness because most people are nervous when a police officer stops them and asks potentially incriminating questions. Magner, citing other authority, explains that when specific factors, shaky hands for instance, objectify and quantify "dramatic" nervousness, evidence of such may be admitted. Id. at 397, 956 P.2d at 524. Here, the officer acknowledged that although most people he stops are somewhat nervous at first, they become less so as they interact with the officer. He referred to a number of factors that led to the conclusion that the Defendant was nervous beyond the norm, and this evidence was properly admitted. Admissibility of such evidence does not, of course, extend to testimony concerning the officer's conclusions about nervousness based on his drug interdiction training. ¶ 23 The evidence about the smell of hair spray, the presence of snack wrappers, and the Defendant's dirty clothes is admissible so long as it is not tied to what other drug couriers do. While the inference to be drawn from snack wrappers and dirty clothesthat the Defendant was driving nonstop because he did not want to risk having his contraband stolenis very weak, we cannot say that the prosecutor should be precluded from arguing it. ¶ 24 The Petitioner relies on Magner to argue that evidence of nervousness and snack wrappers should not be admitted because they are not relevant. In Magner, the question was whether a highway patrol officer had probable cause to search a vehicle he had stopped for a traffic infraction. In support of probable cause, the officer testified that the defendant refused to make eye contact; that his eye twitched when he did look at the officer; that he was unusually upset at being stopped; that the vehicle registration was on the seat of the car suggesting that there might be a gun in the glove box; that the defendant was wearing a tie but had on jeans and sneakers and so might be trying to pass himself off as a businessman to passing policemen; that the defendant was coming from Tucson, a source city for illegal drugs; that the defendant's car was dirty which, based on the officer's training, he associated with criminal activity; that the defendant was carrying luggage in the back seat as opposed to the trunk; and that the defendant's account of his stay in Tucson *1048 was confusing. Id. at 397-400, 956 P.2d at 524-27. In considering this evidence, another panel of this court carefully reviewed all the factors on which the officer relied and pointed out that equally strong or stronger inferences of innocent behavior could be drawn from them. A majority of the panel concluded that the totality of the circumstances would not support a reasonable suspicion of criminal behavior. Id. at 400, 956 P.2d at 527. ¶ 25 We agree with the decision the majority reached in Magner, but find that it differs from the one now before us. Here, the presence of the drugs in the trunk of the car the Defendant was driving was sufficient, in and of itself, to support a conclusion beyond a reasonable doubt that he was knowingly transporting the drugs. See State v. Harris, 9 Ariz.App. 288, 290, 451 P.2d 646, 648 (1969), and cases cited therein. Evidence such as snack wrappers and dirty clothes, without more, could never amount to probable cause, but that is not to say that it cannot add to the totality of circumstances that convinces a trier of fact that criminal activity is afoot. ¶ 26 In summary, some of the evidence the prosecutor presented violated Lee. Because the precise parameters of that case are subject to some interpretation, and because the trial judge was in the best position to evaluate the prosecutor's explanation of his conduct, we are unable to say that this record compels the conclusion that the prosecutor so overstepped the bounds that a retrial is barred. We therefore deny the relief requested. CONCURRING: REBECCA WHITE BERCH, Judge, and RUDOLPH J. GERBER, Judge.	{ "pile_set_name": "FreeLaw" }
15 B.R. 140 (1981) In the Matter of SPRING GARDEN FOLIAGE, INC., Debtor. CENTRAL FLORIDA PRODUCTION CREDIT ASSOCIATION, Plaintiff, v. SPRING GARDEN FOLIAGE, INC., Defendant. Bankruptcy No. 80-733-Orl-Bk-AP. United States Bankruptcy Court, M.D. Florida, Orlando Division. October 29, 1981. 141 Jules S. Cohen, Orlando, Fla., for plaintiff. Jeffrey R. Jontz, Orlando, Fla., for debtor. FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION ALEXANDER L. PASKAY, Chief Judge. THIS IS a relief chapter proceeding and the matter under consideration is a complaint, filed by Central Florida Production Credit Association (CFPCA), who seeks relief from the automatic stay imposed by § 362(a) of the Code. The relief is sought pursuant to § 362(d)(1) and (2) and is based on the contention that CFPCA lacks adequate protection and that the Defendant/Debtor, Spring Garden Foliage, Inc. (the Debtor), lacks equity in the subject property and the property is not needed for effective reorganization. The evidence presented at the final evidentiary hearing which was combined with the preliminary hearing, as permitted by § 362(d) of the Code, reveals the following facts relevant and germane to the resolution of this controversy: On or about November 20, 1977, Miny Farms, Inc. applied for, and obtained a loan from CFPCA. In connection with this loan transaction, Miny Farms, Inc. executed two promissory notes. The first in the amount of $370,655 and the second in the principal sum of $10,000, executed on December 5, 1977. In addition, Miny Farms, Inc. executed a mortgage encumbering certain properties owned by Miny Farms, Inc. located in Orange County and Sumter County, Florida, a security agreement, pledging as collateral certain fixtures and equipment located on the property known as the "Chicken Farm". In addition, Miny Farms, Inc. executed a financing statement and CFPCA duly perfected its security interest by recording the mortgage and by filing the financing statement. On or about November 16, 1979, Miny Farms, Inc. conveyed to the Debtor, part of the real estate encumbered by the mortgage held by CFPCA. The conveyance included the inventory of plants and equipment secured by a security interest of CFPCA. The record reveals that the outstanding balance on these two notes is $253,587.17 plus $54,434.67 accrued interest up to, and including, September 2, 1981 and the interest accrues thereafter at the daily rate of $97.27. At the present time, the delinquency on the principal payments is $15,451.38 and on the interest payments of $54,434.57. The outstanding balance now due and owing to CFPCA is also secured by the following collateral: (a) Approximately 21.5 acres of nursery property on West Kelly Park Road, Apopka, Florida, titled in the name of the Debtor. (b) Approximately 20 acres of "Chicken Farm" property in Sumter County, Florida owned by K Farms, Inc. 142 (c) Approximately 60 acres of pasture land in Sumter County, Florida, owned by the Miny family. (d) A house, together with five acres of land on West Kelly Park Road in Apopka, Florida, owned by the Miny family. (e) An inventory of plants located on the nursery property on West Kelly Park Road in Apopka, Florida, titled to the Debtor. (f) Central Florida Production Credit Association stock held by Miny and/or the Debtor. The payment on the first note became due June 1, 1981 and the payment on the second note became due on December 1, 1981. Neither payments have been made. The property comprised of 21.5 acres referred to as the nursery property is located on West Kelly Park Road in Apopka, Florida; it is worth at least $520,000. The value of the West ten acres of this 21.5 acre tract which contains two greenhouses has a fair market value of $98,000. The home of the Miny family located on West Kelly Park Road in Apopka, Florida, which is also encumbered by the mortgage held by CFPCA, has an approximate fair market value of $75,000. The home was purchased by the president of the Debtor in 1979, who paid $70,000 for the property and made extensive improvements to the property before deeding the same back to Mr. Miny. The 20 acres located in Sumter County, the "Chicken Farm", is owned by K Farms, Inc. and has a fair market value of at least $100,000. The 60 acres of pasture land located in Sumter County owned by the Miny family has a fair market value of $120,000. In addition to the collateral here before discussed, the indebtedness owed by the Debtor and due to CFPCA is also secured by stock of CFPCA owned by the Debtor which has a fair market value of between $20,000 and $25,000. The inventory of plants and the nursery facilities located on West Kelly Park Road have a fair market value of $52,000. Accordingly, the total value of the collateral held by CFPCA securing the principal balance of the loan of $253,587 is secured by properties valued at $884,500. Even accepting the evidence presented by CFPCA, the value of the collateral is at least $520,000, not including the CFPCA stock. Therefore, the value of the collateral, no doubt, is far in excess of the amount due under the two notes. The real estate encumbered by the mortgage held by CFPCA is also encumbered by a second mortgage held by the Miny family. At the hearing, the Debtor, K Farms, Inc., the owner of the "Chicken Farm" and the Miny family agreed that they are willing to permit CFPCA to foreclose or they are willing to deed, in lieu of foreclosure, the house located on West Kelly Park Road in Apopka, Florida; the West ten acres of the nursery property located on West Kelly Park Road in Apopka. They also stated that they are willing to surrender to CFPCA, a proportionate share of their stock which they hold in CFPCA. Under the previously stated valuation, these properties have an aggregate value of $293,000. It is without serious dispute that the remaining 10 or 11 acres of nursery property located on West Kelly Park Road in Apopka, is an integral part of the nursery operation and it is indispensable and essential to an effective reorganization of the Debtor. There is no question that the greenhouses and other buildings are needed to produce the plants, all of which form a vital and indispensable part of the business operation of the debtor. As noted earlier, CFPCA seeks relief under § 362(d)(1) for "cause", especially for lack of adequate protection and under § 362(d)(2) on the dual grounds that the Debtor lacks equity in the subject property and the same is not needed for effective reorganization. By virtue of express provisions of the Code, the burden to establish lack of equity is placed on the entity who seeks relief from the automatic stay, § 362(g)(1) and the party opposing such relief has the burden of proof on all other issues, § 362(g)(2). Considering the issues seriatim, it is clear that this record is devoid of any evidence which would warrant a finding that the collateral held by CFPCA is in jeopardy in *143 any sense. The equity cushion of the Debtor is very substantial and there is no evidence in this record which would warrant the conclusion that CFPCA is entitled to adequate protection within the meaning of § 361 because of a diminishment in value of its collateral due to continuing use of the properties in question by the Debtor. Thus, the relief sought cannot be granted for lack of adequate protection under § 362(d)(1). This leaves for consideration the alternative grounds which are the alleged lack of equity and the claim that the subject property is not needed for an effective reorganization. CFPCA concedes, as it must, that if the Court considers only the indebtedness due to CFPCA, the Debtor has a very substantial equity in the subject properties. CFPCA contends, however, that in determining lack of equity, this Court must consider all outstanding encumbrances on the subject property and when this is done, the Debtor's equity is nonexistent or minimal. This proposition has no support by logic or by the legislative history of § 362 and therefore must be rejected. The automatic stay imposed by § 362 of the Code protects the Debtor and the properties of the Debtor. If a party who seeks relief from the automatic stay occupies a position of a senior encumbrancer, it makes no difference how many junior encumbrances are outstanding against the subject property so long as the Debtor has a substantial and meaningful equity cushion over and above the senior encumbrances. Moreover, in this particular situation, the second mortgage held by the Miny family while it represents a valid, outstanding secured indebtedness, has no relevance because, as noted, the Miny family is willing to cooperate with the Debtor and willing to accept the moratorium on the principal payments on the mortgage until November, 1984, and they are willing to accept the proposed plan of reorganization. In addition, in considering adequate protection, it is proper to consider the values of properties owned by entities other than the Debtor. In this instance the properties owned by the Miny family and K Farms, Inc. This is especially true in the present instance because the owners of these properties state that they are willing to turn back a portion of these properties to CFPCA. Lastly, there is no doubt that the West 10 to 11 acres of nursery property located on West Kelly Park Road is indispensable to an effective reorganization. In light of the foregoing, this Court is satisfied that the record established at the final evidentiary hearing would not justify granting relief to CFPCA based on either § 362(d)(1) or § 362(d)(2) of the Code. A separate final judgment will be entered in accordance with the foregoing.	{ "pile_set_name": "FreeLaw" }
322 B.R. 856 (2005) In re Janet Lynn PARKER, Debtor. Janet Lynn Parker, Plaintiff, v. General Revenue Corp., Sallie Mae Services, Student Loan Guarantee Foundation of Arkansas, Defendants. Bankruptcy No. 2:04-BK-18019. Adversary No. 2:04-ap-01316. United States Bankruptcy Court, E.D. Arkansas, Helena Division. April 12, 2005. 857 Joe C. Barrett, Jonesboro, AR, for Debtor. MEMORANDUM OPINION JAMES G. MIXON, Bankruptcy Judge. The issue in this adversary proceeding is whether excepting from discharge the student loan debt owed by Janet Lynn Parker ("Debtor") would impose an undue hardship on the Debtor. The Debtor filed this dischargeability action against Sallie Mae Services and General Revenue Corporation on August 11, 2004, and amended the complaint to add the Student Loan Guarantee Foundation of Arkansas ("SLGF") as a defendant on September 7, 2004. After a hearing on the complaint on December 7, 2004, the Court took the matter under advisement. Jurisdiction is pursuant to 28 U.S.C. §§ 1334 and 157. This is a core proceeding in accordance with 28 U.S.C. § 157(b)(2)(I), and the Court may enter a final judgment in the case. The following shall constitute the Court's findings of fact and conclusions of law pursuant to Federal Rule of Bankruptcy Procedure 7052. FACTS The Debtor is a 51-year-old art teacher who teaches in the Cross County Public 858 School District in Cherry Valley, Arkansas, a rural community. The Debtor describes her community as situated in a low socio-economic area where 75% of the students in the schools are eligible for free lunches. The Debtor received her teaching degree from Arkansas State University in 1991, borrowing approximately $25,000.00 in government-guaranteed student loans to fund her education. After graduation, the Debtor was unable to find a teaching position for eight years and accepted a lowpaying job or jobs in the interim. At various periods since 1991, she has opted for deferments and forbearance of payments and has also made reduced monthly payments based on her low income level. With the accrual of interest added to the original principal, the Debtor now owes $69,794.17 in student loan debt. The parties stipulated that the Debtor was eligible for the William D. Ford Direct Loan Consolidation program that would allow her to pay a monthly payment of $136.33 based on her income at the time she filed her bankruptcy petition. The loan payment would fluctuate based on her adjusted gross income. Under the William D. Ford program, the Debtor would be required to make monthly payments for 25 years, and the balance of the loan would then be forgiven. The income contingent repayment plan is only available if the Debtor is obligated for the entire amount of the loan. The Debtor was divorced shortly before she filed her chapter 7 petition in bankruptcy on July 12, 2004. She lives in a rented house and has no dependents. The only assets she was awarded in the divorce were a garden tractor valued at $3200.00 and a two-horse trailer valued at $450.00. She owns a 1996 Mercury Villager minivan with 182,000 miles on the odometer. Because she lives "way back in the hills" ten miles from the school where she teaches, she requires her own transportation. (Tr. at 18.) In 2000, the Debtor was in a boating accident and suffered a broken back. She testified that the injury has left her with limited ability to lift or stand and that sitting, standing, or reclining for extended periods causes severe pain. She takes medication for her back problems and also suffers from high blood pressure and spontaneous pneumothoraxes. The latter condition necessitated the surgical removal of the right upper lobe of one of her lungs. The Debtor earns approximately $30,200.00 a year, and her net monthly income is $1443.00.[1] According to her schedules, $396.48 a month is withheld from her salary for health insurance that the Debtor considers essential because of her chronic physical ailments. She will receive annual raises of $500.00 in future years until her salary "tops out" at a figure not stated in the record. (Tr. at 20.) As to her monthly expenses, the Debtor's testimony focused on her scheduled expenses filed with her bankruptcy petition. The Debtor listed the following monthly expenses: Rent $ 225.00 Electricity and heating fuel 160.00 Water and sewer 10.00 Telephone 66.95 Cell phone 59.91 Food 260.00 Clothing 65.00 Laundry and dry-cleaning 45.00 Medical and dental expenses 85.00 Transportation 195.00 Recreation, entertainment, periodicals 5.00 Automobile Insurance 113.00 Personal property taxes 12.00 Student loan payment 564.09 859 Church offerings 40.00 __________ Total monthly expenses $1905.95 (Schedule JCurrent Expenditures of Individual Debtor.) The Debtor testified that by January 1, 2005, her rent will have increased to $300.00 and that her landlord will require her to begin paying her own heating fuel costs for propane in an amount not stated on the record. She will also begin paying $15.00 to $20.00 a month for garbage pickup and a small increase in her water bill. Considering these added costs, the Court estimates the Debtor's living expenses have increased by approximately $100.00 per month. Therefore, the Debtor's current monthly expenses, including the student loan payment budgeted on Schedule J, are now estimated to be $2005.95. In the summers, when the Debtor has approximately two months out of school, she is not gainfully employed. She testified that in the summer she babysits her four grandchildren, including twins who are six and two other children, ages 13 and 10. Throughout the year, she also assists her daughter, who resides in Mississippi and is divorced, transport the four children to visitation periods with their noncustodial father, who apparently lives some distance from the children. The result is that she spends approximately $195.00 every month in transportation costs. The Debtor stated that she requires a cellular telephone in her classroom because she cannot communicate with the school office through the school's intercom system. She also requires a stationary phone in her home because cell phone reception in that remote area is poor. DISCUSSION The Bankruptcy Code provides that A discharge under section 727 ... does not discharge an individual debtor from any debt (8) for an educational benefit overpayment or loan made, insured, or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution, or for an obligation to repay funds received as an educational benefit, scholarship or stipend, unless excepting such debt from discharge ... will impose an undue hardship on the debtor and the debtor's dependents; 11 U.S.C. § 523(a)(8)(2000). This provision of the Bankruptcy Code permits the discharge of education loan debts guaranteed by a governmental unit only if excepting such debts from discharge would impose an undue hardship on the debtor and the debtor's dependents. The debtor seeking discharge of an educational loan debt has the burden of proving by a preponderance of the evidence that repayment of the debt will impose an undue hardship. Long v. Educ. Cred. Mgmt. Corp. (In re Long), 292 B.R. 635, 638 (8th Cir. BAP 2003)(citing Woodcock v. Chemical Bank, NYSHESC (In re Woodcock), 45 F.3d 363 (10th Cir.1995); Andrews v. S.D. Student Loan Assistance Corp. (In re Andrews), 661 F.2d 702, 704 (8th Cir.1981); Standfuss v. U.S. Dept. of Educ. (In re Standfuss), 245 B.R. 356, 359 (Bankr.E.D.Mo.2000); Kopf v. U.S. Dept. of Educ. (In re Kopf), 245 B.R. 731, 734 (Bankr.D.Me.2000) (citing Grogan v. Garner, 498 U.S. 279, 287, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); Clark v. United Student Aid Funds, Inc., 240 B.R. 758, 761 (Bankr.W.D.Mo.1999))). In the Eighth Circuit, the test for undue hardship is a three-pronged analysis of the totality of circumstances unique to the particular bankruptcy case. Courts focus on the debtor's past, current and reasonably reliable future financial resources; the reasonable necessary living 860 expenses of the debtor and the debtor's dependents; and any other relevant facts and circumstances in the bankruptcy case. Long v. Educ. Cred. Mgmt. Corp. (In re Long), 322 F.3d 549, 554 (8th Cir.2003) (citing In re Andrews, 661 F.2d at 704; Andresen v. Nebraska Student Loan Program, Inc., (In re Andresen), 232 B.R. 127, 132 (8th Cir. BAP 1999)). Discussing the totality of circumstances analysis, the Eighth Circuit Court of Appeals has stated, "[I]f the debtor's reasonable future financial resources will sufficiently cover payment of the student loan debt-while still allowing for a minimal standard of living-then the debt should not be discharged." In re Long, 322 F.3d at 554-55. In the instant case, SLGF argues that the Debtor's delay in repaying the loan has resulted in significant interest accrual that has almost tripled the original debt. The creditor points out that the Debtor is in reasonably good health, has no dependents, has secured the teaching position for which she was trained, and does not work in the summers when she is not teaching school. Further, SLGF states that the student loan debt is 72 percent of the total unsecured debt. Chiefly, SLGF argues that the Debtor may avail herself of the income contingent repayment plan offered by the William D. Ford Direct Loan Consolidation program. Under this plan, the student loan debtor pays 20 percent of the difference between her adjusted gross income and the poverty level for her family size or the amount the debtor would pay if the debt were repaid in 12 years, whichever is less. Pennsylvania Higher Educ. Assistance Agency v. Birrane (In re Birrane), 287 B.R. 490, 495 n. 3 (9th Cir. BAP 2002). SLGF contends that the Debtor can afford to repay her student loan under the first alternative. As previously stated, after 25 years of payments, the remainder of the loan will be forgiven. SLGF asserts that if the Debtor obtained a summer job, even one paying minimum wage, she could easily afford to pay under the income contingent repayment plan. However, SLGF concedes in its post-trial brief that because the Debtor received a salary raise of $6828.00 after she filed for bankruptcy protection, SLGF's estimate of a $136.33 monthly payment under the income contingent repayment plan is now too low. (SLGF Brief at 3.) The parties have not stipulated to a higher estimate of monthly payment under the plan that takes into account the Debtor's higher salary. The Debtor argues that, even with her raise, her living expenses exceed her current income and that it is unlikely that her financial resources will significantly increase in the foreseeable future. For this reason, requiring her to repay her student loan will impose an undue hardship. An examination of the Debtor's past, present, and future financial resources reveals that after graduation in 1991, the Debtor was unable to secure a teaching position and spent eight years working at minimum wage jobs. This circumstance affected her ability to repay the student loan debt during this period. When the Debtor did find a teaching job, it was in a small school district in an impoverished part of the state where teachers' salaries were so low that paying the burgeoning student loan debt remained a difficulty. Although the Debtor has received a significant raise since she filed her bankruptcy petition, she can expect only $500.00 annual raises in the future. These paltry raises will probably be absorbed by inevitable increases in the cost of living. Therefore, in terms of buying power, the Debtor's current salary of $30,200.00 will remain stagnant until she retires. 861 As SLGF points out, the Debtor has her summers free and could earn extra money with part time or full time summer employment for approximately two months every year. However, the Debtor is limited in the types of jobs she can perform because she cannot stand or sit for extended periods. This limitation precludes employment in the service sector where jobs in retail sales, food service, and housekeeping are usually readily available. In fact, because of her chronic back problems and diminished lung capacity, the Debtor would probably not be able to perform any physically challenging work. The Debtor could, however, perform clerical duties as a temporary worker; she could babysit older children as she has for her grandchildren in summers past; and she could give private or group art lessons. Taking into account this potential for extra income in the summers, the Court imputes another $100.00 to the Debtor's net monthly earnings, bringing her net monthly income to $1543.00. This figure is the maximum the Debtor can expect to earn in the foreseeable future. In reaching this conclusion, the Court has taken into account the fact that public school teachers in the state of Arkansas are historically among the lowest paid of professions requiring a college degree. Unfortunately, this circumstance is not likely to change in the future. The Court must also decide whether the Debtor has minimized her reasonable necessary living expenses. With the exception of the Debtor's transportation costs of $195.00, her expenses are reasonable and even minimal. Even at the higher rate of $300.00 a month, her rent is very low. She does not spend money on gifts or television and internet service, and her budget for recreation and entertainment is a spare $5.00 a month. The Court credits her testimony that she needs a cell phone at school to communicate with the school office and that this is a necessary cost associated with her employment. However, the expense of driving the Debtor's grandchildren to their visitation with their noncustodial father should not be incurred to the detriment of the Debtor's student loan creditors. In evaluating this expense, the Court does note that at least part of the $195.00 a month in transportation costs probably results from maintaining an older, high mileage vehicle. Furthermore, living in a rural area without benefit of public transportation and at a distance from stores, work, and other venues necessarily results in a greater consumption of gasoline, also contributing to her transportation expense. Taking these circumstances into consideration, the Court will adjust the Debtor's transportation expenses downward by $50.00 to account for the Debtor's unnecessary costs associated with transporting her grandchildren. Therefore, the Debtor's current reasonable necessary expenses are determined to be $1955.95. Subtracting the Debtor's necessary expenses of $1955.95 from her net monthly income of $1543.00 yields a negative $412.95. Obviously, these figures demonstrate that the Debtor is unable to make the regular student loan payment of $564.09[2] without undue hardship. SLGF does not argue otherwise but instead eontends that there is still room in the Debtor's budget for a lower student loan payment under the income contingent repayment plan. 862 It is true that if the regular student loan payment of $564.09 is eliminated from the Debtor's budget, the Debtor has an excess of $151.14 a month. This excess would cover the $136.33 per month that SLGF had previously estimated would have been due under the income contingent repayment plan at the time of the Debtor's bankruptcy filing. However, as SLGF concedes, the Debtor would now owe more than $136.33 per month under the plan formula because of the Debtor's salary raise this school year. See, e.g., Warner v. Educ. Cred. Mgmt. Corp. (In re Warner), 296 B.R. 501, 503-04 (Bankr.D.Neb.2003) (Debtor with two dependent children was earning $26,000.00 a year and would be required to pay $191.00 per month under ICRP on debt of $57,000.00); In re Birrane, 287 B.R. at 490-500 (Debtor was earning $21,155.00 a year and would be required to pay $141.00 a month under ICRP to defray $57,092.00 in student loan debt). Another circumstance relevant to this analysis is that the Debtor is driving an older model automobile with 182,000 miles on the odometer. Because she lives in a rural area, the Debtor must own and maintain her own mode of transportation, and at some point in the near future the Debtor will have to replace her vehicle. A car payment will totally eliminate any excess funds now in the budget and will also very likely require further belt-tightening on the Debtor's part. The financial reality is that the Debtor will have no excess income to apply to the student loan debt, even if paid at a reduced rate available through the income contingent repayment plan. The Court concludes that the Debtor's future financial resources will not sufficiently cover any student loan payment and also allow for the Debtor's minimal standard of living. Additionally, in considering whether payment under the income contingent repayment plan would create an undue hardship, the Court observes that even if the Debtor were somehow able to make the payments required under the formula, she would probably still owe most or all of the principal of $69,794.17 in 25 years when the loan is forgiven and she is 76 years old. Courts have found that forgiveness of the loan would be a taxable event that could result in a "tax liability which would likely be non-dischargeable in bankruptcy." Limkemann v. U.S. Dept. of Educ. (In re Limkemann), 314 B.R. 190, 196 (Bankr. N.D.Iowa 2004) (citing In re Strand, 298 B.R. 367, 376-77 (Bankr.D.Minn.2003); In re Thomsen, 234 B.R. 506, 512-14 (Bankr. D.Mont.1999); In re Berscheid, 309 B.R. 5, 13 (Bankr.D.Minn.2002)). Therefore, the Debtor, at 76 years of age, would be taxed on substantial phantom income while existing on a retiree's reduced financial resources.[3] This circumstance would impose an undue hardship on the Debtor if she were required to participate in the income contingent repayment plan. While the Court believes that the income contingent repayment plan is an alternative that would not impose an undue hardship in many cases, it is not an option for this Debtor. She is too close to retirement age, has too many health problems, and is employed in a field where she has no chance of making a substantially higher salary in the future. *863 See In re Long, 292 B.R. at 639 (remarking that 39-year-old debtor was able to make student loan payments under ICRP without undue hardship and would complete payments before she reached retirement age). In support of its argument that repaying the loan would not constitute undue hardship, SLGF implies that the Debtor, through her delay in making full monthly payments, was responsible for the debt's increase from $25,000.00 to $69,000.00. SLGF points out that the Debtor and her husband owned as many as eight horses during the time when she was deferring or reducing payments to her student loan creditor. However, there was not enough evidence at trial as to the expense associated with the acquisition and care of the horses for the Court to draw the inference that the Debtor chose to indulge in an expensive pastime rather than make her regular student loan payments. The Court credits the Debtor's explanation that after graduation, she was unable to find employment that paid enough for her to defray the student loan debt. SLGF also emphasizes that the Debtor has no dependents and that her student loan debt is 72 percent of the total unsecured debt. These are but two factors among many to be weighed in the totality of the circumstances analysis, and neither is determinative in this case. See, e.g., Ford v. Student Loan Guarantee Found. (In re Ford), 269 B.R. 673, 677 (8th Cir. BAP 2001) (asserting that debtor's age and physical condition weighed heavily toward discharging student loan, while debtor's failure to pursue deferments or opt for ICRP did not support a finding of nondischargeability). CONCLUSION The Debtor does not and will not have the financial resources to make regular or reduced payments on her student loan and still maintain a minimal standard of living. To except this debt from discharge will impose an undue hardship on the Debtor, and for this reason the debt owed to SLGF is determined to be dischargeable. IT IS SO ORDERED. NOTES [1] The Debtor received a substantial, one-time salary raise after she filed for bankruptcy protection in July. She had originally scheduled her monthly income at $1297.30. (Schedule I-Current Income of Individual Debtor.) [2] The Debtor did not testify at trial as to the exact amount of the student loan payment that would be due each month under the original terms of the loan agreement, but she budgeted $564.09 as the monthly student loan payment in Schedule J. [3] For example, if the Debtor paid $200.00 a month under the income contingent repayment plan for the next 25 years and the principal of $69,000.00 accrued interest at a rate of 8.25 percent, the debt would continue to grow until after 25 years the Debtor would owe $340,792.60. Even assuming a slightly higher monthly payment and a lower interest rate, it is unlikely the Debtor would ever reduce, much less retire, the original principal indebtedness of $69,000.00.	{ "pile_set_name": "FreeLaw" }
965 F.2d 747 20TH CENTURY INSURANCE COMPANY, Plaintiff-Appellee,v.LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellant.20TH CENTURY INSURANCE COMPANY, Plaintiff-Appellee,v.ADMIRAL INSURANCE COMPANY, Defendant-Appellant,andLiberty Mutual Insurance Company, Defendant.20TH CENTURY INSURANCE COMPANY, Plaintiff-Appellant,v.ADMIRAL INSURANCE COMPANY, Defendant-Appellee,andLiberty Mutual Insurance Company, Defendant. Nos. 90-16537, 90-16552 and 90-16553. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 12, 1992.Decided May 27, 1992. 1 Randall E. Kay, New & Kay, San Francisco, Cal., for plaintiff-appellee-cross-appellant 20th Century Ins. Co. 2 Glenn Gould, Martin, Ryan & Andrada, Oakland, Cal., for defendant-appellant Liberty Mut. Ins. Co. 3 Charles I. Eisner, Boornazian, Jensen & Garthe, Oakland, Cal., for defendant-appellant-cross-appellee Admiral Ins. Co. 4 Appeal from the United States District Court for the Northern District of California. 5 Before HALL and WIGGINS, Circuit Judges, and KEEP, Chief District Judge.1 KEEP, Chief District Judge: 6 Following an automobile accident involving an insured motorist driving a rented automobile, the driver's primary insurer satisfied the majority of the claims filed against the driver and then instituted in district court a declaratory judgment action for contribution against the rental car company's primary and secondary insurers. The district court granted summary judgment in favor of plaintiff. This consolidated appeal follows. 7 The district court had jurisdiction over this case pursuant to 28 U.S.C. § 1332. We have jurisdiction over this timely appeal under 28 U.S.C. § 1291. We affirm in part and reverse in part. FACTUAL AND PROCEDURAL BACKGROUND 8 The underlying claims in this case arose from an accident involving an automobile owned by Alamo Rent-A-Car ("Alamo") and operated by George D. Bane, a permissive user. On or about May 25, 1985, George Bane rented a car from Alamo under a rental contract which obligated Alamo to provide liability insurance to Mr. Bane "with limits of liability equal to the financial responsibility limits required by the State in which the vehicle is rented...." On May 30, 1985, Mr. Bane was involved in a two-car accident in which a passenger was killed and two other passengers seriously injured. 9 At the time of the accident, Mr. Bane carried a primary policy of personal automobile liability insurance issued by Plaintiff-Appellee 20th Century Insurance Company ("20th Century") in the amount of $300,000. Alamo carried a policy of primary insurance issued by Defendant-Appellant Liberty Mutual Insurance Company ("Liberty"), which provided Alamo with $100,000 of coverage per accident. Alamo carried as well a policy of excess insurance issued by Defendant-Appellant Admiral Insurance Company ("Admiral"), with limits of $100,000 per person and $300,000 per accident for users and renters of Alamo cars. 10 As a result of the accident, various claims were filed against Mr. Bane. Liberty Mutual contributed $30,000 and 20th Century contributed $300,000 toward the settlement of these claims. 20th Century subsequently filed this action for declaratory relief. On September 20, 1990, the District Court issued an order granting 20th Century's motion for summary judgment and denying the cross-motions of Liberty and Admiral. Liberty was ordered to pay $70,000 plus pre-judgment interest to 20th Century. Admiral was ordered to pay $200,000 plus pre-judgment interest to 20th Century. 11 Appellant Liberty does not contest the court's finding that its policy was primary to those written by Admiral and 20th Century, but contends on appeal that its liability coverage for bodily injury was $30,000, the minimum required by California law, rather than the $100,000 found by the district court. Appellant Admiral also appeals the judgment, contending that it was liable under its policy only after the policies of both Liberty and 20th Century were exhausted. 20th Century cross appeals, arguing that the district court erred in limiting Admiral's contribution to $200,000. DISCUSSION 12 A district court's grant of summary judgment is reviewed by the appellate court de novo. The general standard that an appellate court applies in reviewing the granting of such a motion is the same as that employed by a district court initially under Fed.R.Civ.P. 56(c). Aetna Casualty & Ins. Co. v. Continental Ins. Co., 838 F.2d 346, 350 (9th Cir.1988); Continental Casualty Co. v. City of Richmond, 763 F.2d 1076, 1078-79 (9th Cir.1985). Under Rule 56(c), summary judgment is proper when the pleadings and discovery, read in the light most favorable to the nonmoving party, demonstrate 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. 13 In this case, the parties stipulated to all relevant facts. The only issues raised on summary judgment concern the proper interpretation of the various insurance contracts. The Court of Appeals is not bound by the findings of the District Court with respect to contract interpretation. Commercial Paper Holders v. Hine (In the Matter of Beverly Hills Bancorp), 649 F.2d 1329, 1334 (9th Cir.1981). 14 I. Did the district court err in finding that Liberty's liability was not limited to the statutory minimum of $30,000, but extended to its policy limit of $100,000? 15 Liberty's policy with Alamo provided $100,000 of coverage per accident between February, 1985 and September, 1985. The policy included the following amendatory endorsement which provided that the coverage available to renters was subject to the terms of the rental contract: 16 The insurance provided by this policy for any other lessee, rentee ... is subject to the conditions, restrictions, and limitations, contained in the lease or rental agreement, providing our undertaking under this policy is not enlarged or extended. 17 The rental contract between Alamo and Mr. Banes provided liability coverage to Mr. Banes in the following terms: 18 "4. The company agrees to provide liability insurance with limits of liability equal to the financial responsibility limits required by the State in which the vehicle is rented...." 19 The district court found Liberty responsible for the full $100,000 guaranteed by the terms of Liberty's contract with Alamo, holding that the clause in the rental agreement that purported to limit the renter's coverage to the minimum required by California law was not sufficiently unambiguous, conspicuous, plain and clear to be effective. On appeal, Liberty argues that it was reversible error for the court to grant summary judgment to 20th Century on this issue, because the insurance provision of the Alamo rental agreement effectively limited coverage for permissive users to the minimum statutory coverage of $30,000. 20 Liberty advances two related arguments: first, that the limitation of liability is consistent with California law, and thus that the limiting language of the rental agreement was sufficient to limit its liability to $30,000 under its insurance contract with Alamo; second, that since the insurance provision of the Alamo rental agreement does not disappoint the reasonable expectations of the renter, it need not be conspicuous. 20th Century does not dispute that California law permits an insurer to provide less coverage to permissive users than it does to the named insured, but contends (1) that the limiting provision of the rental car agreement was not successfully integrated into Liberty's insurance policy; and (2) that regardless of the expectations of the consumer, an exclusionary clause must be conspicuous and unambiguous, which the exclusionary clause in Alamo's rental contract was not. 21 A. Was the limiting provision of the rental car agreement successfully integrated into the policy of insurance? 22 Before reaching the question of whether the limiting clause in the rental contract was sufficiently conspicuous and clear to be effective against Mr. Bane, we must determine whether that clause was effectively incorporated into the insurance policy issued by Liberty. We find persuasive the reasoning of Hartford Accident and Indem. Co. v. Sequoia, 211 Cal.App.3d 1285, 260 Cal.Rptr. 190 (1989), a recent California case involving two levels of incorporation by reference. The primary policy addressed in Hartford contained a Declaration that stated "See attached extension schedule of underlying insurance policies forming a part of the policy." The excess insurer argued to the court that the underlying insurance policies named in the extension schedule were, in addition to the extension schedule itself, incorporated by reference and thus a part of its policy with the insured. The court rejected this argument, explaining that in order to be effectively incorporated into the primary policy, the underlying policies would have to become expressly a "part of the policy." Id. at 1299, 260 Cal.Rptr. 190. The court concluded that, considering the language of the amendments and of the policies themselves, there was no clear intent to incorporate the policies. Id. at 1299, 260 Cal.Rptr. 190. 23 The policy at issue here, like that discussed in Hartford, contains two levels of incorporation by reference into a primary policy of insurance. The Liberty insurance policy explicitly incorporates by reference any endorsements to the policy, which were anticipated to change the agreements between the contracting parties. Amendatory Endorsement No. 11 in turn provides that "the insurance provided by this policy for the [permissive users] is subject to the terms, including any limit of liability, conditions, restrictions, and limitations contained in the lease or other rental agreement, providing our undertaking under this policy is not enlarged or extended" (emphasis added). The amendment thus purports to incorporate the liability-limiting language of the rental agreements between Alamo and its customers. 24 If the language of Hartford is to be read to mean that a document cannot be incorporated by reference unless that document itself contains an expression of intent to be incorporated, then the rental agreement was not properly incorporated into the Liberty insurance policy. If, as seems the better reading, Hartford held that a determination of whether a document has been incorporated by reference turns on a reading of all the relevant documents, considered together, the rental agreement was properly incorporated. We adopt this latter construction as more consistent with California contract principles. The Hartford court was clear that the doctrine of incorporation by reference is applicable to contracts of insurance, see id. at 1299, n. 3; and though the rental agreements did not themselves contain language indicating that they were to be incorporated into the insurance policy, the Amendatory Endorsement, unlike the endorsement in Hartford, did unambiguously incorporate the limiting language of the rental agreements into the insurance contracts. We thus find that the liability limiting provisions of the rental agreements were incorporated by reference into the Liberty insurance contract. 25 B. Is the language of the exclusionary clause in the Alamo-Banes rental agreement sufficient to limit Liberty's liability to the statutory minimum? 26 California law requires that a limitation of liability in a contract of insurance be "conspicuous, plain and clear" in order to be effective against an insured. See Steven v. Fidelity & Casualty Co., 58 Cal.2d 862, 27 Cal.Rptr. 172, 377 P.2d 284 (1962); Ponder v. Blue Cross of S. Cal., 145 Cal.App.3d 709, 719, 193 Cal.Rptr. 632 (1983). In interpreting the meaning of a contract of insurance, the policy should be read as a layperson would read it and not as it might be analyzed by an attorney or an insurance expert. Employers Reins. Corp. v. Phoenix Ins. Co., 186 Cal.App.3d 545, 554, 230 Cal.Rptr. 792 (1986). To the extent that a policy is ambiguous, any ambiguity or uncertainty is to be resolved against the insurer. The general rule is that if coverage is available under any reasonable interpretation of an ambiguous clause of an insurance policy, the insurer cannot escape its obligation. Id., citing Chamberlin v. Smith, 72 Cal.App.3d 835, 844-45, 140 Cal.Rptr. 493 (1977). 1. Reasonable expectations of the insured 27 As a preliminary matter, we must determine whether the requirements of clarity and conspicuousness applied by California law to contracts of insurance govern our analysis of the insurance limitation contained in the Alamo rental agreement. The standard for determining whether a contract is subject to California insurance regulation was set out by the California Appellate Court in Truta v. Avis Rent-A-Car System, 193 Cal.App.3d 802, 238 Cal.Rptr. 806 (1987), in which the Court explained that: 28 In analyzing whether a contract constitutes insurance it is advised that two inquiries be made: "To what extent, in each case, did the specific transactions or the general line of business at issue involve one or more of the evils at which the regulatory statutes were aimed? And were the elements of risk transference and risk distribution, characteristic of transactions at which regulatory statutes were aimed, a central and relatively important element of the transactions or instead merely incidental to other elements that gave the transactions their distinctive character?" 29 Id. at 812-13, 238 Cal.Rptr. 806 (quoting Robert E. Keeton, Insurance Law § 8.2(c), at 552 (1971)). 30 We find that the policy considerations cited by the Truta court compel application of insurance regulatory standards to the case at bar. Unlike the policy provisions at issue in Truta, which merely allocated a $100 insurance deductible between a rental car company and its lessee, the limiting clause in Alamo's rental contract was the key factor controlling the amount of insurance coverage available to Mr. Bane under the rental agreement. Indeed, this clause would have effectively determined the total amount of insurance available to a driver who, unlike Mr. Banes, was not personally insured. The rental agreement, then, at least to the extent that it limited the insurance provided for a rented vehicle, clearly implicates the concern of the California legislature in passing insurance laws, that the driver/consumer be fully and fairly informed of the limits of his or her coverage. Moreover, risk transference and risk distribution between Alamo's insurer and the renter of the car (or his or her insurance company), were clearly a "central and relatively important element" of the liability-limiting clause. This clause directly allocated risk between Liberty and any other involved parties and, as such, falls squarely within the situation identified in Truta as one to which statutory insurance provisions are correctly applied.2 31 2. Conspicuousness of the liability limiting clause 32 California Commercial Code § 1201 provides that "A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it.... Whether a term or clause is 'conspicuous' or not is for decision by the court." The district court held that the insurance provision contained in the Alamo rental agreement could not be upheld because it is not sufficiently conspicuous. The court stated: 33 The clause appears in the middle of the fourth paragraph on the reverse side of the rental contract on a page with extremely small light-colored print. The print is so small that the page on which the clause appears contains more than 2000 words. Furthermore, the paragraphs are not preceded by any bold or larger print or headings to indicate to the reader the general substance of their contents. Further, the extent of insurance coverage is a very important term of a rental car contract. The Court finds that the clause in the rental car contract limiting Liberty's coverage is not sufficiently conspicuous, and, therefore, it is not effective. 34 Liberty does not contest the district court's finding that the liability limiting clause was not in fact conspicuous as a matter of law. It argues, however, that we need reach the issue of whether the clause was conspicuous only if the clause was contrary to the reasonable expectations of the insured. 20th Century disagrees, contending that the requirement that an exclusionary clause be "conspicuous, plain and clear" operates independently of the expectations of the insured. 35 While not an entirely settled issue under California law,3 the significant weight of California authority holds that an exclusionary clause in an insurance policy must be conspicuous, plain, and clear in order to be effective against the insured, regardless of the expectations of the insured. The issue was first modernly addressed by the California Supreme Court in Steven v. Fidelity & Casualty Co., 58 Cal.2d 862, 27 Cal.Rptr. 172, 377 P.2d 284 (1962), in which the Court suggested that the unexpected nature of an exclusion is an independent and sufficient reason for striking the exclusion, not a prerequisite for requiring it to be conspicuous and clear. The court explained, 36 In standardized contracts, ... the California courts have long been disinclined to effectuate clauses of limitation of liability which are unclear, unexpected, inconspicuous or unconscionable.... The disparity in bargaining power between the insured and the insurer is so tremendous that the insurer had adopted a means of selling policies which makes bargaining totally impossible. The purchaser lacks any opportunity to clarify ambiguous terms or to discover new ones. He must purchase the policy before he even knows its provisions. 37 Steven, 58 Cal.2d at 879-884, 27 Cal.Rptr. 172, 377 P.2d 284. The court thus concluded as a matter of law that the exclusionary clause should have been brought to the attention of the insured; since it had not, it could not be effective against him. 38 California appellate courts interpreting the language in Steven have almost uniformly required that exclusionary clauses be conspicuous, plain and clear, and have construed such clauses strictly against the insurer and liberally in favor of the insured. See Miller v. Elite Ins. Co., 100 Cal.App.3d 739, 751, 161 Cal.Rptr. 322 (1980); Fields v. Blue Shield of California, 163 Cal.App.3d 570, 582-83, 209 Cal.Rptr. 781 (1985); Employers Reinsurance Corp., 186 Cal.App.3d at 554, 230 Cal.Rptr. 792; Merrill & Seeley, Inc. v. Admiral Ins. Co., 225 Cal.App.3d 624, 630, 275 Cal.Rptr. 280 (1990). Indeed, one of the most recent cases to have considered this issue explained that the doctrine of reasonable expectation of coverage comes into play where there is an ambiguity in the language of the policy; the "conspicuous" requirement appears to rest on an independent inquiry into the reasonableness of holding the insured to knowledge of the exclusionary clause at all. See Merrill, 225 Cal.App.3d at 630, 275 Cal.Rptr. 280.4 39 In sum, though there is no clear answer under California law, we find that the weight of authority supports the conclusion that the "conspicuous" requirement is independent of the expectations of the insured, and thus so hold. Since the parties agree that the relevant clause in the rental agreement was not in fact conspicuous, we affirm the district court's finding that the clause limiting Liberty's liability to the statutory minimum was not effective against Mr. Bane.5 40 II. Did the district court err in finding Admiral's liability precedent to 20th Century's? 41 Based on the language of the "other insurance" clauses of the two policies, the district court found that Admiral's liability preceded 20th Century's. Admiral challenges the district court's ruling on appeal, arguing that California law requires that all primary insurance policies be exhausted before secondary or excess policies are reached. The question presented by Admiral's appeal, then, is whether the Admiral policy attached upon the exhaustion of the underlying Liberty policy, or whether it properly attached only after the exhaustion of both the Liberty and 20th Century policies. 42 The issue of the order in which liability attaches in this case has not been directly confronted by the California legislature. California Insurance Code § 11580.9 provides that where two policies cover an automobile owned by a person in the business of renting or leasing motor vehicles, and driven by a nonowner who has leased the vehicle for longer than six months, it shall be conclusively presumed that the policy of the driver shall be primary. Cal.Ins.Code. § 11580.9(b) (West 1992). The statute further provides that except as otherwise stated in subdivisions (a)-(c),6 where two or more policies of liability insurance apply to the same vehicle, it shall be conclusively presumed that the insurance afforded by the policy in which the motor vehicle is "described or rated as an owned automobile" shall be primary and the insurance afforded by any other policy shall be excess. Id. § 11580.9(d). 43 It is agreed by the parties that section 11580.9 does not apply to the case at bar because none of the relevant insurance policies explicitly "describe or rate" the particular Alamo car driven by Mr. Bane.7 Admiral and 20th Century disagree, however, about the approach to be applied in resolving a case to which a provision of the Insurance Code does not explicitly apply. 20th Century suggests that where the Code does not apply, priority of obligation is to be determined by the language of the insurance policies themselves, effectuating to the degree possible the intentions of the parties to the insurance contract. Admiral disagrees, contending that a modern line of California cases instructs that a court is to exhaust all primary policies before reaching secondary or excess policies, and thus that the focus of a court's inquiry is not the specific language of the "other insurance" clauses of the policies, but rather the fundamental distinction between a primary and excess policy. Admiral asserts that comparing contractual language is appropriate only within a class of insurance, and thus that the district court erred in analyzing the "other insurance" clauses of the 20th Century and Admiral policies. 44 Fireman's Fund Indemnity Corp. v. Prudential Assurance Co., 192 Cal.App.2d 492, 13 Cal.Rptr. 629 (1961), cited by 20th Century, describes facts analogous to those present here. In Fireman's Fund, as here, the automobile owner's primary insurer conceded liability and paid the limits of its policy; the driver's insurer and the owner's excess insurer then brought a declaratory action to determine the priority of liability as between them. The driver's policy provided that "the insurance under this policy with respect to loss arising out of the maintenance or use of any hired or non-owned automobile shall be excess over any other valid and collectible insurance available to the insured." Id. at 494, 13 Cal.Rptr. 629. The owner's excess policy provided that " 'liability shall attach only after the Primary Insurers have paid or have been held liable to pay the full amount of their respective ultimate net loss liability.' " Id. (emphasis omitted). Comparing the language of the two policies, the Court stated, 45 [D]espite appellant's [the excess insurer's] contention that its policy was 'excess' over all other insurance, the policy did not so provide. The language of the policy fails to state clearly and unequivocally that its liability attached only after imposition of liability upon respondent [the driver's primary insurer].... 46 .... 47 The clause under which appellant would entail respondent's policy as 'other insurance' refers to other insurance which Maryland [the owner's primary insurer] can enlist. If Maryland can reduce its loss by means of other insurance, appellant gets that benefit. But Maryland is the conduit, and if the conduit is blocked, appellant fails. 48 Id. at 495-96, 13 Cal.Rptr. 629 (emphasis added). The court thus concluded that because the excess insurer's policy contained a limited declaration applicable solely to the primary insurer's other insurance, and did not contain a precise other insurance provision applicable to all other insurance, the excess insurance was properly applied before the driver's primary insurance. See id. 49 Admiral argues that Fireman's Fund and its progeny,8 relied on by the district court below, are distinguishable and inapplicable to the case at bar because all predate January 1, 1971, the effective date of Insurance Code sections 11580.8 and 11580.9. Admiral suggests that since 1971, courts have determined priority by labeling policies as primary, secondary, etc., and then apportioning liability within a class, rather than by looking to the liability-determining language of each applicable policy. Admiral would therefore conclude that Mr. Banes' primary policy must be exhausted before Alamo's excess insurer is reached. 50 We are not persuaded by Admiral's analysis.9 The cases cited by Admiral, decided since Fireman's Fund, have not relied solely on judicially created labels to accord priority, but rather have focused on the specific language of the policies' "other insurance" clauses. Olympic Ins. Co. v. Employers Surplus Lines Ins. Co., 126 Cal.App.3d 593, 178 Cal.Rptr. 908 (1981), cited by Admiral for the proposition that all primary policies should precede secondary policies without reference to the "other insurance" clauses of the policies, is in fact inapposite. Admiral suggests that Olympic announced a policy that all available primary policies covering a loss must be exhausted as a prerequisite to the triggering of excess coverage, even if one of the primary policies was not listed as underlying insurance by the excess carrier. Olympic, however, defined a primary policy as one wherein, under the terms of the policy, liability attaches immediately upon the happening of the occurrence that gives rise to liability. Id. at 597, 178 Cal.Rptr. 908. The approach of Olympic thus suggests that we look to the language of each policy to determine when it purports to attach, focusing on the intended application of each policy to the particular collision at issue, and applying judicially-crafted presumptions of priority only when terms of applicable policies are in conflict. 51 The Olympic approach was refined in Hartford, in which the court indicated that apart from whether a policy might generally be classified as "primary" or "excess," policies "applicable to the same loss may be 'primary' or 'excess' with respect to each other depending on a variety of factors including statutory presumptions, the 'other insurance' clauses of the policies, etc. ...." 211 Cal.App.3d at 1296, 260 Cal.Rptr. 190. Consistent with this analysis, the Hartford court prorated the driver's primary insurance and the owner's excess insurance only after determining that the policies contained identical "other insurance" clauses that could not be simultaneously effectuated. Rather than suggest that Fireman's Fund had been overruled by the Insurance Code, the court distinguished Fireman's Fund on the ground that the excess insurance policy in that case purported to attach upon depletion of the specifically mentioned primary insurance policy, while the excess insurance policy in Hartford stated that it was excess to all other collectible insurance. See id. at 1301-02, 260 Cal.Rptr. 190.10 52 The policy of insurance issued by 20th Century to George Bane provided coverage to Mr. Bane in the use of his named vehicle or "additional insured automobiles," which it defined as other vehicles not owned by the insured, but temporarily used by him with the permission of the owner. The policy further provided (1) that if more than one policy were to apply to Mr. Bane's insured automobile, 20th Century would bear its proportional share with other collectable insurance, and (2) that in the use of an additional insured automobile not owned by Mr. Banes, "the insurance under this part shall be excess over other collectible insurance." 20th Century's policy in this case did not therefore provide for immediate, primary liability upon a collision involving a car driven, but not owned, by Mr. Bane. 53 Admiral Insurance issued to Alamo a "Certificate of Excess Insurance," which provided that "The insurance afforded by this certificate shall follow that of the primary insurance ..." The primary carrier was designated in Endorsement No. 18 as Liberty Mutual. The relevant Liberty Mutual policy includes an "other insurance" clause similar to that in 20th Century's policy, which provides that, 54 "For any covered auto you own this policy provides primary insurance. For any covered auto you don't own, the insurance provided by this policy is excess over any collectible insurance.... When two or more policies cover on the same basis, either excess or primary, we will pay only our share. Our share is the proportion that the limit of our policy bears to the total ..." 55 Thus, though the 20th Century policy is primary as to vehicles owned by Mr. Bane, it is, by its own terms, excess as to vehicles rented or leased by the insured. Admiral's policy, by contrast, is by its terms excess to the "primary insurer" Liberty Mutual. While the contract clause stating that "[t]he insurance afforded by this certificate shall follow that of the primary insurer" is, considered alone, ambiguous as to which primary insurer or insurers it will follow, the ambiguity is clarified by Endorsement No. 18, which specifies the relevant primary carrier to be Liberty Mutual. We thus reject Admiral's contention that its insurance contract contemplated its liability to be excess to all primary policies, and affirm the judgment of the district court that Admiral's policy attached upon the exhaustion of the underlying Liberty policy. 56 III. Did the district court err in limiting Admiral's contribution to $200,000? 57 The district court found Admiral liable up to $200,000, pursuant to a Stipulation of Undisputed Facts for Cross Motions for Summary Judgment submitted by the parties. The Stipulation stated that Admiral issued its certificate of excess liability insurance providing limits for permissive users and renters of Alamo vehicles in the amount of $900,000 combined single limit in excess of $100,000; and that by endorsement dated October 25, 1985, the limits of coverage were reduced to $300,000 per accident bodily injury liability, in excess of the $100,000 combined single limit bodily injury and property damage coverage provided by the Liberty policy. The district court apparently concluded on the basis of this stipulation that the October 25 endorsement limited Admiral's liability to Mr. Bane to $200,000. 58 20th Century appeals this finding, contending that as the endorsement was issued after the date of the accident, it did not effectively limit Admiral's liability. 20th Century suggests, citing Angle v. United States Fidelity & Guaranty Co., 201 Cal.App.2d 758, 20 Cal.Rptr. 391 (1962), that parties to a contract of insurance may not limit an insurer's liability after the occurrence of the accident giving rise to the claim, unless grounds for reformation exist. Angle involved two policies of fire insurance issued on the same piece of real property, one to the secured lender and the other to the property owner. After a fire, one insurer issued a back-dated replacement policy with reduced coverage limits. The crucial issue in the case, the court explained, was whether an insurer may rescind an insurance policy after the event giving rise to the insurance liability occurred, when the effect of the rescission would be to increase the pro rata liability of another insurer. The court determined that an insurer may not do so, stating: 59 The answer to this question depends upon a further inquiry: Does an insurance company in these circumstances have a 'right' to prorate its liability and, if so, does such right vest upon the occurrence of the event that gives rise to that liability? The answer to this further inquiry must be in the affirmative. 60 Id. at 761, 20 Cal.Rptr. 391. 61 The court continued,[T]here can be no rescission where the rights of third parties would be prejudiced.... 'It is, of course, fundamental that, where the rights of others have intervened and circumstances have so far changed that rescission may not be decreed without injury to those parties and their rights, rescission will be denied and the complaining left to his other remedies.' 62 Id. at 763, 20 Cal.Rptr. 391 (quoting Beckwith v. Sheldon, 165 Cal. 319, 324, 131 P. 1049 (1913)). 63 The only exception to this result, the court noted, was where the contractual language misstated the understanding of the parties in entering the contract. In this situation, the parties would be permitted to reform the writing to conform to the mutual understanding, regardless of the effect on third parties. See id. 64 Admiral argues that this exception is not applicable to the case at bar, because "reformation was unnecessary due to the fact that the endorsement was issued to reflect the agreement of the parties to the contract." Essentially, Admiral seems to argue that because it effectively amended its policy with Alamo through the issuance of an Endorsement, the contract never required reformation. This argument does not address the question of whether the intended amendment to the contract was effective as to insurance claimants involved in accidents that occurred before the date of amendment, where third parties would be adversely affected by the amendment. Admiral appears to assume that because the amendment was backdated to the effective date of the policy, the amendment was effective as of this date, and thus raises no retroactivity problems. However, it cites no authority for this proposition, which is contrary to that cited above. 65 Admiral further argues that had the endorsement not been issued, reformation would have been appropriate, because "the record is void of evidence that any level of permissive user coverage other than that described in Endorsement 22 was intended by Alamo or Admiral. Indeed, to the extent Endorsement 22 may have been prepared sometime after the policy was issued, the Court can properly infer that the policy was initially mistaken as to limits provided to permissive users and that mistake was remedied by Endorsement 22." Admiral appears to conclude that without substantive evidence that Endorsement 22 did not reflect the intent of Alamo and Admiral at the time the policy was first issued, its terms must be enforced.11 66 We find Admiral mistaken as to each point. As to the first, the Stipulation submitted to the district court stated that Admiral issued a certificate of excess liability insurance with limits for permissive users of Alamo rental cars of $900,000, significant evidence of a level of coverage other than that described in Endorsement 22. As to the second point, there is absolutely no evidence before the court that the policy was initially "mistaken" as to the limits of coverage provided; indeed, none of pleadings contained a request for reformation or revision, and Admiral indicates that no discovery on this question was ever conducted. On these facts, Admiral has not raised a triable question of material fact, sufficient to withstand a motion for summary judgment by 20th Century. Finally, Admiral is mistaken that absent substantive evidence that the Endorsement did not reflect the intent of the parties at the time of the signing of the contract, the terms of the amendment must be enforced; rather, the burden is on the party seeking reformation to present clear and convincing evidence of the basis for reformation.12 67 Based on the foregoing, we find that the amendment contained in Endorsement 22 did not limit Admiral's liability to $200,000. CONCLUSION 68 We affirm the district court's findings that Liberty was liable up to its policy limit of $100,000, and that 20th Century's liability was excess to Admiral's. We reverse the district court's finding that Admiral's liability was limited to $200,000, and find Admiral liable up to its policy limit of $900,000. The case is remanded for entry of judgment consistent with this opinion. 69 AFFIRMED IN PART AND REVERSED IN PART. 1 The Honorable Judith N. Keep, Chief United States District Judge for the Southern District of California, sitting by designation 2 It should be noted that the defendant in Truta was a rental car company itself, rather than, as here, that company's insurer. The Truta court was clearly concerned that the stringent regulations imposed on insurers in California not be casually applied to other kinds of businesses that are not engaged in providing insurance. The court noted, "... obviously it was not the purpose of the insurance statutes to regulate all arrangements for assumption or distribution of risk. That view would cause them to engulf practically all contracts.... The question turns, not on whether risk is involved or assumed, but on whether that or something else to which it is related in the particular plan is its principal object and purpose." Truta, 193 Cal.App.3d at 814, 238 Cal.Rptr. 806 (quoting Transportation Guar. Co. v. Jellins, 29 Cal.2d 242, 249, 174 P.2d 625 (1946)). The case at bar, however, involves only insurers, and presents to this court only the question of what percentage of specified claims each will be required to pay. Under these circumstances, application of the California insurance laws to the parties is both reasonable and legally consistent with the interpretation of California courts 3 In Ponder v. Blue Cross of Southern California, cited by both parties, the Court stated: It is not altogether clear that the conspicuous and plain and clear requirements apply unless the exclusion 'disappoints the reasonable expectations' of the insured. Some cases couple the two statements in a way as to suggest that only disappointed expectations will activate the conspicuous, plain and clear requirements. (cites) On the other hand, other decisions appear to require exclusions to comply with these requirements without any finding that implementation of the exclusion would 'disappoint the reasonable expectations' of the insured. (cites) We can imagine exclusions which are so consistent with the scope of coverage an ordinary policyholder expects that it would be unnecessary if not redundant to impose special requirements these clauses be conspicuous and plain and clear. Nonetheless many, and perhaps most, exclusionary clauses by their very nature deny coverage that consumers otherwise would personally anticipate to be provided under the policy. 145 Cal.App.3d at 720, 193 Cal.Rptr. 632 (emphasis added) 4 One recent California case may be read to suggest that disappointing the reasonable expectations of the buyer is prerequisite to requiring that an exclusionary clause be conspicuous. See Hurd v. Republic Insurance Co., 113 Cal.App.3d 250, 253, 169 Cal.Rptr. 675 (1980). Even in Hurd, however, the expectations of the insured are not clearly predicate to the "conspicuous" requirement, but rather are factors considered together in achieving the statutory goal of protecting consumers from limitations of liability of which they could not reasonably have been expected to be aware. See id. Moreover, the language of several recent California cases may suggest that an exclusionary clause is presumptively contrary to the expectations of the consumer insured. See Paramount Properties Co. v. Transamerica Title Ins. Co., 1 Cal.3d 562, 569, 83 Cal.Rptr. 394, 463 P.2d 746 (1970); Ponder, 145 Cal.App.3d at 721, 193 Cal.Rptr. 632 5 We recognize that our decision may be read to create an apparent incongruity, in that the clause of the Liberty insurance policy insuring Alamo for up to $100,000 was no more conspicuous than the limiting clause in the rental agreement, and the insurance policy was itself housed in Alamo's corporate headquarters in Florida, where it could not be accessed by Mr. Bane or any other leasor of an Alamo rental car; thus, our striking of the rental agreement's limiting language voids one inconspicuous clause in favor of another. We note, however, that only exclusionary clauses of insurance policies are subject to the "strict scrutiny" discussed above, as the California courts have found such clauses to uniquely disappoint the reasonable expectations of the average consumer and to avoid the goal for which insurance is procured. The courts have for this reason held that any ambiguity in an insurance policy is to be resolved against the insurer. See, e.g., Healy Tibbitts Const. Co. v. Employer's Surplus Lines Ins. Co., 72 Cal.App.3d 741, 748-49, 140 Cal.Rptr. 375 (1977). Our task, therefore, is not to weigh the coverage and exclusionary clauses against one another, applying the clearer or more conspicuous, but rather to determine whether the exclusionary clause has met the standards of clarity and conspicuousness required by California law. As we find that the clause does not, it must fail in favor of the general coverage provision of the policy itself 6 Subdivision (a) discusses priority of coverage as relates to an insured in the business of selling, repairing, servicing, delivering, testing, road-testing, parking, or storing motor vehicles. Subdivision (c) covers loss arising out of the loading or unloading of a motor vehicle 7 The Liberty policy covers "Any automobile owned, leased to or operated by Alamo Rent-A-Car, Inc." The California courts have interpreted § 11580.9(d) to require a "particularization" of the vehicle in the policy, such that the statute does not reach a policy that does not describe or rate any particular vehicle, but simply insures all vehicles owned by a named corporation. See Hartford, 211 Cal.App.3d at 1297, 260 Cal.Rptr. 190. Moreover, the court has held that the Code is not to be applied beyond its explicit provisions, stating that "[b]eyond that determination the statute does little to assist us in the resolution of the dispute." Id 8 Home Indem. Co. v. Mission Ins. Co., 251 Cal.App.2d 942, 60 Cal.Rptr. 544 (1967); Indemnity Ins. Co. of N. America v. Pacific Clay Products Co., 13 Cal.App.3d 304, 91 Cal.Rptr. 452 (1970) 9 While the result in some of the pre-1971 cases cited would perhaps today be governed by the Insurance Code, the parties agree that the issue presented by this case is not; and as discussed above, we are not persuaded that the rules of construction employed by the courts have changed since the 1960s. Indeed, the California Supreme Court case stated by Admiral to have set out the "modern equitable method of allocating loss between primary and excess insurers," see Olympic Insurance Co. v. Employer's Surplus Lines Co., 126 Cal.App.3d 593, 178 Cal.Rptr. 908 (1961), was decided in 1961, the same year that Fireman's Fund was decided and several years prior to Indemnity Insurance and Home Indemnity 10 Transport Indemnity Co. v. Royal Insurance Co., 189 Cal.App.3d 250, 234 Cal.Rptr. 516 (1987), advances a similar approach to insurance coverage cases. In that case, though two insurance policies provided primary coverage to a truck and attached trailer, and the Insurance Code did not explicitly determine the priority of payment between them, the court did not prorate the two policies. Rather, the court looked to the language of the coverage and the intentions of the insured and insurers in entering the contracts, to determine that one policy was designed to be primary coverage and the other excess as to the entire tractor/trailer rig. Id. at 252-256, 234 Cal.Rptr. 516 11 Admiral also suggests in a footnote that while each of the two first-party fire policies in Angle had an obligation of payment once the loss occurred, in this case the third-party payers had no obligation of payment until the time of settlement, some years after Endorsement 22 was issued. Neither party cites any authority discussing when an insurance company's obligation vests. While Angle does not explicitly address this issue, its analysis appears to assume that the obligations of both insurers "vested" at the time of the incident giving rise to the payment obligation, though the amount of their total liability and the respective obligations of each were not determined until several years later 12 In Matter of Beverly Hills Bancorp, 649 F.2d 1329, 1334 (1981), this court explained that under California law, a written instrument is presumed to express the true intent of the parties. Reformation or revision on the ground of mutual mistake requires clear and convincing evidence of the alleged mistake. Where none of the pleadings before the trial court contained a request for reformation or revision, and where reformation or revision was never raised, a conclusion could not be supported that an agreement, as written, failed to express the mutual intention of the parties	{ "pile_set_name": "FreeLaw" }

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